Yes. In a September 2024 decision, the Appeals Court affirmed a jury verdict for a family whose deeded footpath to a pond was blocked and watched by the neighbors who owned the land underneath, holding that an easement is a property interest strong enough to support a private nuisance claim. The court also ordered the neighbors to pay the family’s appellate attorney’s fees because the appeal was frivolous. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
A developer in West Dennis split one property into a lot along the road and an abutting lot on Kelley’s Pond. When the family bought the road lot in 2016, their deed gave them a perpetual easement to pass on foot over an eight foot path along the edge of the pond lot. They used it without trouble until new neighbors bought the pond lot in 2020, knowing about the easement. The jury could have found that one of the new neighbors accused the family of trespassing, filmed them, and threatened to spend millions to give them no peace. Then came caution tape, a wire fence on the path, photos of the family in bathing suits, signs announcing 24-hour surveillance, a camera and alarm in a tree, new trees planted on the path, and a call to the police.
What the court decided
The family sued in the Superior Court for private nuisance and a declaration of their easement rights. After a four-day trial, the jury found the neighbors liable for private nuisance and awarded the family $60,000. The judge declared that the family may reasonably maintain the path and that up to eight family members, guests and tenants may use it at one time. In Murphy v. Levites, No. 23-P-1016 (Mass. App. Ct. September 24, 2024) (Rule 23.0 decision), the Appeals Court affirmed.
An easement holder can sue for nuisance. The neighbors argued that the family had no possessory interest in the path, so they could not bring a nuisance claim. The court disagreed. A private nuisance claim requires some interest in the affected property, and holders of easements have been allowed to recover in nuisance. Connerty v. Metropolitan Dist. Comm’n, 398 Mass. 140 (1986).
Two parcels. The neighbors also relied on Doe v. New Bedford Hous. Auth., 417 Mass. 273 (1994), which held that a nuisance claim requires two different parcels: one where the condition exists and another whose occupants are burdened. That is why a tenant cannot sue their own landlord for nuisance. Assuming that rule applies to easements, the court held it was satisfied. The family and the neighbors live on separate lots, and the easement over the pond lot serves the family’s lot.
Objections not made at trial were waived. The neighbors challenged a jury instruction and the verdict slip, but they had not objected at trial. A party must object before the jury retires and state the grounds clearly. Rotkiewicz v. Sadowsky, 431 Mass. 748 (2000). Because the neighbors did not, they could not raise those arguments on appeal.
Fees for a frivolous appeal. The court found the appeal frivolous. The easement was undisputed, and an easement holder’s right to sue a landowner who obstructs it was not open to reasonable dispute. The court also pointed to the threat to spend millions as a sign of bad faith. It invited the family to apply for their appellate fees and costs.
What this means for you
If your deed gives you a right of way, you do not own the strip of land, but you still have a real property interest. When the owner of that land fences it, tapes it off, plants in it, or watches and harasses you to keep you away, a jury can treat that as a private nuisance and award money damages, not just an order to stop.
Proof made the difference here. The jury heard about specific acts over many months, starting soon after the new neighbors bought the land. A record of each incident, with dates, is the backbone of a case like this.
If you are the landowner, this case is a warning. Buying land subject to a known easement means living with it. Self-help, threats and surveillance can turn a path dispute into a damages verdict, and a weak appeal can add the other side’s legal fees.
What to do now
- Pull your deed and the recorded easement from the Registry of Deeds and read exactly what it allows, including width, purpose and who may use it.
- Keep a dated log of every obstruction, sign, camera, confrontation or call, with photos and the names of witnesses.
- Save texts, emails and recordings that show what the other owner said and why.
- Do not tear down fences or obstructions yourself. Talk to a lawyer about declaratory relief, an injunction and a nuisance claim.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. These cases move on short deadlines.
Prior results do not guarantee a similar outcome.
