(dissenting). I respectfully dissent. In my view, summary judgment was not appropriate for the plaintiff based on the limited record that we have been presented.
As the majority acknowledges, abandonment is a question of intent, and that intent must be established clearly. Desotell v. Szczygiel, 338 Mass. 153, 158 (1958). “In order to establish abandonment of easements . . . there must be ‘acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence.’ ” Dubinsky v. Cama, 261 Mass. 47, 57 (1927), quoting from Parsons v. New York, N.H. & H.R.R., 216 Mass. 269, 272 (1913). See Willets v. Langhaar, 212 Mass. 573, 575 (1912). Mere nonuse, however long it continues, does not establish intent to abandon. Delconte v. Salloum, 336 Mass. 184, 188 (1957). So, for example, the failure to clear the easement area of natural trees and brush for thirty-three years was found insufficient to establish an intention to abandon easement rights. Desotell v. Szczygiel, 338 Mass. at 159. See generally Dubinsky v. Cama, 261 Mass. at 57, and cases cited. Generally, intent to abandon requires affirmative actions by the dominant owners inconsistent with use of the easement. In the instant case the only affirmative act by the dominant owners was extension of their yard into the portion of the easement that falls on their property. I am aware of no Massachusetts cases in which this type of lawn enlargement was found sufficient to establish abandonment.
This was also not a case where permanent obstructions to the use of the easement were undisputedly constructed after the creation of the easement. See, e.g., Lund v. Cox, 281 Mass. 484, 492-493 (1933) (“Physical obstructions . . . rendering use[] of the easement impossible . . . , combined with the great length of time during which no objection has been made to their continuance nor effort made to remove them, are sufficient to raise the presumption that the right has been abandoned . . .”). In the instant case the stone wall at the town line predates the creation of the easement, and we have no information in the record regarding when the wooden stockade fence was constructed.1 These facts may only establish that the easement holders (and their *162predecessors in interest) have not yet chosen to exercise their rights under the easement to have them removed. An easement holder has the right to enter on the servient estate for the purpose of constructing a way if it has not already been constructed. See Walker v. E. William & Merrill C. Nutting, Inc., 302 Mass. 535, 543 (1939).
Lasell College v. Leonard, 32 Mass. App. Ct. 383 (1992), on which the majority relies, does not support the majority’s holding. In that case, two easement holders had acquiesced for a long period in the use by the servient owner of a portion of the easement area as though it was his yard. We held that one of the two owners (Iodice) had evidenced an intent to abandon his rights in the easement, but that intent was established by an affirmative act: the erection of a fence separating his property from the disputed portion of the way. See Lasell College, 32 Mass. App. Ct. at 390-391. The other easement holder (Lasell College) did not evidence the requisite intent to abandon its easement by its mere acquiescence in the defendants’ use of the disputed portion of the way, even though they used a portion of the area as a driveway and erected a dog pen, play equipment, and a shed on the remainder. See id. at 384.2
Finally, the majority’s reference to the Restatement (Third) of Property § 7.10 (2000) is misplaced. The present case does not involve “a change [that] has taken place since the creation of a servitude that makes it impossible as a practical matter to accomplish the purpose for which the servitude was created.” Id. at § 7.10(1). The easement could still be used to provide an alternative means of access and egress to the defendants’ property.3
*163In sum, I consider the majority’s holding to represent a departure from Massachusetts law that risks creating uncertainty in an area in which certainty and predictability are significant and valuable forces. I accordingly dissent.
The appellate record is not as clear as it should be on this point. See ante *162at 157 n.7. The uncertainties reflected here and in note 7 of the majority opinion appear to preclude summary judgment from being properly allowed for the defendants as well. As we have a poor record and abandonment involves a fact question regarding intent, it is not surprising that a trial may be required to resolve this dispute. See, e.g., King v. Murphy, 140 Mass. 254, 254 (1885); Willets v. Langhaar, 212 Mass. at 574.
The college also refused to release the easement when asked to do so on one occasion approximately fifteen years prior to the dispute at issue in the case. Id. at 390.
Arguably, in these circumstances, a genuine issue of material fact has been raised regarding whether the defendants have abandoned the use of the way as an alternative means of access or egress and were only seeking to protect the *163easement as a means of preserving green space. Nevertheless, without deposition testimony or affidavits to that effect, it is difficult to conclude that this is a reasonable inference.