Maria A . Kitras, trustee, & others
Town of Aquinnah & others.
Argued January 18, 2013.
[As Modified on January 30, 2015].
Civil action commenced in the Land Court Department on May 20, 1997.
After review by this court, 64 Mass.App.Ct. 285, 833 N.E.2d 157 (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.
Present: Kantrowitz, Berry, & Agnes, JJ.
[22 N.E.3d 983] 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 long-standing 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 Tribe members in severalty. But such precision, following the paths of the Gay Head Tribe's custom and practice, is not required under the legal doctrine of easements by necessity which underlies the Restatement (Third) of Property (Servitudes) (Restatement) § 2.15 (2000) and Massachusetts common law. We remand to the Land Court to draw the necessary easement lines in accord with these legal doctrines -- a practice well within the great skills of that court.
To summarize the reasons for our conclusion that easements by necessity exist, as discussed in more detail below: (1) It is absolutely undisputed that common access right by custom and practices existed among the Gay Head Tribe members over the lands in question. Accordingly, there would not have been any need for restatement of the access rights in the conveyance documents, given the preexisting access over the subject lands. (2) The Gay Head Tribe members, first as grantees, and then as grantors, would not be expected to manifest expressed or implied intent regarding easements, nor would intent be manifest in the governmental land transfers to the Tribe members or in the later judicial partitioning process, which changed common ownership to yield individual deeds in severalty ownership to the Tribe members. (3) Even were we to disregard the history of common access as laying the predicate for easements by necessity to avoid landlocking, it is appropriate to turn to and follow § 2.15 of the Restatement, which provides that an easement by necessity exists where access would otherwise be cut off unless the parties clearly indicate they intended a contrary result. (4) Lastly, even apart from the Restatement, Massachusetts property common law also supports easements by necessity in the subject parcels.
1. The Gay Head Tribe's tradition of common access over the subject lands.
First, it is not disputed -- to the contrary it is
definitely acknowledged on this record -- that the prevailing custom of the Gay
[22 N.E.3d 984] Head Tribe was to allow its members access over the lands. There
is no evidence in the record that this prevailing custom, prior to the
governmental partition that occurred in the 1870s, did not continue after the
land, previously held in common, was partitioned and deeded to Tribe members.
In light of this land use fact as to which there is no dispute, any intent regarding affirmative easements would not have been expressed because there was no need to do so, with the extant Tribe members' common access over the lands.
There is neither any basis to negate this undisputed fact nor any basis to
easements by necessity simply because way back in the historic lore -- which encompasses the Gay Head Tribe's common access paths, the Massachusetts governmental common land grants, and the judicially partitioned deeds changing the ownership to deeds in severalty -- there was not expressed or implied intent in the land history by the Gay Head Tribe grantees or grantors with respect to conveying easements by necessity to avoid creating landlocked parcels. Again, the point to be emphasized is that, given the Tribe's ancient history of custom and practice, one would not likely discern or find intent, express or implied, to convey what already existed, in fact, by common access.
2. The history of the Gay Head Tribe's common ownership, judicial partition, and the Tribe's members' individual rights by ownership in severalty.
Although quite arcane, it is important to consider
the property form of ownership of the Tribe's lands before and after the
1870-1878 judicial partition.
First, the subject lands were held in common ownership prior to the judicial partitioning process. After the partitioning process, the lands were held in severalty. The deeds in severalty to the Tribe members/real parties in interest in the partitioning process, in our opinion, resulted in a " carry-through" of the preexisting right of common access of the Tribe members to their lands now held in severalty.
[22 N.E.3d 985] Turning first to the real parties in interest, the historic record demonstrates, and it is important to emphasize, that the real parties
in interest to the partitioning process,,  which led to the crafting of deeds in severalty to the Gay Head Tribe members, were not the commissioners, whose functions were administrative. Indeed, given the administrative drafting mandate to the commissioners to divide and reformulate the Tribe's common lands to lands in severalty, one would not expect to see, and there are not to be seen, expressions of the commissioners' intent on easements yea or nay. Intent was beyond the pale of the commissioners.
To be further noted in this land history are the legislative enactments which preceded the judicial partition of the Tribe's lands. In 1869 and 1870, to address the inequity of Native Americans having limited land ownership rights under State law, the Legislature enacted St. 1869, c. 463, and St. 1870, cc. 213, 293, 350. It is the 1870 statute involving partition and common ownership that is important to consider in this case. As to the subject lands at issue here, the process for division of the Tribe's common lands was set forth in St. 1870, c. 213, § 6:
" The judge of probate of the county of Dukes-county, upon the application of the selectmen of Gay Head, or of any ten resident owners of land therein ... if he shall adjudge that it is for the interest of said parties that any or all of the common lands of said town be divided, shall appoint two discreet,
disinterested persons commissioners to make partition of the same, and their award, being confirmed by said court, shall be final in the premises."
As previously noted it was the Gay Head Tribe members who proceeded as the real parties in interest and filed petitions for partition of the common lands, which enjoyed common access by custom and practice. One petition in September, 1870, requests the court " to divide and set off our parts in severalty to us of all the common land in" Aquinnah. Another petition, dated October 17, 1870, states, " we shall be greatly benefited if our part of the common land in Gay Head be set off to us in severalty. ... We the undersigned ... [22 N.E.3d 986] take this method to request your honor to put us in possession of what belongs to us of the said common land " (emphasis added). It is, of course, not surprising that the newly enfranchised Tribe members, in this petition to enforce for the first time their now real and full well justified right to own property, did not in their petition express any intent concerning easements.
To complete the historic background, on December 5, 1870, a judge of the Probate ...