Massachusetts Agencies

Reference to Plan


The general rule is that the mere reference in a deed to a plan that shows a right of way or other easement will not create rights in that easement. A deed itself must articulate the rights intended to be created or reserved. Goldstein v. Beal, 317 Mass. 750, 59 N.E.2d 712 (1945). This is because an easement is an interest in real estate and, therefore, governed by the of Frauds. In order to create an easement a writing must exist signed by the party to be charged. The mere existence of a plan showing an easement is not enough.

"The mere showing of an easement on a registration plan does not in and of itself create such a right. [T]he creation of a legal freehold interest in an easement requires a deed." Richmond v. Yacino, 3 Land Court Reporter 145 (1995), citing Baseball Publishing Co. v. Bruton, 302 Mass. 54, 18 N.E.2d 362 (1938).

Obviously, there are exceptions to this rule. An easement created by prescription does not require a writing.

Another exception to the above rule was announced in Scagel v. Jones, 355 Mass. 208, 243 N.E.2d 908 (1969) wherein a common owner[1] conveyed land with reference to a plan that showed a right of way servicing retained land (also shown on the plan), but failed to refer to the right of way or state that it benefited the retained land in the deed of conveyance. The court concluded that the retained land in fact enjoyed the benefit of the right of way because (i) the easement was shown on the plan referenced in the deed and (ii) the retained land had no other manner of access. The fact that the retained land would otherwise have become landlocked, and due to the fact that the plan showed the easement, the Scagel court concluded that the circumstances demonstrated that the parties "clearly so intended" to create rights in the easement for the benefit of the retained land.

In Boudreau v. Coleman, 29 Mass.App.Ct. 621, 564 N.E.2d 1 (1990), the court reiterated the rule and, in citing Scagel, said "[i]n the absence of such express reservation [of the easement], the conveyance of land with reference to a plan creates such an easement, other than by necessity, 'only if clearly so intended by the parties to the deed.'" The rule, as so recited, is in the alternative. It does not follow, however, that other property owned by the seller and not shown on the plan would likewise enjoy such a implied right. Without express reservation language, the plan and the mere reference to the easement shown thereon would not "clearly" indicate that the intention of the parties — both the buyer and the seller — was that the easement rights would extend to other land.

See also generally, O'Brien v. Murphy, 189 Mass. 353 75 N.E. 700 (1905) and Crocker's Notes on Common Forms, Little, Brown & Company (Seventh Edition, 1955), §239.

1 Compare Patel v. Planning Board of North Andover, 27 Mass.App.Ct. 477, 539 N.E.2d 544 (1989). In Patel a subdivision was approved, but on the condition that the plan show a "stub" road running up to land in the rear owned by another party. The condition and the depiction of the road on the plan were imposed so as to "provide adequate access by connecting streets to any future subdivision on the abutting land." The court held that the plan was not sufficient to create an easement for the benefit of the rear land, and one would not arise by implication or necessity because "there is no claim that [the two estates] were ever held in common ownership.