Kitras and Decoulos Petition 091616

No.
IN THE
Supreme Court of the United States

MARIA A. KITRAS TRUSTEE, ET AL., PETITIONERS
v.
TOWN OF AQUINNAH ET AL.
PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT
FOR THE COMMONWEALTH OF MASSACHUSETTS
PETITION FOR WRIT OF CERTIORARI

MARIA A. KITRAS
Trustee, Pro Se
JAMES J. DECOULOS
Trustee, Pro Se
38 Bow Road
Belmont, MA 02478
maria@decoulos.com
(617) 489-7795
38 Bow Road
Belmont, MA 02478
jamesj@decoulos.com
(617) 489-7795
CURRY & TAYLOR 202-393-4141
Printed with FinePrint - purchase at www.fineprint.com
ii
QUESTIONS PRESENTED
PARTIES TO THE PROCEEDING
1. Whether an assumed tribal custom can survive the

extinguishment of aboriginal rights by Congress
and undermine conveyances of land that were
transferred in fee simple absolute?
Maria A. Kitras, as Trustee of Bear Realty Trust, Bear II

Realty Trust and Gorda Realty Trust; and James J.
Decoulos, as Trustee of Bear II Realty Trust and Gorda
Realty Trust, Petitioners,
2. Whether the legal presumption of an easement by

necessity is protected against contradiction by
the parol evidence rule, and whether the
relaxation of the rule amounts to a taking of
property under the Due Process Clause?
Town of Aquinnah; Sheila H. Besse and Charles D.

Harding, Jr., as Trustees of the Eleanor P. Harding Realty
Trust; Commonwealth of Massachusetts; Joanne
Fruchtman; Jack Fruchtman; Benjamin L. Hall, Jr., as
Trustee of Gossamer Wing Realty Trust; Brian M. Hall, as
Trustee of Barons Land Trust; Mark D. Harding; Caroline
Kennedy; Marthas Vineyard Land Bank; Edwin
Schlossberg; Vineyard Conservation Society, Inc.; Betsy
Wice; and, David Wice. Respondents.
3. Whether the judicial elimination of a wellestablished common law right to private property,
absolutely necessary for the enjoyment of
property, constitutes a judicial taking under the
Fifth and Fourteenth Amendments?
iii
iv
TABLE OF CONTENTS
TABLE OF AUTHORITIES
Page
Page
CASES
QUESTIONS PRESENTED .............................................................. i

PARTIES TO THE PROCEEDING .................................................. ii
TABLE OF AUTHORITIES............................................................ iv
OPINIONS BELOW ......................................................................... 1
JURISDICTION ............................................................................... 2
RELEVANT PROVISIONS INVOLVED ......................................... 3
STATEMENT .................................................................................. 5
REASONS FOR GRANTING THE PETITION............................... 17
CONCLUSION ............................................................................... 38
APPENDIX
SJC Decision ........................................................................... 1a
Appeals Court Decision ....................................................... 24a
County Court Decision ........................................................ 61a
Appeals Court Decision ....................................................... 77a
County Court Decision ...................................................... 101a
ALEXANDER DAWSON, INC. V. FLING, 155 COLO.

599, 396 P.2D 599, 601 (1964) .................................................. 28
ALPHA REAL ESTATE V. DELTA DENTAL, 664
N.W.2D 303, 312 (MINN., 2003).............................................. 33
BARREDA V. SILSBEE, 62 U.S. 146, 21 HOW. 146
(1858)........................................................................................ 35
BOARD OF REGENTS OF STATE COLLEGES V. ROTH,
408 U.S. 564, 577 (1972) .......................................................... 38
BOUIE V. CITY OF COLUMBIA, 378 U.S. 347, 354
(1964)........................................................................................ 18
BRAINARD WARNER V. DAVID GRAYSON, 200 U.S.
257 (1906) ................................................................................. 21
BURLISON V. U.S., 533 F.3D 419, 429 (6TH CIR.,
2008) ....................................................................................34, 35
BUSSARD V. COLL. OF ST. THOMAS, 294 MINN. 215,
224 (1972) ................................................................................. 33
CAMPORA V. FORD, 124 S.W.3D 624, 628 (TENN. CT.
APP. 2003)................................................................................ 34
CANEI V. CULLEY, 374 S.E.2D 523, 524 (W. VA.
1988) ......................................................................................... 20
CARCIERI V. SALAZAR, 555 U.S. 379, 399 (2009) .................... 25
CHOATE V. TRAPP, 224 U.S. 665, 675, 32 S.CT. 565,
569, 56 L.E D. 941 .................................................................... 26
COLLINS V. PRENTICE, 25 CONN. 39 (1842) ............................ 19
CROTTY V. NEW RIVER AND POCAHONTAS COAL
CO., 72 W. VA. 68, 78 (1913) ................................................... 35
CUSHING V. STATE, 434 A.2D 486, 494-95 (ME.1981).............. 28
DALE V. BEDAL, 305 MASS. 102, 103 (1940)............................. 15
DAVIS V. SIKES, 254 MASS. 540, 545-546 (1926) ...................... 20
DENVER AREA EDUC. TELECOMM. CONSORTIUM
V. FCC, 518 U.S. 727 (1996) ................................................... 22
EVANS V. HOLLOWAY SAND AND GRAVEL, INC.,
106 MICH.APP. 70, 308 N.W.2D 440, 443 (1981) ................... 28
GALLOWAY V. BONESTEEL, 65 WIS. 79 (1886)........................ 19
vi
GEORKE CO. V. WADSWORTH, 73 N.J. EQ. 448, 68 A.

71 (1907) ................................................................................... 36
GRANITE PROPERTIES LTD. V MANNS, 117 ILL.2D
425, 512 (1987) ......................................................................... 35
GRATHWOHL, 805 N.W.2D 285 (MINN. APP., 2011) ................ 33
GRAY V. HANDY, 349 MASS. 438, 441 (1965) ............................ 27
GREASY SLOUGH OUTING CLUB, INC. V. AMICK,
224 ARK. 330, 337, 274 S.W.2D 63, 67 (1954)......................... 21
HODEL V. IRVING, 481 U.S. 704 (1987)..................................... 38
JAMES V. WATT, 716 F.2D 71, 74-75 (1ST CIR. 1983),
CERT. DENIED, 467 U.S. 1209 (1984) .................................... 24
JENNINGS V. GENERAL MEDICAL CORP., 604 F.2D
1300, 1305 (CA10 1979)........................................................... 32
JOHNSON V. M'INTOSH, 21 U.S. (8 WHEAT.) 543, 574
(1823)........................................................................................ 14
JONES V. BROOKS, 696 S.W.2D 885, 886 (TENN.1985)............. 34
KINSCHERFF V. U.S., 586 F.2D 159 (10TH CIR., 1978) ........... 21
LAKE PLEASANT GROUP V. U.S., 79 F.3D 1166
(FED. CIR., 1996) .................................................................... 21
LEO SHEEP COMPANY V. UNITED STATES, 440 U.S.
668, 679 (1979) ......................................................................... 21
LORETTO V. TELEPROMPTER MANHATTAN CATV
CORP., 458 U.S. 419 (1982) ..................................................... 38
LUCAS V. SOUTH CAROLINA COASTAL COUNCIL,
505 U.S. 1003,1019 (1992) ....................................................... 37
MAKEPEACE BROS. V. BARNSTABLE, 292 MASS. 518
(1935)........................................................................................ 28
MARZO V. SEVEN CORNERS REALTY INC., 171 F.2D
144 ............................................................................................ 36
MCCULLOCH V. MARYLAND, 17 U.S. 316, 413-414
(1819)........................................................................................ 22
MCDONALD V. BOARD OF MISSISSIPPI LEVEE
COMMISSIONERS, 646 F.SUPP. 449, 466-67
(N.D.MISS.1986), AFF'D, 832 F.2D 901 (5TH
CIR.1987) ................................................................................. 28
MEMPHIS HOUS. AUTH. V. THOMPSON, 38 S.W.3D
504, 512 (TENN. 2001)............................................................. 34
MINNESOTA V. HITCHCOCK, 185 U.S. 373, 395, 396,
22 S.CT. 650, 658, 659, 46 L.E D. 954 ...................................... 26

MURPHY V. BURCH, 205 P.3D 289, 46 CAL. 4TH 157
(CAL., 2009) ............................................................................. 36
NEW YORK & NEW ENGLAND RAILROAD V.
RAILROAD COMMISSIONERS, 162 MASS. 81, 83
(1894)........................................................................................ 20
OAKLEY VALLEY STONE, INC. V. ALASTRA, 110
IDAHO 265, 715 P.2D 935, 937 (1985) ..................................... 28
ORPIN V. MORRISON, 230 MASS. 529, 533 (1918) ..................... 32
ORVIS V. HIGGINS, 180 F.2D 537, 539 (CA2 1950) ................... 32
PATTERSON V. BUFFALO NAT. RIVER, 76 F.3D 221
(8TH CIR., 1996) ...................................................................... 21
PEARNE V. COAL CREEK MINING & MFG. CO., 90
TENN. 619 (1891)..................................................................... 19
PENNSYLVANIA COAL CO. V. MAHON, 260 U.S. 393,
413-416 (1922).......................................................................... 38
PERNAM V. WEAD, 2 MASS. 203, 206 (1806)............................. 19
PERRY V. SINDERMANN, 408 U.S. 593, 601 (1972).................. 38
PLATT V. PIETRAS, 382 SO.2D 414, 417
(FLA.DIST.CT.APP.1980)....................................................... 28
PLEASE V. THOMAS, 75 MISS. 495 (1897) ................................. 19
PULLMAN-STANDARD V. SWINT AND UNITED
STEELWORKERS OF AMERICA V. SWINT, 456 U.S.
273, 301-302 (1982) .................................................................. 32
REXTROAT V. THORELL, 89 ILL.2D 221, 60 ILL.DEC.
438 (1982), CERT. DENIED, 459 U.S. 837 (1982) ................... 22
RICKER V. BARRY, 34 ME. 116, 121-22 (1852) ......................... 19
SNYDER V. WARFORD, 11 MO. 513 (1848) ................................ 19
STEINKE V. SUNGARD FIN. SYS., INC., 121 F.3D 763
(1ST CIR., 1997) ....................................................................... 35
STOP THE BEACH RENOURISHMENT, INC. V. FLA.
DEP'T OF ENVTL. PROT., 560 U.S. 702, 713-715
(2010)........................................................................................ 37
THURSTON COUNTY, HIRAM GRANT, 719 F.2D 956,
960 (8TH CIR. 1983)................................................................. 27
TRACY V. ATHERTON, 35 VT. 52 (1862).................................... 19
UNITED STATES V. SANTA FE PAC CO V. 12 8212 13,
1941, 314 U.S. 339, 345 (1941) ................................................ 25
vii
viii
UNITED STATES V. SIOUX NATION OF INDIANS, 448

U.S. 371 (1980) ........................................................................ 38
UNITED STATES V. WELCH, 217 U.S. 333, 339 (1910) ............ 38
USA. V. SRNSKY, 271 F.3D 595, 599 (4TH CIR., 2001)............. 21
VERMONT TRADERS, INC. V. BARTHOLOMEW, 142
VT. 486 (1978).......................................................................... 35
WEBB'S FABULOUS PHARMACIES, INC. V.
BECKWITH, 449 U.S. U.S. 155, 163-165 (1980).................... 37
YELLOWSTONE RIVER LLC V. MERIWETHER
LAND FUND I LLC, 362 MONT. 273 (2011).......................... 36
SIMONTON, WAYS BY NECESSITY, 25 COLUM. L.

REV. 571 (1925) ..................................................................19, 35
TIFFANY'S REAL PROPERTY, VOLUME 3 (3RD ED.
1939) ........................................................................................ 26
STATUTES
1 Stat. 137 .................................................................................. 4, 6
25 U.S.C. 1771 ................................................................ 9, 30, 32
25 U.S.C. 1771(b) ............................................................. passim
25 U.S.C. 1771e ......................................................................... 12
28 U.S.C. 1257(a)........................................................................ 2
MASS. ACTS C. 463, 1, C. 463, 1, ADD. 35 ............................. 23
RULES
Supreme Court Rule 30.1 ............................................................ 2
OTHER AUTHORITIES
4 POWELL ON REAL PROPERTY, 34.07[3] AT 34-57
(2000). ...................................................................................... 26
ARTHUR L. CORBIN, THE PAROL EVIDENCE RULE,
53 YALE L.J. 603, 622 (1944).................................................. 34
EVIDENCE OF INTENTION AS REBUTTING WAYS
OF NECESSITY, 29 YALE L.J. 665 (1920) ............................. 33
JON W. BRUCE AND JAMES W. ELY, JR. THE LAW
OF EASEMENTS AND LICENSES IN LAND 1:9 AT
1-25, AND 1:15 AT 1-40 (2010) ............................................... 28.
KENT GREENAWALT, A PLURALIST APPROACH TO
INTERPRETATION: WILLS AND CONTRACTS, 42
SAN DIEGO L.REV. 533, 587 (2005) ...................................... 34
1
OPINIONS BELOW
The published Opinion of the Massachusetts
Supreme Judicial Court in Maria A. Kitras, trustee et
al. v. Town of Aquinnah et al., Docket No. SJC-11885,
dated April 19, 2016, and reported at 474 Mass. 132
(2016); 49 N.E.3d 198 (Mass. 2016), affirming the
judgment of the Massachusetts Land Court, is set forth
in the Appendix hereto (App. 1-23).
The published Opinion of a divided panel of the
Massachusetts Appeals Court in Maria A. Kitras,
trustee et al. v. Town of Aquinnah et al., Docket No. 12P-260, dated January 14, 2015, and reported at 87 Mass.
App. Ct. 10 (2015) (Kitras II); 22 N.E.3d 981 (Mass.
App. 2015), reversing the Land Court, is set forth in the
Appendix hereto (App. 24-60).
The unpublished Decision of the Land Court in
Maria A. Kitras, trustee et al. v. Town of Aquinnah et
al., Docket No. 97 MISC 238738, dated August 12, 2010,
denying the presumption of easements by necessity for
petitioners landlocked lots, is set forth in the Appendix
hereto (App. 61-76).
Appeals Court in Maria A. Kitras, trustee et al. v. Town
of Aquinnah et al., Docket No. 2004-P-472, dated
August 18, 2005, and reported at 64 Mass. App. Ct. 285
(2005) (Kitras I); 833 N.E.2d 157 (Mass. App. 2005),
reversing the Land Court and remanding for the
purpose of having that court whether there was an
intent to create
easements affecting petitioners
2
landlocked lots and, if so, the scope of such easements,
is set forth in the Appendix hereto (App. 77-100).
The unpublished Decision of the Land Court in
Maria A. Kitras, trustee et al. v. Town of Aquinnah et
al., Docket No. 97 MISC 238738, dated June 4, 2001,
dismissing petitioners action concluding that the
United States was an indispensable party, is set forth
in the Appendix hereto (App. 101-126).
JURISDICTION
Supreme Judicial Court in Maria A. Kitras, trustee et
al. v. Town of Aquinnah et al., Docket No. SJC-11885,
affirming the judgment of the Land Court, was dated
and filed on April 19, 2016.
On July 6, 2016, this Court, Breyer, J., granted
petitioners application for an extension of time to file
their petition for writ of certiorari up to and including
September 16, 2016 (Application No. 16A19).
This petition for writ of certiorari is filed within
the time allowed by Justice Breyers Order allowing
petitioner to file their petition for writ of certiorari up
to and including September 16, 2016. Supreme Court
Rule 30.1.
The jurisdiction of this Court is invoked
pursuant to the provisions of 28 U.S.C. 1257(a).
3
RELEVANT PROVISIONS INVOLVED
United States Constitution, Article VI, Paragraph
2:
This Constitution, and the laws of the United
States which shall be made in pursuance
thereof...shall be the supreme Law of the Land;
and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.
United States Constitution, Amendment V:
No person...shall be deprived of life, liberty, or
property, without due process of law; nor shall
private property be taken for public use, without
just compensation.
United States Constitution, Amendment XIV, 1:
...No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property,
without due process of law; nor deny to any
person within its jurisdiction the equal
protection of the laws.
4
25 U.S.C. 1771(b), Subchapter V, The
Massachusetts Indian Land Claims Settlement Act:
(a) APPROVAL OF PRIOR TRANSFERS
(1) Any transfer before August 18, 1987, of land
or natural resources now located anywhere
within the United States from, by, or on behalf of
the Wampanoag Tribal Council of Gay Head,
Inc., or (2) any transfer before August 18, 1987,
by, from, or on behalf of any Indian, Indian
nation, or tribe or band of Indians, of any land or
natural resources located anywhere within the
town of Gay Head, Massachusetts, including any
transfer pursuant to any statute of the State,
and the incorporation of the town of Gay Head,
shall be deemed to have been made in
accordance with the Constitution and all laws of
the United States that are specifically applicable
to transfers of land or natural resources from,
by, or on behalf of any Indian, Indian nation, or
tribe or band of Indians (including the Trade and
Intercourse Act of 1790, Act of July 22, 1790 (ch.
33, sec. 4, 1 Stat. 137), and all amendments
thereto and all subsequent versions thereof).
Any such transfer and any transfer in
implementation of this subchapter, shall be
deemed to have been made with the consent and
approval of Congress as of the date of such
transfer.
(b) EXTINGUISHMENT OF ABORIGINAL TITLE
Any aboriginal title held by the Wampanoag
Tribal Council of Gay Head, Inc. or any other
entity presently or at any time in the past known
5
as the Gay Head Indians, to any land or natural
resources the transfer of which is consented to
and approved in subsection (a) is considered
extinguished as of the date of such transfer.
(c) EXTINGUISHMENT
PRIOR
TRANSFERS
OF CLAIMS ARISING FROM

OR EXTINGUISHMENT OF
ABORIGINAL TITLE Any claim (including any

claim for damages for use and occupancy) by the
Wampanoag Tribal Council of Gay Head, Inc.,
the Gay Head Indians, or any other Indian,
Indian nation, or tribe or band of Indians against
the United States, any State or political
subdivision of a State, or any other person which
is based on:
(1) any transfer of land or natural resources
which is consented to and approved in subsection
(a), or
(2) any aboriginal title to land or natural
resources the transfer of which is consented to
and approved in subsection (b), is extinguished
as of the date of any such transfer.
(d) PERSONAL CLAIMS NOT AFFECTED

No provision of this section shall be construed to
offset or eliminate the personal claim of any
individual Indian which is pursued under any law
of general applicability that protects non-Indians
as well as Indians.
STATEMENT
This case concerns the well-established right to access
property and the constitutional rights granted to
6
Native Americans immediately after the Civil War.
The Supreme Judicial Court of Massachusetts has
denied the existence of both rights, in direct conflict
with this Court; the first, fourth, six, eighth and tenth
circuits; the vast majority of state supreme courts; and,
every legal treatise on property. The decision has
deprived the petitioners of all economically beneficial
use of their property, which leads to questions as to
whether there has been a property taking in violation of
the Due Process Clause or the Takings Clause.
The common law, established for over two
centuries in this country, describes the property right
as an easement by necessity. The rule of the
easement is that when a grantor conveys a portion of
their land to another, and that newly created portion is
deprived of access necessary for its enjoyment, then the
grantee is entitled to an implied easement over the land
of the grantor, unless the language or circumstances of
the conveyance clearly indicate that the parties
intended to deprive the property of those rights.
The English common law on easements by
necessity dates back to the reign of Edward I (12721307), and is grounded on the maxim, Lex est
cuicumque aliquis quid concedit, concedere videtur, et
id sine quo res ipsa esse non potuit. [Note that the
law is that anyone who grants a thing to someone is
understood to grant that without which the thing
cannot be or exist.] Liford's Case, (K.B. 1614) 11 Co.
Rep. 46b, 52[a], 77 Eng. Rep. 1206, 1217.
7
A. Factual Background
The pertinent facts of the case were based
entirely on documentary evidence.
In 1870, the Commonwealth of Massachusetts
conveyed approximately 1,900 acres of unclaimed
common land in fee simple absolute to the newly
incorporated town of Gay Head.1 Most of the residents
of the town were descendants of the Wampanoag
Tribe. 2 The record included an 1870 census which
showed that, In 1860, the number at Gay Head was 54
families - 237 natives, 16 foreigners. Total 253. (Earle's
Report.) In 1870, as will be seen by the census in the
Appendix, the whole number is 227; families, 55; natives
of Gay Head, 188; foreigners, or those not born there,
39. Page 27 of the Report of Commissioner Richard L.
Pease. 3
The state conveyed the common land to the town
with the condition that the selectmen, or any ten
residents of the town, could petition the local probate
court to partition (or divide) the common land and grant
1
In 1997, the town of Gay Head changed its name to the town of
Aquinnah, the historic Native American name of the area.
Aquinnah is one of six towns located on the island of Marthas
Vineyard, south of Cape Cod.
2
A map which shows the common land and existing properties in
1870 is available at www.decoulos.com/kitras/1870-Plan.pdf
3
The Report of the Commissioner Appointed to Complete the
Examination and Determination of All Questions of Title to Land
and of All Boundary Lines Between the Individual Owners at Gay
Head on the Island of Marthas Vineyard, under a Resolve of the
Legislature of 1866, Chapter 67, Richard L. Pease, 1871, is
available at http://www.decoulos.com/kitras/Pease-report.pdf
8
the divided land to the residents. Seventeen residents
petitioned the probate court and by 1878 the court
carved the common land into 563 lots, which it granted
to the residents who were not all members of the
Wampanoag Tribe. The court left title to the clay cliffs,
cranberry bogs and herring creek with the town.4
There was one public way that existed in town at
the time of the 1878 grant. Of the 563 lots created, only
60 of the lots had frontage along the public way - the
rest were landlocked. Additionally, the newly created
lots severed access to most of the pre-existing lots
owned by the residents, who were previously able to
access the public way by traveling over the common
land.
The deeds conveying the 563 new lots to the
residents were silent on how the new or pre-existing
landlocked lots would be accessed. There was no
language in the deeds, no public records, or any other
documentary evidence to indicate that the parties
intended to deprive the properties of access.
As the years passed, new roads and express
easements were created, the lots were conveyed to new
parties, and new homes were built on the vacant lots.
In 1955, the regional county government took
land by eminent domain along the southerly portion of
the town and laid out a new road called Moshope (or
Moshup) Trail. The purpose of the taking was that
4
A map which shows the 1878 partition of the common land is
available at http://decoulos.com/kitras/1878-Plan.pdf
9
public necessity or common convenience or necessity
require that said County Commissioners and Associate
Commissioners should layout, alter, locate or relocate a
highway known as Moshope Trail.
In 1974, members of the Wampanoag Tribe sued
the town in district court claiming that the common
land was improperly conveyed to the town and that the
1870 transfer violated the 1790 Non-Intercourse Act.
Wampanoag Tribal Council of Gay Head, Inc. v. Town
of Gay Head, 74-5826-G (D. Mass.) The state and the
Taxpayers Association of Gay Head intervened. In
their motion to intervene, the Commonwealth argued
that, [O]ne defense to this action is that chapter 213 of
the Acts of 1870 validly conveyed the lands at issue to
the Town of Gay Head. Massachusetts should be
permitted to defend the validity of its laws.
In 1983, the town, the state, the Taxpayers
Association, and the Wampanoag Tribal Council of Gay
Head, Inc., entered into a settlement agreement. To
implement
the
settlement
agreement,
the
Massachusetts Legislature enacted c. 277 of the Acts of
1985 and Congress enacted the Massachusetts Indian
Claims Settlement Act of 1987, 25 U.S.C. 1771-1771i.
In 1987, before Congress passed the
implementing statute, the Department of the Interior
officially recognized the Wampanoag Tribe of Gay Head
(Aquinnah) [the Tribe] as a federally recognized
Indian tribe.
10
remaining common land from 1878, also known as the
public settlement lands and Cook lands in the
legislation) to the Tribe; and, the Commonwealth and
United States purchased land for the Tribe (the
private settlement lands). Altogether, the Tribe
received approximately 485 acres of land, which is now
held in trust by the United States.5
In exchange for the newly created trust land,
Congress extinguished aboriginal title on all other lands
in town as of the date of such transfer. 25 U.S.C.
1771b(b).
Petitioners purchased their land shortly after
the Settlement Act was passed by Congress in 1987.
Together with several individual Wampanoag families
and other parties, their lands remain completely
landlocked and they are unable to use any part of their
property.6
B. Procedural History
The case originated in the Massachusetts Land
Court in 1997. The petitioners, owners of land that was
landlocked by a governmental grantor who had unity of
title, sought easements by necessity to reach a public
way to access their land. The respondents in the Land
Court sought to avoid the burden of the easements on
their property. They moved to add numerous necessary
parties to the case, including the United States. On
5
As part of the settlement, the town conveyed the

clay cliffs, cranberry bogs and herring creek (the
A map showing the location of the Trust lands in town is available

at www.decoulos.com/kitras/Trust-lands.pdf
6
Of the 563 lots created in town from the common land in 1878, less
than 20 remain landlocked in 2016.
11
January 19, 1999, the United States removed the action
to the federal district court; however, on June 30, 1999,
the district court granted a motion to dismiss and the
matter was remanded back to the Land Court
Department. Once remanded, the Land Court Judge
dismissed the action on the grounds that the United
States was an indispensable party to the action and
relief could not be granted in its absence. Mass. R. Civ.
P. 19(b) (App. 101-126).
Notwithstanding the dismissal, the court stated:
The fact that the commissioners 1878 report
severed plaintiffs lots from access to the only
public way then in existence creates a
presumption that the partition intended that
each owner of a set-off lot would hold a way by
necessity for access to their lot from the public
way. Though, as noted, the presumption may be
overcome by evidence of an intent to create a
parcel without access, no such evidence appears
in the present case.
In a footnote to this statement, the court further
stated that:
VCSs [Vineyard Conservation Societys]
argument regarding tribal customs of common
use is interesting, but it does not support a
conclusion that either the commissioners or the
several set-off lot owners intended that there
would be no access to the set-off lots. In so
stating, I am not shifting from plaintiffs the
burden of proof on the existence of a way by
12
necessity; instead, I am applying in support of
that burden the presumption that severance of
land from a way implies an intention that the
land should have a means of access to the way.
(App. 124).
The petitioners appealed and the Massachusetts
Appeals Court reversed. (App. 77-100). The appeals
court found that the lands owned by the United States
in trust for the Tribe were subject to the civil
jurisdiction of the Commonwealth and that the Tribe
was eligible to be joined as a party.7 25 U.S.C. 1771e.
The case was again remanded to the land court for the
purpose of determining whether easements by
necessity existed and, if so, the scope of such easements
(App. 93-97).
On the second remand, the land court was
presented with documentary evidence to determine if
easements by necessity existed. The court was
presented with 86 documents, which included inter alia,
the relevant state acts that created the town and
unified title of the town common land; the 1871 report
from Richard L. Pease; the probate court actions; all of
the 563 deeds of title carved from the common land,
together with full chains of title to all the petitioners
The Appeals Court made comments in obiter dictum about Lots

174 to 189 and assumptions about other facts. We have until now
assumed, . . . (App. 94). The sole issue before the Appeals Court,
which was unambiguously decided, was whether the United States
and the Wampanoag Tribe were indispensable parties to the
action.
13
land 8; admissions by the town that the common land
lots had always been assessed by the town tax
department as accessible; prior land court decisions
from 1975 9 and 1989 acknowledging that the landlocked
lots in Aquinnah were entitled to easements by
necessity; documents showing that for over 100 years,
that land court had a unique policy in Aquinnah of
reserving implied easements during quiet title actions;
that the land has always been zoned for residential use;
and, a composite development map from the state office
of environmental affairs in 2002 acknowledging that the
land was developable. The respondents conceded that
the title to petitioners lands was vested with the
petitioners.
The 1871 Pease report included an executive
address by Governor William Claflin to a legislative
session in 1869 10:
There is no reason why the exceptional policy
hitherto applied to these Indians should be
continued, and the sooner they are merged in the
general community with all the rights and
privileges, and with all the duties and liabilities
of citizens the better it will be for them, and
the more creditable to the Commonwealth.
8
One of the petitioners lots, Lot 243, was owned by a nonWampanoag.

