Kitras v. Town of Aquinnah, 04-P-472.

• Decision Date: 18 August 2005
• Docket Number: No. 04-P-472.,04-P-472.
• Citation: 833 N.E.2d 157,64 Mass. App. Ct. 285
• Parties: Maria A. KITRAS, trustee,<SMALL><SUP>1</SUP></SMALL> & others<SMALL><SUP>2</SUP></SMALL> v. TOWN OF AQUINNAH & others.<SMALL><SUP>3</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

833 N.E.2d 157

64 Mass. App. Ct. 285

Maria A. KITRAS, trustee,¹ & others² v. TOWN OF AQUINNAH & others.³

No. 04-P-472.

Appeals Court of Massachusetts, Suffolk.

Argued April 11, 2005.

Decided August 18, 2005.

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H. Theodore Cohen, Boston (Leslie-Ann Morse, Arlington, with him) for the plaintiffs.

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

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

Benjamin L. Hall, Jr., Edgartown, 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 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.

I

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.

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 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

"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."

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 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.

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.

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 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 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).

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 the United States acting as trustee. See Building Inspector & Zoning Officer of Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery Corp., 443 Mass. 1, 3, 8, 818 N.E.2d 1040 (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.

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 labeled Howwasswee in the Appendix). The remaining defendants own various other lots in the general vicinity of the plaintiffs' and Hall's lots.

II

Rule 19(a) of the Massachusetts Rules of Civil Procedure generally provides that the category of "...