How does the existence of a fence affect whether or not an easement has
been abandoned? The mere fact that a
fence exists is
insufficient to prove abandonment. Rather, specific evidence regarding the
circumstances surrounding the erection of the fence –
including when the fence was erected and by whom – must be submitted to
the court. Ultimately, the inquiry turns
on whether there was an intent to abandon the easement, and the party asserting
abandonment bears the burden of proof on the issue.
A Fence Erected on a Dominant Estate
Usually
Signifies an Intent to Abandon an
Easement
The existence of a fence sometimes can tip the scale when the continued
validity of an easement is at issue. To
determine if an easement has been abandoned, courts evaluate whether there was
an intent to abandon that easement, based on the surrounding circumstances and
the conduct of the parties. Carlson
v. Fontanella, 74 Mass. App. Ct. 155, 158 (2009). Mere nonuse or
ignorance of an easement are insufficient to demonstrate an intent to abandon;
an affirmative act by the dominant estate owner (i.e., the easement holder)
evidencing such intent is required. Id.;
Dubinsky v. Cama, 261 Mass. 47, 57
(1927).
When a dominant estate owner erects a fence that blocks its own access
to the easement, courts typically will find this constitutes an affirmative act
sufficient to show an intent to abandon the easement. For example, in Lasell Coll. v. Leonard, 32 Mass. App.
Ct. 383, 390-91 (1992), the Appeals Court held that the plaintiff had abandoned
his easement and intended “never again to make use of the easement”, in large
part because he had constructed a fence separating his property from the
disputed portion of the way which, together with another fence constructed by
defendants’ predecessors in title, blocked access from plaintiff’s property to
the disputed easement area.
Note, however, that not all fences are created equally and the nature
and quality of the fence in question may detract from an abandonment
argument. For example, in a 2008 Land
Court case, Judge Scheier determined that installation of a wooden fence was
insufficiently permanent to establish abandonment of an easement where the
fence rails were easily removable and allowed passage through the fence, and
the fence itself was entirely removable.
Thompson v. White, No. 06
MISC. 327234 (KFS), 2008 WL 352459, at *6 (Mass. Land Ct. Feb. 11, 2008).
Accordingly, when using a fence as evidence in an easement abandonment
case, it is important to consider both the impact of the fence on use of the
easement area and the type of fence that has been installed.
An Easement Holder’s Failure to Object
to a Fence Erected on a Servient Estate also Evidences an Intent to Abandon an
Easement
Where a servient estate owner blocks the easement making its use
impossible, and the easement holder fails to object or protest the obstruction,
courts also will infer an intent to abandon an easement. Carlson, 74 Mass. App. Ct. at 158-59.
This is especially true when there was a failure to object combined with
long-term nonuse of the easement. In Sindler
v. William M. Bailey Co., 348 Mass. 589, 593 (1965), the Supreme Judicial Court
held that an easement was abandoned where a disputed easement area was on the
other side of a brook, the bridge over the brook disappeared and was not
replaced, the easement was not used for 35 years, and the dominant estate owner
acquiesced to a high chain link fence being built around the disputed
area. Similarly, in Carlson, the Appeals Court held that an easement was abandoned
where easement holders exclusively used different routes for ingress and
egress, took no steps to remove a stone wall or stockade fence blocking access
to the easement, and did not object to plaintiffs’ use of the easement area as
a lawn or driveway. Thus, long-term acquiescence by the easement holder
to a fence on a servient estate that blocks access to the easement is material
in making an abandonment argument.
The Party Asserting Abandonment Bears
the Burden of Demonstrating an Intent to Abandon
Whether or not an easement has been abandoned – by erection of a fence
or otherwise –
is a question of fact, determined on a case-by-case basis. Lund v. Cox, 281 Mass. 484, 492 (1933).
The mere existence of a fence is insufficient to show an intent to abandon. Rather, a party asserting abandonment has the
burden of demonstrating that the party who constructed the fence intended to
abandon the easement. Proulx v. D’Urso, 60 Mass. App. Ct. 701,
704 n.2 (2004).
A party seeking to use the presence of a fence to prove abandonment
must provide a court with specific facts regarding the circumstances of the
fence’s construction. The following
questions will be particularly relevant to the court’s inquiry:
·
Who erected the
fence?
·
When was the
fence erected?
·
Where is the
fence located relative to the easement route?
·
How effective is
the fence in preventing passage along the easement route? (For example, does the fence include a gate,
and if so, is the gate locked?)
·
Did anyone object
when the fence was erected?
·
Does the easement
holder use the easement area that is blocked by the fence?
See Parlante v. Brooks, 363 Mass. 879 (1973). In addition to witnesses’ personal knowledge,
photographs, plans, and permit applications are helpful resources to consult to
answer these questions.
Conclusion
The existence of a fence on either a dominant or servient estate often
signifies the easement holder intended to abandon the easement, assuming the
party seeking abandonment can carry its burden to prove the circumstances
related to the erection and maintenance of the fence.
Johanna W. Schneider is counsel at
Hemenway & Barnes LLP. She advises clients on real estate development
permitting and land use and environmental disputes. Johanna represents public
and private clients in real estate disputes at all stages of litigation,
including mediations and appeals. Johanna can be reached at jschneider@hembar.com. Donna A. Mizrahi is a litigation associate at
Hemenway & Barnes LLP, focusing on real estate and probate disputes, as
well as guardianship and conservatorship matters. Donna regularly handles easement, adverse
possession, and other residential real estate disputes. Donna can be contacted at dmizrahi@hembar.com.
