MISC 07-352101

August 11, 2011


Long, J.



Plaintiff Christine Rhodes owns a home on Burgess Point Road in Wareham with an express easement to Onset Bay over the abutting land of defendants John Decas and the John C. Decas Family Limited Partnership. [Note 1] Mr. Decas has built a grape arbor and swimming pool which either impede or partially impede that easement. He has provided Ms. Rhodes an alternative route in the past - a route she used for many years - but he has now changed his mind, terminated any permanence to that arrangement, and offered her a choice between two different and much longer routes, running partially on his land and partially on others', neither of which she wants. She thus brought this action to confirm the current validity of her easement in its original location and to have the impediments removed. Mr. Decas has counterclaimed seeking a declaration that the easement has been frustrated, abandoned, extinguished or, in the alternative, should be relocated to one of the two alternatives he now offers pursuant to M.P.M. Builders LLC v. Dwyer, 442 Mass. 87 (2004) ("M.P.M.").

A trial was held before me, jury-waived. Based on the testimony and exhibits admitted into evidence at trial, my assessment of the credibility, weight, and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that the express easement currently exists along its whole length and width and has not been frustrated, abandoned, or extinguished in whole or in part. The easement will not be relocated since Ms. Rhodes opposes such relocation and the alternative routes do not satisfy the M.P.M. standard. Mr. Decas must provide Ms. Rhodes with unobstructed access along the entire length of the easement by removing the arbor and either establishing a path around the pool area or relocating its impeding part.

Facts and Analysis

Ms. Rhodes purchased her home at 18 Burgess Point Road in Wareham in May 2000. Her deed granted her a 10 foot wide easement to Onset Bay, for pedestrian use only, over the adjoining land in the location shown on a referenced and recorded 1958 plan. Mr. Decas owns that adjoining land, which he acquired in 1982. [Note 2] His deed notes that his land is subject to the easement, and the location of that easement is shown on the plan referenced in that deed, also duly recorded. [Note 3] The plan referenced in Mr. Decas' deed is different from the one in Ms. Rhodes', but both show the easement in the same location. Thus, neither the grant, the burden, or the location of the express easement is in dispute. What is in dispute, broadly speaking (the particulars are discussed below), is the current validity of that easement and, if valid, whether it should be relocated to one of the two alternatives offered by Mr. Decas pursuant to M.P.M.

Ms. Rhodes is an avid kayaker and access to the Bay for such kayaking is important to her. She testified that she called Mr. Decas at his place of work in June 2001 to discuss the deeded easement. According to Ms. Rhodes, Mr. Decas claimed ignorance of the easement but offered Ms. Rhodes the use of an alternative route to Onset Bay while he looked into the easement's existence and location. This route went along the southerly edge of Mr. Decas' property to Mr. Decas' dock (hereafter, the "dock route") and was used thereafter by Ms. Rhodes on a regular basis, chiefly for taking her kayak to and from the Bay.

Mr. Decas' testimony was slightly different. He agrees that Ms. Rhodes called him in 2001, but claims it was not to discuss the easement. Rather, to his memory, Ms. Rhodes called to see if she could access the Bay over his property, to which he agreed as a temporary measure. According to Mr. Decas, the easement was not discussed until 2003. In any event, both agree that Ms. Rhodes did not use the express easement, but instead went back and forth to the Bay along the dock route, until 2005. That was the point at which their discussions about the express easement broke down. Mr. Decas was willing to let Ms. Rhodes continue to use the dock route on a revocable basis, contingent on her giving up her right to use the route granted by her express easement. Ms. Rhodes, however, had no interest in anything revocable and, in 2007, brought this action.

The first issue presented is the easiest to address. Has the purpose of the easement been frustrated? Mr. Decas says so, based on the fact that a part of the easement goes through a wetland making its use difficult (he says impossible) at various times of the year. I disagree. Ms. Rhodes testified that she can walk through the wetland to and from the Bay during all seasons and I find that testimony credible. That alone shows the easement's use has not been "frustrated." Just as important, however, is the fact that the wetland is not new. It existed at the time the easement was created. Whatever difficulties the wetland presented were known at that time, and the grant located the easement in light of that knowledge. In short, the easement as it exists is precisely the easement that was intended. Moreover, any temporary interruptions resulting from higher than normal water levels do not rise to the level of "frustration." If nothing else, those levels fall when the heavy rains abate and dryer conditions return.