9
[t]here is no evidence whatsoever that the Commonwealth
intended in the partition of 1878 to provide parcels of land to
individual Indians without allowing them any means of access.
Black et al. v. Cape Cod Company, et al., Land Court, Misc. Case
No. 69813, Decision at 5 (1975).
10
See page 28 at http://www.decoulos.com/kitras/Pease-report.pdf
14
The land court found that easements by
necessity did not exist because evidence was found to
rebut the presumption of the implied easement. (App.
68;71). All of the documentary evidence was presumed
and contrary to the findings from the earlier land court
judge.
The rebutting evidence presumed by the land
court was:
1. [P]rior to the 1878 division of the common
land, the lots were held by the
Commonwealth under English common law
rules of property and by the tribe under
Indian traditional law. English title conveyed
fee title while Indian title gave tribe
members the right of occupancy. Therefore,
the fee title carried no immediate right of
possession. Johnson v. M'Intosh, 21 U.S. (8
Wheat.) 543, 574 (1823) (While the different
nations of Europe respected the right of the
natives, as occupants, they asserted the
ultimate dominion to be in themselves; and
claimed and exercised, as a consequence of
this ultimate dominion, a power to grant the
soil, while yet in possession of the natives.
These grants have been understood by all, to
convey a title to the grantees, subject only to
the Indian right of occupancy.) The
prevailing custom among the tribe at the
time of the division allowed for access for
each member of the tribe as necessary over
lands held in common and in severalty. The
commissioners were familiar with this system
15
and likely assumed easements for access
were unnecessary given the tribal culture at
the time. (App. 72-73);
2. [T]he perceived condition of the land
negates any presumed intent to create an
easement. See Dale v. Bedal, 305 Mass. 102,
103 (1940). It is clear on this record that the
common land was believed to be uneven,
rough, and not remarkably fertile and that
the legislators believed that the land would
lie untilled and comparatively unused
following the division of the common land.11
(App.73); and,
3. The rights to extract peat from various lots
were
(somehow)
considered
express
easements and the failure to provide
easements for access appeared to be
intentional and serves to negate any
16
presumed intent to create an easement for
access.12 (App. 74).
The petitioners appealed again and the appeals
court reversed (App. 24-60). The appeals court found
that easements by necessity existed and ordered that
the land court provide access to the land. (App. 24-34).
The Supreme Judicial Court granted further appellate
review.
The Supreme Judicial Court, which was
obligated to review the documentary facts de novo,
instead relied on the evidence contrived by the land
court and affirmed its judgment (App. 1-23). A key
premise of the decision was that an unsupported tribal
custom of access was in place at the time of division and
that it had survived the extinguishment of aboriginal
rights by Congress. 25 U.S.C. 1771b.
this case was not decided on documentary
evidence alone. It was presumed and undisputed
that there was a tribal custom that allowed the
Tribe members to pass freely over each other's
land as necessary. This presumed fact is the law
of the case and with respect to this one issue. We
will continue to treat it as fact.13 (App. 9).
11
Marthas Vineyard was once a well-wooded, island, with many
ponds and brook. Ritchie, William A., The Archaeology of
Marthas Vineyard, The Natural History Press, Garden City, NY,
1969;
The destruction of forests on the Vineyard was part of a

process that was occurring throughout the eastern United
States following European settlement. The land was a
commodity; components of the biological communities
were things to be taken if useful, eliminated if they were
not. Timber was harvested, wild game hunted, minerals
extracted.
Dunwiddie, Peter W., Marthas Vineyard Landscapes: The
Nature of Change, Vineyard Conservation Society and Peter W.
Dunwiddie, 1994.
12
Peat rights were granted because the underlying peat in some

areas of the town provided the sole remaining fuel source available
in Aquinnah to cook and keep warm during the winter after the
forests were decimated.
13
There was no explanation how the 39 foreigners, who were nonWampanoag residents of town and granted lots from the same 1878
partition, were entitled to a tribal custom of access.
17
REASONS FOR GRANTING THE PETITION
By ruling that easements by necessity were not
intended by the commissioners for the affected lots,
Massachusetts highest court has abnegated relevant
decisional law which would have justifiably treated the
set-offs of these partitioned, landlocked properties
without express easements as eligible for the principle
of law that where landlocked property is set off and
conveyed to the members of the Wampanoag Tribe - as
well as to 39 other foreigners who were not members
of the Tribe - the presumption is that an easement by
necessity for access to the lot accompanies the transfer,
regardless of how this Tribe would have treated the
conveyance inter sese.
There is no evidence that the Commonwealth
intended in the partition of 1878 to provide parcels of
land to those individual Indians and to those 39
foreigners without allowing them any means of access
to those parcels. Rights of way by necessity are created
by a presumption of law. Where a landowner conveys a
portion of his land to another in such a manner that he
is unable to reach the land retained without traveling
over the land conveyed, the law of Massachusetts
presumes in the absence of contrary evidence that the
intent of the parties to the conveyance was to provide
access to the former by passing over the latter.
That the Commonwealth in 1878 did not provide
for specific means of access to the parcels partitioned
indicates only its awareness of the residents customary
traveling on horseback, carriage or on foot without
regard to the boundaries of individual lots as a means of
18
access. Use of such a means was, in reality, an exercise
of an easement, which now needs only specific location
on the ground because of the changes in the use and
occupation of the land involved and because of changes
in modes of transportation. Moreover, there is no
excuse in law for denying this right of access to the 39
residents who were non-Wampanoag foreigners at
the time of the set-offs by using this tribal custom
against them.
The unforeseen rejection of this reality by the
Supreme Judicial Court is at odds with its law of
implied easements, an indefensible [result] by
reference to the law which had been expressed prior to
the conduct in issue. Bouie v. City of Columbia, 378
U.S. 347, 354 (1964). It is so far beyond what a fair
reading of the relevant decisional law would permit as
to constitute a taking of property without just
compensation. Id. at 354-355. Thus Massachusetts
highest courts repudiation of these principles operated
as a taking of their property without just compensation.
A. The Supreme Judicial Courts Decision Is
Wrong
The common law on easements by necessity in
this country is clear. If a parcel of land is divided
among two or more owners, and the subdivided parcels
are left with no access, then those newly created
parcels are entitled to easements by necessity over the
land of the original grantor, as long as there remains a
necessity of access.
19
The benefits of enjoying property arising from
an easement by necessity have been settled law in
Massachusetts and throughout the country since the
early 19th century. Pernam v. Wead, 2 Mass. 203, 206
(1806); Collins v. Prentice, 25 Conn. 39 (1842); Snyder v.
Warford, 11 Mo. 513 (1848); Ricker v. Barry, 34 Me. 116,
121-22 (1852); Tracy v. Atherton, 35 Vt. 52 (1862);
Galloway v. Bonesteel, 65 Wis. 79 (1886); Pearne v. Coal
Creek Mining & Mfg. Co., 90 Tenn. 619 (1891); Please v.
Thomas, 75 Miss. 495 (1897); See generally The
Restatement of Property (Servitudes), Third Edition
(2000) 2.15; 4 Powell on Real Property, 34.07 (2000);
Simonton, Ways By Necessity, 25 Colum. L. Rev. 571
(1925); J. Bruce and J. Ely, The Law of Easements and
Licenses in Land, 4:1 to 4:13 (2011); 2 Herbert
Thorndike Tiffany, The Law of Real Property, 1197
(1920).
It is familiar law that if one conveys a
part of his land in such form as to deprive himself
of access to the remainder of it unless he goes
across the land sold, he has a way of necessity
over the granted portionThe law presumes
that one will not sell land to another without an
understanding that the grantee shall have a legal
right of access to it, if it is in the power of the
grantor to give it, and it equally presumes an
understanding of the parties that one selling a
portion of his land shall have a legal right of
access to the remainder over the part sold if he
can reach it in no other way.
20
Davis v. Sikes, 254 Mass. 540, 545-546 (1926), quoting
New York & New England Railroad v. Railroad
Commissioners, 162 Mass. 81, 83 (1894).
The English rule that when anyone grants
property, he is deemed to grant also that without which
the thing cannot be used, was recited with citations to
numerous English cases in Nichols v. Luce, 41 Mass. (24
Pick.) 102, 103-104 (1834). It would prejudice the
common weal that land should lie fresh and
unoccupied. Packer v. Welsted, 2 Sid.39, 82 Eng.Rep.
1244 (1657).
The prevailing view in this country is
that a way of necessity is not limited to such use
of the land as was actually made and
contemplated at the time of the conveyance, but
is a way for any use to which the owner may
lawfully put the granted land at any time.
Jones on Easements, 323, Annotation 164 A.L.R.
pages 1001 et seq.
Although West Virginia courts have
sometimes used inconsistent terminology
[comparing easements by necessity to easements
by implication], see, e.g., Canei v. Culley, 374
S.E.2d 523, 524 (W. Va. 1988) (A way of
necessity is an easement founded on an implied
grant or implied reservation.) (citation omitted),
by focusing on the elements needed to establish
each type of easement, we conclude that West
Virginia recognizes both doctrines.
21
USA. v. Srnsky, 271 F.3d 595, 599 (4th Cir., 2001).
Easements by implication and by
necessity are created upon severance of
ownership of a single parcel of land that was
previously held by one owner. If it is necessary
for the continued enjoyment of the dominant
tenement, the dominant tenement acquires an
implied easement over the servient tenement
when the two are severed. Greasy Slough
Outing Club, Inc. v. Amick, 224 Ark. 330, 337,
274 S.W.2d 63, 67 (1954).
Patterson v. Buffalo Nat. River, 76 F.3d 221 (8th Cir.,
1996). See also Kinscherff v. U.S., 586 F.2d 159 (10th
Cir., 1978).
no payment is required for an implied
easement by necessity, which arises by operation of
law Lake Pleasant Group v. U.S., 79 F.3d 1166 (Fed.
Cir., 1996).
This Court has touched upon the law of
easements by necessity in Brainard Warner v. David
Grayson, 200 U.S. 257 (1906) and Leo Sheep Company
v. United States, 440 U.S. 668, 679 (1979). However,
because the facts of each case did not address the
foundations of the doctrine, further review on the
matter is warranted.
Under general principles of property law, no
particular formalities are necessary to create an
easement. Easements may be created by contract. 2 G.
Thompson, Commentaries on the Modern Law of Real
22
Property Section(s) 331-332 (1980); 3 H. Tiffany, The
Law of Real Property Section(s) 776 (3d ed. 1939).
Denver Area Educ. Telecomm. Consortium v. FCC, 518
U.S. 727 (1996) Justice Kennedy, with whom Justice
Ginsburg joins, concurring in part, concurring in the
judgment in part, and dissenting in part.
The requirements for an easement by necessity
are (1) initial unity of ownership; (2) necessity of access
at the time of severance; and, (3) continuing necessity of
access. Courts throughout the country have required
varying levels of necessity, and the terms reasonable
necessity, strict necessity and absolute necessity
are used in different jurisdictions to vary the meaning
of necessary14. See e.g. Rextroat v. Thorell, 89 Ill.2d
221, 60 Ill.Dec. 438 (1982), cert. denied, 459 U.S. 837
(1982).
The specific facts to the petitioners case clearly
form the essential elements to create easements by
necessity. There was unity of title in the 1900 acres of
common land owned by the town between 1870 and
187815; most of the lots became landlocked as a result of
the 1878 partition and had an absolute necessity to
travel over lands of other grantees (including nonWampanoags); and there remains an absolute necessity
14
As foretold by Chief Justice Marshall in McCulloch v. Maryland,

17 U.S. 316, 413-414 (1819).
15
Both the land court and Supreme Judicial Court refused to
review the documentary facts presented, which unequivocally
showed that Lot 178 was part of the common land in 1870. The
courts relied on dicta in Kitras I for their determination. The facts
showed that Lots 174 to 736 were carved from the common land.
23
for less than 20 of the original lots in the entire town to
have access.
24
with the land held in severalty and affirmed by
commissioner Richard L. Pease.
The Supreme Judicial Court became sidetracked

on challenging the necessity of access in 1878 and
attempted to construe the intent of the grantors. As
the Restatement states at 2.15, the creation of an
implied servitude is presumed, unless the language
or circumstances of the conveyance clearly indicate that
the parties intended to deprive the property of those
rights.
In the case of James v. Watt, 716 F.2d 71, 74-75

(1st Cir. 1983), cert. denied, 467 U.S. 1209 (1984), the
history of land titles in Aquinnah was carefully
addressed.
In 1869, three years after it ratified the

Fourteenth Amendment, the legislature enfranchised
all Indians of Massachusetts, allowing all the residents
of the town to enjoy the glorious privileges of
Massachusetts citizenship in full. 1869 Mass. Acts c.
463, 1, c. 463, 1, Add. 35; U.S. Const., am. 14, 1.
Prior to 1870, there were two types of land
ownership in the town, fee simple and Indian title.
Immediately after the Civil War, the state sought to
resolve the dual forms of ownership, granted Indians
full citizenship and appointed a commissioner to resolve
all questions of title.
By 1870, the boundaries of lands which had
Indian title were established, deeds were created and
plans generated (the lands were referred to as being
held in severalty). The remaining land was the common
land, and that was conveyed in fee simple absolute to
the town. There were no enclosures on the common
lands, e.g. stone walls or fences, no possessory rights
and no individual Indian titles to ratify, as was claimed
As the Supreme Court noted in Oneida Indian

Nation v. County of Oneida, 414 U.S. [661] at 667
[1974], American courts recognize two distinct levels of
ownership in Indian lands: fee title and Indian title. . .
Indian title, which gave Indians a right of occupancy,
coexisted with the fee title. This right of occupancy
was legally significant in several ways. For one thing,
only the sovereign (the king, the state, the federal
government) could destroy this right; and, as long as
the Indians retained it, ownership of the fee title
brought with it no present right of possession. Rather,
the fee owner received a contingent future interest
which ripened into a fee simple only when the Indians
abandoned their possessory interest (or when the
sovereign, holding fee title, took that possessory
interest).. F. Cohen, Handbook of Federal Indian Law
321 n.372 (1942).
Against this background, one might argue that
the Massachusetts statutes giving Indians fee title and
the power to alienate land, were not efforts to take land
rights from the Indians, but rather efforts to convey the
state's fee title to them and thereby to grant them their
lands in fee simple absolute.
Quote from Watt at 74-75, should have been indented.
25
Despite these facts and established law, the
Supreme Judicial Court presumed that there was a
tribal custom that allowed the Tribe members to pass
freely over each other's land as necessary. This
presumed fact is the law of the case and with respect to
this one issue. We will continue to treat it as fact.
(App. 9).
There was no evidence of a tribal custom of
access in the record. This presumed fact meant that
aboriginal rights would landlock the non-Wampanoag
grantees and remain on the common land after 1870, a
conclusion which Congress specifically extinguished as
of the date of transfer. 25 U.S.C. 1771b.
Occupancy necessary to establish aboriginal
possession is a question of fact to be determined as any
other question of fact. United States v. Santa Fe Pac
Co v. 12 8212 13, 1941, 314 U.S. 339, 345 (1941). Even if
there was evidence of a tribal custom of access across
the common lands in the record, the settlement of
Wampanoag land claims in the 1980s squashed their
existence. The power of Congress in that regard is
supreme. Id at 347. See also Justice Stevens dissent in
Carcieri v. Salazar, 555 U.S. 379, 399 (2009).
It is a brutal conclusion on the Wampanoags and
their successors in title (several of whom participated in
this matter) to have been granted full citizenship and be
denied access to land for an imaginary aboriginal
custom that had no foundation in fact and made lands
inalienable.
26
an extinguishment cannot be lightly
implied in view of the avowed solicitude of the
Federal Government for the welfare of its Indian
wards. As stated in Choate v. Trapp, 224 U.S.
665, 675, 32 S.Ct. 565, 569, 56 L.Ed. 941, the rule
of construction recognized without exception for
over a century has been that doubtful
expressions, instead of being resolved in favor of
the United States, are to be resolved in favor of
a weak and defenseless people, who are wards of
the nation, and dependent wholly upon its
protection and good faith. And see Minnesota v.
Hitchcock, 185 U.S. 373, 395, 396, 22 S.Ct. 650,
658, 659, 46 L.Ed. 954.
Id at 354.
Several legal treatises have concluded that the
uses of land contemplated at the time of a division must
be flexibly adapted.
The fact that a particular use of land is
being made at the time of the severance of
ownership does not of itself show that the
parties do not contemplate the possibility of
another use of the land, and hence does not
preclude the recognition of a way of necessity,
upon a subsequent change of the use, in
accordance with the requirements of the latter
rather than the former use.
Tiffany's Real Property, Volume 3 (3rd Ed. 1939), page
297. See also 4 Powell on Real Property, 34.07[3] at
34-57 (2000).
27
Easements by necessity also apply to utilities.
Many of the federal circuits have held that utility
easements for public utility companies may be
condemned on tracts of land allotted in severalty to
individual Indians, but not for land held in trust by the
United States for a tribe. See, e.g., Nebraska Public
Power Dist. v. 100.95 Acres of Land in Thurston
County, Hiram Grant, 719 F.2d 956, 960 (8th Cir. 1983).
These cases also stand for the proposition that even for
Indian lands held in severalty (which do not apply to
the lands held by the petitioners), easements have been
shown to exist without an extinguishment of aboriginal
title by Congress.
The Supreme Judicial Court also imagined
without any supporting documentary evidence that
other easements were created and that the land was
in poor condition at the time of partition. (App. 16-17).
The other easements that the court was
referring to in this matter were profits prendre. The
profits were necessary in this case for the residents
survival, as they allowed the extraction of peat from
certain lots for cooking and heating. A profit is similar
to an easement, but includes the right to take from the
land of another either a part of the soil...or part of its
produce. Gray v. Handy, 349 Mass. 438, 441 (1965).
Many jurisdictions provide a clear distinction
between profits and easements. See, e.g., McDonald v.
Board of Mississippi Levee Commissioners, 646
F.Supp. 449, 466-67 (N.D.Miss.1986) (easement holder
lacks right to participate in profits; easement is a
privilege without profit), aff'd, 832 F.2d 901 (5th
28
Cir.1987); Alexander Dawson, Inc. v. Fling, 155 Colo.
599, 396 P.2d 599, 601 (1964) (a profit is a greater
interest than an easement); Platt v. Pietras, 382 So.2d
414, 417 (Fla.Dist.Ct.App.1980) (right to take forage is a
profit, not simply an easement); Oakley Valley Stone,
Inc. v. Alastra, 110 Idaho 265, 715 P.2d 935, 937 (1985)
(easement lacks right to participate in profits derived
from land; right to hunt and fish is a profit); Cushing v.
State, 434 A.2d 486, 494-95 (Me.1981) (right to cut and
take timber is a profit, not a mere easement); Evans v.
Holloway Sand and Gravel, Inc., 106 Mich.App. 70, 308
N.W.2d 440, 443 (1981) (a profit is a right that grows
out of the soil while an easement is a privilege without
profit).
One practical distinction between an
easement and a profit should be kept in
mind. A profit is generally thought of as being
accompanied by easement rights to gain access
to the servient estate.
While courts will
generally imply the easement rights, they should
be made clear in the grant of the profit.
4 Powell on Real Property 34.01[2] at 34-7.
Unlike easements, profits can be extinguished
based upon the limited purpose of which they are
created. Makepeace Bros. v. Barnstable, 292 Mass. 518
(1935) (affirmation of land court judgment which
extinguished whaling operation profit due to the
subsequent disappearance of whaling industry.) See
also Jon W. Bruce and James W. Ely, Jr. The Law of
Easements and Licenses in Land 1:9 at 1-25, and 1:15
at 1-40 (2010).
29
The other easements which the Supreme
Judicial Court identified are profits prendre that had
the same need for easements by necessity as every
other lot that was created from the common land in
1878. There was no language anywhere in the deeds
which described how the peat could be removed over
other lots.
As the final justification to seal the coffin and
deny the petitioners rightful access to their land, the
state courts described the common land as being in
poor condition at the time of partition. (App. 16-17).
The unfounded remarks were an insensitive opinion of a
devastated landscape following European settlement.
They originated from state legislators who visited the
area for the first time in 1855, well before the partition
of common land in 1878. In fact, Richard L. Pease16, one
of the two commissioners appointed by the probate
court to partition the common land, stated that the area
was fascinating to geologists; that there was a wide
variety of soil of the very best quality, capable of
abundant harvests; and, that the area had rare
scenery and beauty.17
The hypocrisy of wealthy respondents arguing
that the land was deplorable and therefore not entitled
to a presumption of access and the courts accepting
16
The commissioners who made the remarks were indebted to

Richard L. Pease, Esq., of Edgartown, a gentleman whose intimate
acquaintance with the records and history of Marthas Vineyard
peculiarly fits him for the laborious task of searching the archives
of the past, and educing facts long shrouded in obscurity.
17
See pages 3 and 4 at http://www.decoulos.com/kitras/Peasereport.pdf
30
the arguments as logical and persuasive runs counter
to the well known attraction of Marthas Vineyard
today. This beautiful island off the coast of
Massachusetts longtime home to the Wampanoag Gay
Head Indians is also one of the most popular vacation
spots on the east coast. Senator Edward M. Kennedy,
Congressional Record Senate at 222895 (August 6,
1987), which documented Congressional hearings that
led to the passage of 25 U.S.C. 1771 et seq.
The contrived evidence relied upon by the
Massachusetts courts in this lengthy case included
numerous prefacing statements such as it is likely; it
was presumed; we infer; and supports a finding.
There was not one document in the record that contained
language or circumstances of the conveyance which
clearly indicated that the parties intended to deprive the
lots of access.
Finally, the respondents introduced emotion and
fear at oral argument to attempt a showing that access
relief would create havoc in the entire town. The
Supreme Judicial Court was apparently swayed by the
emotional response rather than the logical reflection of
the law. The emotional charge shifted the focus away
from the facts and toward the outcome, while injecting
arbitrariness into the decision-making process. The
decision was hinged on emotion, swayed by matters
outside the record.18
18
Both the record and the fear mongering claims outside the
record
are
available
for
review
at
http://www.decoulos.com/aquinnah-truth.htm
31
Facts are stubborn things; and whatever may
be our wishes, our inclinations, or the dictates of our
passions, they cannot alter the state of facts and
evidence. John Adams, defending British soldiers
during oral argument for the Boston Massacre (1770).
The Supreme Judicial Court has again overturned a
fundamental right on the flimsiest of grounds.
There is an inconsistent body of law in this

nation on the characterization of implied property
rights. Some courts view the rights as equitable, while
others look to the common law origin and presume that
the intent of the implied property right is an operation
of law.
32
Kitras was decided on documentary evidence
alone. That is because there were no witnesses alive to
contradict the intent of the commissioners who
partitioned the common land. In the cases before the
Court today this usual deference is not required
because the District Court's findings of fact were
entirely based on documentary evidence. [footnote
omitted] As we noted in United States v. General
Motors Corp., supra, at 141, n. 16, 86 S.Ct., at 1328, n.
16, "the trial court's customary opportunity to evaluate
the demeanor and thus the credibility of the witnesses,
which is the rationale behind Rule 52(a) . . ., plays only a
restricted role [in] a 'paper case.' " See also Jennings v.
General Medical Corp., 604 F.2d 1300, 1305 (CA10
1979) ("When the findings of a trial court are based on
documentary, rather than oral evidence, they do not
carry the same weight on appellate review"); Orvis v.
Higgins, 180 F.2d 537, 539 (CA2 1950).[footnote
omitted] Pullman-Standard v. Swint and United
Steelworkers of America v. Swint, 456 U.S. 273, 301-302
(1982).
When an implied property right is established in

equity, it permits a trial court, like the land court in
Kitras, to weigh the necessary elements with
discretion. For an easement by necessity, a court can
find both unity of title and a landlocked condition, then
weigh the effects on the potentially impacted servient
estate. It can be presented with evidence, however
specious, and claim that the language or circumstances
of the conveyance indicated that the parties intended to
deprive the property of access rights.
In Massachusetts, it was formerly the law that

the rebutting evidence for an implied property right
must show that the parties affirmatively [desired to]
convey land without direct means of access. Orpin v.
Morrison, 230 Mass. 529, 533 (1918). In Orpin, the clear,
direct evidence held to rebut the presumption was a
conversation between [grantor and grantee] to the
effect that no right of way over other land of the former
would attach to the lot conveyed to the latter. Id. at
531.
B. There Is An Acknowledged Conflict

