Use of An Easement for Twenty Years In Massachusetts
"The rule in Massachusetts is that wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained." Tucker v. Poch, 321 Mass. 321, 324, 73 N.E.2d 595 (1947), quoting Truc v. Field, 269 Mass. 524, 528-529, 169 N.E. 428 (1930).
As with adverse possession, the use must be open, notorious, non-permissive and continuous. Ryan v. Stavros, 348 Mass. 251, 263, 203 N.E.2d 85 (1964).
The burden of proof is with the party seeking to establish prescriptive rights. Gadreault v. Hillman, 317 Mass. 656, 661, 59 N.E.2d 477 (1945).
However, "'continuous use' does not necessarily mean 'constant use.' a right of way means a right to pass over another's land more or less frequently according to the nature of the use to be made of the easement; and how frequently is immaterial, provided it occurred as often as the claimant had occasion or chose to pass." Bodfish v. Bodfish, 105 Mass. 317, 319 (1870). See also Stagman v. Kyhos, 19 Mass. App. Ct. 590, 593, 476 N.E.2d 257 (1985).
In assessing the sufficiency of use, the principal question is whether the use would constitute adequate notice to the owner that it should assert its rights to the property. Boston Seaman's Friend Soc'y, Inc. v. Rifkin Mgt, Inc., 19 Mass. App. Ct. 248, 248-249, 473 N.E.2d 702 (1985).