Perten Succeeds in Easement Case

(December 13, 2017, Boston, MA) – Sheehan Phinney Shareholder John H. Perten obtained summary judgment for the firm’s client in a dispute over the scope of an easement which ostensibly allowed an abutter to discharge wastewater onto the client’s property from where it was pumped to a municipal sewerage system.  The Court determined that discharge of wastewater onto our client’s property was improper as the verbiage of the easement was not as broad as the abutter claimed and, in any event, the easement had expired or been abandoned.

The case involved two abutting commercial property owners.  The owner of Lot 2 piped in wastewater across Lot 3 (our client) and into a pump station located thereon, from where it was sent to the municipal sewer system. The Lot 2 owner claimed it had a perpetual right to discharge its wastewater into our client’s pump station, citing a 40 year old easement which it “discovered” after the dispute arose.  That easement allowed Lot 2 to utilize a cesspool and leaching field “as presently located” on Lot 3.  The Lot 2 owner argued that the “as presently located” language was descriptive only and the change from a cesspool and leach system to a pump station into the municipal system was merely an upgrade to the existing private system. Conversely, on behalf of the Lot 3 owner, we argued that the “as presently located” language limited the grant to the use of the private cesspool and leaching field only, and did not extend to the new service hook-up to the municipal sewer system.  The Court agreed with our interpretation, noting that the easement for using the cesspool and leaching fields had either expired by its terms or been abandoned when the new hook-up to the municipal system occurred.  It also rejected any notion of a new oral agreement to discharge onto Lot 3 as there was nothing in writing that could satisfy the Statute of Frauds.

This case is an important one, not just for Sheehan Phinney’s client but also for anyone who deals with easements. The Court reaffirmed well established rules that the party claiming the benefit of an easement has the burden of proving its terms; that easements should be interpreted in the most stringent manner possible; and strictly enforced to reflect the granting party’s intent.  This decision highlights the care necessary when drafting easements as well as the need to carefully review existing easements to ensure that the right to use another’s property, even if that use had been happening for years’ prior, is properly documented and enforceable.

Perten has a general business practice and a broad litigation background, frequently representing owners and developers of real property.  He is the former chair of the Wayland Zoning Board of Appeals. He frequently acts as outside general counsel for companies and organizations who seek practical advice on a wide variety of issues experienced during day-to-day business activities. Perten is an adjunct faculty member at Babson College, where he teaches business law to MBA candidates.  In 2011 he received Babson’s Dean’s Award for Excellence in Teaching. He currently serves on the Board of Directors for the Builders and Remodelers Association of Greater Boston. Perten is admitted to practice in both New Hampshire and Massachusetts, received his J.D. cum laude, from Suffolk University Law School and his B.A. from Cornell University.

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