Kitras, et al. v. Town of Aquinnah, et al. (Lawyers Weekly No. 10-052-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11885 MARIA A. KITRAS, trustee,[1] & others[2] vs. TOWN OF AQUINNAH & others.[3] Suffolk. December 8, 2015. – April 19, 2016. Present: Gants, C.J., Spina, Cordy, Duffly, Lenk, & Hines, JJ. Easement. Necessity. Real Property, Easement. Law of the Case. Civil action commenced in the Land Court Department on May 20, 1997. After review by the Appeals Court, 64 Mass. App. Ct. 285 (2005), the case was heard by Charles W. Trombly, Jr., J. After further review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Jennifer S.D. Roberts for Vineyard Conservation Society, Inc. Diane C. Tillotson for Martha’s Vineyard Land Bank. Ronald H. Rappaport for town of Aquinnah. Wendy H. Sibbison for Maria A. Kitras & another. Leslie Ann Morse for Mark D. Harding & others. Jennifer H. Flynn, Assistant Attorney General, for the Commonwealth, was present but did not argue. The following submitted briefs for amici curiae: Lawrence H. Mirel, of the District of Columbia, for Aquinnah/Gay Head Community Association. Andrew H. Cohn, Felicia H. Ellsworth, & Claire M. Specht for Real Estate Bar Association for Massachusetts, Inc., & another. Nicole Friederichs, Lorie Graham, & Jeffrey Pokorak for Wampanoag Tribe of Gay Head (Aquinnah). Michael Pill, pro se. SPINA, J. In this case, we are asked to determine whether easements by necessity were created as a result of an 1878 partition of Native American common land in the town of Gay Head (now known as Aquinnah).[4] Gay Head is located on the western coast of Martha’s Vineyard, connected to the rest of the island by an isthmus. At the time of the 1878 partition, Gay Head was inhabited solely by members of the Wampanoag Tribe of Gay Head (Tribe).[5] When two commissioners appointed by the probate court pursuant to statute partitioned the common land into hundreds of lots to be held in severalty[6] by members of the Tribe, they did not include express easements providing rights of access, leaving the lots landlocked. The plaintiffs are owners of several lots created by this partition and are seeking, over one hundred years later, easements by necessity over the lots of the defendants. We conclude that the defendants presented sufficient evidence to rebut the presumption that the commissioners intended to include rights of […]