Mass. High Court Rejects Easements by Necessity that would Favor Wampanoag Tribe

Here are the materials in Kitras v. Town of Aquinnah:

Aquinnah Gay Head Amicus Brief

Kitras Brief

Kitras Reply Brief

Kitras Supplemental Brief

Martha’s Vineyard Land Bank Commn Brief

Mass SJC Opinion

Massachusetts Brief

Pill Amicus Brief

Real Estate Bar Assn Amicus Brief

Vineyard Conservation Society Brief

Wampanoag Tribe Amicus Brief

Excerpts from the opinion:

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 severalty6 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 access and, therefore, no easements by necessity exist.7


The Land Court judge assumed that the plaintiffs satisfied the elements of a presumption of an intent to establish an easement by necessity but concluded that the defendants submitted sufficient evidence to rebut the presumed intent of the parties. The judge concluded that (1) tribal custom and usage of the land, (2) other rights granted, and (3) the condition of the land at the time of partition provided sufficient evidence to rebut the presumed intent. We agree.

This entry was posted in Author: Matthew L.M. Fletcher, Research and tagged , , , . Bookmark the permalink.

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