Kitras v. Town of Aquinnah

• Decision Date: 19 April 2016
• Docket Number: SJC–11885.
• Citation: 474 Mass. 132,49 N.E.3d 198
• Parties: Maria A. KITRAS, trustee, & others v. TOWN OF AQUINNAH & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

474 Mass. 132

49 N.E.3d 198

Maria A. KITRAS, trustee¹ & others²

v.TOWN OF AQUINNAH & others.³

SJC–11885.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Dec. 8, 2015.

Decided April 19, 2016.

Jennifer S.D. Roberts, Orleans, for Vineyard Conservation Society, Inc.

Diane C. Tillotson, Boston, for Martha's Vineyard Land Bank.

Ronald H. Rappaport, Edgartown, for town of Aquinnah.

Wendy H. Sibbison, Greenfield, for Maria A. Kitras & another.

Leslie Ann Morse, Yarmouthport, for Mark D. Harding & others.

Jennifer H. Flynn, Assistant Attorney General, for the Commonwealth, was present but did not argue.

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, Boston, for Real Estate Bar Association for Massachusetts, Inc., & another.

Nicole Friederichs, Lorie Graham, & Jeffrey Pokorak for Wampanoag Tribe of Gay Head (Aquinnah).

Michael Pill, Northampton, pro se.

Present: GANTS, C.J., SPINA, CORDY, DUFFLY, LENK, & HINES, JJ.

Opinion

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, 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, 833 N.E.2d 157 (2005) ( Kitras I ). The court concluded that lots numbered 189 and above were created by the partition of the common land and, thus, had the requisite unity of title to establish an easement by necessity. Id. at 293–294, 833 N.E.2d 157. 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, 833 N.E.2d 157. 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, 833 N.E.2d 157. See also Building Inspector & Zoning Officer of Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery Corp., 443 Mass. 1, 3, 14, 818 N.E.2d 1040 (2004). The Appeals Court reasoned that because the Tribe had waived its sovereign immunity as to these lands in the 1983 settlement agreement, the need to join the United States as a necessary party had been eliminated. Kitras I, supra at 298, 833 N.E.2d 157. 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, 833 N.E.2d 157.

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, 22 N.E.3d 981 (2015) (Kitras II ). 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 “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...