Kitras, et al. v. Town of Aquinnah, et al. (Lawyers Weekly No. 11-006-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 12-P-260 Appeals Court MARIA A. KITRAS, trustee,[1] & others[2] vs. TOWN OF AQUINNAH & others.[3] No. 12-P-260. Suffolk. January 18, 2013. – January 14, 2015. Present: Kantrowitz, Berry, & Agnes, JJ. Easement. Necessity. Real Property, Easement. Civil action commenced in the Land Court Department on May 20, 1997. After review by this court, 64 Mass. App. Ct. 285 (2005), the case was heard by Charles W. Trombly, Jr., J. Wendy H. Sibbison for Maria A. Kitras & another. Leslie-Ann Morse for Mark D. Harding & others. Diane C. Tillotson for Martha’s Vineyard Land Bank & others. John Donnelly, Assistant Attorney General, for the Commonwealth. Jennifer S.D. Roberts for Vineyard Conservation Society, Inc. BERRY, J. From the earliest time, the members of the Wampanoag Tribe of Gay Head (now known as Aquinnah) in Martha’s Vineyard (Gay Head Tribe or Tribe), had a custom and practice of common access across the lands that are the subject of this appeal. For the reasons that follow, we conclude that the ancient origins of that common access — dating back before the late eighteenth century — establish the equivalent of a chain of title, with access rights that would not yield landlocked parcels. The late nineteenth century State statutory conveyance of large tracts of public common land in Aquinnah, including the subject lands, by the Legislature as grantor to the newly enfranchised Gay Head Tribe members as grantees, and the subsequent judicial partitioning of these governmentally conveyed lands did not, we determine, break these preexisting access rights. More specifically, the subsequent grantees of land tracts in the links of this chain of conveyances from the Gay Head Tribe members to the present plaintiffs were not divested of these long-held access rights flowing from the longstanding tribal custom and practice so as to leave the plaintiffs’ lots landlocked and bereft of easements. It is so that a plumb line — with perfectly fit easements in the precise transverse of paths walked by and through the lands by the Gay Head Tribe members, in their custom and practice — would, in this present time, be most difficult to reconstruct by metes and bounds since property boundaries were not set in that manner in the statutory governmental conveyances and subsequent judicial partition that deeded the lots to the Gay Head […]