Section Review

Proulx v. D'Urso: End of the dominance of the dominant estate holder

Donald F. Borenstein is a senior associate with the Law Office of Mark B. Johnson located in Andover, where his practice is concentrated in the areas of land use and title litigation. The firm practices in all areas of real estate law, land development and land-related litigation. He represented Proulx before the Land Court and the Appeals Court in Proulx v. D'Urso.
It had been a long-established common law rule that an easement may only be relinquished or altered by agreement of the dominant estate holder or by affirmative evidence of the dominant estate holder's intention to abandon the easement. Although many servient estate holders have taken up the cause of demonstrating abandonment, these cases have most often been met with the judicial response that "mere non-use is insufficient to establish abandonment." See Willard v. Stone, 253 Mass. 555, 561-62 (1925), among others.1 This is particularly troubling in the fairly common circumstance of a long-dormant roadway or path easement, where such an easement would interfere with or prevent development of the servient estate.

As the pressure to develop land continues to rise and the associated market value of that land follows, the conflict between the servient owner's development interest and the dominant estate holder's common law property right comes into clear focus. This conflict has a tendency to reach a fever pitch where the dominant estate holder also resides in close proximity to the servient estate and may be motivated to oppose development of the servient property for reasons far removed from the dominant owner's use or enjoyment of the easement. A similar situation was presented in the case of Proulx v. D'Urso, 60 Mass.App.Ct. 701 (2004).


Since approximately 1972, Proulx had resided at an idyllic location overlooking Chadwick Pond in Boxford. In 1983, he purchased an abutting parcel of land. The abutting parcel was similarly situated on Chadwick Pond and was equally idyllic, except for a rough woods road and a line of utility poles that ran from the parcel's public roadway frontage, through the center of the parcel, and on to a small seasonal camp located immediately on the shore of the Pond. Proulx's predecessor in title had long ago divided the camp lot from the larger parcel and, in a 1937 deed, had conveyed with it "the right to the grantees and their heirs and assigns to use at all times hereafter a roadway as it is now established and extending from Barker road in a northeasterly direction to Chadwick Pond over the remaining land of grantor." Also included with that grant was the right to maintain utility poles and lines over the Proulx parcel for service to the camp lot.

Since 1937, the character of land development in Boxford has changed markedly. Where isolated farms and scattered, waterfront camps once presented the only interruption to woodlands and wetlands, high-end residential development now predominates wherever permitted. Predictably, Proulx eventually considered developing his abutting parcel as a single-family home site. However, upon laying out the property in conformance with Boxford's stringent land use regulations, he soon came to realize that the remnants of an old woods road passed directly through the parcel's most viable building location.

Luckily, since acquiring the parcel, Proulx had not been idle. Within a year of his purchase, a split rail fence had been erected across the parcel's entire roadway frontage, including the area at the intersection of the woods road. A gap in the fencing was left at the extreme southern corner of the parcel. Shortly before the camp lot was purchased by D'Urso, Proulx had also cleared and marginally improved a strip of his parcel running from the opening in the fence to the camp lot, along the parcel's southeasterly boundary. In 1990, D'Urso purchased the camp lot. Upon purchasing the lot, D'Urso improved the strip previously cleared by Proulx with several truckloads of gravel and began using it as his principal access to the camp lot. D'Urso also planted a row of trees through the woods road, at the point where it left his camp lot and continued on to other camp lots located further along the pond. For his part, Proulx installed an additional split-rail fence along the boundary between his parcel and D'Urso's camp lot, including the location at which the woods road entered the camp lot. Proulx left the area of the now gravel driveway un-fenced where it entered the camp lot. Later, Proulx also had the utility poles, which ran along the woods road, relocated to run along the gravel driveway. Otherwise, the woods road, where it ran across the Proulx parcel, remained in its prior condition.

Land Court decision

Despite the parties' fairly consistent actions in favor of the gravel driveway over the woods road, when Proulx moved forward with his plans toward development of his parcel in the late 1990s, D'Urso cried foul and purported to have maintained his dominant rights in the woods road as it was originally located. Proulx responded by filing a multi-count action in Land Court against D'Urso, primarily seeking a declaration of the parties' respective rights in the woods road. D'Urso replied with counterclaims alleging Proulx had unlawfully blocked the woods road and seeking common law damages and an award under General Laws chapter 93A.