Among State And Circuit Courts Regarding
Implied Property Rights And Whether They
Arise By Operation of Law Or Whether They
Are Established in Equity
33
However, even the generous exception in Orpin
has been criticized as contradicting the protection
afforded by the parol evidence rule. Evidence of
Intention as Rebutting Ways of Necessity, 29 Yale L.J.
665 (1920). [L]egal principles should be applicable to
matters of record with a minimum of resort to transient
and untrustworthy evidences of subjective intention.
The relaxation of the parol evidence rule in the [Orpin]
case, though supported by some authority [footnotes
omitted], is believed to be contrary both to immediate
practical considerations and to sound principle. Id at
669.
Some states allow the use of parol evidence to
overcome an implied property right, when witnesses
are still alive and testimony can be used to prove the
existence of a separate consistent oral agreement. See
Alpha Real Estate v. Delta Dental, 664 N.W.2d 303, 312
(Minn., 2003). Any existing contracts must be read in
light of the situation of the parties, the subject matter
and purposes of the transaction, and like attendant
circumstances. Bussard v. Coll. of St. Thomas, 294
Minn. 215, 224 (1972). But a court need not look beyond
the writing to determine whether a contract is a
complete integration, where a clause explicitly states
the parties' intent. Alpha Real Estate Co., 664 N.W.2d
at 313. We conclude that the district court properly
determined that evidence related to the oral agreement
is barred by the parol evidence rule, and respondents
are entitled to summary judgment. Maday v.
Grathwohl, 805 N.W.2d 285 (Minn. App., 2011).
Parol evidence is thus generally not admissible
except to resolve an ambiguity in the plain language of
34
the contract. Jones v. Brooks, 696 S.W.2d 885, 886
(Tenn.1985). Parol evidence may be admitted when a
provision of the contract can be construed according to
more than one reasonable interpretation. Memphis
Hous. Auth. v. Thompson, 38 S.W.3d 504, 512 (Tenn.
2001). But the fact that parties in a case interpret the
contract differently does not by itself render the
contract ambiguous. Campora v. Ford, 124 S.W.3d 624,
628 (Tenn. Ct. App. 2003). Burlison v. U.S., 533 F.3d
419, 429 (6th Cir., 2008).
Several decades ago, the great contracts scholar
Arthur L. Corbin distinguished between parol evidence
and evidence admissible for the purpose of aiding
interpretation. Even if a written document has been
assented to as the complete and accurate integration of
the terms of a contract, it must still be interpreted and
all those factors that are of assistance in this process
may be proved by oral testimony. Arthur L. Corbin,
The Parol Evidence Rule, 53 Yale L.J. 603, 622 (1944).
More recently, academic authority has recognized that
although courts often conflate the parol-evidence rule
with the plain-meaning rule, "[a] clear conceptual
division would treat the plain meaning rule as about
interpreting the provisions of contracts, and the parol
evidence rule as about establishing what count as the
controlling terms of integrated contracts." Kent
Greenawalt, A Pluralist Approach to Interpretation:
Wills and Contracts, 42 San Diego L.Rev. 533, 587
(2005).
Thus, parol evidence is not admissible to
explain, vary, or contradict, a written contract. That
principle, as a general rule applicable to parties and
35
privies, and their representatives, and those claiming
under them, is undeniable, and is not disputed by the
counsel of the plaintiffs. Barreda v. Silsbee, 62 U.S.
146, 21 How. 146 (1858). See also Steinke v. Sungard
Fin. Sys., Inc., 121 F.3d 763 (1st Cir., 1997) (we hold
that the district court did not err in applying the parol
evidence rule to bar evidence of alleged oral terms.).
There is a conflict among state and circuit courts
as to whether the easement by necessity doctrine
should be considered as one arising by operation of law
or a matter of equity and public policy. The public
policy rationale behind the doctrine of easement by
necessity is that a grantor should be viewed as
conveying not only property but also that which is
necessary to enjoy the conveyed property. Restatement
(Third) of Property, Servitudes 2.15 (2000). In
addition, public policy favors a legal rule that promotes
occupation and use of the land. Id. See also Burlison v.
U.S., 533 F.3d 419 (6th Cir. 2008).
Most courts have historically ignored the public
policy doctrine and relied upon the legal fiction that the
parties did not intend to render the land unfit for
occupancy. Crotty v. New River and Pocahontas Coal
Co., 72 W. Va. 68, 78 (1913); Vermont Traders, Inc. v.
Bartholomew, 142 Vt. 486 (1978); Granite Properties
Ltd. v Manns, 117 Ill.2d 425, 512 (1987). He who grants
a thing to another is understood also to grant that
without which the granted thing cannot exist.
Simonton, Ways of Necessity, 25 Columbia L.Rev. 571
(1925).
36
Several courts have yielded to extrinsic evidence
to negate well-established implied property rights.
Georke Co. v. Wadsworth, 73 N.J. Eq. 448, 68 A. 71
(1907); Marzo v. Seven Corners Realty Inc., 171 F.2d
144, 84 U.S. App. D.C. (D.C. Cir. 1948); Murphy v.
Burch, 205 P.3d 289, 46 Cal. 4th 157 (Cal., 2009);
Yellowstone River LLC v. Meriwether Land Fund I
LLC, 362 Mont. 273 (2011). They have also been
described as unadulterated fiction[s]. 4 Powell on
Real Property 34.07[4] at 34-59.
The Court should take this opportunity to clarify
how implied easements arise, whether by operation of
law or as a matter of equity, and whether it is fair or
appropriate to relax the parol evidence rule in order to
discover some presumed intent at odds with the
realities of the conveyance at the time it was granted.
C. This Case Presents An Ideal Platform To
Resolve Whether The Permanent Taking Of
An Established Property Right Is A Judicial
Taking Or A Violation of the Due Process
Clause
The common law of the nation is clear. If a
parcel of land is divided among two or more owners and
the subdivided parcels are left with no access, then
those newly created parcels are entitled to easements
by necessity over the land of the original grantor. By
denying the petitioners access to their lots, the highest
court of Massachusetts presumed that no intent to
create such easements was intended, since residents of
a town, most of whom it assumed were Native
Americans, customarily traveled on horseback, carriage
37
or foot without regard to the boundaries of individual
lots as a means of access and therefore had no need for
any reservation of access rights.
However, this presumed custom, even if it could
be proven, would not have survived Congresss
extinguishment of aboriginal rights, see 25 U.S.C.
1771b, and it could not have applied to the 39 other
residents of the town who were foreigners, i.e., nonWampanoag citizens. The net effect of this key
presumption was to render petitioners property
worthless, amounting to a confiscation of property by
the government that allows public use without just
compensation.
In Stop the Beach Renourishment, Inc. v. Fla.
Dept of Envtl. Prot., 560 U.S. 702, 713-715 (2010), the
Court reviewed its jurisprudence under the Takings
Clause of the fifth amendment and concluded that when
a state government, through its judiciary, uses its own
property or authority in such a way as to destroy
private property and thereby deprive a private owner
of all economically beneficial use of his property, it has
taken that property. Id. at 713, citing Lucas v. South
Carolina Coastal Council, 505 U.S. 1003,1019 (1992)
and Webbs Fabulous Pharmacies, Inc. v. Beckwith, 449
U.S. U.S. 155, 163-165 (1980).
By any yardstick, this retroactive reading of the
intent of the commissioners when they partitioned lots
from the common land has caused a complete
destruction of petitioners property rights to access the
land they own and constitutes a physical taking of
petitioners private property in violation of the fifth
38
amendment. Hodel v. Irving, 481 U.S. 704 (1987) (a
complete abrogation of property emanating from the
allotments of land to members of the Oglala Sioux
Tribe); Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419 (1982); United States v. Sioux
Nation of Indians, 448 U.S. 371 (1980); and, United
States v. Welch, 217 U.S. 333, 339 (1910)
(A private right of way is an easement
and is land a recovery for the taking of land
by permanent occupation allows it for a right of
way taken in the same manner; and the value of
the easement cannot be ascertained without
reference to the dominant estate to which it was
attached.)
See also Pennsylvania Coal Co. v. Mahon, 260 U.S.
393, 413-416 (1922).
In the alternative, if it appears that the Takings
Clause should not be applicable to judicial decisions,
then the limits of governments ability to take property
must be controlled or the contract and due process
clauses are gone. Id at 413. See also Perry v.
Sindermann, 408 U.S. 593, 601 (1972) ( [P]roperty
interests protected by the Due Process Clauses are
those that are secured by existing rules or
understandings (quoting Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 577 (1972))).
CONCLUSION
For the reasons set forth herein, a writ of
certiorari should issue to the Supreme Judicial Court of
39
Massachusetts in order to review and reverse its
decision denying the petitioners any access to their
landlocked lots; to declare that petitioners property
interests to access and to use their land or receive
compensation for being prevented from doing so are
vested property rights deserving of protection under
the fifth and fourteenth amendments of the
constitution; to declare that respondents reliance on
precarious decisional law, as interpreted by the
Supreme Judicial Court, deprives petitioners of their
rights under the fifth and fourteenth amendments of
the federal constitution and constitutes a taking of their
property; or provide petitioners such other relief as is
fair and just in the circumstances of this case.
Respectfully submitted,
MARIA A. KITRAS, TRUSTEE, PRO SE
38 Bow Road
Belmont, MA 02478
(617) 489-7795
maria@decoulos.com
JAMES J. DECOULOS, TRUSTEE, PRO SE
38 Bow Road
Belmont, MA 02478
(617) 489-7795
jamesj@decoulos.com
1a
2a
MARIA A. KITRAS, trustee, 1 & others2

v.
TOWN OF AQUINNAH & others.3
After further review by the Appeals Court, the

Supreme Judicial Court granted leave to obtain further
appellate review.
SJCSJC - 11885
Jennifer S.D. Roberts for Vineyard Conservation

Society, Inc.
Diane C. Tillotson for Martha's Vineyard Land Bank.
Ronald H. Rappaport for town of Aquinnah.
Wendy H. Sibbison for Maria A. Kitras & another.
Leslie Ann Morse for Mark D. Harding & others.
Jennifer H. Flynn, Assistant Attorney General, for the
Commonwealth, was present but did not argue.
Supreme Judicial Court of Massachusetts

December 8, 2015
April 19, 2016
NOTICE: All slip opinions and orders are subject to
formal revision and are superseded by the advance
sheets and bound volumes of the Official Reports. If
you find a typographical error or other formal error,
please notify the Reporter of Decisions, Supreme
Judicial Court, John Adams Courthouse, 1 Pemberton
Square, Suite 2500, Boston, MA, 02108-1750; (617) 5571030; SJCReporter@sjc.state.ma.us
Suffolk.
The following submitted briefs for amici curiae:

Lawrence H. Mirel, of the District of Columbia, for
Aquinnah/Gay Head Community Association.
Andrew H. Cohn, Felicia H. Ellsworth, & Claire M.
Specht for Real Estate Bar Association for
Massachusetts, Inc., & another.
Nicole Friederichs, Lorie Graham, & Jeffrey Pokorak
for Wampanoag Tribe of Gay Head (Aquinnah).
Michael Pill, pro se.
Present: Gants, C.J., Spina, Cordy, Duffly, Lenk, &

Hines, JJ.
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).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,
Easement. Necessity. Real Property, Easement. Law

of the Case.
Civil action commenced in the Land Court Department
on May 20, 1997.
After review by the Appeals Court, 64 Mass. App. Ct.
285 (2005), the case was heard by Charles W. Trombly,
Jr., J.
3a
4a
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
1. Procedural history. The 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 (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.8 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 (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.
On 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 to rebut the presumed intent of the grantor
commissioners to create access easements. The
plaintiffs appealed.
A 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 (2015) (Kitras II).
5a
6a
We granted the defendants' applications for further

appellate review.9 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
court.
2. Facts. This 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.10 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 committees to visit the Native
American tribes and assess the tribes' condition, their
way of life, and whether citizenship would be in their
best interest. Id. at 6-7.
In 1862, the Legislature established the district of
Gay Head. St. 1862, c. 184, 4, 5. Before the severance
at issue in this case, Gay Head consisted of about 2,400
acres, of which about 450 acres were held in severalty
and the remainder was held by the Tribe in common.
Report of the Committee of the Legislature of 1869 on
the Condition of the Gay Head Indians, 1870 Senate
Doc. No. 14, at 4 (Report of the Committee). At that
time the prevailing custom of the Tribe admitted "that
any native could, at any time, appropriate to his own
use such portion of the unimproved common land, as he
wished, and, as soon as he enclosed it, with a fence, of
however frail structure, it belonged to him and his heirs
forever." Report of the Commissioners, 1849 House
Doc. No. 46, at 20. See R.L. Pease, Report of the
Commissioner Appointed to Complete the Examination
and Determination of All Questions of Title to Land and
of All Boundary Lines Between the Individual Owners,
at Gay Head, on the Island of Martha's Vineyard, at 22
(May 22, 1871) (Pease Report). The Tribe had another
custom that allowed each member access, as necessary,
across the common land and lands held in severalty.11
The Legislature appointed Charles Marston to
determine the boundary lines of the land held in
severalty by Tribe members and the boundary line
"between the common lands . . . and the individual
owners adjoining said common lands," and report the
details and results of his efforts. St. 1863, c. 42. Due to
7a
8a
"advancing age and sickness," Marston was unable to

complete the task assigned, but he was able to prepare
deeds and determine the boundary lines for a number of
lots. Report of the Commissioner, 1866 House Doc. No.
219, at 3. The Legislature appointed Richard Pease to
complete Marston's charge. See St. 1866, c. 67; Pease
Report, supra at 3.
As the boundary lines were being determined in
Gay Head, the Legislature granted Native Americans
full citizenship. An Act to Enfranchise the Indians of
the Commonwealth, St. 1869, c. 463. While other tribes
were able to take full advantage of their citizenship
status, the Tribe at Gay Head remained an aberration.
Because Gay Head had not been incorporated as a
town, the Tribe could not freely enjoy the newly
acquired benefits of citizenship such as voting at town
meetings or electing town officers. Pease Report, supra
at 27-28; Report of the Committee, 1870 Senate Doc.
No. 14, at 4; Banks, supra at 17-18. Governor Claflin
underlined this "political anomaly" during his annual
address in 1869. Report of the Committee, 1870 Senate
Doc. No. 14, at 2-4. See Pease Report, supra at 27;
Banks, supra at 17-18. With the hope of resolving the
situation, a committee of Massachusetts Senators and
Representatives visited Gay Head to determine
whether it should be incorporated as a town. Report of
the Committee, supra. The committee concluded that
the members of the Tribe were capable of selfgovernance, well qualified, and supportive of the
prospect of becoming a town. Id. at 11. As a result, the
committee unanimously recommended that the district
of Gay Head be incorporated as a town. Id. The
Legislature
responded
quickly
and
officially
incorporated the town of Gay Head. St. 1870, c. 213. The
Legislature simultaneously established a process by
which the members of the Tribe could choose to

partition the common land. St. 1870, c. 213, 6. "[A]ny
ten resident owners of land" or, in the alternative, the
selectmen of Gay Head may petition the probate court
to initiate a division of the common land. Id. After
notice and a hearing, if a probate judge determined that
it was in the best interest of the parties for the common
land to be divided, the judge would appoint
commissioners to partition the land. Id.
In September, 1870, seventeen Gay Head residents
petitioned a probate judge in Dukes County to divide
the common land for the residents to hold in severalty.12
Petition, Citation, and Decree for Division and Setting
Off Our Lands in Gay Head, Sept. 1, 1870. Court
records reveal that after a hearing at which no one
objected, Theodore Mayhew, a probate judge in Dukes
County, concluded that the partition would be
beneficial for the residents of Gay Head. Joseph L. and
Richard L. Pease were appointed commissioners. In
addition to partition, Richard Pease also was assigned
to determine the boundary lines between the common
land and the land held in severalty. St. 1866, c. 67. The
commissioners completed the partition in 1878. The
land was divided into more than 500 lots. Not one lot
included an express easement of access. As a result, the
majority of the lots divided from the common land were
landlocked. The commissioners expressly included a
right of access over three lots to a creek for the purpose
of fishing. They also reserved to certain lots the right to
remove peat from other lots.
At the time of the division, there was an existing
road that provided access from the Gay Head
lighthouse to Chilmark, the neighboring town to the
east. Report of the Committee, 1870 Senate Doc. No.
14, at 9. The road was in such "deplorable condition"
9a
10a
that the committee in 1870 insisted that the Legislature

repair the road. Id. However, the lots at issue in this
case did not abut this road. Over the past one hundred
years, the landscape of Gay Head has changed. There
are other roads in existence, such as the Moshup Trail
that was created decades after the partition of the
common land. The plaintiffs' lots do not abut these
roads and remain landlocked.
3. Standard of review. Generally, in a jury-waived
case we review the trial judge's findings of fact for clear
error. See U.S. Bank Nat'l Ass'n v. Schumacher, 467
Mass. 421, 427 (2014); Board of Registration in Med. v.
Doe, 457 Mass. 738, 742 (2010). However, "[w]here
findings are predicated not on the assessment of
witness credibility but, rather, on documentary
materials, this highly deferential standard is
inapplicable." Commonwealth v. Pugh, 462 Mass. 482,
494-495 (2012). In this case, we are in the same position
as the trial judge to view the evidence and therefore no
special deference is shown. However, this case was not
decided on documentary evidence alone. It was
presumed and undisputed that there was a tribal
custom that allowed the Tribe members to pass freely
over each other's land as necessary. This presumed fact
is the law of the case and with respect to this one issue.
We will continue to treat it as fact. We review the
judge's conclusions of law de novo. U.S. Bank Nat'l
Ass'n, 467 Mass. at 427.
4. Easement by necessity. An easement is a
limited, nonpossessory interest in the land of another
that can be created expressly, see Cheever v. Graves,
32 Mass. App. Ct. 601, 605-606 (1992), by prescription,
see G. L. c. 187, 2 (easement by prescription), or by
implication, see Kitras I, 64 Mass. App. Ct. at 291. An
easement by necessity is a type of implied easement.
"An implied easement is 'founded on the idea that it is

the purpose of the parties that the conveyance shall be
beneficial to the grantee,'" even if it had not been
expressed in the instrument of conveyance. Ward v.
McGlory, 358 Mass. 322, 325 (1970), quoting Orpin v.
Morrison, 230 Mass. 529, 533 (1918). An easement by
necessity most often arises when a conveyance renders
a parcel of land landlocked. It provides access over the
parcel that is not landlocked, if the parties so intended.
There is no public policy that creates an easement by
necessity to make land accessible. Kitras I, supra at
298. Richards v. Attleborough Branch R.R. Co., 153
Mass. 120, 122 (1891). It is a purchaser's "own folly" that
he purchased land that had no access to some or all of
the land "and he should not burden another with a way
over his land, for his convenience." Orpin, supra at 533534. Gayetty v. Bethune, 14 Mass. 49, 56 (1817). "The
law does not give a right of way over the land of other
persons to every owner of land who otherwise would
have no means of access to it." Richards, supra.
The party claiming an easement by necessity has
the burden of establishing that the parties intended to
create an easement that is not expressed in the deed.
Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284
Mass. 100, 105 (1933). The law has devised a
presumption to assist the inquiry into the intent of the
parties when a conveyance renders a parcel of land
landlocked. It is the presumed intent of the parties that
when a parcel of land becomes landlocked as a result of
a conveyance the land conveyed included rights of
access. Orpin, 230 Mass. at 533. See Davis v. Sikes, 254
Mass. 540, 545 (1926); Schmidt v. Quinn, 136 Mass. 575,
576 (1884) ("for when land is conveyed which is
inaccessible without trespass, except by passing over
the land of the grantor, a right of way by necessity is
11a
12a
presumed to be granted; otherwise, the grant would be

practically useless"); Bedford v. Cerasuolo, 62 Mass.
App. Ct. 73, 76-77 (2004). It is a "pure presumption
raised by the law" that an easement by necessity exists,
and this presumption is construed with strictness.
Orpin, supra. A presumption of easement by necessity
arises upon a showing of the following elements: (1)
unity of title; (2) severance of that unity by a
conveyance; and (3) necessity arising from the
severance, most often when a lot becomes landlocked.
Kitras I, 64 Mass. App. Ct. at 291. The necessity must
have existed at the time of the division. See Viall v.
Carpenter, 14 Gray 126, 127 (1859).
The parties opposing the easement may rebut the
presumption by presenting evidence that at the time of
conveyance the parties did not intend to create rights of
access. Orpin, 230 Mass. at 531, 534 (presenting oral
testimony of conversation between original parties to
rebut presumption).13,14 The intent of the parties can be
ascertained from the circumstances surrounding the
conveyance, the information known to the parties of the
conveyance, the language of the instrument, and the
physical condition of the land. Dale v. Bedal, 305 Mass.
102, 103 (1940); Davis, 254 Mass. at 545; Orpin, supra at
533.
5. Discussion. 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.
We first must determine whether the requisite

elements exist that give rise to a presumption of an
intent to create an easement by necessity. There is no
dispute amongst the parties that, as to the first two
elements, there was unity of title (aside from lot 178)
and a subsequent severance of that unity of title.15 The
defendants contend that the plaintiffs have not satisfied
the third element of necessity arising from the
severance. There is no question that the lots at issue
are landlocked. However, we must look to the
circumstances at the time of the conveyance to
determine whether necessity existed. Mt. Holyoke
Realty Corp., 284 Mass. at 104. Richards, 153 Mass. at
122. Schmidt, 136 Mass. at 576-577. At the time of the
partition in question, the prevailing tribal custom was
to allow members of the Tribe to pass freely over the
common land and land held in severalty when
necessary. In other words, the lots already had access
rights, rendering express rights of access unnecessary.
Despite this question of necessity, where the lots in
question appear to be landlocked because of the
partition, we proceed under the assumption that the
plaintiffs have established the three elements that give
rise to the presumption of an intent to create an
easement by necessity. The defendants' contention is
more appropriately analyzed as rebuttal.
The primary question in this case is whether, at
the time of partition, the parties intended to provide
rights of access to the hundreds of lots divided from the
common land. Admittedly, this case does not present
circumstances that typically support the presumption
of an easement by necessity. The typical situation
involves one grantor and one grantee, and it is their
intent that is dispositive. In this case, we have a large
scale partition of Native American common lands that
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have multiple grantees, and the commissioners who

were appointed by the probate court (as authorized by
the Legislature) as the grantors. We look to the intent
of these parties to determine whether they intended to
create rights of access in the hundreds of lots
partitioned.16
After analyzing the circumstances surrounding the
1878 partition and the information known to the
commissioners at the time of the partition, we conclude
that at that time the parties did not intend to create
easements, and that therefore the defendants
presented sufficient evidence to rebut the presumption.
There was evidence that tribal custom provided access
rights to members of the Tribe, other easements were
created, and the land was in poor condition at the time
of partition. This evidence is sufficient to rebut the
presumption that the grantor intended to include
easements by necessity.
The plaintiffs argue that the historical context of
the partition makes it clear the intention was to provide
rights of access to the lots. According to the plaintiffs,
one of the goals of granting Native Americans
citizenship was to allow them to own and sell property
and that is why the Legislature authorized the partition
of the common land. The plaintiffs maintain that if
easements of access were not intended, the Tribe
members' lots would not be salable and this would
undermine the Legislature's purpose of granting
Native Americans citizenship. The plaintiffs are correct
in saying that the Legislature considered the ability to
exercise control over one's own property as a privilege
of citizenship. See Report of the Committee, 1870
Senate Doc. No. 14, at 5. However, we do not glean
from the record the Legislature's intention to create
access rights for the purpose of dividing the common
lands into salable property. See St. 1870, c. 213, 6. The

historical record demonstrates that it was for the
members of the Tribe to determine whether to
partition their common land because "[t]his . . . is a
question of 'property,' which every 'citizen' should have
the privilege of determining for himself." Report of the
Committee, supra. The Legislature merely gave the
Tribe the authority to choose to partition their common
land and a method by which to do so. Furthermore, it
was the commissioners who carried out the division of
the common lands with input from the Tribe.
At the time of the partition, the tribal custom
admitted free access over all the land, as necessary. It
is likely that the commissioners did not think that
rights of access were necessary because it was provided
by tribal custom. The plaintiffs argue that the
Legislature knew that Indian title17 was nonexistent at
the time of partition and that, even if it did not, the
Legislature did not intend for tribal customs to prevail
after partition. This argument fails. "[W]e see no reason
why the common practice, understanding and
expectations of those persons receiving title could not
shed light on the parties' probable, objectively
considered intent." Kitras I, 64 Mass. App. Ct. at 300.
The commissioners partitioned the common land after a
lengthy process that took into consideration the wants
of members of the Tribe. We find evidence of this
process in the reservation of the right to remove peat,
and in the decision to leave the cranberry bogs and
cliffs in common ownership. We infer that the
commissioners, upon learning of this tribal custom,
determined that it was not necessary to include access
rights for the partitioned lots. Also, whether the tribal
custom continued after the partition is not relevant. We
look to the condition and circumstances at the time of
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the partition and not subsequent events.18 Mt. Holyoke

Realty Corp., 284 Mass. at 104. Richards, 153 Mass. at
122.
The Land Court judge also found persuasive the
existence of reserved rights in a number of the deeds,
and applied the rule of construction "expressio unius est
exclusio alterius" (i.e., to express or include one thing
implies the exclusion of the other) when concluding that
the omission of other rights of access was intentional.
Joyce v. Devaney, 322 Mass. 544, 549 (1948). A number
of deeds reserved rights to gather peat from another's
land. There were also three instances where rights
were reserved for access to a creek for purposes of
fishing. The right to gather peat included in a number
of deeds is known as a profit prendre,19 which the
plaintiffs correctly observe is different from an
easement. Although a profit prendre does not
specifically grant a right of access, some access is
implied in order to go onto specific land to remove that
which is described therein. See Gray v. Handy, 349
Mass. 438, 440 (1965). More to the point, a profit
prendre indicates that the commissioners knew how to
reserve rights when drafting deeds. The commissioners
also clearly provided for a right of access to a creek "for
the purpose of fishing and clearing the creek." The fact
that the commissioners had the knowledge and
foresight to reserve peat rights and expressly grant
access to a creek for certain Tribe members is evidence
that the omission of access rights to the rest of the land
was intentional.
Additionally, the Chappaquiddick Tribe, located on
a small island on the eastern coast of Martha's
Vineyard, had their common lands divided. The
commissioners who partitioned Chappaquiddick's
common land included in their deeds express rights of
access to roads. It is likely that the commissioners of

the Gay Head partition were well aware of the division
of the common land at Chappaquiddick because Richard
Pease, in his report written in 1871, frequently quoted
and cited prior commissioners' reports that described
the Chappaquiddick Tribe (as well as other tribes
residing in Massachusetts).20 See Pease Report, supra
at 22. See also Report of the Commissioners, 1849
House doc. No. 46, at 8, 11; Report of the
Commissioner, 1862 House Doc. No. 215, at 16. The fact
that an earlier partition of common land on Martha's
Vineyard provided rights of access to Tribe members,
known to the Gay Head commissioners, supports a
finding that the absence of access easements in the
conveyance flowing from the Gay Head partitions was
intentional, thereby rebutting the presumption of
easements by necessity.
The physical condition of the land in question also
is a factor when determining the intent of the parties in
this case. Dale, 305 Mass. at 103. The multiple reports
authored by various commissioners provide detailed
descriptions of the quality of the land and the landscape
at Gay Head at the time of the partition in 1878. The
plaintiffs rely on the many descriptions that praise the
land of Gay Head, and assert that the Land Court
unnecessarily focused on the few poor descriptions. The
plaintiffs are correct in saying that there are some
descriptions that praise the land at Gay Head. A group
of commissioners described the land as containing
"almost every variety of soil; a portion of the land is of
the very best quality, and capable, under good culture,
of producing most abundant harvests." Report of the
Commissioners, 1849 House Doc. No. 46, at 19. John
Milton Earle, an appointed commissioner in 1862,
described the land as "a great variety of soil, some of it
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of excellent quality." Report to the Governor and

Council, 1862 House Doc. No. 215, at 33. Commissioners
further observed that the land could be "reasonably
productive" if there were more money available to tend
to the land. Report of the Committee, 1870 Senate Doc.
No. 14, at 5.
Despite the intermittent praise, there were many
contrary descriptions of the land as desolate and
deficient. One report described Gay Head as a "Saharalike desolation" and implored the Legislature to provide
a remedy to the poor condition of the Gay Head land,
predicting that "unless some remedy is found, the whole
will eventually become one cheerless desert waste."21
Report of the Commissioners, 1856 House Doc. No. 48,
at 9. The special joint committee of Massachusetts
senators and representatives who visited Gay Head in
1869, and whose assessment of the land the trial judge
credited, thought it better for the common land to be
held in common for the whole Tribe "as pasturage and
berry lands," than for the land to be divided into lots
that ultimately would "lie untilled and comparatively
unused." Report of the Committee, 1870 Senate Doc.
No. 14, at 5. The land also was described as "uneven,
rough and not remarkably fertile." Id. As the
descriptions recited above indicate, contrary to the
plaintiffs' assertions, the poor condition of the land was
predominant and widely documented. It is likely that
the commissioners, observing the poor condition of the
land, reckoned that rights of access were not needed for
land that would "lie untilled and comparatively
unused."22
We agree with the Land Court judge's conclusions
that (1) tribal customs, (2) the existence of other
easements included in the deeds, and (3) the condition
of the land provide more than sufficient evidence to
rebut the presumption that the commissioners intended

to create access rights when they partitioned the
common land, and that the "[p]laintiffs have failed to
introduce evidence sufficient to carry their substantial
burden of proving easements by necessity." See Kitras
II, 87 Mass. App. Ct. at 30-31 (Agnes, J., dissenting).
We conclude that the plaintiffs failed to meet their
burden of establishing that the commissioners intended
to create easements by necessity.
6. Lot 178. The plaintiffs argue that the trial court
erroneously excluded lot 178, owned by the plaintiff
Maria Kitras (as trustee of Bear Realty Trust), from
the remand proceedings. We disagree. In Kitras I, 64
Mass. App. Ct. at 293-294, the Appeals Court concluded
that only lots 189 and above could possibly have an
easement by necessity. The "law of the case" doctrine
applies. "The 'law of the case' doctrine reflects this
court's reluctance 'to reconsider questions decided upon
an earlier appeal in the same case'" (citation omitted).
King v. Driscoll, 424 Mass. 1, 7-8 (1996). An already
decided issue should not be reopened "unless the
evidence on a subsequent trial was substantially
different, controlling authority has since made a
contrary decision of the law applicable to such issues, or
the decision was clearly erroneous and would work a
manifest injustice." Id. at 8, quoting United States v.
Rivera-Martinez, 931 F.2d 148, 151 (1st Cir.), cert.
denied, 502 U.S. 862 (1991). In this case, the issue only
could have been reopened if the Appeals Court decision
in Kitras I, supra, clearly was erroneous and would
work a manifest injustice. We see no reason to reopen
the issue regarding lot 178.
7. Conclusion. For the foregoing reasons, we affirm
the judgment of the Land Court.
Judgment affirmed.
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-------Footnotes:
1.
Of Bear Realty Trust, Bear II Realty Trust, and
Gorda Realty Trust.
2.
James J. Decoulos, as trustee of Bear II Realty Trust
and Gorda Realty Trust; Mark D. Harding; and Sheila
H. Besse and Charles D. Harding, Jr., as trustees of
Eleanor P. Harding Realty Trust.
3.
The Commonwealth; Joanne Fruchtman; Jack
Fruchtman; Benjamin L. Hall, Jr., as trustee of
Gossamer Wing Realty Trust; Brian M. Hall, as trustee
of Baron Land Trust; Caroline Kennedy; Edwin
Schlossberg; Martha's Vineyard Land Bank; Vineyard
Conservation Society, Inc.; David Wice; and Betsy
Wice.
4.
The town of Gay Head officially changed its name to
the town of Aquinnah in 1997. See St. 1998, c. 110.
5.
The Wampanoag Tribe of Gay Head (Tribe) was
federally recognized as a tribe on April 10, 1987. 52 Fed.
Reg. 4193 (1987).
6.
"An estate in severalty is one that is held by a person
in his own right only, without any other person being
joined or connected with him, in point of interest,
during his estate therein." Black's Law Dictionary 1374
(6th ed. 1990), citing 2 W. Blackstone, Commentaries
*179.
7.
We acknowledge the amicus briefs submitted by
Aquinnah/Gay Head Community Association; The Real
Estate Bar Association for Massachusetts, Inc., and
The Abstract Club; Michael Pill; and the Wampanoag
Tribe of Gay Head.
8.
The record includes lot 189 with both land held in
severalty and land in common. For clarity and because
no issue turns on this fact, we will continue to designate
lots 189 and above as the lots created from the common
land.
9.
The Vineyard Conservation Society, Inc.; Martha's
Vineyard Land Bank and the town of Aquinnah; and
the Commonwealth submitted applications for further
appellate review.
10.
The Tribe at Gay Head was different. The Tribe grew
dissatisfied with their guardians in the early
Nineteenth Century, and the guardians subsequently
resigned. Report of the Commissioners, 1849 House
Doc. No. 46, at 20. The Tribe had an opportunity to
accept an act of the Legislature in 1828 and have a new
guardian appointed. However, the Tribe never
accepted the act. See id.; St. 1828, c. 114. Therefore, for
a majority of the Nineteenth Century, the members of
the Tribe "[were] without any guardian, and the
division of their lands, and indeed the whole
arrangements of their affairs, except of the school
money, [were] left to themselves." Report of the
Commissioners, supra. Despite this, the Tribe members
were still considered "involuntary wards of the State."
at 39.
11.
In the plaintiffs' reply brief, they argue for the first
time that there was no evidence of such tribal custom.
We decline to address this argument. Mass. R. A. P. 16
(a) (4), as amended, 367 Mass. 921 (1975). See Canton v.
Commissioner of the Mass. Highway Dep't, 455 Mass.
783, 795 n.18 (2010).
12.
The selectmen and a group of other residents of Gay
Head filed a petition in opposition, characterizing the
partition as "premature and unsafe," adding that it
would "be attended with disastrous consequences" to
the inhabitants. Petition of persons in Gay Head for
Division of Common Lands, Sept. 7, 1870.
21a
22a
16.
Subsequently, another petition was filed by various

