Taylor v. Martha’s Vineyard Land Bank Commission: Old Habits Die Hard

As discussed below, the SJC’s reasoning in Taylor appears particularly questionable. From a jurisprudential and doctrinal perspective, if the reasoning to uphold a common-law rule is so thin, then it stands to reason that the rule should be amended. However, setting aside these considerations, the bright-line rule of overloading at common law is clear and can be a practically useful tool for real estate litigators in obtaining the type of results that clients desire (even if those results are sometimes based on a purely abstract harm).

The Facts: A Successful Overloading Claim Resulting in More Use of the Servient Estate

Though the facts of Taylor would initially appear to be highly idiosyncratic, the increased proliferation of conservation land dedicated to walking, hiking, and biking trails suggests that similar facts could easily arise in Massachusetts and throughout the country in significant numbers. The defendant, Martha’s Vineyard Land Bank Commission, was created in 1985 by a special act of the Massachusetts legislature “for the purpose of acquiring and maintaining land for environmental protection, conservation and managed public use.” 475 Mass. at 683 (citation omitted). In connection with and furtherance of its legislative mandate, the commission owns, among others, the Aquinnah Headlands Preserve, which sits “atop the Gay Head Cliffs” on Martha’s Vineyard. Id. “The preserve contains a series of hiking trails, which are open to the public annually during the tourism off-season, from September 15 through June 15.” Id.

In the early 1990s, the commission created a preserve by acquiring a series of parcels. Four of those parcels were at issue in Taylor. None of the four parcels has frontage on or direct access from a public way. For access, three of the four parcels benefit from one easement over the plaintiff’s property; the fourth benefits from a different right of way also over the plaintiff’s property. The plaintiff runs a seasonal bed-and-breakfast at his property during the spring and summer months—the opposite months from when the preserve is open to the public.

In the spring of 2010, the commission obtained approval from multiple governmental agencies to effectuate a “management plan” that would create a single-loop hiking trail over all four parcels. For access, the loop trail would use the full length of one right-of-way over the plaintiff’s property but only a portion of the other.

The plaintiff filed suit in the Massachusetts Land Court to stop the use of his property by the public outright and, at a minimum, to keep the hiking trails and appurtenant easements separate. Perhaps hikers could use both trails, but they should not be able to do so in a single loop, under the doctrine of overloading. Thus the plaintiff sought to force hikers to travel over one right-of-way over his property to get to one trail, hike the trail, then return, walk over the other right-of-way to the other trail, hike that trail, and back again. Stated differently, the plaintiff sued to compel the commission to ensure that his property be used more, not less, to preserve the sanctity of the doctrine of overloading. In this way, the plaintiff sought relief that would turn the doctrine on its head, by requesting relief that would require more, not less, use of the servient estate.

On summary judgment, the trial judge concluded that the current doctrine of overloading in Massachusetts, at present without any doctrinal exceptions, required this segregation of uses on collectively owned land and of easements. At trial, the same judge found that, if the uses of each easement were properly separated and subject to certain conditions, the rights-of-way on the plaintiff’s property would not be overburdened, in terms of type and intensity of use. Only the question of overloading was appealed, and the SJC granted direct appellate review.

The SJC Revisits the Rule

Before argument, the SJC solicited amici to respond to the following question:

Whether Massachusetts should revisit the rule stated in Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 678-679 (1965), and henceforth permit the owner of a dominant estate to use an appurtenant easement also for the benefit of an after-acquired parcel that is contiguous to the dominant estate, where doing so would not increase the burden on the servient estate.

The SJC has not previously shied away from being at the forefront of legal change—jettisoning old, formal bright-line rules, when the practical utility of such rules has not endured the test of time. In 2004, through M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004), Massachusetts became one of a small minority of states, including Maryland, New York, Colorado, South Dakota, and Nebraska, to allow unilateral relocation of easements by servient estate owners. In 2014, in Martin v. Simmons Properties, LLC, 467 Mass. 1 (2014), the SJC declared that this doctrinal shift also encompassed the unilateral reduction and change in dimensions of easement areas by property owners. While allowing unilateral changes in the identity of easements was palatable to the court in these cases, the notion of allowing unilateral changes to the identity of the dominant estate proved a bridge too far for the SJC in Taylor.