In addition to the facts recited above, the Land Court heard conflicting evidence from the parties and a predecessor in title to D'Urso's camp lot, as to whether an oral agreement had ever existed to relocate the woods road easement to the location of the gravel driveway. One of the arguments pressed at trial by Proulx was that his reliance on such an agreement estopped D'Urso from denying its enforceability or raising the statute of frauds. Then-Chief Justice Kilborn ultimately ruled that no such agreement was ever reached between the parties or their predecessors. Nevertheless, he ruled that although the abandonment standard established under existing case law was not easily met, "by his actions (D'Urso) acquiesced in the change of location" and thus abandoned the woods road in favor of the gravel driveway. Proulx v. D'Urso, 9 LCR 483, 485 (2001). On that basis, judgment was entered in favor of Proulx and D'Urso's counterclaims were dismissed.

Appeals Court decision

On appeal, Proulx v. D'Urso, 60 Mass.App.Ct. 701 (2004), the Appeals Court acknowledged the long-standing common law rules:

1.) that the burden on the servient estate owner to establish intent to abandon is "heavy - mere nonuse is insufficient and the latter's acts must clearly manifest such an intention," Proulx, 60 Mass.App.Ct. at n.2 citing Willard v. Stone, 253 Mass. 555, 561-62 (1925); and

2.) "(t)he owner of a servient estate in Massachusetts may not unilaterally alter or move a dominant owner's easement actually located on the ground," Proulx, 60 Mass.App.Ct. at 704-05 citing Anderson v. DeVries, 326 Mass. 127, 132 (1950).

The Appeals Court then specifically refused to decide whether the facts found by the Land Court justice supported a finding of abandonment. Instead, the court based its decision on a more remote line of cases, building on Justice Kilborn's concept of "acquiescence," and held,

the original easement may be deemed relocated when the conduct of the parties is such as to permit a conclusion that a different easement had "been substituted for the way mentioned in the deeds" because the evidence reflects "a tacit understanding or an implied agreement," manifested by the dominant owner's "acquiescence" in the use of the different easement in lieu of the original for a number of years.

Proulx, 60 Mass.App.Ct. at 705 quoting Anderson v. DeVries, 326 Mass. 127, 132-33 (1950), other citations omitted. By this ruling, the Appeals Court breathed new life into the arguments of servient owners contesting troublesome easements and reinforced tools by which they might be removed or relocated so as not to unduly interfere with modern planning and development concerns.


Fortuitously, for servient estate owners, the importance of Proulx v. D'Urso in future easement disputes may now have been substantially diminished. On June 15, 2004, the SJC issued its decision in MPM Builders v. Dwyer, 442 Mass. 87 (2004). The SJC had taken that case on direct appellate review from a summary judgment decision of the Land Court, MPM Builders v. Dwyer, 11 LCR 226 (2003), which held that the development of three subdivision lots on a servient estate might be effectively blocked by the presence of a 62-year-old access easement, despite the servient owner's offer to relocate the easement to an equivalent location at its expense.

On appeal, the SJC was urged to extend a line of Appeals Court cases allowing the relocation of utility easements in certain circumstances.2 The SJC did one better than that and specifically adopted Restatement (Third) of Property (Servitudes) ß 4.8(3) (2000). In summary, the restatement provision allows that where an easement grant does not prohibit relocation a servient owner may change the location or dimensions of the easement to allow normal use or development of its property, so long as (1) it is done at the servient owner's expense; (2) it does not lessen the easement's utility; (3) it does not increase the burden on the dominant owner; and (4) it does not frustrate the purpose for which the easement was created.

In adopting this position, the SJC stated, "(w)e are persuaded that s. 4.8(3) strikes an appropriate balance between the interests of the respective estate owners by permitting the servient owner to develop his land without unreasonably interfering with the easement holder's rights." After MPM Builders, the monikers of "dominant" and "servient" may no longer apply, as the law of the commonwealth now appears to require a balancing of the competing interests between these stakeholders.

End notes

1. See also, Willets v. Langhaar, 212 Mass. 573 (1912), Parsons v. New York, N.H. & H.R. Co., 216 Mass. 269, 272 (1913), Dubinsky v. Cama, 261 Mass. 47,57 (1927), Lemieux v. Rex Leather Finishing Corp., 7 Mass.App.Ct. 417 (1979) and Brennan v. DeCosta, 24 Mass.App.Ct. 968 (1987), among others.[back]

2. See Lowell v. Piper, 31 Mass.App.Ct. 225 (1991) and Texon, Inc. v. Holyoke Mach. Co., 8 Mass.App.Ct. 363, 366 (1979).[back]

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