residents in support of the division of the common land.
Petition in and of the Petition of Citizens of Gay Head
for Division of Common Lands, Oct. 17, 1870.
13.
Section 301(d) of the Massachusetts Guide to
Evidence (2015) is applicable. That section states: "A
presumption imposes on the party against whom it is
directed the burden of production to rebut or meet that
presumption. . . . If that party fails to come forward
with evidence to rebut or meet that presumption, the
fact is to be taken by the fact finder as established. If
that party comes forward with evidence to rebut or
meet the presumption, the presumption shall have no
further force or effect. A presumption does not shift the
burden of persuasion, which remains throughout the
trial on the party on whom it was originally cast."
14.
The defendants rely somewhat on the Restatement
(Third) of Property (Servitudes) 2.15 (2000)
(Restatement) to describe the applicable law governing
easements by necessity in Massachusetts. The Appeals
Court determined that the Restatement was applicable.
See Kitras v. Aquinnah, 87 Mass. App. Ct. 10, 16-17
(2015) (Kitras II). We decline to decide whether we
should adopt the Restatement, as our result would be
the same under our common law as well as the
Restatement. The Restatement includes a broader
range of issues than this case presents, and we reserve
for another day the question whether to adopt that
section of the Restatement.
15.
Vineyard Conservation Society, Inc. (VCS), argues
that the plaintiffs' contention that title to the common
land was owned by the town of Gay Head with the
Commonwealth retaining the power to convey is
contrary to the historical record. However, VCS
acknowledges that "nothing turns on the dispute."
It is not clear whether the plaintiffs are relying on

the intention of the Legislature or the commissioners,
or both, as they identified the grantor as the "General
Court" who authorized the commissioners and the
probate court to act on its behalf. We interpret St. 1870,
c. 213, 6, as the Legislature empowering the probate
court to appoint commissioners to partition the land
and leaving the details of the division to the appointed
commissioners. It is the commissioners' intent that we
view as dispositive.
17.
Indian title "gave Indians a 'right of occupancy.'"
James v. Watt, 716 F.2d 71, 74 (1st Cir. 1983), cert.
denied, 467 U.S. 1209 (1984).
18.
In 1987, aboriginal title was extinguished retroactive
to the date of transfer by a member of the Tribe. 25
U.S.C. 1771b(b) (2012). Title 25 U.S.C. 1771 (2012)
was passed in response to the 1983 settlement when the
Tribe agreed to extinguish all aboriginal claims. See
Building Inspector & Zoning Officer of Aquinnah v.
Wampanoag Aquinnah Shellfish Hatchery Corp., 443
Mass. 1, 3-7 (2004). Subsequent events that render a lot
landlocked do not give rise to an easement by necessity.
See New England Continental Media, Inc. v. Milton, 32
Mass. App. Ct. 374, 378 (1992); Swartz v. Sinnot, 6
Mass. App. Ct. 838, 838 (1978). The necessity must have
existed at the time of the division. Viall v. Carpenter,
14 Gray 126, 127 (1859).
19.
A profit prendre "is a right in one person to take
from the land of another either a part of the soil, such as
minerals of all kinds from mines, stones from quarries,
sand and gravel; or part of its produce, such as grass,
crops of any kind, trees or timber, fish from lakes or
streams, game from the woods, seaweed, and the like . .
. " (citation omitted). Gray v. Handy, 349 Mass. 438, 441
(1965).
23a
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One of the commissioners who divided the common

land at Chappaquiddick was Jeremiah Pease. The
relation, if any, between Jeremiah and the brothers
Richard and Joseph Pease is unknown.
21.
The commissioners explained that the "sands of the
beach, no longer covered, as formerly, with an abundant
growth of beach-grass, become the sport of the breeze,
and are every year extending inland, covering acre
after acre of meadow and tillage land; many acres of
which have, within the memory of our informants, been
thus swallowed up, and now lie wholly waste and
useless." Report of the Commissioners, 1856 House Doc.
No. 48, at 9.
22.
Although not contemporary with the partition at
issue, a depiction of Gay Head in an 1887 photograph
has been described as "little changed" from an 1844
description as "a level, desolate moor, treeless,
shrubless, and barren of all vegetation, save coarse
grass and weeds, and a profusion of stunted dog-roses"
(citation omitted). P.W. Dunwiddle, Martha's Vineyard
Landscapes: The Nature of Change (1994). Based on
this information, we infer that the unfavorable
condition of the land at Gay Head continued after the
division of the common land.
NOTICE: All slip opinions and orders are subject to

formal revision and are superseded by the advance
sheets and bound volumes of the Official Reports. If
you find a typographical error or other formal error,
please notify the Reporter of Decisions, Supreme
Judicial Court, John Adams Courthouse, 1 Pemberton
Square, Suite 2500, Boston, MA, 02108-1750; (617) 5571030; SJCReporter@sjc.state.ma.us
20.
Suffolk.
Present: Kantrowitz, Berry, & Agnes, JJ.
Easement. Necessity. Real Property, Easement.
Civil action commenced in the Land Court Department
on May 20, 1997.
After review by this court, 64 Mass. App. Ct. 285
(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.
Society, Inc.
MARIA A. KITRAS, trustee, 1 & others2

v.
No. 1212- P -260.
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
Appeals Court of Massachusetts

January 18, 2013
January 14, 2015
25a
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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 longstanding tribal
custom and practice so as to leave the plaintiffs' lots
landlocked and bereft of easements.
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
Sec. 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.
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) Sec, 2.15 (2000) and Massachusetts
common law. We remand to the Land Court to draw the
necessary easement lines in accord with these legal
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 Head
Tribe was to allow its members access over the lands.
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There is no evidence in the record that this prevailing

custom, prior to the governmental partition that
occurred in the 1870's, did not continue after the land,
previously held in common, was partitioned and deeded
to Tribe members.
After the partitioning process, the lands were held in

severalty.6 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.
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.4 There is neither any basis to
negate this undisputed fact, nor any basis to negate
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.
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,7,8 which led to the crafting of
deeds in severalty to the Gay Head Tribe members,
were not the commissioners, whose functions were
administrative.9 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.
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.
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 statute10 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, Sec. 6:
First, the subject lands were held in common

ownership5 prior to the judicial partitioning process.
"The judge of probate of the county of Dukes-county,

upon the application of the selectmen of Gay Head, or of
29a
30a
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."
Then, finally, on May 12, 1879, having completed

the partition of the lands, the commissioners wrote as
follows:
"Not considering it best for the interests of the parties
owning the lands [that is, the Tribe members] referred
to in the for[e]going Warrant that any part thereof
should be sold, in which opinion said parties
unanimously concurred, we have set off and divided the
same among the people [the Tribe members] entitled
thereto" (emphasis added).
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 severalty11 . . . . We the undersigned . . . 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 end this aspect of this opinion, as

demonstrated above, in these large scale governmental
partitioning land transactions, the question of private
grantor/grantee intent was not present. Simply put,
this is not a case, such as is presented in general private
land conveyances, where "the actual intention of the
parties as disclosed by the oral testimony makes it plain
that there was express understanding that there should
be no right of way over other land of the grantor."
Orpin v. Morrison, 230 Mass. 529, 534 (1918).
Accordingly, our analysis must account for the Gay
Head Tribe's preexisting access rights, which rights
serve to establish that the Tribe's members understood
that there were rights of way and access.
To complete the historic background, on

December 5, 1870, a judge of the Probate Court decreed
as follows:
3. The Restatement Sec. 2.15 rule of law on

easements by necessity. The implication of easements
by necessity accord with the property law set forth in
Sec. 2.15 of the Restatement. The black letter rule of
the Restatement Sec. 2.15 provides as follows:
"It appearing to the Court that it would be for the

benefit of the people of said Town of Gay Head that
their said Common Lands should be divided as prayed
for and as the Statute in that case provides, [i]t is
decreed that said Lands be so divided."
"A conveyance that would otherwise deprive the land

conveyed to the grantee . . . of rights necessary to
31a
32a
reasonable enjoyment of the land implies the creation of

a servitude granting . . . such rights, unless the
language or circumstances of the conveyance clearly
indicate that the parties intended to deprive the
property of those rights."
intended to deprive the property of those rights."

Restatement Sec. 2.15.
4. Massachusetts property law on easements by
necessity follows Restatement Sec. 2.15. Even were we
not to adopt per se or follow Restatement Sec. 2.15 as
controlling, Massachusetts property law -- albeit
developed in the context of private land conveyancing -would still presume easements by necessity here.
Comment b to Restatement Sec. 2.15 on

easements further supports easements by necessity in
this case:
The implied presumption in favor of easements

by necessity over otherwise landlocked property
underlying Sec. 2.15 of the Restatement is in accord
with the Massachusetts common law of property. Thus,
even if we declined to follow the Restatement,
easements by necessity should exist here. That the
Tribe's land transfer involved governmental actions
and a judicial partitioning process does not alter the
presumptions of a legal right of access under
Restatement Sec. 2.15 or Massachusetts law.
"Access rights are almost always necessary to the

enjoyment of property. In a conveyance that would
otherwise deprive the owner of access to property,
access rights will always be implied, unless the parties
clearly indicate they intended a contrary result. The
most commonly implied access rights are those to
connect property with a public road, but there are
others."
Further, comment e to Restatement Sec. 2.15
emphasizes that "[m]ere proof that [the parties] failed
to consider access rights, or incorrectly believed other
means to be available, is not sufficient to justify
exclusion of implied servitudes for rights necessary to
its enjoyment." See Restatement Sec, 2.15 comment a
(describing history and rationale of "[p]ublic policy
favoring use and occupation of land").
Under Massachusetts law, in a conveyance with

the prospect of leaving property landlocked, there is
presumed access by an easement by necessity, absent
contrary evidence rebutting the presumption and
proving that the conveying parties did not intend
access, but rather intended to cut off access and convey
land that is landlocked. "The law presumes that one will
not sell land to another without an understanding that
the grantee shall have a legal right of access to it, if it is
in the power of the grantor to give it, and it equally
presumes an understanding of the parties that one
selling a portion of his land shall have a legal right of
access to the remainder over the part sold if he can
reach it in no other way. This presumption prevails
Here, the Massachusetts governmental land

grant and judicial partitioning process involved neither
private negotiations nor parties on either side who
likely would, or actually did, state or express intent
concerning easements visa-vis the lands, and the
parties certainly did not "clearly indicate that [they]
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over the ordinary covenants of a warranty deed." Davis

v. Sikes, 254 Mass. 540, 545-546 (1926), quoting from
New York & New England R.R. v. Railroad Commrs.,
162 Mass. 81, 83 (1894). "A right of way of necessity
over land of the grantor is implied by the law as a part
of the grant when the granted premises are otherwise
inaccessible, because that is presumed to be the intent
of the parties. . . . It is founded on the idea that it is the
purpose of the parties that the conveyance shall be
beneficial to the grantee. . . . It is, however, a pure
presumption raised by the law." Orpin v. Morrison, 230
Mass. at 533. "'Easements by necessity' refer to rightsof-way presumed at common law when a landowner
conveys a portion of his land but still needs access over
the transferred property to reach the property he
retained." Bedford v. Cerasuolo, 62 Mass. App. Ct. 73,
77 (2004). See generally Eno & Hovey, Real Estate
Law Sec. 8.14 (4th ed. 2004).
298 (2005) (Kitras I), citing Nichols v. Luce, 24 Pick.

102, 104 (1834). "Neither does there exist a public policy
favoring the creation of implied easements when
needed to render land either accessible or productive."
Ibid., citing Richards v. Attleborough Branch R.R. Co.,
153 Mass. 120, 122 (1891). 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. Indeed, for
the following reasons, I believe there was no such
shared intent: (1) the glaring omission of access roads or
paths not only on the nineteenth century partition plan,
but also on contemporary plot maps which show that
most of the set-off lots lack frontage or access to or
from any public amenity; (2) the condition of the land at
the time of partition, described as "uneven, rough, and
not remarkably fertile," Kitras I, 64 Mass. App. Ct. at
288; (3) the expectation that these lots would "lie
untilled and comparatively unused" following the
partition, Report of the Committee, 1869 Senate Doc.
No. 14, at 5; (4) the fact that the Native American
grantees shared a custom of free access over lands held
in common by the tribe, and had no need for a
reservation of access rights; and (5) the absence of any
evidence that the Native American grantees did not
continue to exercise and enjoy their tribal rights and
customs following the partition.12 Therefore, I believe
the decision of the Land Court judge should be
affirmed.13
In conclusion, this record presents a historical

background supporting the presumption of easements
by necessity in that the original grantees, the members
of the Gay Head Tribe, by custom and practice, enjoyed
rights of access to cross over the subject lands.
Further, the record also tracks the presumption in our
State property law which favors easements by
necessity to keep "free" lots from being landlocked.
Accordingly, we reverse the judgment, and remand for
further proceedings consistent with this opinion.
So ordered.
AGNES, J. (dissenting). It is settled law
necessity alone does not give rise to an implied
easement. Kitras v. Aquinnah, 64 Mass. App. Ct. 285,
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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, preexisting 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.
where such easements were located. Id. at 298-301. In

doing so, this court cautioned that notwithstanding that
each of the plaintiffs' lots is landlocked, a finding that an
easement was intended by the parties in the
circumstances of this case is not inevitable and the
question "requires thoughtful consideration" by a fact
finder of the "presumed objective intent of the grantor
and grantee based upon the circumstances of the
conveyance." Id. at 300, quoting from Flax v. Smith, 20
Mass. App. Ct. 149, 153 (1985). In addition, this court
noted that even if the requisite intent is found,
numerous questions remain including merger,
extinguishment, lack of continuing necessity, and
impacts of eminent domain takings. Ibid.
What follows is a brief history of the events

leading up to the 1878 partition, and a detailed analysis
of the legal principles governing easements by
necessity.
On remand, the judge ordered a bifurcation of

the issues and first addressed whether the
commissioners who partitioned the land in the 1870's in
accordance with a legislative directive intended to
create easements. The parties initially attempted to
present the judge with an agreed statement of facts,
but, when that failed, submitted the question on their
respective documentary presentations. Correctly
concluding that live testimony was unlikely to be
helpful given the age of the matters in issue, the judge
made comprehensive findings and rulings on the basis
of a voluminous documentary record, and determined
that an intent to create easements could not reasonably
be implied. Accordingly, on August 12, 2010, in
accordance with his findings and rulings that there was
no intent to create easements by necessity, the judge
entered a judgment for the defendants; a "second
amended and final judgment" was entered on May 17,
2011. The plaintiffs now appeal. In particular, the judge
reasoned that (i) the condition of the land was such that
Background. 1. Procedural history. In Kitras I,

this court considered whether the United States, which
holds a number of lots in trust for the Wampanoag
Tribal Council of Gay Head, Inc., a Federally
recognized Native American Tribe (Wampanoag Tribe),
was an indispensable party to the plaintiffs' action. This
court held that the inability to join the United States as
a party was not fatal because the Wampanoag Tribe
had waived sovereign immunity in matters concerning
the land at issue and could be sued directly. Id. at 298.
However, because an easement by necessity ultimately
depends on the facts, particularly the intent of the
parties at the time of the conveyance (or, in this case,
partition), this court reversed and remanded the matter
for trial with instructions that the Land Court was to
determine, after appropriate proceedings, whether (i)
easements by necessity properly could be implied from
the circumstances attendant at the time of the lots'
creation and in light of subsequent events; and (ii) if so,
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access easements are not reasonably implied; (ii) the

presence of some easements negates the imposition of
an easement by necessity; and (iii) access easements
were unnecessary because all the grantees in question
were members of the Wampanoag Tribe of Gay Head
(Gay Head Tribe or Tribe) and the Gay Head Tribe's
custom at the time allowed access over all property by
all members of the Tribe.
In 1863, after some years of purported "guardianship,"

the Legislature established the "district" of Gay Head,
see St. 1862, c. 184, 4, and directed the clerk to create
a "register of the lands of [the district], as at present
held, whether in common or severally," and to identify
the lots held in severalty and their owners. The
following year, the Legislature appointed Charles
Marston to "fully and finally . . . determine, all boundary
lines between the individual owners of land located in
the Indian district of Gay Head, . . . and also to
determine the boundary line between the common
lands of said district and the individual owners
adjoining said common lands. St. 1863, c. 42. Marston
was authorized, in particular, "to adjust, and fully and
finally to settle, equitably, and as the interest of the
petitioners and all other parties may require, all the
matters, claims and controversies, now existing and
growing out of or in connection with the boundaries of
the aforesaid lands."17 Ibid.
2. Factual background. In the 1800's, what is now

known as Aquinnah in Martha's Vineyard was occupied
nearly exclusively by the descendants of the Gay Head
Tribe members. Located east of Chilmark on the island
of Martha's Vineyard, it consisted of approximately
2500 acres of land; 450 of it held in severalty and
occupied by Gay Head Tribe members, and the
remainder held by the Tribe in common. Kitras I, supra
at 287. The judge correctly recognized that the lots
were held by the Commonwealth under English
common law rules of property and occupied by the Gay
Head Tribe under traditional Native American law.14
Importantly, he also recognized that the prevailing
custom of the Gay Head Tribe was to allow all members
access over all lands, whether held in common or in
severalty.15
It soon became apparent, however, that despite

efforts to enfranchise the Gay Head Tribe members by
conferring "the glorious privileges of Massachusetts
citizenship in full,"18 they suffered from the "slight
drawback that being neither a town by themselves, nor
part of any other town," their privileges of citizenship
"could neither be exercised or enjoyed." Report of the
Committee, 1870 Senate Doc. No. 14, at 1. "To prepare
the way for remedying this continuation of the "political
anomaly," in 1869, the Legislature appointed a
committee which "visited the people of that district, and
carefully noted their condition, their prospects, their
situation, their views and opinions." Id. at 4. The
committee reported on all aspects of Gay Head and its
citizens, including population, health, wealth, religion,
During the first half of the nineteenth century,

the Massachusetts Legislature was deeply involved in
determining the future of the Gay Head Tribe.
Attitudes gradually shifted from paternalistic
treatment of the Native Americans toward granting
them full citizenship and independent ownership of
their lands.16
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education, occupations, physical characteristics of the

land, and general well-being.
financial burden of putting the road "in good travelling

order." Id. at 10.
With regard to the land, the committee reported

that in addition to the land held in severalty, "there is
the large tract of some nineteen hundred acres held in
common. This land is uneven, rough and not
remarkably fertile. A good deal of it, however, is, or
might be made, reasonably productive with a slight
expenditure, and, doubtless, would be if the owners had
the means; but, deficient as they are in 'worldly gear,' it
is, perhaps, better that these lands should continue to
lie in common for the benefit of the whole community as
pasturage and berry lands, than to be divided up into
small lots to lie untilled and comparatively unused.
This, however, is a question of 'property,' which every
'citizen' should have the privilege of determining for
himself, and the people of Gay Head have certainly the
right to claim, as among the first proofs of their
recognition to full citizenship, the disposition of their
landed property, in accordance with their own wishes.
Accordingly we have inserted in the bill accompanying
this Report, a section making the same provision for a
distribution of their lands as was made last year for the
other tribes." Id. at 5.
Following receipt of the committee's report, the

Legislature enacted St. 1870, c. 213, which incorporated
Gay Head as a town and directed that "all common
lands, common funds, and all fishing and other rights
held by the district of Gay Head are hereby transferred
to the town of Gay Head, and shall be owned and
enjoyed as like property and rights of other towns are
owned and enjoyed." St. 1870, c. 213, Sec. 2. It further
directed that the county commissioners shall "lay out
and construct a road from the line of Chilmark and Gay
Head to the light-house on Gay Head." St. 1870, c. 213,
Sec. 5. In addition, the statute provided that upon
application of the board of selectmen or any ten
citizens, a judge of the Probate Court may partition the
common lands of the town and divide or sell the lands.
St. 1870, c. 213, Sec. 6. Notably, this legislation did not
purport to extinguish any tribal rights or privileges
enjoyed individually or severally by the Gay Head
Tribe.19
In 1870, a group of more than ten citizens
petitioned the Probate Court to divide and set off the
common land. The probate judge appointed Joseph L.
Pease and Richard L. Pease as commissioners
(commissioners) to partition the property, and
specifically ordered them to "give to all parties
interested due notice of the times and places appointed
. . . for making such division, and establishing such
boundaries and lines." In their report to the Probate
Court, the commissioners reported that "the almost
unanimous desire of the inhabitants" was "to leave
cranberry lands near the sea-shore and the clay in the
The committee unanimously recommended that

Gay Head be made a town of the Commonwealth. In
addition, the committee noted that the deplorable
condition of the road leading from Chilmark across Gay
Head "to the United States light-house [on the eastern
end of] Gay Head" greatly isolates the community and
also makes it difficult for visitors to Martha's Vineyard
to view the lighthouse. Id. at 9. The committee
recommended that the Commonwealth shoulder the
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cliffs undivided," but to divide the rest of the common

property.
Discussion. 1. The plaintiffs have not met their

burden to prove the existence of an intent to create
easements at the time of the partition.
Under the direction of the commissioners, a plan

of over 500 properties, the first 189 of which had been
previously divided as held severally by individual Gay
Head Tribe members, was created and approved by the
Probate Court in 1878. One road is shown on the map
running from Gay Head's southeastern border with
Chilmark between Menamsha Pond and Squibnocket
Pond to the northwest end of the peninsula where it
meets the Vineyard Sound (at the likely location of the
lighthouse). All of the properties at issue lie to the
south of this road. Even a cursory view of the grid-like
plan created by the commissioners reveals the
landlocked nature of the vast majority of the lots, other
than those relatively few lots that abut the road.
"A right of way of necessity over land of the grantor is

implied by the law as a part of the grant when the
granted premises are otherwise inaccessible, because
that is presumed to be the intent of the parties. The
way is created, not by the necessity of the grantee, but
as a deduction as to the intention of the parties from the
instrument of grant, the circumstances under which it
was executed and all the material conditions known to
the parties at the time. The rule has its basis in a
construction of the deed with reference to all the facts
within the knowledge of the parties respecting the
subject of the grant, to the end that their assumed
design may be carried into effect. It is founded on the
idea that it is the purpose of the parties that the
conveyance shall be beneficial to the grantee."
The parties agree that the partition deeds

contained no access easements.20 The parties further
agree that some of the partition deeds, however, did
include a reservation over three lots (382, 384, 393) "for
the use of the proprietors in the Herring Fishery, for
the purpose of fishing and clearing the creeks, a strip of
land, one rod wide, on each side of the creek, so long as
the said reservation may be needed for that purpose."
Many others explicitly granted to certain individuals,
some identified and some not, the right to the peat on
various lots partitioned to others.21 In 1955, a taking
was made by the Commonwealth for the purpose of
laying out the Moshup Trail, which gave access to some
of the lots now owned by the defendants. Another road,
Zack's Cliffs Road, also now exists and intersects with
Moshup Trail. The plaintiffs' properties do not abut
these ways.
Orpin v. Morrison, 230 Mass. 529, 533 (1918).

It being "a pure presumption raised by the law,"
an intent to grant or reserve an easement by necessity
"ought to be and is construed with strictness. There is
no reason in law or ethics why parties may not convey
land without direct means of access, if they desire to do
so." Ibid. "The burden of proving the intent of the
parties to create an easement that is unexpressed in
terms in a deed is upon the party asserting it, and,
when the evidence establishes the requisite intent, 'it is
now settled that the necessity of the easement for the
enjoyment of the land conveyed is not an absolute
physical necessity, but no more than a reasonable
necessity.'"22 Oldfield v. Smith, 304 Mass. 590, 594
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(1939), quoting from Mt. Holyoke Realty Corp. v.

