Sometimes, yes. The Appeals Court held that when neighbors swapped land, the owner who gave up a strip, and later her buyers, kept an implied easement for her underground electric and telecom lines buried there, even though no one knew where the lines were and the deed said nothing about them. It also held that a deed easement labeled for septic access and grading could be used only for septic purposes. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
Two neighbors bought adjoining lots in a ten-lot subdivision. One lot lacked enough street frontage, and it sat so close to the other lot’s septic system that the system did not comply with the state environmental code. In 2004 the owners fixed both problems with a recorded land swap: one gave land near the septic system, the other gave land along the street. The deed also granted two easements, including Easement I, shown on the recorded plan as a “Proposed Septic Access & Grading Easement.” About 45 feet of the first owner’s underground electric and telecom lines lay under the land she gave away, but no one knew it, and the deed did not mention them. New owners bought her lot in 2016. A dispute arose, the other neighbors sued in the Land Court, and the judge ruled for the new owners on both issues.
What the court decided
In Hendley v. Darisse, No. 25-P-615 (Mass. App. Ct. May 12, 2026) (Rule 23.0 decision), the Appeals Court affirmed.
The septic easement means septic only. The scope of an easement in a deed comes from the grantor’s presumed intent, read from the words of the deed and, when needed, the surrounding circumstances. Sheftel v. Lebel, 44 Mass. App. Ct. 175 (1998). The deed said Easement I was for grading and access in connection with installing, repairing and maintaining the septic system. A plan referred to in a deed becomes part of the deed for deciding what rights were conveyed. Labounty v. Vickers, 352 Mass. 337 (1967). The plan’s label confirmed the limited purpose. The circumstances agreed: the neighbors’ own letters, and testimony from both sides, showed the swap was meant to fix the septic problem. So the neighbors holding the easement had no general right to cross that land, and their maintenance duties were limited to what their septic rights reasonably required.
The buried utilities stay. The person claiming an easement must prove it. Hickey v. Pathways Ass’n, 472 Mass. 735 (2015). When land under one owner is divided, and one part was being put to an apparent use for the other’s benefit at that time in a way that is reasonably necessary, an implied easement can continue that use. Cummings v. Franco, 335 Mass. 639 (1957). The key question is whether the circumstances show the parties meant that use to continue, even without a written easement. Lavoie v. McRae, 102 Mass. App. Ct. 14 (2022). The trial judge found the lines were reasonably necessary to the use of the property. It did not matter that no one knew where the lines were. The test looks at presumed objective intent, not what the parties actually thought about. Flax v. Smith, 20 Mass. App. Ct. 149 (1985). Everyone knew underground utilities served the subdivision, and the first owner testified she would not have agreed to the swap if it meant moving her lines.
The court also rejected an argument that the appeal was filed too early, and declined to disturb the judge’s findings of fact.
What this means for you
If you are buying land, swapping a strip with a neighbor, or fixing a boundary problem, the words in your deed and the labels on your recorded plan will control. If an easement says it is for a specific purpose, do not expect to use it for anything else. If you want broader access, put it in writing in the deed.
Silence in a deed does not always mean a neighbor has no rights. Water pipes, sewer lines and electric lines that already served a property when land was divided may continue under an implied easement, even if no one knew where they ran. Before you dig, build, or demand that a neighbor move buried lines, find out whether those lines came with the land.
What to do now
- Pull your deed and any recorded plan it refers to. Read every easement and its stated purpose.
- Before a land swap or boundary deal, have a utility survey done so buried lines are known and addressed in writing.
- If you hold an easement, use it only for the purposes the deed states, and keep up any maintenance the deed assigns to you.
- Do not cut or block a neighbor’s utility lines without legal advice. An implied easement may protect them.
- If a dispute starts, keep letters, emails and photos showing what everyone understood at the time of the deal.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. These cases move on short deadlines.
