What the Deed Says, and What Lies Beneath: Express and Implied Easements

Hendley v. Darisse involved a dispute between neighbors over a land swap and the scope of an express easement and the existence of an implied easement for underground utilities.

The defendant’s predecessor in title, Debra Simon (“Simon”), acquired her relevant lot in 2000, while plaintiffs acquired their lot in 2001. When both parties originally purchased their adjoining lots, two problems had gone unnoticed: Simon’s lot had insufficient street frontage, and Simon’s lot was configured so close to the plaintiffs’ septic system that the septic system was noncompliant with the Massachusetts Environmental Code. To fix both problems, the parties executed a land swap. Simon conveyed a portion of her land near the plaintiffs’ septic system to the plaintiffs, bringing the septic system into compliance, and in exchange, the plaintiffs conveyed a strip of their land along the street to Simon, providing her with adequate frontage. The 2004 deed from Simon to the plaintiffs also included two easements running in the plaintiffs’ favor over the Simon’s property: Easement I, described in the deed as an “access and grading easement” for purposes of grading and accessing the plaintiffs’ septic area, and Easement II, a septic access easement adjacent to the plaintiffs’ septic system slope-retaining wall. What neither party knew at the time was that approximately 45 feet of Simon’s underground electric and telecommunications utilities ran beneath the land that Simon had conveyed to the plaintiffs.

The defendants purchased Simon’s property in 2016, and a dispute subsequently arose between the parties concerning Easement I and the implied easement. Specifically, whether Easement I granted the plaintiffs general purpose access over the defendants’ property or was limited solely to septic related purposes and whether an implied easement existed for the defendants’ underground utilities running beneath the plaintiffs’ land. The plaintiffs brought the matter to the Land Court, which found against them on all issues. The plaintiffs appealed.

The Appeals Court addressed three issues. First, on the scope of Easement I, the plaintiffs argued that the easement granted them general purpose access over the defendants’ property, not merely access for septic related purposes. The court disagreed and held that the 2004 deed expressly stated that Easement I “is for the purpose of grading and re-grading the Grantees’ Septic Easement Area ... in connection with the installation, repair and maintenance of the subsurface waste disposal system servicing ... Grantees’ Lot,” and the referenced ANR plan labeled it a “Proposed Septic Access & Grading Easement.” The court explained that this language was clear and explicit and limited the easement to septic-related purposes.

Second, on the maintenance obligations, the plaintiffs argued that the deed’s provision making them responsible for repair, loaming, seeding, and maintenance of the easement areas gave them exclusive rights over those areas. The court rejected that argument as well, holding that the maintenance provision defined the plaintiffs’ responsibilities by reference to the work reasonably necessary to exercise their permissible and limited easement rights. It did not create any broader or exclusive rights in the easement areas.

Third, on the implied easement for the defendants’ underground utilities, the court affirmed the Land Court’s ruling that the defendants retained an implied easement over the plaintiffs’ land for the underground electric and telecommunications lines. The court applied the well established principle that when a parcel is severed and a use of one part was being made for the benefit of the other at the time of severance, an implied easement may arise to continue that use if it is reasonably necessary for the enjoyment of the retained parcel. The court affirmed the judgment on all counts.

Hendley v. Darisse establishes that an easement, when clear and explicit under the relevant deed, will be read in light of the explicit language of said easement. However, Hendley v. Darisse also adopts the position that, where a conveyance inadvertently transfers land beneath which a neighbor’s utilities run, an implied easement will arise if continued use was reasonably necessary for the enjoyment of the retained parcel at the time of severance, regardless of whether either party knew where the utility lines were located at the time of the swap.