Court decision halts quest for access to Moshup Trail properties

Moshup Trail in Aquinnah.

On Nov. 28, the U.S. Supreme Court declined to hear a “request for review” submitted by Maria Kitras and James Decoulos of Belmont in response to a decision by the Supreme Judicial Court (SJC) of Massachusetts. With that decision, a 19-year legal battle over allowing easements on demand to landlocked parcels in the town of Aquinnah came to an apparent end.

Plaintiffs Kitras and Decoulos, trustees of the landlocked parcels — lots without access to a public road — near the Moshup Trail in Aquinnah have argued in several courts over the past two decades that they have a right  — via “easement by necessity” — to impose a right-of-way across the lot of an adjacent landowner. Easement by necessity means that access is implied; the plaintiffs had to show that when the lots were created, access was intended but that reference to it had been omitted in error.

A collection of defendants, including the Town of Aquinnah, the Vineyard Conservation Society (VCS), the Martha’s Vineyard Land Bank, and some Moshup Trail residents, have successfully argued that the custom of free access to all lots among the Wampanoag — in the 1870s, the only residents of the recently incorporated town of Gay Head — meant that lack of explicit easements in documents was not an oversight, but an intentional act.

“The entire town was ‘set off’ in the 1870s,” said Ron Rappaport, town counsel for Aquinnah, in a recent phone conservation with the Times, “divided up by a probate court pursuant an act of the legislature. That division did not create access.” Setoffs, in this case carried out by commissioners at the behest of the probate court, are the creation of lots when an unincorporated district is made into a town.

Do the plaintiffs have any other recourse? The Times asked constitutional scholar Jack Fruchtman, a political science professor at Towson University in Maryland, part-time Aquinnah resident, and a defendant in the case. “The Supreme Court denial last week of the Kitras case essentially ends the matter,” wrote Prof. Fruchtman in an email. “The appellants could request a rehearing, but to my knowledge, the Court does not entertain such a motion. Sometimes the [Supreme Court justices] themselves will relist a case after holding a conference (even several times), which means that they will revisit the petition for them to hear it, but not after they have held their conference to discuss it and rejected it.” Prof. Fruchtman said that the owners of the landlocked parcels would have to “start from scratch” and return to Land Court, if they wish to pursue the matter.

“I don’t know what possible claim he could make,” said Jennifer Roberts, the attorney for the VCS. She noted that Mr. Decoulos is also involved in another lawsuit concerning lots on the ocean side of the Moshup Trail (Frangos v. Town of Aquinnah). “But that should go away after the Kitras resolution,” she said.

The Times reached Mr. Decoulos by phone for comment. He believes there has been a deliberate effort to block him from getting access to his parcels, and said everything would be resolved if he was allowed an easement through a parcel owned by the town of Aquinnah. He has vowed to continue his efforts. “I can’t say right now,” he said about how he would go forward. “There is so much going on.”