In Taylor, the SJC held that the commission’s “proposed test,” “the functional equivalent” of the standard for any other claim of overburdening, “has the advantage of being more flexible than the current bright-line rule. That flexibility, however, would come with significant costs.” 475 Mass. at 687. The first cost, according to the court, was Tevye’s favorite old saw: tradition—or, in other words, stare decisis. The court did not, however, linger on Massachusetts citizens’ abstract reliance interest in the traditional rule, admitting that it “is not barred from departing from previous pronouncements.” Id. at 688 (citation omitted). Instead, the Taylor court observed that it changes the common law “only where ‘the benefits of [the proposed rule] outweigh the values underlying stare decisis’,” and held that it was “not persuaded that the defendant’s proposed rule would provide such benefits.” Id.

The Economy of Bright-Line Rules versus Balancing Tests

The court was skeptical of the benefits the commission offered in support of its more flexible interpretation of overloading. The court compared the rule proposed by the commission to the existing bright-line rule in terms of judicial economy and litigation costs. Of course, in this regard, bright-line rules are always preferable to functional, balancing tests. Admitting as much, the court observed that “[i]t goes without saying . . . that ‘we do not reject desirable developments in the law [of easements] solely because such developments may result in disputes spurring litigation.’” Id., quoting M.P.M. Bldrs., 442 Mass. at 93. The court reasoned that “[w]e are not so much concerned, however, with the mere fact of litigation, as with the uncertainty that the prospect of such litigation would introduce in land ownership.” Taylor, 475 Mass. at 688.

This reasoning is exceedingly hard to square with the fact, previously noted by the Taylor court itself, that the commission’s proposed rule is the legal standard, in Massachusetts, for all other types of overburdening claims. Though there are many reported Massachusetts decisions applying the doctrine of overloading, there are many more garden-variety overburdening decisions. Real estate attorneys, both litigators and in the title/transactional field, must construe express easements on a daily basis and advise their clients about whether a particular use might fit into such an express grant. This “uncertainty” thus appears highly exaggerated.

Nevertheless, the Taylor court opined that the commission’s proposed rule “would require a longer process of litigation than would the bright line rule, would lead to a less predictable outcome, and might not be affordable to owners of small servient parcels who are litigating against defendants with the financial means to acquire and develop multiple parcels of land.” Id. at 689. The court, ironically, cited to the litigation before it as evidence of these facts. See id. at 689 n. 15.

Tellingly, however, Taylor did not appeal the trial judge’s findings on his overburdening claims, applying the purportedly unpredictable standard; and the trial-level litigation was made significantly longer by dispositive motion practice on overloading, rather than going straight to trial. Moreover, the parties in Taylor were a small business owner and a public conservation entity, not a poor grandparent and an avaricious, plutocratic developer with bulldozers at the door. The notion that servient and dominant estate owners naturally fit into different socio-economic strata is completely groundless. Socio-economic considerations come more into play depending on the nature of the given neighborhoods of both dominant and servient estates than the formal, legal nature of the same.

In addition, in my experience as a real estate litigator, the premise that bright-line rules like the doctrine of overloading avoid litigation is highly questionable. If anything, exceedingly bright-line rules embolden parties to go to court because they believe success is a fait accompli. In practice, overloading claims are indeed just as frequently used as a cudgel in emotional, interpersonal disputes, a means to exact monetary payment from dominant estate owners, and to further purely NIMBY considerations, as they are used to vindicate objectively intolerable circumstances for servient estate owners. It may seem counterintuitive, but in my experience fact-bound legal standards have the opposite effect, as they avoid asymmetric bargaining positions, forcing the parties to come together, in light of unpredictable outcomes.   

The Intent Animating Overloading

Another interesting aspect of the Taylor decision is the suggestion that the doctrine of overloading “was formulated to avoid precisely th[e] type of ‘difficult’ litigation” that occurs in garden-variety overburdening cases. Id. at 688, quoting the Restatement (Third) of Property: Servitudes, § 4.10 comment c (2000). Though potentially sound as a matter of legal policy, this proposition does not to my knowledge appear anywhere in the history of the doctrine in Massachusetts or elsewhere. In fact, as far as I know, the case law lacks an explicit explanation for why the subset doctrine of overloading is treated differently than other overburdening claims.

