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The Overburden of an Easement Is Not Always Easy to Determine

Updated: Jul 1, 2021

A common issue with the interpretation of easements is determining when the easement is overburdened by the dominant estate to the detriment of the subservient estate. The Appeals Court recently addressed this question in FOD, LLC v. White, when it upheld a Land Court judgment that the proposed development of a private elementary school on a previously “mostly undeveloped” parcel would not overburden an easement over two abutting residential parcels that would be used for access to the school from the public way. Plaintiffs owned the parcel that they hoped to develop for use as a Montessori elementary school. The parcel benefitted from an implied 50-foot-wide easement to a nearby public way. The abutting two parcels over which the easement ran, owned by defendants, were residential lots. The defendants objected to the proposed school use as an overburden of the easement because its intended use was to carry school pickup and drop-off traffic. The Appeals Court examined the evidence that the Land Court had relied upon to determine that there were no limitations on the implied easement that would prevent the school access use, and that the proposed school use was reasonably foreseeable when the easement was negotiated although it may not have been actually anticipated by the parties. The Appeals Court also analyzed the Land Court’s determination that the anticipated pickup and drop-off traffic created by the school would not be so burdensome as to be a nuisance to the defendants. The Court suggested that the question of reasonable foreseeability might necessarily determine the nuisance question, finding that, because the school use was reasonably foreseeable when the easement was negotiated, it could not also be said to be a nuisance. However, the Court also examined the foreseeability and nuisance questions based upon the evidence of additional traffic anticipated from the school use. The Court agreed that, although there would be “considerable additional traffic,” the nature of the traffic (automobiles and delivery trucks, but not school buses), would not change. Additionally, the traffic at issue would pass over the public way abutting defendants’ parcels before crossing the easement. Thus, the increase in vehicular traffic did not “sink to the level of an actionable nuisance.” The Appeals Court said that the Land Court did not clearly err in its conclusions and affirmed the declaratory judgment in favor of the plaintiffs.


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