In
the past few months there have been multiple Land Court cases regarding rights
in paper streets and the application of the law of Easement by Estoppel. This
past July, Judge Piper concluded
that: “Murphy v. Mart Realty of Brockton, and the related body of law
establishes that ‘when a grantor conveys land bounded on a street or way, he
and those claiming under him are estopped to deny the existence of such street
or way, and the right thus acquired by the grantee (an easement of way) is not
only coextensive with the land conveyed, but embraces the entire length of the
way, as it is then laid out or clearly indicated and prescribed.’ 348 Mass at
677 (quoting Casella v. Sneierson,
325 Mass 85, 89 (1949)). In determining whether a way has been sufficiently
defined as a proposed street, reference may be made to the plans described in
the deed. Id. ‘A plan referred to in a deed becomes a part of the
contract so far as may be necessary to aid in the identification of the lots
and to determine the rights intended to be conveyed.’ Labounty v. Vickers, 352
Mass. 337, 344 (1967), quoting Wellwood
v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350,
354 (1926).” Puner v. Sierputoski, 11 MISC 454440 GHP, 2013 WL 3776820
(Mass. Land Ct. July 15, 2013).
See
also Lepesqueur v. Swann, 11 MISC 445669 (HMG), 2013 WL 3816726 (Mass. Land Ct. July
19, 2013) wherein Judge Grossman found that a party had rights in a paper
street and also found that it had not been abandoned although the road had
never been constructed and was covered with woodlands and brush. Judge Grossman
found that the paper street had not been abandoned because non use by itself
did not constitute abandonment. “Abandonment of an easement is a question of
intention, and ‘cannot be found unless it clearly appears that such abandonment
was intended by the owner.’[citation omitted] Mere non-use, no matter how long continued,
will not work an abandonment. [citation
omitted] In order to establish the abandonment of an easement,
there must be ‘acts by the owner of the dominant estate conclusively and
unequivocally manifesting either a present intent to relinquish the easement or
a purpose inconsistent with its further existence.’[citations omitted] ‘Abandonment
of an easement requires a showing of intent to abandon the easement by acts
inconsistent with the continued existence of the easement’ [citation omitted]”
PAUL F. ALPHEN, ESQUIRE
BALAS, ALPHEN & SANTOS, P.C.