Indeed, the overloading case law in Massachusetts starts from the same premise, roughly the same across the country, at which all decisions concerning the scope of express easements begin: “We construe the scope of an easement from the parties’ intent, which we ascertain from the relevant instruments and the objective circumstances to which they refer.” McLaughlin v. Board of Selectmen of Amherst, 422 Mass. 359, 364 (1996). Because instruments of conveyancing are, on a basic level, contractual, the familiar overarching principle of contract interpretation determines the scope of easements and whether a party has committed an overburdening. The courts look to the presumed, objectively evaluated intent of the parties to the conveyance, using the words chosen and the facts to which those words relate, as their guides.

From a practical perspective, in determining the presumed intent of the parties, overloading generally makes sense. It can typically be assumed that the parties did not agree that the easement holder could use the easement for the benefit of more land than the dominant estate. This is so because, by and large, use of more land equates factually with the imposition of more burdens upon the servient estate. See, e.g., Rhett v. Gray, 401 S.C. 478, 496 (2012), quoting Adams v. Winnett, 25 Tenn. App. 276, 156 S.W.2d 353, 357 (1941) (“reason for the rule preventing an easement for the benefit of a particular piece of land from being extended to other tracts of land ‘is to prevent an increase of the burden upon the servient estate’”); Carbone v. Vigliotti, 222 Conn. 216, 225 (1992), quoting 2 G. Thompson, Real Property (1961 Repl.) § 322, p. 77 (“doctrine that ‘[a]n easement cannot be made to attach to other land which the owner of a dominant estate may subsequently acquire’ was intended to protect the servient estate from the use of an easement in a manner or to an extent not within the reasonable expectations of the parties at the time of its creation”) (citations omitted). Thus, the point of overloading, like overburdening law generally, is to avoid “[t]he servient estate . . . be[ing] burdened to a greater extent than was contemplated or intended at the time of the [original] grant.” Doody v. Spurr, 315 Mass. 129, 133 (1943).

However, all things are not always equal: “when the reason does not exist, the rule does not apply. Thus, when the burden on the easement has materially decreased or not increased, the easement holder may use the easement to access an adjoining property.” Rhett, 401 S.C. at 496 (citations omitted). See Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 516 (2000) (“[i]n Carbone … 222 Conn. 225, and Abington Ltd. Partnership v. Heublein, [246 Conn. 815, 829 (1998)], we were willing to allow the extended use of the easement appurtenant to the dominant estate under circumstances where there had been a so-called expansion of the dominant estate, by virtue of the subsequent acquisition of a nondominant estate by the owner of the dominant estate, and where the extended use of the easement to the benefit of the nondominant estate would not result in a material increase in the use of the servient estate, in other words, an additional burden to the servient estate”).

The more likely explanation for why overloading claims have historically been treated differently than other overburdening claims is not the utilitarian principle articulated by the SJC in Taylor but rather from the very legal definition of appurtenance—an appurtenant easement is appurtenant to a particular, definite piece of land. However, arguments based on purely legal and not practical definitions, such as what constitutes a “family” or a “marriage,” seem tautological and particularly not compelling in this day and age.

Moreover, any change to the identity of the dominant estate can be handled, just as controversies over the identity of any piece of land, such as in boundary disputes and adverse possession cases. In rem judgments rendered in these real property disputes are routinely recorded, see Mass. Gen. Laws c. 184, § 16; and successors-in-title are bound by and benefit from such judgments. See Lyon v. Bloomfield, 355 Mass. 738, 743 (1969); Restatement (First) of Judgments § 89, comment a (1942). Accordingly, title concerns about how bona fide purchasers for value and successors-in-interest will be affected by an exception to overloading ring hollow. There is simply no principled reason not to make a modest exception to overloading, where a technical overloading will inaugurate no more use of the servient estate, except out of pure principle. In Taylor pure principle nonetheless carried the day.

Conclusion

Rightly or wrongly decided, Taylor poses one primary benefit: clarity. Indeed, despite our personal views on the matter, my office routinely uses the doctrine as a powerful litigation tool on behalf of our clients’ interests and will continue to do so—until the courts decide to value substance over form.

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