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Appeals Court of Massachusetts.

Emmanuel N. PAPANICKOLAS, trustee,1& another 2 v. FARM AVENUE TWO LOTS, LLC.3


Decided: November 12, 2021

By the Court (Green, C.J., Singh & Hand, JJ.4)


The plaintiffs appeal from a judgment dismissing their complaint seeking a declaration that an easement held of record by the Farm Avenue Two Lots Realty Trust (Realty Trust) across the plaintiffs’ property has been extinguished by abandonment. Concluding that the allegations of the plaintiff's complaint sufficiently support their claim to survive a motion to dismiss, we reverse the judgment.

We review the grant of a motion to dismiss de novo. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). In determining whether these claims can survive dismissal under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), “[t]he ultimate inquiry is whether [the claimants] alleged such facts, adequately detailed, so as to plausibly suggest an entitlement to relief.” Greenleaf Arms Realty Trust I, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012). We accept as true well-pleaded factual allegations and reasonable inferences drawn therefrom, id., but “legal conclusions cast in the form of factual allegations” are insufficient to stave off dismissal. Iannacchino v. Ford Motor Co., 451 Mass. 623, 633 (2008), quoting Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). Though certain claims must be pleaded with particularity, a claimed abandonment of easement rights is not among them. See Mass. R. Civ. P. 9 (b), 365 Mass. 751 (1974).

In the present case, the plaintiffs alleged that the Realty Trust, and its predecessor in title, the Salem Country Club, had abandoned their rights in the disputed easement by failing to use it at any time since it was created in 1971 until shortly before the filing of the plaintiff's complaint, and allowing it to remain in an impassable state throughout that time.5 The complaint further alleges that throughout the time the property was owned by the Salem Country Club the sole and exclusive access to the Country Club was by means of an entrance located at 133 Forest Street in Peabody.

The question whether an easement has been abandoned turns principally on the intent of the easement holder, “to be ascertained from the surrounding circumstances and conduct of the parties.” 107 Manor Ave. LLC v. Fontanella, 74 Mass. App. Ct. 155, 158 (2009). “[A]ny deliberate conduct on the part of the dominant owner inconsistent with the continued existence of the easement may operate as abandonment.” Proulx v. D'Urso, 60 Mass. App. Ct. 701, 704 n. 2 (2004). The question of intent to abandon an easement is a highly fact-specific inquiry that depends upon the particular circumstances of each case. See 107 Manor Ave. LLC, supra at 160. Moreover, though mere non-use does not constitute abandonment, see Desotell v. Szczygiel, 338 Mass. 153, 159 (1958), non-use of an easement for an extended period may constitute evidence of an intent to abandon. See Lasell College v. Leonard, 32 Mass. App. Ct. 383, 390-391 (1992). Taken together with the fact that the Salem Country Club had no need to use the easement throughout the entirety of its ownership of the Realty Trust's property, and the fact that the property remained in an impassable state during that time, the allegations of the complaint set out a plausible claim, sufficient to survive a motion to dismiss.6

The judgment is reversed, and the matter is remanded to the Land Court for further proceedings consistent with this decision.

So ordered.

reversed and remanded


5.   According to the complaint, the easement area “was under water for nearly all of the year and was covered with large trees and other vegetation which rendered it unusable as a means of access or for any other purpose.”

6.   The motion judge appeared to have based her decision, in part, on the plaintiff's inability to identify with specificity evidence he expected to elicit during discovery. On a motion to dismiss, a plaintiff is not required to identify or forecast additional evidence he expects to present to establish his claim; instead the sufficiency of the complaint is tested solely by reference to the allegations it contains. See Reardon v. Comm'r Of Correction, 20 Mass. App. Ct. 946, 947 (1985). At the same time, while we conclude that the motion judge erred in allowing the plaintiff's motion to dismiss, we are mindful of the concern that unfettered discovery into records of the predecessor owner could range into a “fishing expedition,” and we anticipate that the Land Court judge will be able to establish appropriate boundaries on the nature and scope of discovery conducted by the plaintiff.

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