Holyoke Realty Corp., 284 Mass. 100, 105 (1933).
to determine intention); Harrington v. Lamarque, 42

Mass. App. Ct. 371, 375 (1997). This court added that "in
the unique circumstances of this case, the fact that
certain lots were landlocked as a result of partition does
not persuade us as being the definitive measure of
intent." Kitras I, supra at 299. This court also reminded
the parties that "it is the proponents' burden to prove
the existence of an implied easement." Id. at 300.
I disagree with a major premise of the

arguments advanced by the plaintiffs, namely, that only
two factors were relevant to the fact finder's
determination: (i) that the lots were, before partition,
held by a single grantor; and (ii) as a result of the
partition, the lots in question were landlocked. As this
court explained in Kitras I and in the cases cited above,
far more than these two basic factors go into the
calculus when determining probable intent as a
foundation for a determination of whether there exits
an easement by necessity. See Kitras I, supra at 298300. Indeed, what was said in Kitras I bears
significantly on the decision in this case. In Kitras I this
court noted that while an assumption of intent to create
easements "seemingly arises naturally from the
necessity created by dividing the common land,"
"necessity alone does not an easement create," and "our
charge . . . is not to look simply at the necessity, but to
consider all 'the circumstances under which [the
severance] was executed and all the material conditions
known to the parties at the time.'" Id. at 298-299,
quoting from Orpin v. Morrison, 230 Mass. at 533. See
Richards v. Attleborough Branch R.R. Co., 153 Mass.
120, 121-122 (1891) (law does not prevent owner from
cutting himself off from all access to his land by
conveyances if that is his intent); Gorton-Pew Fisheries
Co. v. Tolman, 210 Mass. 402, 411 (1912) (it is not
necessity that creates way, but intention of parties as
shown by their instruments and situation and
circumstances with reference to which those
instruments were made); Perodeau v. O'Connor, 336
Mass. 472, 474-475 (1957) (necessity merely one element
Now, after all the evidence has been presented

and the case has been considered on the merits, I
believe the judge ruled correctly that the plaintiffs did
not meet their burden of proof as to whether there was
an intent to create the claimed easements by necessity,
and any presumption to the contrary has been
successfully rebutted. See Mass. G. Evid. 301(d) (2014).
This is not to say that the commissioners who
partitioned the property were unmindful of whether
the citizens of Gay Head had access to their lots.
Rather, the officials involved in the design and
implementation of the partition understood that the
members of the Gay Head Tribe enjoyed access rights
under tribal custom and practice. Thus, the most
reasonable view of the state of mind of those involved
in the partition is that there simply was no need for
easements.
At the time the partition deeds were granted,
the parties were aware that Gay Head tribal custom
was such that all Tribe members enjoyed access over all
Tribe properties whether owned severally or in
common. The record contains no evidence that suggests
that this practice was to end (or ended) upon partition
of the common property. Indeed, there is evidence that
Native American custom and law superseded State law
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with respect to a Tribe member's property rights in

relation to other members of the Tribe well after the
partition occurred in the 1870's. See Cornwall v.
Forger, 27 Mass. App. Ct. at 340-341. That this issue
has arisen only some 135 years later, suggests that
following the partition, access rights to and over the
land continued to be exercised in accordance with tribal
custom. "The practical construction given the deed by
the parties as shown by their subsequent conduct may .
. . be considered." Murphy v. Donovan, 4 Mass. App. Ct.
519, 527 (1976).
conveyance of land will be implied by judicial action if it

is determined that otherwise the grantee will be
deprived of rights necessary to reasonable enjoyment
of the land. Comment a to Sec. 2.15 of the Restatement
informs us that this principle embodies the common
law. Comment c to Sec. 2.15, consistent with
Massachusetts common law, informs us that a servitude
or easement will be implied only when "prior to the
conveyance, the property did enjoy such rights and
that, absent the implied servitude, the conveyance
would deprive it of such rights." In other words, under
2.15 of the Restatement, the necessity requirement
for an implied easement must arise at the same time as
the conveyance. See Restatement Sec. 2.15 comment c
("Servitudes by necessity arise only on severance of
rights held in a unity of ownership"); American Small
Bus. Inv. Co. v. Frenzal, 238 Va. 453, 456 (1989). This
court previously decided that the requirement that the
necessity must exist at the time of the conveyance
applies regardless of whether the grantor is a
government or private entity. Kitras I, 64 Mass. App.
Ct at 292 n.5.
In addition, 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
nineteenth 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. As the judge concluded, the absence
of access easements in the face of other express
easements, "negate[s] any presumed intent of the
grantors to create an easement by necessity for any of
Plaintiffs' lots."23 See Joyce v. Devaney, 322 Mass. 544,
549 (1948) ("The creation of such express easements in
the deeds negatives, we think, any intention to create
easements by implication"). I note, as well, that earlier
partitions of other tribal lands on Martha's Vineyard
did create a roadway system, making the glaring
absence of such provisions here appear intentional.
As discussed above, the members of the Gay

Head Tribe had no need for an access easement
following the partition in the 1870's because they
enjoyed a right of access to and over the land in
question as a result of tribal custom and practice. This
state of affairs thus precludes the plaintiffs from
establishing an essential element of the required proof,
namely, that the need for an easement existed at the
time of the original deed. See Nichols v. Luce, 24 Pick,
at 104 ("It is not the necessity which creates the right of
way, but the fair construction of the acts of the
parties"); Orpin v. Morrison, 230 Mass. at 534 (in
2. Massachusetts law is consistent with the

Restatement (Third) of Property (Servitudes). Section
2.15 of the Restatement (Third) of Property
(Servitudes) (2000) (Restatement)24 provides that an
easement or servitude not expressly granted in a
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upholding judge's decision that no easement by

necessity should be implied even though parcel lacked
access to any public or private road, court stated that
"[t]here are circumstances in the case at bar which
apart from the oral testimony give color to the
contention that the parties did not intend a right of way
by necessity"); Darman v. Dunderdale, 362 Mass. 633,
639-640 (1972) (eminent domain taking cutting off
access does not give rise to easement by necessity when
necessity did not exist at time of original conveyance);
Swartz v. Sinnot, 6 Mass. App. Ct. 838, 838-839 (1978)
(no easement by necessity where necessity arose later
by virtue of railroad cutting off access to public way;
convenience alone does not give rise to easement by
necessity); New England Continental Media, Inc. v.
Milton, 32 Mass. App. Ct. 374, 378 (1992) (subsequent
eminent domain taking does not give rise to easement
by necessity).
by necessity must be determined "from the terms of the

instrument and from the circumstances existing and
known to the parties at the time the instrument of
conveyance was delivered"). The doctrine of easement
by necessity does not spring forth from a public policy
against ownership of landlocked land. See Kitras I,
supra at 298. See also Yellowstone River, LLC v.
Meriwether Land Fund I, LLC, 362 Mont. 273, 291-293
(2011). The doctrine of easement by necessity was not
recognized in order to vindicate the interests of the
grantees. Instead, the doctrine is designed "to
effectuate the intent of the parties." Ward v. McGlory,
358 Mass. 322, 325 (1970).
To allow contemporary circumstances to inform
a determination of the intent of the parties at the time
of a conveyance of land more than a century earlier
contravenes the overarching principle that "[t]he aim of
all interpretation of writings is to ascertain the
meaning intended to be attached to the words by the
parties who used them, and to effectuate the true
purpose of the parties as thus ascertained. All rules are
ancillary to that dominating aim." Clark v. State St.
Trust Co., 270 Mass. 140, 151-152 (1930). Indeed, the
canonical guides to construction of a written instrument
are "[j]ustice, common sense and the probable intention
of the parties." Shane v. Winter Hill Fed. Savs. & Loan
Assn., 397 Mass. 479, 483 (1986), quoting from Stop &
Shop, Inc. v. Ganem, 347 Mass. 697, 701 (1964).25
Conclusion. That the access the original owners

enjoyed following partition does not continue today
does not give rise to an inference of necessity when the
partition was made. The plaintiffs have framed their
argument in part on the basis of contemporary views
about the utility and value of landlocked parcels in
proximity to the ocean on an island that has become
principally a recreational destination, rather than the
condition of the land in the nineteenth century at the
time of the partition when it was considered uneven,
rough, and infertile. Necessity must be derived from
the facts known by the parties at the time of the
partition "to the end that their assumed design may be
carried into effect." Kitras I, supra at 291 (quotation
omitted). See Mt. Holyoke Realty Corp. v. Holyoke
Realty Corp., 284 Mass. at 104 (existence of easement
For these reasons, I respectfully dissent.

-------Footnotes:
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1.
Of Bear Realty Trust, Bear II Realty Trust, and

Gorda Realty Trust.
the easement question -- the precise question in this

appeal.
2.
5.
James J. DeCoulos, as trustee of Bear II Realty Trust

and Gorda Realty Trust; and Mark D. Harding, Sheila
H. Besse, and Charles D. Harding, Jr., as trustees of
Eleanor P. Harding Realty Trust.
Lands held in common are held as "tenements by

several and distinct titles . . . but occup[ied] in common,
the only unity recognized . . . being that of possession."
Bouvier, Law Dictionary Adapted to the Constitution
& Laws of the United States of America, and of the
Several States of the American Union 580 (14th ed.
1882). "[T]wo or more persons may have concurrent
interests in the land; the common characteristic of all
such interests being that the owners have no separate
rights as regards any distinct portion of the land, but
each is interested, according to the extent of his share,
in every part of the whole land." Tiffany, Law of Real
Property & Other Interests in Land Sec. 161, at 370
(1903). Lands "granted in large parcels, to a great
number of grantees . . . for the purpose of forming
towns . . . have invariably, and from the earliest
settlement of the country, been considered as vesting in
the grantees and their heirs estates in common."
Higbee v. Rice, 5 Mass. 343, 350 (1809).
3.
Executive Office of Environmental Affairs; Joanne

Fruchtman; Jack Fruchtman; Benjamin L. Hall, Jr.,
trustee of Gossamer Wing Realty Trust; Brian M. Hall,
trustee of Baron's Land Trust; Caroline Kennedy;
Edwin Schlossberg; Martha's Vineyard Land Bank;
Barbara Vanderhoop, executrix of the estate of
Leonard F. Vanderhoop, Jr.; Vineyard Conservation
Society, Inc.; David Wice; and Betsy Wice. Also listed
as defendants in the third amended complaint are
"persons unknown or unascertained being the heirs of
Savannah Cooper," and "persons unknown or
unascertained who may have an interest in any land
heretofore or hereinafter mentioned or described."
4.
We note that litigation involving these lands was

before this court previously in Kitras v. Aquinnah, 64
Mass. App. Ct. 285 (2005) (Kitras I). However, Kitras I
did not address whether easements by necessity
existed, and, if so, what the parameters of such
easements would be. Rather -- and it is an important
rather -- the only issue decided in Kitras I was whether
the United States was an indispensable party to the
case. This court held the United States was not a
necessary party. Because the easement by necessity
questions were not the issue resolved by this court in
Kitras I, we remanded to the Land Court to determine
6.
An estate held in severalty is defined as "[a]n estate

which is held by the tenant in his own right only,
without any other being joined or connected with him in
point of interest during the continuance of his estate."
Bouvier, supra at 517. "[I]nterests . . . in which the right
to possession is in one person at a time . . . are called
estates in severalty." Hopkins, Law of Real Property
332 (1896).
7.
Partition is the "dividing of lands held by . . . tenants

in common, into distinct portions, so that they may hold
them in severalty. . . . Partition is voluntary or judicial. .
51a
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. . It is judicial when it is made by the authority of the

court, and according to the formalities prescribed by
law." Black's Law Dictionary 876-877 (2d ed. 1910).
said common lands. In re Coombs, 127 Mass. 278, 280

(1879). As to the Mashpee Tribe's common lands, the
court wrote as follows:
8.
"In pursuance of the policy established by the St. of

1869, the district . . . was incorporated as a town . . . and
all common lands and other rights, belonging to the
district, were transferred to the new town to be held as
property and rights are held by other towns."
"In proceedings for partition, the court first

determines the share to which each cotenant is entitled,
and then the actual partition of the land by metes and
bounds is made by commissioners . . . and their report,
if satisfactory, is ratified by the court, and a final
judgment or decree in accordance therewith is entered."
Tiffany, supra at Sec. 175, at 407.
"[I]t was not only a proper but a wise exercise of power

for the Legislature to frame provisions by which
common lands belonging to the town or the tribe, and
the proceeds from the sale of such lands, should be
divided. The Legislature could impose any reasonable
qualifications or restrictions upon the privileges and
powers conferred by the statute, either upon the town
or upon the people. . . . [W]e are of opinion that it was
the intention of the statute to provide a tribunal by
which partition or sale of common lands could from time
to time be directed; and that the power of the tribunal
is exhausted only when all the common lands have been
divided and sold." (Emphasis added).
9.
"The actual division of the land in partition is made by

commissioners appointed by the court. . . . Probate
courts . . . have power to make partition of estates over
which they have acquired jurisdiction." Hopkins, supra
at 345-346. In this case, Joseph T. Pease and Richard L.
Pease were appointed commissioners in 1870.
10.
Pursuant to St. 1869, c. 463, Native American lands
held in severalty became fee simple estates under State
law. See Danzell v. Webquish, 108 Mass. 133, 134 (1871)
("By recent legislation, the Indians of the
Commonwealth have been fully enfranchised from the
subjection in which they had heretofore been kept, and
put upon the same footing as other citizens, and
provision made for the division of their lands among
them in severalty as their absolute property. Sts. 1869,
c. 463; 1870, cc. 213, 293, 350").
Id. at 280-282.
However, specifically exempted from these
provisions of the 1869 statute were "the Indians of
Marshpee and Gay Head." Id. at 280, quoting from St.
1869, c. 463.
11.
In construing a similar statute (St. 1870, c. 293, Sec.
6) applying to the common lands of the Mashpee
Wampanoag Tribe (Mashpee Tribe), the Supreme
Judicial Court held that the common lands were to be
held by the town, subject to partition and division of
12.
I also believe that respect for the comprehensive
process that the commissioners and the probate judge
engaged in more than 135 years ago to partition the
land, and a regard for the certainty and predictability of
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land titles conferred by the town, suggests that we

should proceed with caution "in determining whether
the circumstances surrounding a government land
grant are sufficient to overcome the inference
prompted by the omission of an express reference to a
reserved right of access." Murphy v. Burch, 46 Cal. 4th
157, 165 (2009).
states. . . . Indian title, which gave Indians a 'right of

occupancy,' coexisted with the fee title." James v. Watt,
716 F.2d 71, 74 (1st Cir. 1983), cert. den., 467 U.S. 1209
(1984). Nevertheless, "[t]he rudimentary propositions
that Indian title is a matter of federal law and can be
extinguished only with federal consent apply in all of
the States, including the original 13. It is true that the
United States never held fee title to the Indian lands in
the original States as it did to almost all the rest of the
continental United States and that fee title to Indian
lands in these States; or the pre-emptive right to
purchase from the Indians, was in the State. But this
reality did not alter the doctrine that federal law,
treaties, and statutes protected Indian occupancy and
that its termination was exclusively the province of
federal law." Oneida Indian Nation of New York v.
County of Oneida, New York, 414 U.S. 661, 670 (1974).
In the absence of abandonment, only the sovereign has
the power to extinguish aboriginal rights. County of
Oneida, New York v. Oneida Indian Nation of New
York State, 470 U.S. 226, 234 (1985).
13.
The plaintiffs challenge the judge's declining to

reconsider this court's conclusion in Kitras I that each
of lots 1 through 188 or 189 were "owned by a different
individual, and the unity of title required to imply an
easement by necessity fails," Kitras I, 64 Mass. App. Ct.
at 293, on the grounds that, because the finding was not
necessary to the Kitras I court's decision, it is not
binding under the doctrine of res judicata. However,
under the doctrine of law of the case, that question was
not open to reconsideration below, and we have not
been presented with any persuasive reason to revisit it.
See Lunn & Sweet Co. v. Wolfman, 268 Mass. 345, 348349 (1929). See also United States v. Matthews, 643
F.3d 9, 12-13 (1st Cir. 2011).
15.
This is a finding of fact as to which there is no

dispute. There is no evidence in the record that this
practice among the members of the Gay Head Tribe
prior to the partitions that occurred in the 1870's, did
not continue after the partitions. I assume that it did.
14.
The distinction between fee title and Native

American Indian title is well settled. "American courts
recognize two distinct levels of ownership in Indian
lands: fee title and Indian title. The common-law fee
title passed to the European sovereign at discovery,
and it could be transferred by him to his grantees. The
fee title in lands that the British king retained passed
to the individual states at the time of the revolution.
These states, in turn, ceded to the central government
their claims to the western territories beyond their
present boundaries. Title to Indian lands within their
borders, however, was retained by the thirteen original
16.
Guardianship legislation was first passed in 1811.

Provision was made for a partitioning of common lands
as early as 1828, but it required approval of the Gay
Head Tribe, which did not occur. A partitioning plan for
lands of the Wampanoag Tribe of Marshpee (now
Mashpee) (Mashpee Tribe) was established in 1842, see
St. 1842, c. 72, but in a subsequent report known as the
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"Bird Report," 1849 House Doc. No. 46, the effort was
considered a failure. The members of the Mashpee
Tribe who had received title to land sold off the wood
and were left with no means to support themselves.
The Bird Report also noted that by comparison to other
Native Americans in the area, "[t]he Gay Head Indians
are differently situated. They live on a peninsula, and
have little intercourse with the whites; consequently,
they are more peculiar in their manners and customs,
and are not so far advanced in the art and science of
agriculture, as the two first-mentioned tribes
[Chappaquiddick and Christiantown Tribes]." The Bird
Report described the legal condition of land titles
among the Gay Head Tribe members as "singularly
anomalous." "None of the lands are held, as far as we
could learn, by any title, depending for its validity upon
statute law." Ibid. If a member of the Gay Head Tribe
enclosed an area of unimproved common land with a
makeshift fence "it belonged to him and his heirs
forever." Ibid. The authors of the Bird Report "urge[d]
particularly the importance of confirming the titles of
proprietors of lands held in severalty, and of fixing the
law of division and descent."
considered the earlier distribution of land in severalty

to individual Mashpee Tribe members to have been
"disastrous." Id. at 42. Earle concluded that the Native
American traditional law employed in Gay Head,
allowing as it did for ownership of land in common,
rather than the Commonwealth's laws, "worked well."
Id. at 44. In fact, Earle noted that the members of the
Gay Head Tribe adhered to their unwritten tribal law
regarding common ownership of property "with great
tenacity, and are fearful of any innovations upon it." Id.
at 34.
In 1859, John Milton Earle was appointed "to

examine into the condition of all Indians and the
descendants
of
Indians
domiciled
in
this
Commonwealth, and make report to the governor." St.
1859, c. 266. Leavitt Thaxter, a member of the Bird
Commission, wrote to Earle regarding the Gay Head
Tribe and the division of their lands: "I fear the
consequences of any material change, especially
relative to the Indians of Gay Head, who are differently
situated than any others, especially, from their isolated
position." In his report, 1862 House Doc. No. 215, Earle
18.
See St. 1869, c. 463, Sec. 1 (granting the "Indians"
within the Commonwealth "all the rights, privileges and
immunities" of State citizens). Massachusetts had
ratified the Fourteenth Amendment to the United
States Constitution in 1867. The legislation explicitly
stated that all lands "rightfully held by any Indian in
severalty" as well as any land that "ha[s] been or may
be set off to any Indian, shall be and become the
property of such person and his heirs in fee simple . . .
and all Indians shall hereafter have the same rights as
other citizens to take, hold, convey and transmit real
17.
The legislation further provided for hearing,

following notice by publication, of all claims by
interested parties, directed Marston to "make a report
of his doings to the governor and council," and
appropriated a sum not exceeding $100 as compensation
for his services. St. 1863, Sec. 42. Marston submitted a
report in 1866, but was unable to complete his work.
However, he did create a book of records setting forth
descriptions of a large portion of the lots of land,
including the set-off of lots 1-173, which was recorded at
the Dukes County registry of deeds in book 49, page 1.
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58a
estate." St. 1869, c. 463, Sec. 2. It is an

oversimplification of a complex history to suggest, as
the plaintiffs do, that as of 1869, the legal status of
Native Americans was equivalent to the other citizens
of the Commonwealth. For example, the 1869 statute
denied to the Gay Head Tribe the right to seek division
of the common lands. St. 1869, c. 463, Sec. 3. Also, the
1870 statute authorized, but did not mandate, the
division of the common lands. St. 1870, c. 213, Sec. 6.
Under that statute, the common lands would remain
undivided unless the selectmen or any ten resident land
owners petitioned the local probate judge, who then
had the discretion to determine whether to grant or
deny the petition, the right of appeal from that decision
being reserved. Ibid. In Drew v. Carroll, 154 Mass. 181,
183 (1891), the Supreme Judicial Court made this
observation about the 1869 statute: it "put them [the
Indians], for the most part, on the basis of ordinary
citizenship" (emphasis added). In an earlier decision, In
Re Coombs, 127 Mass. 278, 279-280 (1879), the Supreme
Judicial Court stated that "[i]n thus enfranchising the
Indians and conferring on them the rights of citizens, it
was not the intention of the Legislature to give at once
to the several tribes, or to the individual Indians
composing those tribes, the absolute and unqualified
control of common lands occupied by them."
Claims"). There is no support in the record for the claim

by the plaintiffs that the Legislature knew that all
tribal and aboriginal rights were extinguished prior to
the partition.
20.
Curiously absent from the record are the actual

partition deeds and any subsequent deeds from the
original Gay Head Tribe grantees.
21.
So, for example, the description of lot 193 includes a

statement "[r]eserving however any right or rights to
peat on the premises that may justly belong to any
person or persons, to them, their heirs and assigns," and
the description of lot 218 includes a statement of such
rights "to William Jeffers, his heirs and assigns." Similar
language is found in descriptions for lots 221, 225, 240241, 244-246, 254, 277, 293-296, 298, 304, 306-308, 311,
321, 329, 334, 340, 351-356, 365-366 1/2, 369, 378, and
419.
22.
In Krinsky v. Hoffman, 326 Mass. 683, 688-689 (1951),

the Supreme Judicial Court noted some inconsistency in
its cases as to whether the necessity required is a
"reasonable necessity" or a "strict necessity." Here,
nothing turns on the degree of necessity required to
imply an easement.
23.
Because I believe the judge was correct in his
ultimate conclusion that no easements by necessity
existed due to lack of any intent to create such
easements, I do not think it is necessary to address the
plaintiffs' argument regarding the exclusion of certain
materials allegedly demonstrating that lot 178 was part
of the commonly owned land and thus ought to be
considered eligible for potential easements.
19.
It appears that it was not until 1987, when Congress

passed 25 U.S.C. Sec. 1771, that aboriginal rights
formally were extinguished retroactive to the date of
transfer by any member of the Gay Head Tribe. See
Building Inspector & Zoning Officer of Aquinnah v.
Mass. 1, 3 (2004). See also St. 1985, c. 277 ("An Act to
Implement the Settlement of Gay Head Indian Land
59a
60a
Section 2.15 of the Restatement reads as follows: "A

conveyance that would otherwise deprive the land
conveyed to the grantee, or land retained by the
grantor, of rights necessary to reasonable enjoyment of
the land implies the creation of a servitude granting or
reserving such rights, unless the language or
circumstances of the conveyance clearly indicate that
the parties intended to deprive the property of those
rights."
land does not include a right of access, is contrary to

settled Massachusetts law, which insists that the party
seeking judicial recognition of an easement by necessity
prove that it was the intention of the parties. An
expansive, public policy based approach to the scope of
the doctrine of easement by necessity under Sec. 2.15 of
the Restatement has been criticized as unsound and an
alteration of the common law. See Hernandez,
Restating
Implied,
Prescriptive
&
Statutory
Easements, 40 Real Prop., Prob. & Tr. J. 75, 82 (2005).
24.
25.
There is no basis for reliance on comments b and e to

Sec. 2.15 of the Restatement. Comment b has no
application to the facts in this case because, as
discussed in the text, the 1870's partition did not
deprive the grantees of access to the land conveyed.
Comment e also has no application to the facts in this
case because it merely recognizes that when parties to
a conveyance of land fail to consider access rights with
the result that the parcel conveyed is landlocked a
rebuttable presumption of an implied easement arises.
There is evidence in this case, discussed in the text,
that the failure to include access easements in most of
the deeds was not the result of mere oversight. Some of
the partition deeds did include easement rights.
Moreover, even a cursory examination of the grid-like
plan prepared by the commissioners reveals that access
to the vast majority of lots that did not abut the road
running from Gay Head to the northwest end of the
peninsula would be a problem in the absence of an
alternative arrangement, namely the tribal custom and
practice which allowed the Gay Head Tribe grantees to
pass over the land of other Gay Head Tribe members. A
broad reading of comment e as the expression of a
public policy that there is a presumption of an easement
by necessity merely on a showing that a conveyance of
--------
County: DUKES COUNTY, ss

Case No: MISCELLANEOUS CASE NO. 238738
(CWT)
Date: August 12, 2010
Parties: MARIA A. KITRAS , as Trustee of BEAR
REALTY TRUST, et al., Plaintiffs v. TOWN OF
AQUINNAH, et al., Defendants
Decision Type: DECISION
Plaintiffs filed this action in May 1997 seeking to
determine their access rights in the portion of
Aquinnah, Dukes County, sometimes referred to as the
"Zack's Cliffs" region. The question of access arises
61a
62a
from the set-offs, completed in 1871 and 1878, of

separate lots of land for ownership by individual
members of the Wampanoag tribe. Neither of the setoff reports created express provisions regarding access
rights across or for the benefit of the various set-off
lots. Plaintiffs are the successors in title to certain of
the set-off lots who claim rights of access, under various
legal theories, over other of the set-off lots now owned
by Defendants.
parties submitted proposed exhibit lists and this court

ruled on three motions to strike, after which eighty-six
exhibits were entered into evidence. Based on all the
evidence and reasonable inferences drawn therefrom
this court finds the following material facts:[3]
1. Plaintiff Maria Kitras, as trustee of Bear Realty
Trust and of Bear II Realty Trust (Kitras), holds record
interests in lots 178, 711 and 713 (Kitras lots) as shown
on a plan of land entitled "Plan of Gay Head Showing
the Partition of the Common Lands As Made by Joseph
T. Pease and Richard L. Pease, Commissioners
Appointed by the Judge of Probate Under Section 6,
Chapter 213 of the Acts of 1870 By John H. Mullin Civil
Engineer" on file with the Dukes County registry of
probate (set-off plan). The Kitras lots are contiguous.
By order dated June 4, 2001, this court (Green,

J.) dismissed Plaintiffs' complaint for failure to join an
indispensable party. This court (Lombardi, J.) later
issued a judgment dismissing Plaintiffs' claims and
Plaintiffs appealed from that judgment. The Appeals
Court reversed the judgment and this action was
returned to this court for further proceedings
consistent with the Appeals Court opinion. See Kitras
v. Town of Aquinnah,64 Mass. App. Ct. 285 (2005). On
August 14, 2006, this court (Lombardi, J.) issued an
order bifurcating the case, stating "[b]efore Defendants
are put to the additional effort and expense of
preparing documentation and retaining counsel,
surveyors, engineers and historians to address the issue
of where the unestablished easement or easements
might be located, the Court should address the issue of
whether or not there is any easement at all."
2. Plaintiff Paul D. Pettegrove, as trustee of Gorda

Realty Trust (Pettegrove), owns lots 232 and 243 on the
set-off plan (Pettegrove lots). Lot 232 enjoys an
appurtenant easement for access under an agreement
recorded with the Dukes County registry of deeds in
book 640, page 895.
3. Plaintiffs Gardner Brown and Victoria Brown
(Browns) own lot 238 on the set-off plan (Brown lot).
The Brown lot is adjacent to Kitras lots 178 and 713.
4. Plaintiffs Eleanor Harding, as trustee of Eleanor P.
Harding Trust, and Mark Harding (Hardings) own lots
554 and 555 on the set-off plan (Harding lots). The
Harding lots are contiguous to Kitras lot 711.
On March 29, 2007, this court (Lombardi, J.)

granted Plaintiffs leave to amend their complaint.
Plaintiffs Third Amended Verified Complaint contains
two counts: one asserting an easement by necessity and
one asserting an easement by prescription.[1] The
parties agreed to submit this action to the court on a
case stated basis, without calling witnesses.[2] The
5. Plaintiff Benjamin L. Hall, Jr., as trustee of

Gossamer Wing Realty Trust (Gossamer Wing), owns
63a
64a
lots 707, 710 and 302 on the set-off plan (Gossamer

Wing lots). Lot 710 is contiguous to Kitras lot 711; the
other Gossamer Wing lots are not contiguous to any of
the Kitras lots.
9. Marston submitted a report in 1866 and reported that

he had not been able to complete his work due to
illness. However, Marston did create book of records
setting forth descriptions of a large portion of the lots of
land, which was recorded at the Dukes County
Registry of Deeds in Book 49, at Page 1.
7. By St. 1862, c. 184, s. 4, the General Court established

the district of Gay Head. Section 5 of the same chapter
directed the clerk of the district of Gay Head to make
and maintain a register of the existing members of the
Gay Head tribe, and to make and maintain "a register of
the lands of each Plantation, as at present held,
whether in common or severalty, and if in severalty, by
whom held."
10. Marston died before completing the assigned task,

and the General Court appointed a new commissioner,
Richard L. Pease, in 1866. Commissioner Pease
submitted his report on the lands held in severalty to
the Governor in 1871, establishing set-off lots 1 through
173. As of the time of the commissioner's 1871 report, a
significant portion of the land in Gay Head appears to
have remained common land.
8. By chapter 42 of the Resolves of 1863, the General

Court appointed a commissioner, Charles Marston "to
examine, and fully and finally to determine, all
boundary lines between the individual owners of land
located in the Indian district of Gay Head, in the county
of Dukes County, and also to determine the boundary
line between the common lands of said district and the
individual owners adjoining said common lands; and he,
the said commissioner, is hereby authorized to adjust,
and fully and finally to settle, equitably, and as the
interest of the petitioners and all other parties may
require, all the matters, claims and controversies, now
existing and growing out of or in connection with the
boundaries of the aforesaid lands." The resolution
further provided for hearing, following notice by
publication, of all claims by interested parties, directed
the commissioner to "make a report of his doings to the
governor and council," and appropriated a sum not
exceeding one hundred dollars as compensation for his
services.
11. A short time before the commissioner's 1871 report,

the General Court abolished the district of Gay Head,
and in its place incorporated the town of Gay Head.
Section 6 of that chapter established a new procedure
for the determination of property rights in the town, in
apparent substitution for the procedure prescribed
under the 1863 resolution. The 1870 statute authorized
the "judge of probate of the county of Dukes-county
[sic], upon the application of the selectmen of Gay Head,
or of any ten resident owners of land therein, after
such notice as the judge may direct to all parties
interested and a hearing on the same, 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 ... and the said judge of probate shall
direct the said commissioners to examine and define the
65a
66a
boundaries of the lands rightfully held by individual

owners, and to properly describe and set forth the same
in writing, and the title and boundaries thus set forth
and described, being approved by the court, shall be
final in the premises." Pursuant to that authority, and
on the petition of certain individual claimants (but
contrary to the request of the Gay Head selectmen and
others) the probate court appointed Joseph L. Pease
and Richard L. Pease as commissioners to carry out the
partition of common lands and the determination of
claims to other lands held in severalty.
The numbers refer to a map - made under the

direction of the Commissioners - accompanying this
Report.[3]
13. The commissioners' 1878 report further explains
that "[t]he lots of common lands drawn or assigned by
the Commissioners ...are numbered from no. 189 and
upwards, in regular order. Lots no. 1 to no. 173,
inclusive, were run out and bounded under previous
provisions of the statutes. The record of these lots will
be found in Land Records Book 49, pages 89 to 198,
inclusive. Lots no. 174 to no. 189 were run out and
bounded afterwards by the Commissioners who made
partition of the Indian common lands."
12. Commissioners Joseph Pease and Robert Pease

submitted their final report to the probate court, which
approved the report on December 21, 1878. The
commissioners' 1878 report advises that
14. In 1869, a special joint committee of the Senate and

