adverse possession

Breaking: Mass. High Court Rules Municipality’s Acquisition of Prescriptive Easement Isn’t a Taking

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In a rescript opinion issued this morning in Gentili v. Town of Sturbridge (pdf), the Supreme Judicial Court (SJC) ruled that a municipality’s acquisition of a prescriptive easement over private property is not an eminent domain taking.  In prior proceedings in Gentili, the Land Court ruled that the defendant town had acquired a prescriptive easement to discharge surface water through a culvert onto the plaintiffs’ property. Instead of appealing, the plaintiffs filed a Superior Court case seeking damages under M.G.L. c. 79, the state’s eminent domain statute. The Superior Court granted summary judgment to the town and the plaintiffs appealed. The SJC transferred the appeal to itself for decision.

In briskly affirming the Superior Court, the SJC said, “[t]he problem with the [plaintiff] trust’s argument is that the theories and laws of prescriptive easements and takings do not interact in the way that the trust suggests.” Citing the U.S. Supreme Court’s 1982 decision in Texaco, Inc.

This Land (Was) Your Land: Mass. Appeals Court Updates Law on Adverse Possession and Prescriptive Easements

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In the second half of this year the Massachusetts Appeals Court decided three cases in which a party claimed adverse possession or prescriptive rights in real estate. In each case the focus was on one particular element of all such claims:  actual use of the subject property. And in each case the Appeals Court focused on the character of the property in question, and what constitutes typical or normal use of such property. These cases strengthen the rule that if the claimant’s adverse use is a typical use for the type of property at issue, even relatively modest uses that are sustained for 20 years may be enough to acquire permanent rights.

The first case the Appeals Court decided was Barnett et al. v. Myerow, which involved a long-running dispute between groups of landowners on Martha’s Vineyard in which one group claimed a prescriptive right to use a beach. The court reiterated that to acquire prescriptive rights the plaintiffs must