Prescriptive Easements Massachusetts
"In general, the Massachusetts cases on prescriptive easements are consistent with the Restatement of Property 477-480 (1944)." O'Brien v. Hamilton, 15 Mass. App. Ct. 960, 962, 446 N.E.2d 730 (1983). Accordingly, "the extent of an easement so obtained by prescription is fixed by the use through which it was created".
See Glenn v. Poole, 12 Mass. App. Ct. at 292-293, and cases cited; 2 American Law of Property, 8.68-8.69 (Casner ed. 1952 & 1976 supp.); 3 Powell, Real Property 34.13 (1998); 4 Tiffany, Real Property 1209 (1975 & 1998 supp.); "Extent of, and Permissible Variations in, Use of Prescriptive Easements of Way," 5 ALR 3rd 439; "Scope of Prescriptive Easement for Access," 79 ALR 4th 604.
"The use may change over time through normal evolution to satisfy new needs, but the variations cannot be substantial; they must be consistent with the general pattern formed by the adverse use." Carmel v. Baillargeon, 21 Mass. App. Ct. 426, 430, 487 N.E.2d 867 (1986).
As observed in 478 of the Restatement of Property
"In ascertaining whether a particular use is permissible under an easement appurtenant created by prescription a comparison must be made between such use and the use by which the easement was created with respect to
(a) their physical character,
(b) their purpose,(c) the relative burden caused by them upon the servient tenement."
Comment c. to 479 elaborates this principle further:
"Though some change in the character of the physical use of a servient tenement resulting from a change in the use of a dominant tenement is permitted, a change which unreasonably increases the burden upon the servient tenement is not permitted. An unreasonable increase in burden is such a one as it is reasonable to assume would have provoked the owner of the land being used to interrupt the use had the increase occurred during the prescriptive period."
Similar guidance, cited in the O'Brien case, appears in 2 American Law of Property 8.69, supra:
"All that the owner of the servient tenement subject to a prescriptive easement has done is to fail to make effective objection to the use by which it was created. It seems difficult to go further in the way of allowing new needs of a dominant tenement to be accommodated by a prescriptive easement than to hold that new uses will be permitted to the extent that acquiescence in the old uses justifies the inference that effective objection to the new uses would not have been made had such uses occurred during the prescriptive period."