House was designated to visit the Indians of the
District of Gay Head and inquire as to their condition.
A report of that visit noted that the legislators found
the common lands to be "uneven, rough, and not
remarkably fertile." The legislators further opined that
the lots would "lie untilled and comparatively unused"
following the division of the common land.
[the Commissioners] have made and completed a

division of the common and undivided lands of Gay
Head, among all the inhabitants of that town adjudged
to be entitled thereto; and have made careful and
correct descriptions of the boundaries and assignment
of each lot in the division; and have also examined and
defined the boundaries of those lots held or claimed by
individuals of which no satisfactory record evidence of
ownership existed.
15. The commissioners explicitly granted to certain

individuals, some identified and some not, the right to
take peat from various lots.
In accordance with the almost unanimous desire of

the inhabitants, the Commissioners determined to leave
the cranberry lands near the sea shore, and the clay in
the cliffs, undivided; it being, in their judgment,
impracticable to make a division that would be, and
continue to be, an equitable division of these cranberry
lands, and of the clays in the cliffs, owing to the changes
continually being made by the action of the. elements.
16. The commissioners also expressly reserved an

easement for fishing and clearing creeks over Lots 382,
384, and 395.
17. In 1955 a taking was made by the Commonwealth
for the purpose of laying out the Moshup Trail, which
67a
68a
gave access to some of the lots conveyed in 1878, which

are now owned by Defendants.
136 Mass. 575, 576 (1884). This rule is not borne out of
any public policy interest, Kitras v. Town of Aquinnah,
64 Mass. App. Ct. 285, 298 (2005), rather "the rule is
founded on the presumed intention of the parties to the
deed, construed, as it must be, with reference to the
circumstances under which it was made." Richards v.
Attleborough Branch Railroad Co., 153 Mass. 120, 122
(1891). However, "[i]t is the law of the Commonwealth
that easements of necessity can only be granted in very
limited circumstances of reasonable or absolute
necessity." Goulding v. Cook, 422 Mass. 276, 280
(1996).[5]
18. Leading up to the 1878 division of the subject

property the land existed under two different systems
of ownership. The Commonwealth abided by traditional
common law rules of real property, while the tribe
abided by Indian traditional law. Indian title gave each
tribe member the right of occupancy, which could only
be destroyed by the sovereign. Indian title also granted
each tribe member the right of access over all common
lands.[4]
* * * *
In addressing Plaintiffs' claims, this court must

"remain[] mindful that it is the proponents' burden to
prove the existence of an implied easement." Kitras v.
Town of Aquinnah, 64 Mass. App. Ct. 285, 300 (2005)
(citing Cheever v. Graves, 32 Mass. App. Ct. 601, 607,
609 (1992). Additionally this court must consider that an
easement by necessity should only be recognized where
it can be found in the presumed intention of the parties,
"a presumption of law which ought to be and is
construed with strictness." Joyce v. Devaney, 322 Mass.
544 (1948) (internal quotation and citation omitted); see
also Orpin v. Morrison, 230 Mass. 529, 533 (1918) ("It is
a strong thing to raise a presumption of a grant in
addition to the premises described in the absence of
anything to that effect in the express words of the deed.
Such a presumption ought to be and is construed with
strictness. There is no reason in law or ethics why
parties may not convey land without direct means of
access, if they desire to do so.");
Plaintiffs argue that they have acquired easements to

access an existing public way by virtue of the 1871 and
1878 divisions. Plaintiffs claim that the divisions
created an easement by necessity by landlocking
certain parcels and providing no alternative access to a
public way. Defendants do not dispute that certain
parcels were landlocked by the divisions, but argue that
there was no intent to create an easement. Defendants
further argue that because Indian title granted every
tribe member access over lands held in common, no
strict necessity existed at the time of the 1871 and 1878
divisions. For the reasons set forth herein, this court
finds that Plaintiffs have failed to meet their burden
and finds that no easement was created.
Easements by necessity are created "when land is
conveyed which is inaccessible without trespass, except
by passing over the land of the grantor, a right of way
of necessity is presumed to be granted; otherwise, the
grant would be practically useless." Schmidt v. Quinn,
Home Inv. v. Iovieno, 243 Mass. 121, 124 (1922) ("It is a

strong exercise of the power of the law to raise a
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presumption of a grant of a valuable right in addition to

the premises described without any words indicative of
such an intent in the deed. Such a presumption is
construed with strictness even in the few instances
where recognized.").
Plaintiffs' contend that the easement by necessity is

presumed by the case law and point to Davis v. Sikes,
254 Mass. 536, 545-46 (1926). Defendants argue that the
presumption should be not be applied to the unique
circumstances presented by the instant case and
further argue that even if the presumption were
applied they have produced sufficient evidence to rebut
the presumption.
Therefore, the intent of the parties must be the

touchstone of this court's analysis. Whether an
easement by necessity has been created must be found
in a presumed intention of the parties, to be gathered
from the language of the instruments when read in the
light of the circumstances attending their execution,
the physical condition of the premises, and the
knowledge which the parties had or with which they
are chargeable.
A presumption imposes on the party against whom it is

directed the burden of production to rebut or meet that
presumption. . . If that party fails to come forward with
evidence to rebut or meet the presumption, the fact is
to be taken by the fact finder as established.
Massachusetts Guide to Evidence Rule 301(d).
Assuming arguendo that the presumption articulated in
Davis is applicable to this case, this court finds that
Defendants have produced sufficient evidence to rebut
the presumption.
Sorel v. Boisjolie, 330 Mass. 513, 517 (1953).

Furthermore, because the issue is one of intent, the
benefitted and burdened parcels must have come from
previous common ownership. Nylander v. Potter, 423
Mass. 158, 162 (1996) ("Without previous common
ownership, Potter cannot claim an easement by
necessity."). Finally, the court must consider whether
there is strict necessity. Necessity is an indicator of the
parties' intent and consequently if there is alternative
access, the parties will not be presumed to have
intended an easement. See Uliasz v. Gillette, 357 Mass.
96, 102 (1970). Additionally, the necessity must have
existed at the time of the division and when the
necessity ceases any intended easement also ceases.
See Viall v. Carpenter, 80 Mass. 126 (1859). It is
important to note, as did the Appeals Court, that "[i]t is
well established that in this Commonwealth necessity
alone does not an easement create." Kitras v. Town of
Aquinnah, 64 Mass. App. Ct. 285, 298 (2005).
Furthermore, this court has determined that, despite

the fact that the 1871 and 1878 divisions landlocked
certain parcels, no easements, other than those there
were expressly granted, were intended. Defendants
point to Joyce v. Devaney, 322 Mass. 544 (1948) and this
court finds its analysis persuasive. "The deeds at the
time of severance created the specific easements....
Those easements are unambiguous and definite. The
creation of such express easements in the deed
negatives, we think any intention to create easements
by implication. Expressio unuius est exlusion alterius."
Joyce, 322 Mass. at 549; see also Krinsky v. Hoff man,
326 Mass. 683, 688 (1951) ("[The trial judge] could have
attached considerable weight to the fact that, while the
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deed expressly created an easement in favor of the

grantee on the six foot strip owned by the grantor, it
contained nothing about a similar right being reserved
to the grantor over the grantee's strip. The subject of
rights in the passageway was in the minds of the
parties and the fact that nothing was inserted in the
deed reserving to the plaintiffs rights similar to those
granted to the defendant is significant."). As noted by
the Appeals Court in Kitras,
establishes that prior to the 1878 division of the

common land, the lots were held by the Commonwealth
under English common law rules of property and by the
tribe under Indian traditional law. English title
conveyed fee title while Indian title gave tribe
members the right of occupancy. Therefore, the fee title
carried no immediate right of possession. Johnson v.
M'Intosh, 21 U.S. (8 Wheat.) 543, 574 (1823) ("While the
different nations of Europe respected the right of the
natives, as occupants, they asserted the ultimate
dominion to be in themselves; and claimed and
exercised, as a consequence of this ultimate dominion, a
power to grant the soil, while yet in possession of the
natives. These grants have been understood by all, to
convey a title to the grantees, subject only to the Indian
right of occupancy."). The prevailing custom among the
tribe at the time of the division allowed for access for
each member of the tribe as necessary over lands held
in common and in severalty. The commissioners were
familiar with this system and likely assumed easements
for access were unnecessary given the tribal culture at
the time. This fact also negates any presumed intent to
create an easement.[6]
Particularly noteworthy in our estimation is the

commissioners' silence on this issue, as is the fact that
even the most cursory glance at a contemporaneous
plot map shows that the vast majority of set-off lots had
no frontage or obvious access to or from any public
amenity. Also problematic is the difficulty of routing
easements from common lands to public roads. .
.without traversing those lands already held in
severalty, that is, lots 1 through 188 or 189. With those
problems evident, and in light of the careful and
lengthy consideration given the partitioning process,
the commissioners' failure explicitly to provide for
easements might well be interpreted as a deliberate
choice.
Finally, the perceived condition of the land negates any

presumed intent to create an easement. See Dale v.
Bedal, 305 Mass. 102, 103 (1940). It is clear on this
record that the common land was believed to be
"uneven, rough, and not remarkably fertile" and that
the legislators believed that the land would "lie untilled
and comparatively unused" following the division of the
common land.[7] As the Appeals Court stated in Kitras,
Kitras, 64 Mass. App. Ct. at 299. In light of the express

easements granted by the commissioners, the failure to
provide any easements for access appears intentional
and serves to negate any presumed intent to create an
easement.
Moreover, as noted in Kitras, this court should
"consider relevant the historical sources of information
on tribal use and common custom applicable at the
time." Kitras, 64 Mass. App. Ct. at 300. The record here
The record reveals other circumstances that may

render doubtful the parties' presumed intent to reserve
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easements, for example, the nature and then-perceived

poor quality of the land so divided. See Dale v. Bedal,
305 Mass. 102, 103 (1940) (circumstances to be
considered include `the physical condition of the
premises'). Without belaboring the point, it seems a
legitimate question whether anyone at the time,
objectively considered, would have troubled to provide
for these ùneven, rough, and not remarkably fertile'
unclaimed and untenanted lots a beneficial conveyance
by reserving for them easements to a road then in
`deplorable condition' and blocked to free travel by a
stone wall and bars.
Justice
------------------------Footnotes
[1] Plaintiffs have submitted no evidence supporting
their claim of an easement by prescription. Therefore,
this court finds that Plaintiffs have not carried their
burden on this count.
[2] Subsequent to this agreement, Benjamin Hall
submitted a request for a trial. To the extent not clear
herein, that request hereby is denied. The facts
relevant to a final determination of the issues raised by
Plaintiffs' complaint are contained in reports and
documents dating back the late 1800s. Consequently,
witness testimony is likely irrelevant and unable to
shed light on Plaintiffs' claims of easement by
implication.
It is clear from the record before this court that the

land was believed to be unfertile and unusable.
As acknowledged by the Appeals Court in Joyce, this
"case is a hard one but if we should hold otherwise it
would be another instance of a hard case making bad
law." Joyce v. Devaney, 322 Mass. 544, 549 (1948). This
court finds that the perceived condition of the land, in
conjunction with the commissioners understanding of
the Indian title system and tribal culture, and the
express easements granted by the commissioners, is
sufficient to negate any presumed intent of the
grantors to create an easement by necessity for any of
Plaintiffs' lots. Further, this court finds that Plaintiffs
have failed to introduce evidence sufficient to carry
their substantial burden of proving easements by
necessity.[8]
[3] These facts are taken in large part from this court's
(Green, J.) Decision on Cross-Motions for Summary
Judgment and Motions to Dismiss, dated June 4, 2001.
Additional facts not included in the June 4th Decision,
but relevant to this court's determination of the issues
have been added where appropriate. Further, facts
included in the June 46 Decision, but not relevant to
this court's determination of the issues herein at issue
have been omitted.
[10] The set-off plan is the map which accompanied the
commissioners' 1878 report.
Judgment to issue accordingly.

Judge: /s/Charles W. Trombly, Jr.
[4] The federal government did eventually extinguish

Indian title by passing 25 U.S.C. s. 1771, et seq. in 1987.
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Congress retroactively approved prior transfers of land

in Gay Head by the tribe or any individual Indian and
extinguished Indian title in the land "as of the date of
such transfer."
[5] Although Plaintiffs' brief refers to an "implied
easement" this court notes that there is no evidence of
the use prior to the division that would be necessary to
prove an easement by implication. Additionally,
Plaintiffs' brief argues that the easement has been
proved through necessity. Consequently, this court
understands Plaintiffs' argument to be one for an
easement by necessity.
[6] This observation also calls into question how
strictly necessary access easements were at the time of
division. As noted above, the necessity must have
existed at the time of the division. See Viall v.
Carpenter, 80 Mass. 126 (1859). If an easement was not
necessary at the time of division it cannot be
manufactured at a later point.
County:
MARIA A. KITRAS, trustee,1 & others2
vs.
No. 0404- P -472.
Appeals Court of Massachusetts.
Suffolk.
April 11, 2005.
August 18, 2005.
[7] It is worth noting that the current record supports

the legislators' prediction that the land would "lie
untilled and comparatively unused" following the
division. As this court (Green, J.) noted in its 2001
decision "the plaintiffs (and their predecessors in title)
waited to present their claims for more than one
hundred years after the commissioners' 1878 report...."
Easement. Real Property, Easement. Wampanoag

Tribal Council. Governmental Immunity.
[8] Because I find that no easement by necessity was

intended, I do not now reach the issues of merger and
alternative access also raised by the pleadings.
Civil action commenced in the Land Court

Department on May 20, 1997.
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Motions to dismiss were heard by Mark V. Green,

J.; motions to amend the complaint were heard by Leon
J. Lombardi, J., and entry of judgment was ordered by
him.
subsequent attempts to join the Tribe directly and,

pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974),
entered a partial judgment from which these appeals
and cross appeals mainly have been taken. We reverse
and remand.
H. Theodore Cohen (Nicholas J. Decoulos with

him) for the plaintiffs.

Society, Inc.
The area of Martha's Vineyard originally known as

Gay Head, now the town of Aquinnah, was "and is still
the home of a remnant of that race, which . . . the white
man found here as lords of the soil." Report of the
Commissioners, 1856 House Doc. No. 48, at 3. On May 6,
1687, "Joseph Mittark, sachem of Gay Head," an
Algonquian and chief's son, purportedly deeded Gay
Head to New York Governor Thomas Dongan. Id. at 6.
Dongan, in turn, on May 10, 1711, transferred his fee to
an English religious entity. Id. at 4. This entity
neglected Gay Head, neither "demand[ing] rents" nor
"exercis[ing] over it any jurisdiction or control." Id. at 5.
Although it is not entirely clear how, or under what
authority, sometime after the Revolutionary War the
Commonwealth assumed control of Gay Head and its
residents became wards of the State.
Ronald H. Rappaport for town of Aquinnah.

Benjamin L. Hall, Jr., pro se.
Present: Grasso, Brown, & Trainor, JJ.
BROWN, J.
Before us are the owners of certain landlocked lots
lying within the town of Aquinnah (town) on Martha's
Vineyard. Desirous of developing their lots but having
no road frontage or access to utilities, these owners
claim easements by necessity crossing their neighbors'
lots. One of those neighbors is the United States, which
holds a number of town lots in trust for the Wampanoag
Tribal Council of Gay Head, Inc. (Tribe), a Federally
recognized Native American Tribe. On cross motions
for dismissal or summary judgment, a Land Court
judge concluded that any easements by necessity would
burden tribal land; that the claims could not fairly be
adjudicated in the absence of that land's trustee, the
United States (which had been dismissed from the
litigation on sovereign immunity grounds); and that the
owners' claims therefore must be dismissed for want of
an indispensable party. A different judge denied
So matters stood until mid-Nineteenth Century

when, apparently as part of the move to grant full
citizenship to the Commonwealth's Native American
residents, commissioners appointed by the Governor
recommended that a boundary marked by a stone fence
be established "between the lands of [the Gay Head
Indians] and the lands of the white inhabitants of
Chilmark." Id. at 2. Later, by St. 1862, c. 184, 4 and 5,
the Legislature established the district of Gay Head
and directed the clerk of the district to make and
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maintain "a register of the lands of [the district], as at

present held, whether in common or severalty, and if in
severalty, by whom held." Charles Marston then was
appointed as a commissioner to
on the Vineyard"; this road nonetheless was described

as being "in most deplorable condition of which your
Committee had most `striking' proof," and as blocked by
"a substantial stone wall" and "bars" that "have to be
removed whenever a carriage crosses." Id. at 9. The
committee thus recommended "that provision be made
at an early day whereby the road in Gay Head from the
light-house to Chilmark shall be put in good travelling
order at the expense of the State." Id. at 10.
"examine, and fully and finally to determine, all

boundary lines between the individual owners of land
located in the Indian district of Gay Head . . . and also
to determine the boundary line between the common
lands of said district and the individual owners
adjoining said common lands."
After receiving the committee's 1870 report, the

Legislature abolished the district of Gay Head, in its
place incorporating the town of Gay Head (later
renamed the town of Aquinnah), St. 1870, c. 213, 1.
The act also required the Dukes County "judge of
probate . . ., [upon proper application for division of]
any or all of the common lands of [the town], [to]
appoint
two
discreet,
disinterested
persons
commissioners to make partition of the same," and
charged the judge to "direct the said commissioners to
examine and define the boundaries of the lands
rightfully held by individual owners, and to properly
describe and set forth the same in writing, and the title
and boundaries thus set forth and described, being
approved by the court, shall be final in the premises."
St. 1870, c. 213, 6. The act also directed the county
commissioners of Dukes County to lay out and
construct a road what is now called State Road
from Chilmark to the Gay Head lighthouse. St. 1870, c.
213, 5. See the Appendix to this opinion for a sketch
plan depicting the roads and lots at issue.
Resolves 1863, c. 42. Marston died soon thereafter;

Richard Pease was appointed in his stead. Resolves
1866, c. 67.
In its 1870 report to the Senate, a legislative
committee noted that Gay Head "contains, within its
area, about two thousand four hundred acres of land.
About four hundred and fifty acres of the land is held in
severalty, and is fenced and occupied by the several
owners, and the remainder is held by the tribe in
common." Report of the Committee, 1869 Senate Doc.
No. 14, at 4. The committee observed that this common
land was "uneven, rough, and not remarkably fertile. . . .
[I]t is, perhaps, better that these lands should continue
to lie in common for the benefit of the whole community
as pasturage and berry lands, than to be divided up into
small lots to lie untilled and comparatively unused." Id.
at 5.
Situated on a peninsula and separated from the
main island by an isthmus, Gay Head at that time was
served by a single main road "much travelled in
summer by people from the main land, pleasure-seeking
With the command of St. 1870, c. 213,

commissioners Joseph Pease and Richard Pease
proceeded to identify and fix the lots. At that time, as
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noted, the land was already held either in severalty or

in common. By reports of 1871 and 1878, the Pease
brothers formalized the boundaries of those lots already
held in severalty, numbering them 1 through 188 or 189.
With the exception of certain land not relevant here,
the common land was partitioned in 1878 into lots
numbered 189 or 190 and above.4 The vast majority of
the lots so set off have no frontage on or other access to
what became State Road. None of the reports or
original deeds makes mention of easements, either to
State Road or to any other location.
the United States acting as trustee. See Building

Inspector & Zoning Officer of Aquinnah v. Wampanoag
Aquinnah Shellfish Hatchery Corp., 443 Mass. 1, 3, 8
(2004). The Settlement Lands consist of several
physically unconnected parcels in and about the town;
for our purposes, we focus on the central parcels,
consisting of numerous lots generally lying between
State Road and the lots here at issue.
Before identifying the lots and interests most
directly relevant here, we pause to note that it
sometimes is difficult to determine from the pleadings
what owners are claiming what easements for what
lots, or even what parties remain interested in the case.
In the interest of expediency and because our decision
today does not depend upon it, we proceed as if all
persons and lots noted below properly are before us and
under consideration. On remand it will be for the trial
judge and parties to resolve these uncertainties.
The years since have seen changes, most notably

with respect to the perceived value of the town's
"uneven, rough, and not remarkably fertile" land. Also
relevant here, by at least 1939 an unpaved way now
known as Zack's Cliffs Road, leading generally south
from State Road (via Old South Road) to and across
certain of the lots here at issue, appears to have been in
regular use. Nothing in this record establishes that
Zack's Cliffs Road was in use significantly before that
date. In 1954 a new road, called the Moshup Trail, was
laid out and, over the next several years, constructed;
this paved road travels generally south and west from
State Road through the area generally under
consideration here (although none of the persons here
claiming easements own lots with road frontage).
That said, as described by the motion judge in his

decision, and as presented in the summary judgment
materials and the appellate briefs, plaintiffs Maria
Kitras (as trustee of Bear Realty Trust, Bear II Realty
Trust, and Gorda Realty Trust) and James Decoulos (as
trustee of Bear II Realty Trust and Gorda Realty
Trust) (collectively, Kitras) claim ownership of five lots,
numbered 178, 711, 713, 232 and 243. Plaintiffs Gardner
and Victoria Brown (collectively, Brown) own lot 238.
Plaintiffs Eleanor Harding (as trustee of the Eleanor P.
Harding Trust) and Mark Harding own two lots,
numbered 554 and 555. Defendant Benjamin Hall (as
trustee of either Gossamer Wing Realty Trust or Baron
Land Realty Trust) (Hall) here claims ownership of lots
707, 710, 302, 177 and 242 (the latter two lots are
Perhaps most important, as part of a

comprehensive settlement resolving "Indian claims to
certain lands within the town," St. 1985, c. 277, 1, the
Tribe acquired in the mid- to late 1980's several
hundred acres of town land (the Settlement Lands); the
Settlement Lands are held by a State-chartered
corporation, called the Tribal Land Corporation, with
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labeled Howwasswee in the Appendix). The remaining

defendants own various other lots in the general
vicinity of the plaintiffs' and Hall's lots.
necessity. See and compare Bay Colony Constr. Co. v.

Norwell, 5 Mass. App. Ct. 801 (1977). Of course, we
need not reach that question unless easements by
necessity may be implied for some or all of the lots in
question.
II
Rule 19(a) of the Massachusetts Rules of Civil
Procedure generally provides that the category of
"[p]ersons to be [j]oined if [f]easible" includes one whose
absence would prevent complete relief from being
afforded those already parties. Mass.R.Civ.P. 19(a), 365
Mass. 765 (1974). If it is not feasible to join such a
person, "the court shall determine whether in equity
and good conscience the action should proceed among
the parties before it, or should be dismissed, the absent
person being thus regarded as indispensable."
Mass.R.Civ.P. 19(b), 365 Mass. 765 (1974). See G. L. c.
231A, 8.
A. "An easement is by definition a limited,

nonpossessory interest in realty." M.P.M. Builders,
LLC v. Dwyer, 442 Mass. 87, 92 (2004). It may be
created either expressly, see, e.g., id. at 88, or, in some
limited cases, implicitly from circumstance; an
easement by necessity is of the latter sort. In general,
such an easement is "said to arise (or be implied) . . .
when a common grantor carves out what would
otherwise be a landlocked parcel." Bedford v.
Cerasuolo, 62 Mass. App. Ct. 73, 76-77 (2004), quoting
from New England Continental Media, Inc. v. Milton,
32 Mass. App. Ct. 374, 378 (1992). More specifically, an
easement by necessity may be implied if we can fairly
conclude that the grantor and grantee, had they
considered the matter, would have wanted to create
one. To make this deduction, we require that (1) both
dominant and servient estates once were owned by the
same person or persons, i.e., that there existed a unity
of title; (2) a severance of that unity by conveyance; and
(3) necessity arising from that severance, all considered
"with reference to all the facts within the knowledge of
the parties respecting the subject of the grant, to the
end that their assumed design may be carried into
effect." Orpin v. Morrison, 230 Mass. 529, 533 (1918).
See Nichols v. Luce, 24 Pick. 102, 104 (1834); Davis v.
Sikes, 254 Mass. 540, 545-546 (1926); Joyce v. Devaney,
322 Mass. 544, 549 (1948); Nylander v. Potter, 423 Mass.
158, 162 (1996); Restatement (Third) of Property
(Servitudes) 2.15 (2000).
A person with an interest in land ordinarily should

be joined if a judgment could affect that interest. See
Uliasz v. Gillette, 357 Mass. 96, 105 (1970). Persons in
possession of land burdened by an easement have an
interest in land such that they ordinarily should be
joined in actions that concern that easement. See Vance
v. Ford, 187 Or. App. 412, 423-425 (2003). No party
suggests that the United States has waived its
sovereign immunity such that it may be joined in this
action. See Alaska v. Babbit, 38 F.3d 1068, 1072-1074
(9th Cir. 1994). The question presented by the
judgment before us, then, is whether the United States,
as trustee over the Settlement Lands, was an
indispensable party in an action seeking a declaration
that certain lots in the general vicinity of the
Settlement Lands had the benefit of easements by
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Of critical importance for the present analysis is

the unity of title requirement, which derives from the
simple observation that, whatever the intent, one may
not grant what one does not own. See Boudreau v.
Coleman, 29 Mass. App. Ct. 621, 632 (1990). Thus,
easements can be created only "out of other land of the
grantor, or reserved to the grantor out of the land
granted; never out of the land of a stranger." Richards
v. Attleborough Branch R.R. Co., 153 Mass. 120, 122
(1891). See Uliasz v. Gillette, 357 Mass. at 102. Here,
with respect to the lots numbered 1 through 188 or 189,
the Commonwealth, whom the parties assume to be the
grantor,5 could not grant or reserve an easement
because, at the times at interest here, it did not own the
lots: each of those lots already was owned by other
persons. There was thus no unity of title and no
easements can be implied.
so taken up and enclosed, is never called in question"

under "the unwritten Indian traditional law." Report to
the Governor and Council Concerning the Indians of
the Commonwealth, 1862 House Doc. No. 215, at 34.
The commissioners appointed with the task of
"examin[ing] and defin[ing]" those who already claimed
partitions respected this unwritten Indian traditional
law, and a legislative committee described the land so
claimed as being in "severalty." Report of the
Committee, 1869 Senate Doc. No. 14, at 4. Indeed, far
from "partitioning" or "severing" the land so held, the
commissioners acted, under charge from the
Legislature, simply to acknowledge "the boundaries of
the lands rightfully held by individual owners"
(emphasis added). St. 1870, c. 213, Sec. 6. Nor can it be
said that the Commonwealth had in those already
claimed lots a right of present possession or some other
title carrying with it the right to grant presently
operative
easements;
instead,
at
most,
the
Commonwealth held a "fee title" on those lots, meaning
it had only "a contingent future interest which ripened
into a fee simple only when the Indians abandoned their
possessory interest [Indian title] (or when the
sovereign, holding fee title, took that possessory
interest)." James v. Watt, 716 F.2d 71, 74-75 (1st Cir.
1983), cert. denied, 467 U.S. 1209 (1984) (internal
quotation marks, citation and emphasis omitted).
As Hall observes, this "was not just a routine

subdivision development invoking the application of
traditional easement principles" (emphasis original). It
will be recalled that the commissioners' process did not
operate on virgin, untenanted land. Instead, what
eventually became the town was tenanted at the times
under discussion by individuals, many of whom claimed
ownership of discrete and separated portions of that
land. These claims developed out of what the
commissioners understood to be the prevailing tribal
law or tradition, with the "rule [being] that any native
could, at any time, appropriate to his own use such
portion of the unimproved common land, as he wished,
and, as soon as he enclosed it, with a fence, of however
frail structure, it belonged to him and his heirs forever."
at 20. As another commissioner noted, "the title to land,
Thus, considered most favorably from the

complainants' perspective, the titles for each of the lots
numbered 1 through 188 or 189 can best be described as
an unusual mixture of the aboriginal or beneficial title
and corresponding unlimited right of possession held by
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an individual, on the one hand, and the

