## Facts

- Neighboring residential landowners in Scituate, Massachusetts disputed ownership of a 2,998-square-foot triangular parcel.
- The defendants’ cesspool malfunctioned after a third party built a swimming pool over land under which part of the cesspool lay.
- Local requirements compelled the defendants to install a code-compliant septic system; the defendants asserted the only feasible location was the disputed triangle.
- The plaintiffs sought a declaration of fee ownership of the triangle and injunctive relief to stop trespass and require removal of any septic system placed there.
- While title litigation and a request for injunctive relief were pending, the Land Court denied a preliminary injunction; the defendants then entered the disputed area and installed the septic system.

## Issues

1. Whether the defendants were entitled to an easement (including an easement by necessity) to maintain a septic system on land adjudged to be owned by the plaintiffs.
2. Whether equitable balancing permitted denial of an injunction and substitution of damages or a compelled easement for a permanent private encroachment.
3. Whether a court may effectively force a private transfer of a property interest to benefit neighboring owners by recognizing a continuing permanent physical occupation.

## Decision

- The Supreme Judicial Court held that the defendants were not entitled to an easement to maintain the septic system on the plaintiffs’ land.
- The Court reversed the judgment insofar as it granted an easement and remanded for entry of an injunction requiring removal of the septic system.
- The Court directed that damages for trespass be determined and awarded.

## Legal Principles

- Courts generally will not impose or validate a permanent private physical occupation of another’s land by creating an easement, absent exceptional circumstances and proper legal authorization.
- An easement by necessity requires satisfaction of traditional doctrinal prerequisites (including the typical unity-of-title/severance framework); regulatory inconvenience or later-arising need does not alone create such an easement.
- Equitable discretion to deny an injunction for encroachment is limited and is not suited to substantial, permanent intrusions, particularly where the encroacher acted with knowledge of an active ownership dispute.
- A compelled easement benefiting a private neighbor risks functioning as an impermissible taking of a property interest outside eminent domain processes and without a public-use justification.
- Where no property right justifies a continuing occupation, the ordinary remedies are injunctive relief to remove the encroachment and damages for trespass.

## Conclusion

The court required removal of a neighbor-installed septic system from the plaintiffs’ land and rejected a judicially created easement, holding that permanent private encroachments cannot be converted into property interests through equitable balancing when easement doctrine is unmet and the occupation is substantial and knowing.


Goulding v. Cook, 422 Mass. 276, 661 N.E.2d 1322 (Mass. 1996)