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Easement Granted by One of Multiple Owners

Easements

Can one of multiple owners grant an easement? If so, will the grantee be able to share the use of the easement area with the non-joining owner? The answer to both of these questions seems to be “no.”

To understand the question and the answer it’s necessary to review such cases as Barnes v. Boardman, 157 Mass. 479, 32 N.E. 670 and Barnes v. Lynch, 151 Mass. 510, 24 N.E. 783. These cases stand for the proposition that one of multiple co-owner cannot sell his undivided interest in a part of the common land to a third party. The prohibition does not prevent a co-owner from conveying his or her undivided interest in the whole property. The prohibition applies only where the conveyance by one co-tenant concerns only a part of the property. In other words, any co-tenant can force the other owners to share title with a new partner as to the whole parcel — sort of a substitution type of thing — but not as to a part only.

The prohibition makes sense. It generally is raised in court in partition proceedings because it is in those proceedings that the mischief that the prohibition attempts to prevent is brought to light. The mischief is best explained in Barnes v. Lynch, where the court starts with the premise (which we all agree with) that one co-tenant cannot force a pick-and-choose situation with his co-owners as to which part of commonly owned land will be the subject of a partition proceeding. Rather, it’s an all-or-nothing thing as to all land acquired under a common title. (The fact that parcels are separately described in the common grant doesn’t change this rule any more than in the case where one described parcel is the result of an assemblage.) Because a co-owner is prevented from using the pick-and-choose method himself, he is likewise prohibited from setting up a condition that will attempt to accomplish the same thing — conveying his undivided interest in only a part of the land, which would thereby require separate partition proceedings because of the disparity between the co-tenants of sub-parcels that make up the whole. Separate proceedings would “isolate” parcels from each other, preventing the original co-owners (or their substitutes) from sharing in the value of the whole (or the disparate value of the parts) otherwise available for equitable distribution between them.

The Barnes court pondered the different scenarios that would make partition difficult and unmanageable in cases where a co-owner had conveyed away his interest in only a part of the property. Permitting such conveyances (unless the other co-tenants consent) would emasculate and manipulate the right of partition in the ways discussed in Barnes. With partition being an absolute right (O’Brien v. Mahoney, 179 Mass. 200, 60 N.E. 493), permitting conveyances that would put a strangle-hold on that right would be inconsistent with it.

In Clapp v. Atwood, 300 Mass. 540, 16 N.E.2d 67 the court cited authority and said, “[The Barnes rule] was applied to grants of easements.” In Clapp there was a grant of easement by some, but not all, of the co-tenants to a third party. The court said the easement could be disaffirmed by the no-joining co-tenants. On the question of whether the non-joining cotenants had ratified the easement, the court said that there was no evidence of ratification “even if we assume that ratification could be accomplished without a deed.”