## Facts

- A single owner originally held three adjoining parcels in Jamaica Plain, Boston: Lot A (rear) and Lots B and C (fronting on St. John Street).
- Lots B and C contained five dwellings; Lot A contained two dwellings.
- Lot A connected to St. John Street by a 21-foot-wide, 150-foot-long strip of land, most of which was covered by a hard-surface driveway.
- Since 1950, the residences on Lot A had been served by water and sewer lines running from the mains on St. John Street under Lot C; the lines were in continuous use.
- Until 1966, all three lots remained in common ownership.
- In 1966, the City of Boston took Lot A for nonpayment of taxes; the taking was confirmed by a Land Court decree in 1974.
- In 1977, predecessor trustees acquired title to Lots B and C and promptly sought to stop continued use of the water and sewer lines under Lot C.
- On August 29, 1978, Steven Flax purchased Lot A from the City at public auction.
- Flax did not claim an express easement or a prescriptive easement; he sought an easement implied from prior use.
- Evidence showed rock ledge between the Lot A residences and St. John Street at depths of roughly three to ten feet; water and sewer lines had to be at least six feet deep to prevent freezing.
- The trial judge found that drilling and related work to connect Lot A directly to the street mains would cost about $4,800, not including the pipes and connection.
- Flax sued in Superior Court for a declaration that an implied easement existed and for orders preventing interference; the trial judge ruled for Flax, and Herbert Smith, trustee (owner of Lots B and C), appealed.

## Issues

1. Whether Lot A had an easement implied from prior use for water and sewer lines running under Lot C, where the parcels were formerly in common ownership and the use was apparent, continuous, and reasonably necessary.
2. Whether an easement may be implied when the severance of common ownership occurred through a tax taking rather than a voluntary conveyance.

## Decision

- The Massachusetts Appeals Court affirmed the Superior Court’s judgment.
- The court held that an easement by implication existed for the water and sewer lines serving Lot A across Lot C.
- The court rejected the argument that a tax taking cannot support an implied easement and accepted the trial judge’s finding that the City was presumed to take Lot A with the benefit of the existing utility service.

## Legal Principles

- An easement implied from prior use may arise when: (1) the parcels were once in common ownership, (2) before severance there was an apparent and continuous use of one part for the benefit of another (a quasi-easement), and (3) continued use is reasonably necessary for the enjoyment of the benefited parcel at the time of severance.
- “Reasonable necessity,” not absolute necessity, is the standard for an easement implied from prior use under Massachusetts law.
- Longstanding utility lines running from public mains to serve a parcel can qualify as the kind of continuous and apparent prior use supporting implication.
- The “intent” supporting implication may be inferred from the circumstances; severance by tax taking does not automatically defeat implication where the use is established, obvious in character, and reasonably necessary.

## Conclusion

Flax v. Smith holds that a rear parcel may have an easement implied from prior use for existing water and sewer lines across an adjoining front parcel when the lines were installed during common ownership, remained in continuous use, and are reasonably necessary for the rear parcel’s enjoyment, and that the doctrine can apply even though title was severed by a municipal tax taking rather than by a voluntary deed.


Flax v. Smith, 479 N.E.2d 183 (1985)