Easements

Mass. SJC: $3.5 Million Payday for Torrent of Errant Golf Balls Not a Fore-Gone Conclusion

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A Kingston couple was dealt a significant blow days before Christmas when the Supreme Judicial Court (SJC) set aside a jury verdict awarding them $3.5 million in damages for errant golf balls hitting their property. In Tenczar v. Indian Pond Country Club, Inc. (pdf), the SJC ruled that the trial judge erred in his jury instructions concerning easements applicable to the property. The plaintiffs’ home was subject to an easement providing for the “reasonable and efficient operation” of a golf course in the “customary and usual manner,” but the trial judge didn’t present to the jury the question of whether the golf course’s operation met that standard. So the question remains, how many errant shots on the 15th hole at the Indian Pond Country Club are reasonable?

The Kingston Planning Board endorsed a subdivision plan in the fall of 1998 for a residential development surrounding a golf course. The subdivision developer, Indian Pond, recorded a declaration of covenants and restrictions shortly

Mass. High Court Declines to Expand Prior Public Use Doctrine

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In its decision last week in Town of Sudbury vs. Massachusetts Bay Transportation Authority, the Massachusetts Supreme Judicial Court (SJC) declined to expand the reach of the common-law prior public use doctrine. As the court explained, “[u]nder this long-standing doctrine, public lands acquired for one public use may not be diverted to another inconsistent public use unless the subsequent use is authorized by plain and explicit legislation.” In this case the Town of Sudbury sought to prevent the defendant Massachusetts Bay Transportation Authority (MBTA) from entering into an easement agreement with Eversource for the installation and maintenance of an underground transmission line on an unused 9-mile right of way, approximately 4.3 miles of which is located in Sudbury.

The Town of Sudbury urged the court to find that use of the right of way by Eversource violated the prior public use doctrine because the MBTA’s transportation use was inconsistent with the electric transmission line use by Eversource, which the Town argued

UPDATE: Mass. High Court Takes Plaintiff Out of Game, Upholds Boston’s Transfer to Red Sox of Easement Rights Next to Fenway Park

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In my post last week on Pishev v. City of Somerville (pdf), I mentioned that the Supreme Judicial Court (SJC) would be soon deciding another important urban renewal case, Marchese v. Boston Redevelopment Authority. It turns out “soon” was the next day.

Jersey Street, outside Fenway Park

In its September 13, 2019 decision (pdf) in Marchese, the SJC upheld actions taken by the Boston Redevelopment Authority (BRA) with respect to what is known as a “demonstration project” under the provisions of M.G.L. c. 121B, section 46(f). This case focused on a permanent taking by the BRA of easement rights in Yawkey Way (now known as Jersey Street), and the transfer of those easement rights to the Boston Red Sox for so long as baseball games are played at Fenway Park.

The plaintiff, Marchese, challenged the taking and the conveyance, alleging that the area was

Appeals Court Interprets Chapter 91 License as Extending Private Way Over Lawfully Filled Land

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The Appeals Court’s recent decision in Maslow v. O’Connor at first glance appears straightforward. The holding reiterates a familiar tenet of Chapter 91 licensing – that a Chapter 91 license doesn’t affect pre-existing property rights. But the result is quirky: in the name of preserving access to tidelands, the court in effect extends a private way over filled tidelands in which public trust rights (the right to “fish, fowl and navigate”) have been extinguished.

The basic facts in Maslow are:

  • Plaintiffs own lots abutting Rackliffe Street in Gloucester, which runs north-south and originally extended to the mean high water mark of Wonson’s Cove.
  • Defendants own waterfront lots on either side of Rackliffe Street at its southerly end.
  • In 1925, defendants’ predecessor was granted a Chapter 91 license authorizing her to build a seawall and place fill behind it, which created a strip of upland (the grassy strip) between the end of Rackliffe Street and

Perpetual Easement or Expired Restriction? Mass. Appeals Court Weighs In

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In its decision this week in Perry v. Aiello, the Massachusetts Appeals Court addresses an interesting question: whether a 1947 grant of easement-like rights created an affirmative easement, which can be perpetual, or a disfavored restriction whose duration is limited by sections 26-30 of M.G.L. c. 184.

The case involved a dispute between two storied Boston institutions:  DeLuca’s Market, a high-end grocery store that’s been in the same spot at the foot of Beacon Hill for over 100 years, and King’s Chapel, which dates back a bit further – as in 1686.  DeLuca’s, King’s Chapel, and another abutter share the use of a ten-foot-wide passageway between their buildings (the King’s Chapel building is a nice old brownstone, not the historic chapel itself, which is across town).  Fee ownership of the passageway is divided in half, with the abutters on each side owning to the center line.

In 1947, the parties’ predecessors entered into an agreement

No Prescriptive Easement Over Registered Beach Lots That Expanded By Accretion

In an important decision for owners of waterfront property, a divided Appeals Court panel has ruled in a case of first impression that where registered land expands by accretion, the owner need not return to court to separately register the accreted land.  As a result, that land enjoys the same protection against adverse claims as the originally registered parcel.

Cape Cod beachIn Brown v. Kalicki (pdf), the plaintiffs were owners of adjoining beach lots in Harwich, Massachusetts.  The lots were registered in the 1920s and 1930s and each lot’s southern boundary was “Nantucket Sound.”

Over the ensuing decades, accretion caused the beach to expand seaward by some 350 feet.  In 2011, the owners filed so-called “supplemental petitions” asking the Land Court to determine the sidelines of the expanded lots.  Several Harwich residents intervened in those cases and objected, claiming they had acquired a prescriptive easement to use the beach.  The status of the accreted land as registered – or not – was critical,

SJC Keeps Bright-Line Test for Overloading of Easements

In its recent decision in Taylor v. Martha’s Vineyard Land Bank Commission (pdf), the Supreme Judicial Court (SJC) put the brakes on a trend toward eliminating bright lines in the enforcement of easement rights.

The Facts

The case involved a nature preserve on Martha’s Vineyard encompassing the famed Gay Head cliffs (pictured).  The Martha’s Vineyard Land Bank Commission (Land Bank), which owns and manages the preserve, has an easement over the grounds of a nearby inn owned by Taylor Realty Trust (Trust), connected to the equally famed singing Taylor family.  In 2010 the Land Bank created a looped hiking trail that runs across the Trust’s property onto three Land Bank-owned lots that are benefited by the easement and then continues onto a fourth Land Bank-owned lot that is not benefited.

The Land Court Case

The Trust, invoking the black-letter rule that an easement can’t be used to benefit land