Case of the Day – Thursday, September 7, 2017


It’s been a long time, 40 years more of less since law school graduation. Ah, that was a time! For a sweet few months in the spring of 1977, we knew absolutely everything about the law. All anyone had to do was ask us (and sometimes they didn’t even need to ask: we’d just volunteer).

Alas, by the middle of June, a week after commencement, we were cramming for the bar exam and finding out we did not know so much after all. It’s been all downhill since then. The longer we go, the more we’re shocked to discover what we either no longer know or never knew to begin with. Beyond what we should know, many clients are shocked that we don’t know everything they think we should know, such as being to recite all 5o titles of the United States Code or recall the dissent in a case decided in Pocatello, Idaho, 42 years ago.

Lawyers get called on all the time to be knowledgeable and thorough in many different areas of the law.  That’s why there are law books. Today’s case reminds us why it’s a good idea for all lawyers, including the most seasoned practitioners, to look things up and review the basics whenever he or she tackles some task not performed that often.

Richard Stafursky and his siblings were squabbling over inherited land.  They settled it by Richard taking one chunk of land, and his brother and sister together owning an adjacent one.  Richard gave his siblings an easement to cut grass and brush on a 3-acre part of his land, provided the brush they cut was under 2” in diameter.  He had a lawyer draft the easement into the deed, and then he conveyed his land — including the easement — to some tree-hugging nonprofit organization of which he was chairman.

Then the battle began.  The tree-hugging group wanted to return the whole tract to nature, and told Richard’s siblings they couldn’t cut any trees when they cut brush.  What’s more, the group transplanted native trees in the meadow that was subject to the easement.  Finally, the nonprofit sued to get the court to issue a ruling as to what the easement meant.

How’d the lawyer screw it up?  Easements are driven by purpose.  That’s black-letter law in Massachusetts.  No one seemed to be able to agree on why Richard had given the easement to his brother and sister.  Richard claimed that it was just an artifice to help sell the property, but the lower court said that was meaningless at best and a fraud at worst.  Then he claimed there was no purpose.  The brother and sister said the purpose was to preserve their view.  The lower court had to find some purpose, and decided the brother and sister’s explanation was the one that made the most sense.

The Massachusetts Court of Appeals upheld the decision, having no problem with the notion that the easement was a “view easement” (despite the apparent fact that Richard, who was trying to stick it to his siblings, denied the easement had a purpose at all).  Clearly, the easement’s lack of explanation as to purpose and its unusual provisions about brush under 2” in diameter left the court in a position of having to provide much more guidance and interpretation than should have been necessary. In fact, had the easement been properly drafted, there would probably been no lawsuit to begin with (assuming, of course, Richard had not wanted to stir things up to begin with).

As the lower court quite rightly noted, all of the problems could have been avoided if the lawyer drafting the easement had shown as much care in stating the reason for the easement as he or she did describing the limitations on what could be done.

World Species List-Natural Features Registry Institute v. Reading, 75 Mass.App.Ct. 302, 913 N.E.2d 925 (Ct.App. Mass. 2009) Richard Stafursky, the previous owner of a tract that included a 3-acre tract, granted his brother and sister, Jim and Sandra — the previous owners of a next-door parcel — an easement permitting them “to enter on to the [three acre] parcel [subject to the easement] for the sole purpose of cutting grass and brush no larger than two (2) inches in diameter when measured one (1) foot from the ground, excluding any cutting of grass and brush on wooden land as shown on said survey of the three acre easement.” At the time the easement was granted, the 3-acre parcel consisted of two open meadows with a wooded area that was not to be cut in the middle.  Richard deeded his land to the plaintiff Institute, a nature conservancy trust that he founded, which intended the return the whole large tract to its natural conditions. 

Shortly thereafter, the Institute demanded that the neighbors give advance notice before exercising the easement, that the neighbors not cut any trees (even those within the size limitation) and that the neighbors not remove any trees the Institute had transplanted to the area.  The Institute contended that the sole purpose of the easement was to enable Richard to sell his property.  The neighbors replied that the purpose of the easement was to enhance their view, and that they had acted within their rights as beneficiaries of the easement by cutting within the cutting area to maintain that view, and that the plaintiff does not have the right to transplant trees or other vegetation into the cutting area.

Held: The easement was a “view easement” and the neighbors had the right to exercise it.  The Court said that “we do not consider it dispositive that the easement language here does not explicitly state that the purpose of the right to cut vegetation is to permit the benefitted land owner to enjoy the view. The purpose and effect of the view easements are not simply to limit the uses that the plaintiffs can make of their own property. Rather, the view easements here have taken on the defining characteristics of an affirmative easement by conferring on the defendants the right to enter and use land in the possession of another, and we conclude that this fact is dispositive.”

The Court noted that the limitation on cutting only grass and brush less than two inches in diameter was consistent with the circumstances of the grant of the easement, “representing a compromise between the desired uses of the easement property – as an open meadow for a view on the one hand and the potential restoration to a natural landscape on the other.”

The Court put a stop to World Species’ attempts to regulate the easement. First, the Court held that word ” brush” in the easement language included small trees. World Species could not stop the cutting of trees, nor could it defeat the easement by transplanting trees with a trunk larger than 2 inches. The Court said to allow this “conduct is inconsistent with Reading’s view easement. The easement area would become reforested if World Species were permitted to transplant trees of that size onto the easement area as such trees would exceed the dimensions of vegetation that Reading is allowed to cut, thereby creating a condition that would eventually cause the view to disappear.”

The Court did agree with the Land Court judge that the easement grant had to be exercised regularly. That is, the Court said, “Reading must use it or lose it. If Reading does not regularly cut vegetation, small trees existing on the easement area will grow until they exceed two inches in diameter when measured one foot above the ground and he will no longer be permitted to cut such vegetation. Over time, the land will become reforested and Reading will lose the view benefit he derived from the easement.”

– Tom Root


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