Not by itself. Under Massachusetts law, nonuse of a deeded right of way, even for many years, does not end it. In this Edgartown case the Appeals Court held that abandonment requires affirmative acts by the easement holder that clearly show an intent to give it up, and that shrubs across a way do not end it by prescription unless the owner of the land under the way put them there. The court also upheld an owner’s adverse possession of part of a private street. This is an unpublished Appeals Court decision under Rule 23.0. Courts may cite it as persuasive, but it is not binding precedent.
What happened
The owners of a house on North Street in Edgartown held a 1977 deeded right of way over the street, which led east to a public way. The original seller kept the fee in the street and reserved a right to substitute a different right of way. He later built a new road, South Street, which the prior owners used to reach another public way, but he sold that land within a year without giving the house any right to use it. Decades later, the neighbors’ predecessors on North Street put up fencing and the owners sued in the Land Court. The judge ruled that the owners owned one strip of the street by adverse possession, but had lost their right of way over the eastern part by prescription and over another strip by abandonment.
What the court decided
In Walston v. Bunn, No. 24-P-1396 (Mass. App. Ct. January 20, 2026) (Rule 23.0 decision), the Appeals Court affirmed in part, vacated in part, and sent the case back.
Abandonment needs action, not just nonuse. Abandoning an easement requires an intent to abandon shown by acts inconsistent with the easement’s continued existence. Nonuse alone, no matter how long, is not enough. Cater v. Bednarek, 462 Mass. 523, 528 n.15 (2012). The trial judge found that the prior owners stopped using that part of the street, and that they believed they had agreed to give it up once South Street was built. The court held that nonuse plus an intent that was never shown by any act does not work an abandonment. Using another route that neighbors merely tolerated is ordinarily not enough either. The court sent back for findings whether the current owners’ lawn and sprinkler system, installed in part of the way, showed abandonment.
Shrubs count only if the landowner planted them. A servient owner’s acts that block an easement for twenty years can extinguish it by prescription. Cater, 462 Mass. at 528 n.16. The judge ruled on summary judgment that the seller blocked the eastern section with shrubs in the late 1970s. But the key witness admitted he did not really know, because he never went out there. That left a genuine dispute of fact, so summary judgment was wrong.
No valid substitution. The court agreed the seller never substituted a new right of way. Building a road and then selling it with no reserved right did not give the house an enforceable right over it.
Adverse possession. Adverse possession requires actual, open, exclusive and nonpermissive use for twenty continuous years. Totman v. Malloy, 431 Mass. 143, 145 (2000). Continuous does not mean constant. Regular parking of vehicles from 1988 through 2014, followed by a lawn, was enough for one strip. The owners did not prove similar use of the next strip, so they did not get it.
No ruling on an issue no one raised. The judge also gave the owners a small area under the derelict fee statute, G.L. c. 183, § 58, which can pass a seller’s interest in an abutting way along with the land. No one had pleaded or argued that claim. When a judge sees a dispositive issue the parties missed, the judge should tell counsel and let them be heard. Messina v. Scheft, 20 Mass. App. Ct. 945, 945 (1985). That ruling was vacated, though the owners may still raise the claim.
What this means for you
If you have a deeded right of way, you do not lose it just because you stopped using it or found another route. The other side must prove clear acts by you that are inconsistent with the easement. Be careful, though, about building over a way. Extending a lawn into a right of way has been treated as that kind of act.
If you are the landowner, blocking a way generally ends it by prescription only if you did the blocking and it lasted twenty years. Overgrown plants are not enough. Adverse possession takes regular, exclusive use, proved strip by strip.
What to do now
- Pull every deed in your chain of title and look for rights of way, reserved fees and substitution clauses.
- Keep using your right of way, even occasionally, and keep records or photos of that use.
- Do not plant, pave or build inside a right of way without legal advice.
- If a neighbor blocks the way, object in writing promptly.
- Gather aerial photos and witnesses who can show decades of use.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. These cases move on short deadlines.
