Appeals court rules in favor of access to Aquinnah landlocked parcels

This map shows the approximate location of the tracts of land that the SJC ruled are not entitled to have access.

The Massachusetts Appeals Court ruled in a 2-1 decision handed down Wednesday that the owners of three tracts of land off Moshup Trail in Aquinnah have the right to access their properties based on the historical “custom and practice of common access” by members of the Wampanoag Tribe of Gay Head. The decision opens up the prospect of development in an area long considered landlocked, and which is bordered by conservation lands.

The long-running legal battle commonly referred to as the Kitras/Decoulos case for James Decoulos and his wife, Maria Kitras, of Belmont, operating as Bear Realty Trust and Gorda Realty Trust, originated more than 14 years ago with the couple’s efforts to develop their property in Aquinnah. They were joined by Mark D. Harding and members of the Eleanor P. Harding Realty Trust.

The defendants include the town of Aquinnah, the state Executive Office of Environmental Affairs, the Martha’s Vineyard Land Bank, the Vineyard Conservation Society, and individual property owners that include Caroline Kennedy and her husband Edwin Schlossberg.

The decision hinged on the legal question of easement by necessity, a doctrine that considers whether an easement was really intended but was inadvertently omitted.

Writing for the majority, Appeals Court Associate Justice Janis M. Berry in the first page of a 14-page decision said, “For the reasons that follow, we conclude that the ancient origins of that common access — dating back before the late 18th century — establish the equivalent of a chain of title, with access rights that would not yield landlocked parcels. The late 19th 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 pre-existing access rights.”

The Appeals Court remanded the case back to the Land Court, which had ruled in August 2010 that Bear Realty Trust, Maria Kitras trustee, had no right to access to about 30 acres of Aquinnah land off Moshup Trail. The trust holds the acreage as successors in interest to what are called set-off lots, created in 1871 and 1878, without express access.

In his August 12 decision, Land Court Judge Charles W. Trombly Jr. found that Bear had not proven, in particular using contemporary evidence, that a right of access was contemplated even, if not defined, at the time the lots were set off in the 1870s. Judge Trombly found that at the time the lots were set off by the state legislature from the common lands of what was then Gay Head, “there was no intent to create easements by necessity to create access to the plaintiffs’ lots.”

“Not by this court”

The Appeals Court decision was not unanimous. In his 23-page dissenting opinion, Associate Justice Peter W. Agnes said, “Necessity alone does not give rise to an implied easement … Neither does there exist a public policy favoring the creation of implied easements when

needed to render land either accessible or productive.”

Justice Agnes said, “As a result, conventional legal doctrine requires the plaintiffs to prove that at the time the partition deeds were approved by the Probate Court judge in 1878, there was an intent, shared by the parties, albeit unexpressed, to grant access easements in hundreds of deeds which were shown on the plan drawn by the commissioners as clearly landlocked. Based on the record before us, I do not believe the plaintiffs met their burden to prove that the parties shared an intent to create access easements.”

Justice Agnes said the record reflects “that the partitioning of the Gay Head Tribe’s land was the result of a methodical process that unfolded over most of the 19th century and was presided over by commissioners who clearly were aware of how to create an easement and who had input from the citizens of the town of Gay Head.”

In a written comment that could provide a signpost for where this lengthy legal battle gos next, Justice Agnes said, “It may be that a presumption should exist that when land previously held in common by members of a Native American tribe is partitioned pursuant to an act of the Legislature, pre-existing tribal rights and customs are perpetuated and become binding on the successor grantees in perpetuity. However, to date there is no such presumption under our law. I believe that such an extraordinary alteration of traditional principles of Massachusetts law should be accomplished by the Supreme Judicial Court and not by this court.”

Struggle will continue

The Appeals Court decision was the first loss in a string of victories. Jennifer Roberts, a lawyer with the Orleans firm of LaTanzi, Spaulding & Landreth, who represents the Vineyard Conservation Society, reacted to the news. “We are disappointed by the Appeals Court decision, but heartened by Justice Peter Agnes’ dissent, which is in accord with settled law, the prior decision of the Appeals Court in this case, and the prior decision of the Land Court,” Ms. Roberts said in an email to The Times. “A request for further appellate review is likely. The struggle to conserve this rare habitat, now in its 20th year, continues.”

Lawyer Diane C. Tillotson of the Boston law firm of Hemenway and Barnes, who represents the Land Bank, said Justice Agnes “pretty flatly said” that if the court is going to create easement rights as a matter of policy in all former Indian lands, whether there was intent or not, as the majority did, it should be decided by the Supreme Judicial Court.

Ms. Tillotson said what both the majority opinion and the dissent relied on is the fact that when the lands were held in common by the Gay Head Tribe, members of the tribe had free rights of access to travel over each other’s land without the need for permission. “What is notably absent,” she said, is any suggestion that they needed to travel over each other’s land to access a roadway, the way we would commonly think of access today.”

Ms. Tillotson said Judge Berry looked at that practice and came to the conclusion that it continued after the partition and created the easement by necessity. Judge Agnes reached a different conclusion, that there was no need to create an easement and they did not create an easement, she said; that in fact there was a need for specific permission to enter one’s property.

Mr. Decoulos and Ms. Kitras could not be reached prior to publication.