Commonwealth's
contingent
future
interest
represented by its fee, on the other. But however title
is described, each lot was owned by a different
individual, and the unity of title required to imply an
easement by necessity fails. See Richards v.
Attleborough Branch R.R. Co., 153 Mass. at 122; Uliasz
v. Gillette, 357 Mass. at 102.
The remaining lots Kitras lots 232, 711, and 713; Hall
lots 302, 707, and 710; and the Brown and Harding lots
have no direct access to Zack's Cliffs Road. See
Appendix. Still, in principle, we grant the general logic
of the motion judge's observation.
But that a thing is probable is not to say it is
necessary or inevitable where circumstances revealed
in the record suggest different possible results. See
Bedford v. Cerasuolo, 62 Mass. App. Ct. at 80 (location
and precise bounds of easement, when not specified in
deed, presented question of fact). On the record before
us it requires no great stretch to imagine any number
of routes from the various lots to State Road. Many
traverse the Settlement Lands; many do not. For
example, while we do not presume to specify any
particular location, we observe that a public way, the
Moshup Trail, opened in the general vicinity of the
plaintiffs' and Hall's lots in the early 1960's. Many of the
lots at issue are separated from this way, which leads to
State Road, by only an intervening lot or two. Locating
easements to this road, therefore, would (i) not affect
the Settlement Lands; (ii) minimize the total number of
lots burdened; (iii) advantageously exploit the assumed
Zack's Cliffs Road routing, which intersects the
Moshup Trail running south; (iv) for the most part
avoid lots 1 through 188 or 189; and (v) give expression
to what we assume was the town's intent in allowing
the Moshup Trail to be constructed in the first instance
(that it be used by local residents to gain access to State
Road).
Lots 189 or 190 and above, however, are on a very

different footing; those lots consisted before division of
a single tract of unclaimed and untenanted common
land. Though owned in equal measure by numerous
persons, each partitioned lot thereby had, before
severance, common owners, and the unity of title
requirement is satisfied for those commonly owned lots.
We also note that the plaintiffs' and Hall's remaining
lots those numbered 189 or 190 and above were
landlocked as a result of that partition. Accordingly,
like the motion judge, we assume that easements by
necessity could be implied for those lots.
B. But we part company with the motion judge as
to his conclusion that such easements, if implied, must
inevitably traverse or otherwise burden the Settlement
Lands.6 To be sure, for most of the affected lots with
the exception of Hall's lot 302 a more or less direct
route north through what are now the Settlement
Lands would have been at the time of partition the
most logical routing choice to access what at some point
became State Road. However, we have certain
reservations about whether Zack's Cliffs Road could
serve as a routing choice for all of the lots, insofar as
only three of the lots at issue Kitras lots 243 and 178,
and Hall lot 242 touch upon on Zack's Cliffs Road.
For present purposes we are not troubled that the

Moshup Trail did not exist when the common lots were
partitioned. The same objection, after all, applies to an
89a
90a
easement routed to or over Zack's Cliffs Road, yet no

party suggests that this road would be an inappropriate
easement location. In any case, we focus here on route
and location, not creation (about which we will have
additional comments later). At this procedural stage,
and given our stated assumptions, we have no difficulty
envisioning a multiplicity of intentions implied from the
circumstances prevailing at the time of partition, Orpin
v. Morrison, 230 Mass. at 533, including that the lots
were to have access to whatever road was most
convenient or might be constructed at some future
date. It will be recalled in this regard that State Road
in the 1870's was described as being in "deplorable
condition" and blocked to free traffic by barriers at the
isthmus. Compare Crotty v. New River & Pocahontas
Consol. Coal Co., 72 W. Va. 68, 71 (1913) (upon
severance of a common parcel, the "parties may well be
presumed to have contemplated such conditions as the
future was likely to bring forth").
when owner of servient estate blocked the usual route);

Crotty v. New River & Pocahontas Consol. Coal Co., 72
W. Va. at 71 (easement by necessity could be routed to
road not in existence at time of partition). Cf. M.P.M.
Builders, LLC v. Dwyer, 442 Mass. at 90-91 (adopting
Restatement [Third] of Property [Servitudes] Sec.
4.8[3] [2000]); Restatement (Third) of Property
(Servitudes) Sec. 4.8(1) (2000). We see no reason why
this flexibility should not, in principle, be applied to
establish, in light of the town's changing circumstances,
present easement locations. With these differing
possibilities thus before us, we are unable to conclude
with confidence that any easements implied necessarily
burden the Settlement Lands or that the United States
inevitably has an interest in whatever judgment may
be entered.
C. In any case, should easements by necessity be
located on or routed through the Settlement Lands,
those claims may be fairly adjudicated by joining the
Tribe directly.7 Because of our remand, the joinder
issue is likely to arise again. Accordingly, we discuss
this matter here.8
In so considering we also remain mindful of the

nature of the easement claimed. Whereas a preexisting
use might in some cases give rise to an implied
easement, see Bedford v. Cerasuolo, 62 Mass. App. Ct.
at 78, we imply an easement by necessity not from use
but from a "severance of rights [once] held in a unity of
ownership."
Restatement (Third) of Property
(Servitudes) Sec. 2.15 comment c (2000). In this sense
an easement by necessity, initially having no
determined physical location, may be located as
circumstances or the parties later dictate. Compare
Bass v. Edwards, 126 Mass. 445, 449 (1879) (a way by
necessity arising, owner of dominant estate retained
"the right to deviate from the usual way and go over
other parts of the land, doing no unnecessary damage,"
Title 25 of the United States Code, Sec.

1771e(c)(3)(B) (2000), specifically reserves to the Tribe,
not the United States, the right to transfer "any
easement for public or private purposes in accordance
with the laws of the Commonwealth of Massachusetts
or the ordinances of the" town. Any doubt that this
provision permits the Tribe to be joined was dispelled
by Building Inspector & Zoning Officer of Aquinnah v.
Mass. 1 (2004) (Shellfish Hatchery Corp.), decided after
the partial judgment before us entered. In Shellfish
91a
92a
Hatchery Corp., after reviewing the Tribe's history and

the various land disputes, all of which were resolved by
a comprehensive settlement agreement implemented at
both the State and Federal level by legislation, 443
Mass. at 3-8, the Supreme Judicial Court "concluded
that the Tribe waived its sovereign immunity as to land
use on the Cook Lands." Id. at 16-17. In so concluding
the court found particularly compelling language in the
Tribe's settlement agreement specifying that the Tribe
agreed to hold its land "in the same manner, and subject
to the same laws, as any other Massachusetts
corporation."9 Id. at 13.
We also note that Sec. 13 of that agreement

provides that all "Federal, State and Town laws shall
apply to the Settlement Lands" subject only to limited
exceptions not relevant here, a provision mirrored in
both the State and Federal implementing acts. See St.
1985, c. 277, Sec. 5; 25 U.S.C. Sec. 1771g (2000).
In light of Shellfish Hatchery Corp., and given the
explicit right to transfer easements, 25 U.S.C. Sec.
1771e(c)(3)(B) (2000), in accordance with the
Commonwealth's
laws
and
subject
to
the
Commonwealth's jurisdiction, it would be anomalous
indeed were we to conclude that the Tribe could not be
joined in a suit to resolve easement claims potentially
burdening the Settlement Lands. As observed in
Shellfish Hatchery Corp., "[a]lthough the Tribe may not
desire the precise result now occurring, the Tribe's
agreement had a `real world objective' and `practical
consequence.' . . . By employing the ìn the same
manner . . . as' language in paragraph three of the
settlement agreement, the parties ensured, in
unequivocal wording, that the Tribe would have no
special status in its land holdings different from an
ordinary Massachusetts business corporation. That
status confers, inter alia, the right to sue and be sued,
and thus waives the Tribe's sovereign immunity with
respect to its" Settlement Lands. Shellfish Hatchery
Corp., 443 Mass. at 15-16 (footnote omitted). The same
rationale also eliminates any need to join the United
States as trustee. See id. at 15 n.14.
Although Shellfish Hatchery Corp. dealt with the

Cook Lands and involved a zoning dispute (rather than
the easement rights here at issue) we see little reason
to suppose the court's rationale would not control the
present proceedings. The central Settlement Lands
here at issue are subject to the same settlement
agreement and implementing State and Federal
legislation as the Cook Lands. Section 3 of the
settlement agreement, also cited in Shellfish Hatchery
Corp., specifies that the Tribe
"shall hold the Settlement Lands, and any other
land it may acquire [e.g., the Cook Lands], in the same
manner, and subject to the same laws, as any other
Massachusetts corporation . . . . Under no
circumstances . . . shall the civil . . . jurisdiction of the
Commonwealth of Massachusetts, or any of its political
subdivisions, over the settlement lands, or any land
owned by the [Tribe] in the [town], or the
Commonwealth of Massachusetts . . . be impaired or
otherwise altered . . . ."
In sum, given the possibility that at least some

easements by necessity benefitting lots formerly part of
the common land properly could be routed on nontribal
land, and because any easement claims that do affect
93a
94a
the Settlement Lands may be resolved by joining the

Tribe directly, we do not think that the United States is
an indispensable party within the meaning of rule 19.
Compare Brookline v. County Commrs. of the County
of Norfolk, 367 Mass. 345, 349 (1975) (all towns
potentially affected by judgment need not have been
joined because "they [were] not disputants to the
immediate controversy"). As we have concluded that
the United States is not an indispensable party within
the meaning of rule 19, the present claims were not
properly dismissed on that basis.
(1817). As previously noted, our charge, then, is not to

look simply at the necessity, but to consider all "the
circumstances under which [the severance] was
executed and all the material conditions known to the
parties at the time." Orpin v. Morrison, 230 Mass. at
533. In doing so, in the unique circumstances of this
case, the fact that certain lots were landlocked as a
result of partition does not persuade us as being the
definitive measure of intent.
Particularly noteworthy in our estimation is the
commissioners' silence on this issue, as is the fact that
even the most cursory glance at a contemporaneous
plot map shows that the vast majority of set-off lots had
no frontage or obvious access to or from any public
amenity. Also problematic is the difficulty of routing
easements from the common lands to public roads (at
least those arguably existing at the time) without
traversing those lands already held in severalty, that is,
lots 1 through 188 or 189. With these problems evident,
and in light of the careful and lengthy consideration
given the partitioning process, the commissioners'
failure explicitly to provide for easements might well be
interpreted as a deliberate choice.
III
We have until now assumed, for lots numbered 189
or 190 and above, the intent to create easements. This
assumption seemingly arises naturally from the
necessity created by dividing the common land; the
assumption may ultimately be found to be factually
correct, but this is not inevitable. It is well established
in this Commonwealth: necessity alone does not an
easement create. Nichols v. Luce, 24 Pick. at 104. Orpin
v. Morrison, 230 Mass. at 533. Neither does there exist
a public policy favoring the creation of implied
easements when needed to render land either
accessible or productive. Richards v. Attleborough
Branch R.R. Co., 153 Mass. at 122 ("The law does not
give a right of way over the land of other persons to
every owner of land who otherwise would have no
means of access to it"). Orpin v. Morrison, 230 Mass. at
533-534 (if one purchases land knowing "he had no
access to the back part of it, but over the land of
another, it was his own folly; and he should not burden
another with a way over his land, for his convenience"),
quoting from Gayetty v. Bethune, 14 Mass. 49, 56
The record reveals other circumstances that may

render doubtful the parties' presumed intent to reserve
easements, for example, the nature and then-perceived
poor quality of the land so divided. See Dale v. Bedal,
305 Mass. 102, 103 (1940) (circumstances to be
considered include "the physical condition of the
premises"). Without belaboring the point, it seems a
legitimate question whether anyone at the time,
objectively considered, would have troubled to provide
for these "uneven, rough, and not remarkably fertile"
95a
96a
unclaimed and untenanted lots a beneficial conveyance

by reserving for them easements to a road then in
"deplorable condition" and blocked to free travel by a
stone wall and bars. The 1869 Legislative committee, at
least, expected that these lots would "lie untilled and
comparatively unused" following division. Report of the
Committee, 1869 Senate Doc. No. 14, at 5.
Should the requisite intent be found for some or all

of the partitioned common lots, this will not end the
inquiry: numerous questions remain, including the
merger and extinguishment matters noted by the
motion judge. In addition, we note that a "right of way
by necessity can only be presumed when the necessity
existed at the time of the grant; and it continues only so
long as the necessity continues." Schmidt v. Quinn, 136
Mass. 575, 576-577 (1884). Relatively recently several
lots appear to have acquired or at least the lot
owners have claimed the benefit of express or
prescriptive easements. Such easements, to the extent
they moderated the original necessity, may thereby
have extinguished any easements implied from that
necessity. Compare Viall v. Carpenter, 14 Gray 126, 128
(1859); Hart v. Deering, 222 Mass. 407, 411 (1916). The
recent eminent domain takings may also have
extinguished any easements located on the lots so
taken. See Darman v. Dunderdale, 362 Mass. 633, 641
(1972); New England Continental Media, Inc. v. Milton,
32 Mass. App. Ct. at 378. We also leave the question of
scope of any easements to trial.
We consider relevant the historical sources of

information on tribal use and common custom
applicable to the time. Though by itself hardly
conclusive, and assuming the material's admissibility,
we see no reason why the common practice,
understanding and expectations of those persons
receiving title could not shed light on the parties'
probable, objectively considered intent. See Flax v.
Smith, 20 Mass. App. Ct. at 153 ("[w]hat is required . . .
is not an actual subjective intent on the part of the
grantor but a presumed objective intent of the grantor
and grantee based upon the circumstances of the
conveyance").
We do not mean to suggest by our discussion that
an easement by necessity for any given lot carved out
of the common land either does or does not exist, but
rather that the question requires thoughtful
consideration and resolution by a fact finder. This
question thus is best left for the trial judge, after the
parties have had an opportunity to make whatever
showing they wish or are able,10 remaining mindful
that it is the proponents' burden to prove the existence
of an implied easement. Cheever v. Graves, 32 Mass.
App. Ct. 601, 607, 609 (1992).
IV
The judgment is reversed, the order of December
22, 2003, is vacated, and the case is remanded to the
Land Court for further proceedings consistent with this
opinion.
So ordered.
--------------Notes:
97a
98a
1. Of Bear Realty Trust, Bear II Realty Trust, and

Gorda Realty Trust.
4. The lot numbered 189 is an anomaly, described in the

record as held prior to these events both in severalty
and in common.
2. James J. Decoulos, as trustee of Bear II Realty Trust

and Gorda Realty Trust; Victoria Brown; Gardner
Brown, Jr.; Mark D. Harding; and Eleanor P. Harding,
as trustee of the Eleanor P. Harding Trust.
5. We do not doubt that the Commonwealth, a

governmental entity, can act as a grantor for these
purposes, though this is a question of some controversy
not previously decided in this Commonwealth. See
Bruce & Ely, Easements & Licenses in Land Sec. 4:7, at
4-18 to 4-20 (2001) (collecting authorities). "The
rationale for [rejecting governmental ownership of both
lots as satisfying the unity-of-title standard] is unclear,
but one commentator suggests that it may be based on
`some remnant of the prerogative of the sovereign.'" Id.
at 4-18 to 4-19 (footnotes omitted), quoting from
Simonton, Ways by Necessity, 25 Colum. L. Rev. 571,
579 (1925). The Restatement has, without discussion,
taken the position that easements "by necessity arise on
conveyances by governmental bodies as well as by
other grantors." Restatement (Third) of Property
(Servitudes) Sec. 2.15 comment c (2000). There appears
no compelling modern reason here to distinguish
between governmental and private grantors, and we
adopt the Restatement's approach.
3. Vineyard Conservation Society, Inc.; Benjamin L.

Hall, Jr., as trustee of Gossamer Wing Realty Trust;
David Wice; Betsy Wice; Susan Smith; Russell Smith;
John F. Kennedy, Jr.; Caroline Kennedy; George B.
Brush, as trustee of Toad Rock Realty Trust; South
Shore Beach, Inc.; Leonard F. Vanderhoop, Jr.; Joanne
Fruchtman; Jack Fruchtman; Peter Ochs; Hope E.
Horgan; Helen S. James; Donald Taylor; Moshup Trail
II Limited Partnership; Richard Hoyle; Charles E.
Derby; Shirley A. Jardin; heirs of Wallace E. Francis;
Jeffrey Madison, as trustee of Tacknash Realty Trust;
estate of Edwin D. Vanderhoop; John A. Wiener; Sally
D. Wiener; Patrick J. Evans; Scott Harrison; Julie B.
Hoyle; Carmella Stephens, as trustee of Deer Meadow
Realty Trust; Stella Winifred Hopkins, also known as
Winifred S. Hopkins; heirs of Esther Howwasswee;
heirs of Savannah F. Cooper; Heidi B. Stutz; Michael
W. Stutz; Hamilton Camman; Mary Elizabeth Pratt;
heirs of Amos Smalley; June Noble; Richard Sullivan;
Sarah Saltonstall; Steven Yaffe; Thomas Seeman;
Lawrence B. Evans; Beverly A. Evans; estate of
William Vanderhoop; Kevin Craig; Cynthia Craig;
Flavia Stutz; Robert Stutz; Selma Greenberg; William
Greenberg; Wilma Greenberg; Alexandra Whitcomb;
Rolph Lumley; and Aurilla Fabio.
6. The motion judge explicitly ruled that the "record

does not indicate the existence of any way in use on the
ground at the time of the commissioners' [the Peases']
1878 report, and the present record is insufficient to
establish conclusively the location of a way by
necessity."
7. Deciding as we do, we do not reach the question
whether the various parties' motions to join were
correctly denied.
99a
100a
8. In doing so we express no opinion as to what effect, if

any, the Tribe's settlement agreement, implementing
State and Federal legislation, or subsequent
conveyances may have had on the continuing status of
any claimed easements burdening the Settlement
Lands.
9. This language, the court held, "is clear and the words
ìn the same manner' convey a special, known, and
obvious meaning. These words are used by the United
States and by the Commonwealth to waive sovereign
immunity." Shellfish Hatchery Corp., 443 Mass. at 13.
10. The trial judge may consider whether to relieve
certain of the plaintiffs of their respective stipulations
to the effect that they would offer no evidence (the
Hardings) or certain described testimony (Kitras) at
the trial of this action. We are aware of no similar
stipulation by any defendant.
Case No:
Date: June 4, 2001

Parties:
MARIA A. KITRAS, as TRUSTEE,[1] &
others,[2] Plaintiffs vs. TOWN OF AQUINNAH &
others,[3] Defendants
---------------
238738
Decision Type: DECISION ON CROSS-MOTIONS

FOR SUMMARY JUDGMENT AND MOTIONS TO
DISMISS
In this action, plaintiffs seek to determine their
access rights in the portion of Aquinnah, Dukes County,
sometimes referred to as the "Zack's Cliffs" region. The
question of access arises from the set-off, in 1871 and
1878, of separate lots of land for ownership by
individual members of the Wampanoag tribe. The two
set-off reports made no express provision for easement
or other access rights across or for the benefit of the
various set-off lots. Plaintiffs are the successors in title
101a
102a
to certain of the set-off lots who claim rights of access,

under various legal theories, over other of the set-off
lots now owned by defendants.[4]
affidavits of Jennifer S. D. Roberts, Esq.,

authenticating various documents; (ii) an affidavit of
Brendan T. O'Neill, the executive director of defendant
Vineyard Conservation Society, Inc. (VCS); (iii) an
affidavit, with attachments, of James J. Decoulos;[5] (iv)
an affidavit of Gardner Brown; (v) answers furnished
by plaintiffs Victoria and Gardner Brown to
interrogatories propounded by VCS; and (vi) responses
and further responses furnished by plaintiffs Maria A.
Kitras and Paul D. Pettegrove to interrogatories
propounded by defendant VCS.[6]
Following a status conference held on February

29, 2000, and pursuant to the schedule established at
the conference, VCS on October 6, 2000 filed its motion
for summary judgment or, alternatively, to dismiss,
together with a memorandum in support of the motion.
A number of defendants thereafter joined in the VCS
motion, including: JoAnn Fruchtman, Jack Fruchtman,
Jr., Sarah Saltonstall, Mary Elizabeth Pratt, Caroline
Kennedy, South Shore Beach, Inc., David Wice, and
Betsy Wice. Defendants David Wice and Betsy Wice,
defendant Thomas Seeman, defendant Caroline
Kennedy, and defendants Russell Smith and Susan
Smith, filed separate motions to dismiss the complaint.
Defendants Beverly Evans, Patrick Evans and
Lawrence Evans filed a separate motion for summary
judgment. On November 7, 2000, plaintiff Kitras filed a
cross-motion for summary judgment, together with a
memorandum in support of the cross-motion, and
plaintiffs Gardner Brown and Victoria Brown filed a
separate motion adopting the arguments advanced in
Ms. Kitras's memorandum.
The following facts are not in dispute.

1.
Plaintiff Maria Kitras, as trustee of Bear
Realty Trust and of Bear II Realty Trust (Kitras),
holds record interests in lots 178, 711 and 713 (Kitras
lots) as shown on a plan of land entitled "Plan of Gay
Head Showing the Partition of the Common Lands As
Made by Joseph T. Pease and Richard L. Pease,
Commissioners Appointed by the Judge of Probate
Under Section 6, Chapter 213 of the Acts of 1870 By
John H. Mullin Civil Engineer" on file with the Dukes
County registry of probate (set-off plan). As shown on
the set-off plan, the Kitras lots are contiguous.
I heard argument on the cross-motions and the

motions to dismiss on December 18, 2000. At the
hearing, plaintiffs stipulated to the dismissal of the
complaint as to the following defendants: Thomas
Seeman; Lawrence B. Evans; Patrick J. Evans; and
Beverly A. Evans.
2.
Plaintiff Paul D. Pettegrove, as trustee of
Gorda Realty Trust (Pettegrove), owns lots 232 and 243
on the set-off plan (Pettegrove lots). Lot 232 enjoys an
appurtenant easement for access under an agreement
recorded with the Dukes County registry of deeds in
book 640, page 895.[7]
In addition to the verified amended complaint,

summary judgment record includes (i) two
3.
Plaintiffs Gardner Brown and Victoria
Brown (Browns) own lot 238 on the set-off plan (Brown
the
103a
104a
lot). The Brown lot is contiguous to two of the Kitras

lots (lots 178 and 713).
Indian district of Gay Head, in the county of Dukes

County, and also to determine the boundary line
between the common lands of said district and the
individual owners adjoining said common lands; and he,
the said commissioner, is hereby authorized to adjust,
and fully and finally to settle, equitably, and as the
interest of the petitioners and all other parties may
require, all the matters, claims and controversies, now
existing and growing out of or in connection with the
boundaries of the aforesaid lands." The resolution
further provided for hearing, following notice by
publication, of all claims by interested parties, directed
the commissioner to "make a report of his doings to the
governor and council," and appropriated a sum not
exceeding one hundred dollars as compensation for his
services.
4.
Plaintiffs Eleanor Harding, as trustee of
Eleanor P. Harding Trust, and Mark Harding
(Hardings) own lots 554 and 555 on the set-off plan
(Harding lots). The Harding lots are contiguous to one
of the Kitras lots (lot 711).
5.
Plaintiff Benjamin L. Hall, Jr., as trustee
of Gossamer Wing Realty Trust (Gossamer Wing),
owns lots 707, 710 and 302 on the set-off plan. Lot 710
is contiguous to one of the Kitras lots (lot 711); the
other Gossamer Wing lots are not contiguous to any of
the Kitras lots.
6.
Defendants own various other lots on the
set-off plan, as described in the verified complaint and
as identified on the sketch plan submitted by plaintiffs
and attached as appendix A.[8]
9.
The commissioner appointed in 1863 died
before completing the assigned task, and the General
Court appointed a new commissioner, Richard L. Pease,
in 1866. Resolves 1866, c. 67. Commissioner Pease
submitted his report on the lands held in severalty to
the Governor in 1871, establishing set-off lots 1 through
173. As of the time of the commissioner's 1871 report, a
significant portion of the land in Gay Head appears to
have remained common land.[9]
7.
By St. 1862, c. 184, s. 4, the General Court
established the district of Gay Head. Section 5 of the
same chapter directed the clerk of the district of Gay
Head to make and maintain a register of the existing
members of the Gay Head tribe, and to make and
maintain "a register of the lands of each Plantation, as
at present held, whether in common or severalty, and if
in severalty, by whom held."
10.
A short time before the commissioner's
1871 report, the General Court abolished the district of
Gay Head, and in its place incorporated the town of Gay
Head. St. 1870, c. 213. Section 6 of that chapter
established a new procedure for the determination of
property rights in the town, in apparent substitution
for the procedure prescribed under the 1863 resolution.
The 1870 statute authorized the "judge of probate of the
8.
By chapter 42 of the Resolves of 1863, the
General Court appointed and commissioned the
treasurer of the district of Marshpee [sic] "to examine,
and fully and finally to determine, all boundary lines
between the individual owners of land located in the
105a
106a
county of Dukes-county [sic], upon the application of

the selectmen of Gay Head, or of any ten resident
owners of land therein, after such notice as the judge
may direct to all parties interested and a hearing on the
same, 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 . . . and the said
judge of probate shall direct the said commissioners to
examine and define the boundaries of the lands
rightfully held by individual owners, and to properly
describe and set forth the same in writing, and the title
and boundaries thus set forth and described, being
approved by the court, shall be final in the premises."
Pursuant to that authority, and on the petition of
certain individual claimants (but contrary to the
request of the Gay Head selectmen and others) the
probate court appointed Joseph L. Pease and Richard
L. Pease as commissioners to carry out the partition of
common lands and the determination of claims to other
lands held in severalty.
defined the boundaries of those lots held or claimed by

individuals of which no satisfactory record evidence of
ownership existed.
In accordance with the almost unanimous desire of the
inhabitants, the Commissioners determined to leave the
cranberry lands near the sea shore, and the clay in the
cliffs, undivided; it being, in their judgment,
impracticable to make a division that would be, and
continue to be, an equitable division of these cranberry
lands, and of the clays in the cliffs, owing to the changes
continually being made by the action of the elements.
The numbers refer to a map - made under the direction
of the Commissioners - accompanying this Report."[10]
12.
The commissioners' 1878 report further
explains that "[t]he lots of common lands drawn or
assigned by the Commissioners . . .are numbered from
no. 189 and upwards, in regular order. Lots no. 1 to no.
173, inclusive, were run out and bounded under
previous provisions of the statutes. The record of these
lots will be found in Land Records Book 49, pages 89 to
198, inclusive. Lots no. 174 to no. 189 were run out and
bounded afterwards by the Commissioners who made
partition of the Indian common lands."[11]
11.
Commissioners Joseph Pease and Robert
Pease submitted their final report to the probate court,
which approved the report on December 21, 1878. The
commissioners' 1878 report advises that
13.
Chapter 213 of the Acts of 1870 also
directed the Dukes County county commissioners to lay
out and construct a road from Chilmark to the Gay
Head lighthouse. The road thus established (now called
State Road) is shown on the set-off plan, passing in a
generally east-west direction in the area north of
plaintiffs' lots. At the time of the 1871 and 1878
"[the Commissioners] have made and completed a

division of the common and undivided lands of Gay
Head, among all the inhabitants of that town adjudged
to be entitled thereto; and have made careful and
correct descriptions of the boundaries and assignment
of each lot in the division; and have also examined and
107a
108a
commissioners' reports, there were no other public

roads in the vicinity of the set-off lots.
710 (as well as other lots not currently owned by any

plaintiff) an express easement over lots 68, 71, 72, 73,
78, 79, 80, 85, 86, 87, 178, 179, 231, 246, 254, 294, 299, 300,
301, 309, 316, 319, 322, 324, 325, 334, 335, 351, 514, 52,
525, 700, 703, 705, and 711 then owned by Moshup Trail
Limited Partnership. The Moshup Trail easement
refers to an attached sketch plan, but the copy of the
instrument in the record does not include such a plan.
Following execution of the Gossamer Wing easement,
Gossamer Wing acquired additional set-off lots. By
first amendment to easement dated February 1, 1988,
and recorded in book 493, page 293, the parties agreed
that the Gossamer Wing easement would burden lots
302, 322, 334, 339, 707 and 710 (in addition to lots 320
and 323).[14] Combined, however, the Gossamer Wing
easement (as amended) and the Moshup Trail easement
do not extend from plaintiffs' property to State Road,
as other land not owned by any party to either
easement intervenes between State Road and the lots
benefitted by the easements.[15] The Gossamer Wing
easement and the Moshup Trail easement do not appear
to coincide with the historic traveled way of Zack's
Cliffs Road.
14.
By 1939, an unpaved way leading from
State Road to and across the Kitras lots had developed
on the ground. That way, known as "Zack's Cliffs
Road," is visible on aerial photographs taken in 1939
and during the 1940s, and is shown on topographic
maps from that and later periods.[12] The summary
judgment record does not reveal when Zack's Cliffs
Road first came into use, if at any time before 1939.
15.
In 1954, a new road (called Moshup Trail)
was established by layout approved by the Dukes
County county commissioners and recorded with the
Dukes County registry of deeds in book 227, page
564.[13] From its intersection with State Road east of
plaintiffs' lots, Moshup Trail branches to the south and
passes in a generally east-west direction in the area
south of plaintiffs' lots.
16.
By easement dated April 29, 1987, and
recorded in book 472, page 317 (Gossamer Wing
easement), Moshup Trail Limited Partnership acquired
from Gossamer Wing for the benefit of lots 711 and 178
(as well as other lots not currently owned by any
plaintiff) an express easement over lots 320 and 323
then owned by Gossamer Wing. A sketch plan attached
to the Gossamer Wing easement shows a way,
described to be forty feet wide, extending from lot 86 to
State Road, and traversing lots 324, 325, 320, 179, 319,
300, 309 and 316. By contemporaneous easement
recorded in book 472, page 319 (Moshup Trail
easement), Gossamer Wing acquired from Moshup Trail
Limited Partnership for the benefit of lots 302, 707 and
17.
In 1989, the United States of America,
using its power of eminent domain, took set-off lots 78,
79 and 87.[16] A short time earlier, the United States
also acquired from Moshup Trail Limited Partnership
lots 68, 71, 72, 73, 80, 86, 179, 246, 254, 294, 299, 300, 301,
309, 316, 319, 324, and 325, under a deed dated
February 1, 1988 and recorded in book 493, page 222.
The deed states that the lots so conveyed enjoy the
benefit of certain recorded easements, including the
easement described in the Gossamer Wing easement
agreement. The United States holds such property as
109a
110a
trustee for the Wampanoag Tribe of Gay Head. Zack's