The second issue requires a more extended discussion. Has the easement been abandoned by Ms. Rhodes' use of the alternate route along the southern edge of the Decas property (the "dock route") or extinguished by Mr. Decas' construction of a grape arbor and a portion of his pool across the easement's path? The facts and the law say "no."

It is well settled that "non[-]use [of an easement] does not of itself produce an abandonment no matter how long continued." Delconte v. Salloun, 336 Mass. 184 , 188 (1957) (internal citation omitted). It is also "axiomatic that '[m]ere non-use...does not conclusively impair or defeat an easement created by deed." Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 421 (1979), quoting Willets v. Langhaar, 212 Mass. 573 , 575 (1912). Abandonment thus requires the easement holder to engage in affirmative acts that clearly manifest an intent to abandon his right. See White v. Amiff Hous. Assocs. LP, 16 LCR 550 (2008). Acts sufficient to trigger abandonment must "conclusively and unequivocally manifest... either a present intent to relinquish the easement or a purpose inconsistent with its further existence." Dubinsky v. Cama, 261 Mass. 47 , 57 (1927) (internal citations and quotations omitted). By this test, it is clear that Ms. Rhodes has never abandoned her easement, nor was any evidence presented that her predecessors had done so. She may have used the "dock route" offered by Mr. Decas for many years, but she did not do so to the exclusion, forever, of her right to the express easement. Indeed, when Mr. Decas presented that choice to her directly, offering only a revocable easement over the dock route in its place, she refused to make that choice and instead brought this action.

To extinguish an easement requires showing that the servient tenant's acts were "utterly inconsistent with any right of the dominant tenant, manifestly adverse to every claim by it, and incompatible with the existence of an easement," essentially making use of the easement "practically impossible for the period required for prescription." New Eng. Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153 , 159 (1931); see also Brennan v. Decosta, 24 Mass. App. Ct. 968 , 969 (1987) (holding that those claiming extinguishment of a way must "prove occupation of the land irreconcilable with its use as a way, openly, notoriously, adversely and without interruption for more than twenty years," and where the court found that the way had not been extinguished despite the location of trees in the way since a car could drive between them).

Mr. Decas claims that the grape arbor he constructed more than twenty years prior to the commencement of this action sufficiently impeded that easement to extinguish it. I disagree. The "arbor" is a 3-rail post and rail fence, with the posts widely spaced and each rail parallel with the ground, on which grape vines grow. It is easily gone under or through. Photographs of the arbor fence show that its lowest rail is many feet off the ground, and there are indications of pathways underneath it. See, e.g., Trial Exs. 20, 28. The grape vines die back in the winter and can be pushed aside even when in full season. [Note 4] Ms. Rhodes testified she was able to go through the arbor when she walked the route of the easement, survey in hand, prior to bringing this action. I believe her testimony. The arbor fence and its seasonal vines may be an impediment, but they are not "incompatible with the existence of an easement." New Eng. Home for Deaf Mutes, 276 Mass. at 159.

The other structure alleged to have "extinguished" the easement is Mr. Decas' pool, a portion of whose apron may or may not be on the easement path (the parties' respective surveys differ). [Note 5] However, the pool was not constructed until 2001 - too late for prescriptive rights to have accrued.

In sum, the express easement has not been extinguished. I now turn to the issue of relocation.

For relocation of an express easement to occur, the following test must be satisfied:

Unless expressly denied by the terms of an easement...the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner's expense, to permit normal use or development of the servient estate, but only if the changes do not: (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.

M.P.M., 442 Mass. at 90-92, citing s. 4.8(3) of the Restatement (Third) of Property (Servitudes) (2000). In Carlin v. Cohen, 73 Mass. App. Ct. 106 (2008), the court affirmed the relocation of an easement where the proposed path was:

shorter than [the] original easement[,] will actually be less of a burden to maintain[,] protects the parties' privacy, is not subject to greater erosion than the original easement,...is relatively flat and much of the ground is on a grassy, level surface... [and], in sum... does not lessen the utility of the easement, increase the burden on [the easement holder] in its use and enjoyment, or frustrate the purpose for which the easement was created, namely, the right to travel, on foot only, from [the easement holder's] property over a ten-foot way to the [b]each.

Carlin, 73 Mass. App. Ct. at 110. As this suggests, however, relocation can fail the test where the route is longer, the burden of maintenance increases, the surface and topography differ, the burden on the easement holder increases, and the utility of the easement materially lessens. Such is the case with both of the alternatives proposed by Mr. Decas.

