Supreme Judicial Court Holds Prescriptive Easement Does Not Amount to a Taking

Photo of Malgorzata Mrozek

The Supreme Judicial Court (“SJC”) recently held that a government taking did not occur where a town had acquired a prescriptive easement to discharge storm water through private property. In Gentili v. Town of Sturbridge, Plaintiffs commenced an action in 2015 in the Land Court seeking various declarations against the town and its rights to discharge storm water onto the Plaintiffs’ property. The Land Court held the town had acquired a prescriptive easement pursuant to G.L. c. 187 § 2 to discharge the storm water on to the property.

Plaintiffs did not appeal the Land Court’s ruling, but instead filed suit in the Superior Court seeking compensation from the town on the grounds the prescriptive easement amounted to a government taking. On summary judgment, the Superior Court found in favor of the town, holding that no taking had occurred. The Plaintiffs appealed and the SJC transferred the appeal to itself on its own initiative.

The SJC affirmed the Superior Court decision, holding that the prescriptive easement was acquired not through any action by the town, but by Plaintiffs’ failure to stop the town from draining water onto their property during the statutory period (20 years). In order for a government taking to occur, the government must commandeer a right the Plaintiff possesses, whereas with a prescriptive easement the Plaintiff has had their rights extinguished by their own inaction. Therefore, there was no taking and Plaintiffs were not entitled to any compensation.


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