Flax v. Smith

479 N.E.2d 183 (1985)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Lots B and C, fronting on St. John Street, contain five dwellings. Lot A, located to the rear of Lots B and C, contains two. At all times prior to 1966, the parcels were in common ownership. The residences on lot A are serviced by water and sewer lines, in existence and in continuous use since 1950, which run under lot C from the main lines on St. John Street. In 1966, the city of Boston took lot A for nonpayment of taxes. P acquired title from the city on August 29, 1978, having bid on the property at public auction. D obtained title to lots B and C in 1977 and promptly sought to prevent the easement. The judge found that between the residences on lot A and St. John Street there is rock ledge to a depth of three to ten feet, that sewer and water lines must be at least six feet deep to prevent freezing, and that the drilling and other work required to connect water and sewer lines from the lot A residences directly to the main lines would cost $4,800, exclusive of the cost of the pipes and the connection. The judge concluded that there is a reasonable necessity for the claimed easement, and he ruled that when the city first acquired an ownership interest in 1966 it was the presumed intention of the city to take the property with the benefit of the existing water and sewer service. The judge ruled there was in existence an easement by implication. D appealed.