EASEMENTS – RIGHT TO REPAIR AND MAINTAIN
The Supreme Judicial Court has defined an easement generally as "...a right, which one proprietor has to some, profit, benefit, or beneficial use, out of, in, or over the estate of another proprietor..." Commercial Wharf East Condominium Association v. Waterfront Parking Corp., 407 Mass. 123, 552 N.E.2d 66, 73-74 (1990)(quoting, Ritger v. Parker, 8 Cush. 145, 147 (1851)). Further, all easements whether arising by grant, Brodeur v. Lamb, 22 Mass.App.Ct. 502, 495 N.E.2d 324 (1986) or by some adverse claim, Glenn v. Poole, 12 Mass.App.Ct. 292, 423 N.E.2d 1030 (1981) include by implication all rights necessary for their enjoyment, Brodeur v. Lamb, 495 N.E.2d at 325.
Included in this constellation of rights is the right to maintain and repair the easement, Mt. Holyoke Realty Corporation v. Holyoke Realty Corporation et al. 298 Mass. 513, 11 N.E.2d 429 (1937). The Mt. Holyoke case is instructive in this regard. The plaintiff had entered into a program of behavior designed to prevent the defendant's use of an easement in a stairway in the plaintiff's building, including the attempted destruction of the stairway. The defendant held the easement in the stairway appurtenant to his adjoining building. Mt. Holyoke Realty Corporation 11 N.E.2d 429 at 429. On appeal the S.J.C. affirmed so much of the Superior Court's decree which allowed the Defendant to repair the damage done the stairway by the plaintiff, holding inter alia, "...[t]he right to make necessary repairs is an incident to the easement..." Id at 429, See also, Glenn v. Poole, 12 Mass.App.Ct. 292, 423 N.E.2d 1030 at 1033 (Dominant estate has right to improve access road held by prescriptive easement where.
Conversely, the S.J.C. has held that there is no reciprocal duty of maintenance and repair placed on the "...grantor of an easement..." Archambault v. Williams 359 Mass. 742, 268 N.E.2d 926, (1971). Thus, a defendant could not be held liable for the injuries of a plaintiff which were sustained while the plaintiff was walking on a private way over which a third-party had an easement.
Lastly, the legislature has granted some implied rights to the holders of rights of access along private ways. Specifically, those who hold rights of ingress and egress along a private way have the "...right by implication..." to install utilities. M.G.L. c. 187