•   Email
  •   Print
Serving
Massachusetts Agencies

Relocation

Easements

The right to relocate an easement made by grant has been long been recognized. See Western Mass. Electric Co. v. Sambo's of Mass., Inc., 8 Mass.App.Ct. 815, 398 N.E.2d 729 (1979). In Park, Massachusetts Practice - Real Estate Law with Forms, West Publishing Company (Third Edition, 1995), §8.14 Western Mass. Electric Co. is cited and it is stated that if the servient owner owns land on both sides of the easement that owner can change the location of the easement, but it is stated that the application of the rule is limited to instances where the easement to be located "is not described by metes and bounds or bearing and distances, or . . . is susceptible of being located in more than one place." This limited interpretation may not in fact be correct. See Carl's v. Lexington Federal Savings & Loan Association, 11 Mass.App.Ct. 87, 414 N.E.2d 362 (1980).

The limitations regarding relocation of an easement were reexamined in M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 809 N.E.2d 1053 (2004).

In M.P.M. Builders, LLC Dwyer and M.P.M. Builders owned adjacent properties. Dwyer had an easement over M.P.M.'s property "along the cartway to Pine Street." The location of this easement made it difficult for M.P.M. to develop a subdivision on its property, and it offered to relocate the easement for Dwyer, but he objected. In the land court, the judge sided with Dwyer, holding that it was "settled" law that once the location of an easement has been fixed it cannot be changed except by agreement of the estate owners.

The Supreme Judicial Court took the case on direct appeal. It adopted the rule set out in American Law Institute in the Restatement (Third) of Property (Servitudes) § 4.8 (3) (2000):

Unless expressly denied by the terms of an easement, as defined in § 1.2, the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner's expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.

The court noted in a footnote that "[w]e previously have concluded that the dominant estate owner, that is, the easement holder, may not unilaterally relocate an easement. See Kesseler v. Bowditch, 223 Mass. 265, 269-270 (1916); Jennison v. Walker, 11 Gray 423, 426 (1858). According to the Restatement, many jurisdictions have erroneously expanded that sensible restriction into one that prevents the owner of the servient estate from relocating the easement without the consent of the easement holder." It appears from this comment that the court was clarifying the law, and not changing it, by adopting the Restatement view.

An easement acquired by prescription, however, unlike one secured by grant is fixed and traditionally would not be susceptible of relocation. Park, Massachusetts Practice, West Publishing (Second Edition, 1981), §280. See also Atwater v. Bodfish, 77 Mass. (11 Gray) 150 (1858), Towle v. Trustees of Donations to the Protestant Episcopal Church, 259 Mass. 256, 156 N.E. 70 (1927), Fortier v. H. P. Hood & Sons, Inc., 307 Mass. 292, 30 N.E.2d 253 (1940), Carson v. Brady, 329 Mass. 36, 106 N.E.2d 1 (1952), Middlesex Co. v. City of Lowell, 149 Mass. 509, 21, N.E. 872 (1889). See also Restatement, Property, §477. However, Eno & Hovey, Massachusetts Practice, Real Estate Law with Forms, West Publishing Company, (Fourth Edition, 2004), §8.25 takes the position that M.P.M. Builders, LLC changes that result, stating that "[s]ince a prescriptive easement would be free of any relocation qualifications, the foregoing right of relocation [as expressed in M.P.M. Builders, LLC] should also be available to a servient estate holder of a prescriptive easement."

A "shotgun" easement, once located and identified on a plan, is limited to the area depicted on the plan. The plan essentially is the establishment by the parties of the location of the easement. See Mahoney v. Wilson, 260 Mass. 412, 157 N.E. 592 (1927).