The Massachusetts Supreme Court ruled Monday that governmental acquisition of property via a prescriptive easement is not a taking. Property owners impacted are thus not entitled to just compensation.

The factual background of the case involved the town of Sturbridge’s 20-year practice of discharging water onto a property. Due to this extended period of time (and other factors), a judge found that Sturbridge’s use constitutes a prescriptive easement. The plaintiffs in the case, trustees of the Renato Gentili Trust, do not challenge this separate court finding.

Instead, plaintiffs brought another action, asserting that a finding of a prescriptive easement establishes a taking. A physical or per se taking occurs when a governmental intrudes on private property rights for public use. The plaintiffs argue that the discharge of water onto their property causes injury and the government has thus “taken” the property.

The Court rejected the argument. Chiefly, the court found that plaintiffs failed to assert their property rights. The court stated

The trust concomitantly, failed during that time to assert any rights against the town either to put a stop to the discharge of water onto the property or to obtain compensation for it as a taking. It is this failure, rather than any action by the town, that led to the trust’s loss of property rights.

The opinion is consistent with rulings from other jurisdictions, including Ohio, Alaska and Maine.