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Breaking: Mass. High Court Rules Municipality’s Acquisition of Prescriptive Easement Isn’t a Taking

In a rescript opinion issued this morning in Gentili v. Town of Sturbridge (pdf), the Supreme Judicial Court (SJC) ruled that a municipality’s acquisition of a prescriptive easement over private property is not an eminent domain taking.  In prior proceedings in Gentili, the Land Court ruled that the defendant town had acquired a prescriptive easement to discharge surface water through a culvert onto the plaintiffs’ property. Instead of appealing, the plaintiffs filed a Superior Court case seeking damages under M.G.L. c. 79, the state’s eminent domain statute. The Superior Court granted summary judgment to the town and the plaintiffs appealed. The SJC transferred the appeal to itself for decision.

In briskly affirming the Superior Court, the SJC said, “[t]he problem with the [plaintiff] trust’s argument is that the theories and laws of prescriptive easements and takings do not interact in the way that the trust suggests.” Citing the U.S. Supreme Court’s 1982 decision in Texaco, Inc. v. Short, the SJC noted that the town’s easement did not result from any affirmative action by the town, but rather from the plaintiffs’ inaction in failing to stop the town’s discharge of water for the statutory period of 20 years. In other words, the town hasn’t actually “taken” anything: the plaintiffs’ property rights were – to the extent of the easement – extinguished by operation of law.

This decision answers an open question and nips in the bud any notion that a municipality’s acquisition of a prescriptive easement over private property is a compensable taking. The court’s reasoning applies equally to a municipality’s acquisition of fee title to private property by adverse possession, since that related doctrine is also based on a property owner’s inaction and the running of a 20-year statute of limitations.

©2020 Pierce Atwood LLP. All rights reserved.National Law Review, Volume X, Number 55


About this Author

Donald R. Pinto, Jr., Pierce Atwood, litigation lawyer

Don Pinto has more than 30 years of experience as a civil litigator, with a focus on complex real estate and land use disputes. He handles cases at the trial and appellate levels in the state and federal courts and before administrative agencies. Outside the courtroom Don has successfully resolved many disputes through negotiation, mediation, and arbitration.

Don is also the founder, editor, and one of several contributors to Massachusetts Dirt and Development Law, the firm's real estate blog.


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