Mr. Decas' "Option 1" significantly changes the use and enjoyment of the easement by increasing its length 207 feet (a particular burden when carrying a kayak) and relocating a portion of the right-of-way onto Lot 4, a property not owned by either of the parties. This involvement of new (and non-party) property owners is not a minor point. Those owners represented that they would "assent to such relocation and execute any documents reasonably necessary to effectuate said relocation." Tr. Ex. 37. But it is unclear what they consider "reasonably necessary" and what disagreements might emerge when the details are addressed. What is clear is that negotiations will be necessary, with the ultimate outcome uncertain. In addition, a significant part of the relocated easement would now go over a subdivision "common area" which will be used by many lot owners. [Note 6] This certainly increases wear and tear and leaves uncertain how adequate maintenance will be assured and its expense allocated both now and in the future. [Note 7] At the least, many more persons will be involved in these decisions and the likelihood of disagreements increased. Similarly, "Option 2" is roughly 200 feet longer than the deeded easement and has many of the same problems as Option 1 (while it does not cross Lot 4 (the non-party owned land), it does cross the subdivision "common area" and use its same pathways). Given these added burdens, Mr. Decas' suggested alternatives fail the M.P.M. test. See M.P.M., 73 Mass. App. Ct. at 112 (recognizing that "adverse change in maintenance right of dominant estate owner does not comport with ยง 4.8[3]") (internal citation omitted).


For the foregoing reasons, it is ORDERED, ADJUDGED and DECREED that the plaintiff's express easement over the defendants' property, the and benefit and burden of which are reflected on the parties' deeds and the plans they reference, is in full force and effect and may be used by the plaintiff in accordance with its terms in the location specified. This use includes the ability to transport her kayak and other objects back and forth along the easement so long as no motorized vehicles are involved. The plaintiff has the right to have any objects unreasonably impeding that easement, including any portion of the pool or grape arbor, either removed or to require the defendants to provide her with a pathway around them comporting with the requirements of M.P.M. Builders LLC v. Justice Dwyer, 442 Mass. 87 (2004). Judgment shall enter accordingly.


Keith C. Long



[Note 1] Mr. Decas is the principal of the John C. Decas Family Limited Partnership and controls its affairs. For convenience, I refer to the two together as "Mr. Decas."

[Note 2] The various easement relocation sketch plans introduced into evidence or used at chalks at trial show Ms. Rhodes' property as Map 21 Lots 1 and 1A, and the Decas property as Parcel A, Map 21 Lots 2 and 1019, and Lots 1, 2, 3, 5, 6, 7, 8 and D. Lot 4 on those plans is owned by non-parties Scott and Tracey Denton.

[Note 3] The plan referenced in Mr. Decas' deed is different from the one in Ms. Rhodes', but the location of the easement is the same.

[Note 4] Moreover, when Mr. Decas constructed the open rail fence in 1983 the grape vines were in their infancy and thus less obstructive than at present. See Samoan v. Tryon, 16 LCR 773 (2008) (holding that shrubbery alone does not give rise to extinguishment of an easement); Brooks v. Geraghty, 13 LCR 154 (2005) (holding that an easement had not been extinguished where the obstruction was "not so physically daunting or impenetrable as to prevent all passage along the [right of way]").

[Note 5] Ms. Rhodes' survey shows the pool apron on her easement. Mr. Decas' survey puts it in a different location. Why the two surveys differ was not explained and the reasons for the difference are not apparent to me, particularly when the location of the easement is explicitly shown on the plans referenced in the parties' deeds.

[Note 6] What I refer to as the subdivision "common area" is Lot D as shown on the various plans and chalks used at trial. It borders on Onset Bay and has a dock, dunes, two beaches, and pathways from the subdivision roads to reach the dock and beaches. Mr. Decas is the developer of the subdivision (shown as Lots 1-8 on the plans and chalks) and, at the time of trial, owned all the subdivision lots except for Lot 4, which he previously had sold to the Dentons. Lot D is owned by Mr. Decas, but he has granted the Dentons (and presumably all subsequent purchasers of his subdivision lots) the right to use the paths, dock and beaches on that Lot. Both Option 1 and Option 2 proposed to relocate Ms. Rhodes' easement over one or more of these paths. They would thus be shared with the Dentons and all other subdivision lot owners.

[Note 7] The relocated easement involves wooden walkways as well as a path.