Cliffs Road previously passed across lot 87; the eminent
domain taking had the effect of extinguishing all rights
of other parties in Zack's Cliffs Road over lot 87.[17]
Zack's Cliffs Road also passed across lot 319, among the
lots the United States acquired by deed from Moshup
Trail Limited Partnership.
radio tower road passes. According to the summary

judgment record, those defendants (in other words, the
remaining defendants as to count three) are: VCS; the
Town of Aquinnah; and John F. Kennedy, Jr. and
Caroline Kennedy.[18]
The parties' cross-motions principally address
plaintiffs' claim of an easement by implication or
necessity, arising from the severance of plaintiffs'
respective lots from access to any public way as a result
of the 1871 and 1878 set-offs.
*****
By their amended verified complaint, plaintiffs
claim easement rights (i) by implication or necessity in
an unspecified location (count one), (ii) by prescription
over Zack's Cliffs Road (count two), (iii) by prescription
over a way called the "radio tower road" (count three),
and (iv) by virtue of the alleged status of Zack's Cliffs
Road as a public way by prescription (count iv).
However, in response to interrogatories propounded by
VCS, plaintiffs Kitras, Pettegrove and the Browns
stated as to each of counts two, three and four that they
"at the present time waive their claim, without
prejudice." Accordingly, counts two, three and four of
the amended verified complaint are dismissed as to
plaintiffs Kitras, Pettegrove and the Browns.
In
addition, counts two and four are dismissed as to the
remaining plaintiffs as against all defendants other than
those defendants owning land across which Zack's Cliffs
Road passes. According to the summary judgment
record, those defendants (in other words, the remaining
defendants as to counts two and four) are: VCS; George
Brush, as trustee of Toad Rock Realty Trust; heirs of
Esther Howwasswee; Moshup Trail II Limited
Partnership; and Julie B. Hoyle. Similarly, count three
of the complaint is dismissed as to all defendants other
than those defendants owning land across which the
The land subject to this action falls into three

categories. The first category is the land held in
severalty
and
determined
according to the
commissioner's 1871 report (in other words, lots 1-173).
The record is unclear regarding the status of title to
those lots prior to the commissioner's 1871 report, but
at least as of the submission of the commissioner's 1871
report, set-off lots 1-173 were owned by the owners
determined by the commissioner's 1871 report, and
enjoyed such rights in the remaining common lands as
may have appertained to tribal members. The second
category is the land held in severalty and determined
according to the commissioners' 1878 report (in other
words, lots 174-189).[19] The third category is the
common land partitioned in favor of separate owners
pursuant to the commissioners' 1878 report.[20]
On the summary judgment record, State Road
was the only public way providing access to the set-off
lots at the time of the commissioners' 1871 and 1878
reports. The commissioner's 1871 report did not sever
the set-off lots from access to the public way, since the
owners of such lots held rights in the common lands.
111a
112a
By partitioning the common lands and assigning the

resulting set-off lots to individual owners, the
commissioners' 1878 report severed from the public
way (i) each of the set-off lots (nos. 1-173) determined
under the commissioner's 1871 report which did not
have frontage on the public way, and (ii) each of the setoff lots (nos. 174 and higher) determined in severalty or
partitioned and assigned under the commissioners' 1878
report which did not have frontage on the public
highway. Plaintiffs' lots fall into the latter group.
ownership need not occur by means of a deed of

conveyance; a severance occurring by partition will,
under appropriate circumstances, give rise to an
easement by implication. Mt. Holyoke Realty Corp. v.
Holyoke Realty Corp., 284 Mass. 100, 106 (1933); Viall
v. Carpenter, 14 Gray 126, 127 (1859). As the parties
claiming an easement by implication, plaintiffs bear the
burden of proving its existence. Boudreau v. Coleman,
29 Mass. App. Ct. 621, 633 (1990).
"The origin of an implied easement 'whether by
grant or by reservation . . . must be found in a
presumed intention of the parties, to be gathered from
the language of the instruments when read in the light
of the circumstances attending their execution, the
physical condition of the premises, and the knowledge
which the parties had or with which they are
chargeable.'" Labounty v. Vickers, 352 Mass. 337, 344
(1967), quoting Dale v. Bedal, 305 Mass. 102, 103 (1940).
"What is required, however, is not an actual subjective
intent on the part of the grantor but a presumed
objective intent of the grantor and grantee based upon
the circumstances of the conveyance." Flax v. Smith, 20
Mass. App. Ct. 149, 153 (1985). "There are cases where
a single circumstance may be so compelling as to
require the finding of an intent to create an easement.
For example, if, after a conveyance of some of his land,
an owner is left with a parcel entirely surrounded by
the land conveyed, the sole fact that he has no access to
the land retained without crossing the land conveyed
may be sufficient basis for the implication of an
easement . . ." Mt. Holyoke Realty Corp. v. Holyoke
Realty Corp., 284 Mass. at 104. However, "[i]t is not the
necessity which creates the right of way, but the fair
"It 'is familiar law that if one conveys a part of

his land in such form as to deprive himself of access to
the remainder of it unless he goes across the land sold,
he has a way of necessity over the granted portion.
This comes by implication from the situation of the
parties and from the terms of the grant when applied to
the subject matter. The law presumes that one will not
sell land to another without an understanding that the
grantee shall have a legal right of access to it, if it is in
the power of the grantor to give it, and it equally
presumes an understanding of the parties that one
selling a portion of his land shall have a legal right of
access to the remainder over the part sold if he can
reach it in no other way.'" Davis v. Sikes, 254 Mass. 540,
545-546 (1926), quoting New York & New England
Railroad v. Railroad Commissioners, 162 Mass. 81, 83
(1894). See generally Restatement Third, Property
(Servitudes) s. 2.15.
"Easements by implication generally are created
when land under single ownership is severed and the
easement is reasonably necessary for the enjoyment of
one of the parcels." Silverlieb v. Hebshie, 33 Mass. App.
Ct. 911, 912 (1992).
The severance of common
113a
114a
construction of the act of the parties." Nichols v. Luce,

24 Pick. 102, 104 (1834).
reasonable expectation of proving an essential element

of that party's case." Kourouvacilis v. General Motors
Corp., 410 Mass. 706, 716 (1991).[21]
The presumption noted in Davis v. Sikes (that

one will not sell land to another without an
understanding that the grantee shall have a legal right
of access to it, if it is in the power of the grantor to give
it) finds its root in the principle that a grant of land is
presumed to include everything reasonably necessary
for its use and enjoyment. See Gayetty v. Bethune, 14
Mass. 49, 56 (1817). See also Restatement Third,
Property (Servitudes) s. 2.15. The presumption "is,
however, a pure presumption raised by the law . . . Such
a presumption ought to be and is construed with
strictness." Orpin v. Morrison, 230 Mass. 529, 533
(1918). Accordingly, the presumption may be overcome
by evidence that the parties did not intend to provide a
way of access. Id. at 533-534.
The fact that the commissioners' 1878 report

severed plaintiffs' lots from access to the only public
way then in existence creates a presumption that the
partition intended that each owner of a set-off lot would
hold a way by necessity for access to their lot from the
public way. Though, as noted, the presumption may be
overcome by evidence of an intent to create a parcel
without access, no such evidence appears in the present
case.[22] For the reasons discussed below, however, I
do not reach the question whether a way arose by
necessity on the commissioners' 1878 report, but I
assume for purposes of the following discussion that a
way by necessity did so arise.[23]
A right of way not defined in the instrument
creating it may be located by implication, in the location
of a way in use at the time the easement was created.
See, e.g., Dunham v. Dodge, 235 Mass. 367, 371 (1920).
Alternatively, an undefined easement may be located
by express agreement of the parties. Cheever v.
Graves, 32 Mass. App. Ct. 601, 605 (1992). "The
practical adoption and use, for a long time, of a
particular route, under a right of way granted by deed,
without fixed and defined limits, if acquiesced in by the
grantor, operate to determine the location of the way as
effectually as if the same had been described in the
deed." Davis v. Sikes, 254 Mass. 540, 546 (1926)
(citations omitted). "After the location of an undefined
way has been fixed, it cannot be changed except by
agreement." Id. An easement created by necessity
An easement often may be implied over a way

already in existence and use when a parcel is severed
from common ownership. See Dale v. Bedal, 305 Mass.
102, 104 (1940), and cases cited. However, it is not
necessary for a way to be in existence and use at the
time of such severance where the severance creates an
absolute physical necessity. See, e.g., Nichols v. Luce,
supra; Viall v. Carpenter, supra. Cf. Davis v. Sikes, 254
Mass. at 546.
"[A] party moving for summary judgment in a case in
which the opposing party will have the burden of proof
at trial is entitled to summary judgment if he
demonstrates, by reference to material described in
Mass. R. Civ. P. 56(c), unmet by countervailing
materials, that the party opposing the motion has no
115a
116a
ceases when the necessity ceases. Viall v. Carpenter,

14 Gray at 127.[24]
Despite the difficulty of determining on the

present record the definitive location of an easement by
necessity for the benefit of plaintiffs' lots, any claim of
an easement by necessity for the benefit of plaintiffs'
lots necessarily implicates the lots currently held by the
United States in trust for the Wampanoag Tribe of Gay
Head which came out of the partition under the
commissioners' 1878 report. Defendants accordingly
argue that the United States is an indispensable party
to this action, and that the complaint must be dismissed
because the United States cannot be joined.
As the only public way in the area in 1878 was

State Road, located to the north of plaintiffs' lots, any
way that arose by necessity on the commissioners' 1878
report must extend northerly from plaintiffs' lots to
State Road. The record does not indicate the existence
of any way in use on the ground at the time of the
commissioners' 1878 report, and the present record is
insufficient to establish conclusively the location of a
way by necessity. The record does establish that
Zack's Cliffs Road eventually came into use and served
as the principal means of access from plaintiffs' lots to
State Road.[25] That use suggests that the landowners
in the area may have adopted Zack's Cliffs Road as the
means of access to State Road, or at least from
plaintiffs' lots to State Road.[26] However, Zack's
Cliffs Road traverses, among other land, lots 87 and 88.
Because set-off lots 87 and 88 were among the lots
determined in severalty under the commissioner's 1871
report, they were not part of the common lands at the
time the commissioners' 1878 report severed plaintiffs'
lots from their access to State Road. Accordingly, a
way by necessity arising from the commissioners' 1878
report cannot be imposed on lot 87 or lot 88.[27] In
other words, to the extent Zack's Cliffs Road might
serve to locate a way by necessity resulting from the
partition under the commissioners' 1878 report, it may
do so only over the lots it traverses which were
partitioned into separate ownership under the
commissioners' 1878 report, and not over the lots
determined in severalty under the commissioner's 1871
report.[28]
Mass. R. Civ. P. 19(a) provides:

"A person who is subject to service of process
shall be joined as a party in the action if (1) in his
absence complete relief cannot be accorded among
those already parties, or (2) he claims an interest
relating to the subject of the action and is so situated
that the disposition of the action in his absence may (i)
as a practical matter impair or impede his ability to
protect that interest or (ii) leave any of the persons
already parties subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations
by reason of his claimed interest. If he has not been so
joined, the court shall order that he be made a party. If
he should join as a plaintiff but refuses to do so, he may
be made a defendant."
Mass. R. Civ. P. 19(b) addresses the possibility
that an indispensable party cannot be joined:
"If a person as described in subdivision (a)(1)-(2)
hereof cannot be made a party, the court shall
determine whether in equity and good conscience the
117a
118a
action should proceed among the parties before it, or

should be dismissed, the absent person being regarded
as indispensable. The factors to be considered by the
court include: first, to what extent a judgment rendered
in the person's absence might be prejudicial to him or
those already parties; second, the extent to which, by
protective provisions in the judgment, by the shaping of
relief, or other measures, the prejudice can be lessened
or avoided; third, whether a judgment rendered in the
person's absence will be adequate; fourth, whether the
plaintiff will have an adequate remedy if the action is
dismissed for nonjoinder."
890, 894 (10th Cir. 1989), quoting Wichita & Affiliated

Tribes of Oklahoma v. Hodel, 788 F.2d 765, 777 n.13
(D.C. Cir. 1986).
Because the present action cannot be
determined in the absence of the United States without
substantial and unavoidable risk of prejudice to the
remaining parties, I conclude that count one of the
complaint must be dismissed pursuant to Mass. R. Civ.
P. 19(b). In dismissing plaintiffs' claim, I am aware that
the dismissal likely precludes plaintiffs' opportunity to
prosecute their claims of an easement by necessity for
so long as the United States owns lots set-off by
partition under the commissioners' 1878 report. In
mitigation of the apparent harshness of that result, I
note that (i) plaintiffs (and their predecessors in title)
waited to present their claims for more than one
hundred years after the commissioners' 1878 report and
before the United States acquired the land it now holds
(and for nine more years after the United States
acquired such land); and (ii) the situation producing this
dismissal (ownership of set-off lots by a party immune
from suit) is a result of the 1988 conveyance to the
United States by Kitras's immediate predecessor in
title, without reservation of any right of access for its
remaining land.[29]
Because plaintiffs' claim of an easement by

necessity necessarily implicates the land currently held
by the United States, I consider the United States to be
a party necessary for a just adjudication of the present
action. As noted above, the summary judgment record
strongly suggests that any easement by necessity that
arose as a result of the commissioners' 1878 report was
located by common use across a number of the lots now
held by the United States. Any determination of
plaintiffs' claim without the United States as a party
presents a substantial likelihood of prejudice to the
remaining defendants, who face the threat that an
easement by necessity might now be located over their
property simply because the easement cannot be placed
on land of the United States.
Defendants' motions to dismiss are allowed, and

plaintiffs' cross-motions for summary judgment are
denied. Count one of the complaint is dismissed. The
prescriptive claims of certain plaintiffs over the land of
certain defendants remain for determination in such
further proceedings as may be appropriate.[30]
"When, as here, a necessary party under Rule

19(a) is immune from suit, 'there is very little room for
balancing other factors' set out in Rule 19(b), because
immunity 'may be viewed as one of those interests
compelling by themselves.'" Enterprise Management
Consultants, Inc. v. United States of America, 883 F.2d
Judge:
/s/ Mark V. Green
119a
120a
Justice
Mary Elizabeth Pratt; persons unknown or

unascertained being the heirs of Amos Smalley; June
Noble; Richard Sullivan; Sarah Saltonstall; Steven
Yaffe; Thomas Seeman; Lawrence B. Evans; Beverly A.
Evans; Estate of William Vanderhoop; Kevin Craig;
Cynthia Craig; Flavia Stutz; Robert Stutz; Selma
Greenberg; William Greenberg; Wilma Greenberg;
Alexandra Whitcomb; Rolph Lumley; Aurilla Fabio;
other persons unknown or unascertained; and United
States of America as trustee for the Wampanoag Tribe
of Gay Head (Aquinnah).
----------------Footnotes
Trust.
[1] Of Bear Realty Trust and of Bear II Realty
[2] Paul D. Pettegrove, as trustee of Gorda

Realty Trust; Victoria Brown; Gardner Brown, Jr;
Mark Harding; Benjamin L. Hall, Jr., as trustee of
Gossamer Wing Realty Trust; and Eleanor Harding, as
trustee of Eleanor P. Harding Trust.
[4] A summary of the procedural history of this

matter appears in orders entered on April 21, 1998, and
November 30, 1999. The latter order includes reference
to the dismissal of the complaint as to defendants Heidi
B. Stutz; Michael W. Stutz; Kevin Craig; Cynthia Craig;
Flavia Stutz; Selma Greenburg; William Greenburg;
Wilma Greenburg, and (following removal to the
Federal District Court and preceding the remand to
this court) the United States of America. The dismissal
as to the named private defendants was based on the
failure of the complaint to assert a claim against the lots
owned by such defendants. The dismissal as to the
United States of America, entered in the Federal
District Court on motion by the United States, was
based on sovereign immunity.
[3] Vineyard Conservation Society, Inc.; David

Wice and Betsy Wice; Susan Smith and Russell Smith;
John F. Kennedy, Jr., and Caroline Kennedy; George B.
Brush, as trustee of Toad Rock Realty Trust; South
Shore Beach, Inc.; Leonard F. Vanderhoop, Jr.; Joanne
Fruchtman a/k/a JoAnn Fruchtman and Jack
Fruchtman; Peter Ochs; Hope E. Horgan; Helen S.
James; Donald Taylor; Moshup Trail II Limited
Partnership; Richard Hoye; Charles E. Derby; Shirley
A. Jardin; persons unknown or unascertained being the
heirs of Wallace E. Francis; Jeffrey Madison, as trustee
of Tacknash Realty Trust; Estate of Edwin D.
Vanderhoop; John A. Wiener; Sally D. Wiener; Patrick
J. Evans; Scott Harrison; Julie B. Hoyle; Carmella
Stephens, as trustee of Deer Meadow Realty Trust;
Stella Winifred Hopkins a/k/a Winifred S. Hopkins;
persons unknown or unascertained being the heirs of
Esther
Howwasswee;
persons
unknown
or
unascertained being the heirs of Savannah F. Cooper;
Heidi B. Stutz; Michael W. Stutz; Hamilton Camman;
[5] At the summary judgment hearing, I allowed

VCS's motion to strike portions of the Decoulos
affidavit as to paragraphs 11, 12, 14, 15, 27, 28, 29, 30,
31, 32, 33, 39, 42 and 43. I denied the motion to strike as
to paragraphs 3, 4, 5, 6, 7, 8, 9, 20 and 38.
121a
122a
[6] The items listed in clause (vi) are in the

record on the motion of defendant Vineyard
Conservation Society, Inc. to supplement the summary
judgment record filed on December 22, 2000, and heard
and allowed on February 14, 2001.
quoted excerpt within both the lots resulting from the

partition of common lands and the lots described on
claims of ownership in severalty. It is immaterial for
purposes of this decision which category applies to lot
189.
[7] I take judicial notice of the record in land

court miscellaneous case numbers 248339 and 249539.
[12] A portion of the unpaved way, running in an

east-west direction, appears to be known as "Old South
Road," and provides the connection to State Road.
Zack's Cliffs Road extends southerly from Old South
Road, at a point west of the intersection between Old
South Road and State Road.
[8] Some of the lot number designations on the

sketch plan do not correspond to the designations on
the set-off plan. For example, there is a lot numbered
242 shown on the sketch plan as owned by "Weiner;"
that lot appears on the set-off plan as part of lot 96,
adjacent to lot 314 (which is omitted from the sketch
plan). In addition, certain of the designated owners are
not current.
For example, following the
commencement of this action VCS acquired set-off lot
532, shown on appendix A as owned by "Nuovo."
Nonetheless, for purposes of this decision the sketch
plan is sufficiently accurate to serve as a useful guide to
the general layout of the area and the relationship
among the several parcels involved.
[13] All references herein to recorded

instruments or plans are to this registry, unless
otherwise noted.
[14] The amendment does not include or refer to
a plan illustrating where the way would be located on
the newly-burdened lots, and they are not shown on the
sketch plan attached to the original Gossamer Wing
easement.
[15] As shown on appendix A, the intervening
land appears to include set-off lots 88 and 244, and an
unnumbered tract described on the sketch plan as
owned by "Tacknash R. T."
[9] A report submitted to the Senate observes

that approximately nineteen hundred acres remained
common lands, compared to approximately fifteen
hundred acres held in severalty. See Sen. Doc. No. 14,
1869, p 4-5.
[10] The set-off plan is the map
accompanied the commissioners' 1878 report.
[16] According to the declaration of taking,

Moshup Trail Limited Partnership held an interest in
each of the lots taken by eminent domain.
which
[17] Plaintiffs acknowledge this result

paragraph 29 of the amended verified complaint.
[11] The record does not include the portion of

the report assigning lot 189, which is described in the
in
123a
124a
[18] The response of defendant Caroline

Kennedy to the cross-motions for summary judgment
advises that defendant John F. Kennedy, Jr. is
deceased, but that no motion has yet sought to
substitute the executor of his estate.
from a way implies an intention that the land should

have a means of access to the way.
[23] Even if an easement arose by necessity in
1878, however, such an easement does not include (as
requested in plaintiffs' prayer for relief) the right to
install utilities in the way. See Nylander v. Potter, 423
Mass. 158, 160 n.6 (1996); Nantucket Conservation
Found., Inc. v. Russell Management, Inc., 2 Mass. App.
Ct. (1974). See also Cumbie v. Goldsmith, 387 Mass.
409, 411-412 n.8 (1982).
[19] VCS's memorandum suggests that lots 174189 somehow came into separate ownership between
the 1871 and 1878 reports. A more likely interpretation
of the historical records is that the commissioner
appointed under the 1866 resolution concluded his
report upon the status of his efforts as of the adoption
of St. 1870, s. 213, before determining all claims of
owners holding land in severalty, and that the
commissioners'
1878
report
completed
the
determination of such claims under the supervision of
the probate court.
[24] Accordingly, Pettegrove's claim of a way by

necessity for the benefit of lot 232 fails, by reason of the
express easement benefitting that lot.
[25] Paragraph 43 of plaintiffs' amended verified
complaint asserts that, prior to the opening of the
Moshup Trail, Zack's Cliffs Road and the other
connecting ways were the sole means of access to
plaintiffs' lots. That assertion is supported by the
various aerial photographs and maps submitted in the
record.
[20] A fourth category, not implicated in this

action, is the land reserved as common land in the
commissioners' 1878 report.
[21] I note that plaintiffs have stipulated that
they will not present any testimony on their claims
beyond the summary judgment record.
[26] Plaintiffs' complaint asserts that other ways,

connecting to Zack's Cliffs Road, served other lots.
However, the existence of such other ways does not
affect plaintiffs' claim, as Zack's Cliffs Road runs
directly through the Kitras lots.
[22] VCS's argument regarding tribal customs of

common use is interesting, but it does not support a
conclusion that either the commissioners or the several
set-off lot owners intended that there would be no
access to the set-off lots. In so stating, I am not shifting
from plaintiffs the burden of proof on the existence of a
way by necessity; instead, I am applying in support of
that burden the presumption that severance of land
[27] Because the parties have not addressed the

question of plaintiffs' prescriptive use of Zack's Cliffs
Road, I do not consider on the present record whether
the use of Zack's Cliffs Road over the years gave rise to
prescriptive rights in that way, or whether such
125a
126a
prescriptive rights would serve to supercede an

inchoate way by necessity in another location.
Similarly, the record is not sufficient to allow me to
determine whether the Moshup Trail easement and the
Gossamer Wing easement served to relocate, by
agreement, any way by necessity as it extends across
the lots affected by those easements.
A third
possibility, not addressed by the parties (but suggested
in the present record), is that Moshup Trail Limited
Partnership (Kitras's predecessor in title) formerly held
the Kitras lots in common with the lots currently owned
by the United States. Such ownership could have
merged any easement benefitting the Kitras lots with
the fee in the lots currently held by the United States,
and would suggest examination of plaintiffs' claim of an
easement by necessity in the context of the 1988
conveyance by Moshup Trail Limited Partnership to
the United States.
rights in such a way by necessity (unless the way had

relocated onto lot 87 by other means).
[29] I do not consider whether plaintiffs have any
action in damages by reason of the United States'
refusal to waive sovereign immunity.
[30] See the discussion on page 10, above.
[28] Defendants argue that the 1989 eminent

domain taking (which extinguished all rights in Zack's
Cliffs Road as it passed through lot 87) terminated any
easement by necessity plaintiffs may have acquired by
virtue of the commissioners' 1878 report. A taking by
eminent domain that deprives a parcel of its sole means
of access does not give rise to an easement by necessity,
or a right to extend or relocate the prior means of
access. See Darman v. Dunderdale, 362 Mass. 633, 641
(1972); New England Continental Media, Inc. v. Milton,
32 Mass. App. Ct. 374, 378 (1992). Cf. Nylander v.
Potter, 423 Mass. 158, 163 n.10 (1996). However, as any
easement by necessity arising from the commissioners'
1878 report cannot traverse lot 87, the 1989 eminent
domain taking cannot have extinguished plaintiffs'

Kitras and Decoulos Petition 091616

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Kitras and Decoulos Petition 091616

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No.

Supreme Court of the United States

PETITION FOR A WRIT OF CERTIORARI

PETITION FOR WRIT OF CERTIORARI

CURRY & TAYLOR 202-393-4141

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PARTIES TO THE PROCEEDING

1. Whether an assumed tribal custom can survive the

Maria A. Kitras, as Trustee of Bear Realty Trust, Bear II

2. Whether the legal presumption of an easement by

Town of Aquinnah; Sheila H. Besse and Charles D.

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QUESTIONS PRESENTED .............................................................. i

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ALEXANDER DAWSON, INC. V. FLING, 155 COLO.

GEORKE CO. V. WADSWORTH, 73 N.J. EQ. 448, 68 A.

22 S.CT. 650, 658, 659, 46 L.E D. 954 ...................................... 26

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UNITED STATES V. SIOUX NATION OF INDIANS, 448

SIMONTON, WAYS BY NECESSITY, 25 COLUM. L.

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OF CLAIMS ARISING FROM

ABORIGINAL TITLE Any claim (including any

(d) PERSONAL CLAIMS NOT AFFECTED

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As part of the settlement, the town conveyed the

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A map showing the location of the Trust lands in town is available

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The Appeals Court made comments in obiter dictum about Lots

One of the petitioners lots, Lot 243, was owned by a nonWampanoag.

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The destruction of forests on the Vineyard was part of a

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Peat rights were granted because the underlying peat in some

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As foretold by Chief Justice Marshall in McCulloch v. Maryland,

The Supreme Judicial Court became sidetracked

In the case of James v. Watt, 716 F.2d 71, 74-75

In 1869, three years after it ratified the

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As the Supreme Court noted in Oneida Indian

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The commissioners who made the remarks were indebted to

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There is an inconsistent body of law in this

When an implied property right is established in

In Massachusetts, it was formerly the law that

B. There Is An Acknowledged Conflict

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MARIA A. KITRAS, trustee, 1 & others2

After further review by the Appeals Court, the

Jennifer S.D. Roberts for Vineyard Conservation