Maria A. Kitras, trustee,  & others 
Town of Aquinnah & others. 
December 8, 2015
action commenced in the Land Court Department on May 20,
review by the Appeals Court, 64 Mass.App.Ct. 285 (2005), the
case was heard by Charles W. Trombly, Jr., J.
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.
C. Tillotson for Martha's Vineyard Land Bank.
H. Rappaport for town of Aquinnah.
H. Sibbison for Maria A. Kitras & another.
Ann Morse for Mark D. Harding & others.
Jennifer H. Flynn, Assistant Attorney General, for the
Commonwealth, was present but did not argue.
following submitted briefs for amici curiae.
Lawrence H. Mirel, of the District of Columbia, for
Aquinnah/Gay Head Community Association.
H. Cohn, Felicia H. Ellsworth, & Claire M. Specht for
Real Estate Bar Association for Massachusetts, Inc., &
Friederichs, Lorie Graham, & Jeffrey Pokorak for
Wampanoag Tribe of Gay Head (Aquinnah).
Michael Pill, pro se.
Gants, C.J., Spina, Cordy, Duffly, Lenk, & Hines, JJ.
N.E.3d 200] 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). 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). When two
commissioners appointed by the probate court pursuant to
statute partitioned the common land into hundreds of lots to
be held in severalty 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 [49 N.E.3d 201] 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 access and, therefore, no easements by necessity
plaintiffs initiated this action in 1997 by filing a
complaint for declaratory judgment. In June, 2001, a Land
Court judge allowed the defendants' motions to dismiss,
concluding that the United States was an indispensable party
because any easement by necessity found would burden the
tribal lands held in trust by the United States. The
plaintiffs appealed. In 2005, the Appeals Court decided that
before addressing the issue whether the United States was an
indispensable party, it first had to decide whether easements
by necessity could be implied for all or some of the lots.
Kitras v. Aquinnah, 64 Mass.App.Ct. 285,
291, 833 N.E.2d 157 (2005) ( Kitras I ). The court
concluded that lots numbered 189 and above were created by
the partition of the common land and, thus, had the requisite
unity of title to establish an easement by necessity.
Id. at 293-294. Lots 189 and below were deemed held
in severalty by members of the Tribe, which foreclosed the
possibility of an easement by necessity because there was no
unity of title as to those lots. Id. at 292. The
Appeals Court concluded that the United States was not an
indispensable party because the lands in question were
subject to a 1983 settlement agreement which provided that
any land owned by the Wampanoag Tribal Council of Gay Head,
Inc., a federally recognized Native American tribe, in the
town of Aquinnah or in the Commonwealth, would be subject to
the civil jurisdiction of the Commonwealth. See id.
at 297. See also Building Inspector & Zoning Officer
of Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery
Corp., 443 Mass. 1, 3, 14, 818 N.E.2d 1040 (2004). The
Appeals Court reasoned that because the Tribe had waived its
sovereign immunity as to these lands in the 1983 settlement
agreement, the need to join the United States as a necessary
party had been eliminated. Kitras I, supra
at 298. Ultimately, the Appeals Court reversed and remanded
the case to the Land Court to determine whether there was an
intent to create easements affecting lots 189 and above and,
if so, the scope of such easements. Id. at 301.
remand, a Land Court judge bifurcated the trial, addressing
first whether rights of access were intended at the time of
the partition in 1878, creating easements by necessity. If
so, then the judge would decide the location and proper
routes of such easements. The parties each submitted
documents and their respective
objections. The judge ruled that the parties' focus on
lot 178 was not relevant because the Appeals Court had
concluded that only lots 189 and above have the required
unity of title for an easement by necessity. The judge
decided the case on documentary evidence submitted by the
parties, without testimony. The judge concluded that
easements by necessity did not exist because there was
sufficient evidence [49 N.E.3d 202] to rebut the presumed
intent of the grantor commissioners to create access
easements. The plaintiffs appealed.
divided panel of the Appeals Court reversed and remanded the
case to the Land Court to determine the location of the
easements by necessity. Kitras v. Aquinnah,
87 Mass.App.Ct. 10, 18, 22 N.E.3d 981 (2015) ( Kitras
II ). We granted the defendants' applications for
further appellate review. The plaintiffs argue (1) that there
was a presumed intent that the grantees had legal access to
their lots and the defendants did not present sufficient
evidence to rebut the presumption; and (2) that lot 178, like
the plaintiffs' other lots, is entitled to an easement by
necessity. The defendants argue that the trial judge (1)
properly decided that no easements by necessity were created
as a result of the 1878 partition; and (2) properly declined
to reconsider whether lot 178 was included in the partition
of the common lands. We affirm the judgment of the trial
case presents a unique set of facts in which we must examine
a large-scale partition of Native American common land that
occurred over one hundred years ago and ascertain the intent
of the parties. The majority of the facts arise from several
reports written by commissioners appointed by the probate
court pursuant to statute who were ordered to visit and
describe the condition and circumstances of the various
Native American tribes located in Massachusetts. For much of
the Nineteenth Century, a guardianship system managed the
Native American tribes. St.
1828, c. 114, § 2. Under this system, Native Americans
were designated " involuntary wards of the State"
where they could not sue or be sued, enter into legally
binding contracts, or sell land to people outside of their
own tribe. Report to the Governor and Council, 1862 House
Doc. No. 215, at 39. See Report of the Commissioners, 1849
House Doc. No. 46, at 20; 2 C.E. Banks, The History of
Martha's Vineyard 14 (1966) (Banks); St. 1828, c. 114. In
the mid-Nineteenth Century, the Legislature began to depart
from a paternalistic system of governance and move toward
granting Native Americans full citizenship. Report to the
Governor and Council, 1862 House Doc. No. 215, at 7. Over the
years, the Legislature appointed commissioners and ...