MV Times, on April 20th, 2016

SJC rules no right exists to access landlocked parcels in Aquinnah

Moshup Trail, Aquinnah

In a significant and far-reaching victory for the town of Aquinnah and Island conservation organizations, the Massachusetts Supreme Judicial Court ruled Tuesday that a group of property owners who had sought to develop landlocked parcels they own off Moshup Trail have no rights of access.

In his 26-page decision, Justice Francis X. Spina reversed an Appeals Court ruling issued in January 2015 that the owners of three tracts of land off Moshup Trail in Aquinnah had the right to access their properties based on the historical “custom and practice of common access” by members of the Wampanoag Tribe of Gay Head.

Moshup Trail in Aquinnah, on a quiet day. — File photo

Moshup Trail in Aquinnah, on a quiet day. — File photo

The Appeals Court decision, which overturned an earlier Land Court ruling that there was no access, nor was access intended, opened up the prospect of development in an area long considered landlocked, and which is bordered by conservation lands.

The unanimous SJC decision is rooted in the 19th century history of Gay Head, its incorporation as a town, and the “paternalistic system of governance” in effect at the time for tribal members, which gave way to full citizenship.

The case hinged on the legal question of easement by necessity, a doctrine that considers whether an easement was really intended, and whether at the time the state legislature set off lots from the common lands of what was then Gay Head in the 19th century, there was an intent to create easements by necessity to create access to the plaintiffs’ lots.

Justice Spina said no access was granted or implied, irrespective of tribal customs in effect at the time. Citing specific instances where access rights were granted, he said the there was no omission but an intent that the lands remain landlocked.

“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,’” the court ruled, citing case law.

Edgartown lawyer Ron Rappaport, who represented Aquinnah over the course of the long legal battle, said the selectmen who backed the town’s lawsuit over the years should be commended. He said that more than 100 lots would have been affected.

“Had the decision gone the other way, it would have opened up the entire town for development; it would have put a burden on most property owners, because their property would be subject to a cloud on their title in that an access road to a landlocked parcel could be located on their property; and it would have undermined a substantial public effort to buy land for conservation.”

Mr. Rappaport said the stakes were very high. “I’m really happy with this one, thrilled actually — it’s a big win,” Mr. Rappaport said.

The long-running and complex legal battle commonly referred to as the Kitras/Decoulos case for James Decoulos and his wife, Maria Kitras, of Belmont, operating as Bear Realty Trust and Gorda Realty Trust, originated more than 19 years ago with the couple’s efforts to develop their property in Aquinnah. They were joined by Aquinnah resident and tribal member Mark D. Harding and members of the Eleanor P. Harding Realty Trust.

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

From 1997 to this week, the case traveled through Land Court to Appeals Court, back on remand to Land Court, back to Appeals Court, back on remand to Land Court, and ultimately to the Supreme Judicial Court.

Fishing, peat, but no access

The parcels in question were partitioned by state commissioners about a decade after Massachusetts granted American Indians full citizenship in 1869, which was about a year after ratification of the 14th Amendment to the U.S. Constitution granting people “equal protection of the laws.”

Under the state’s earlier handling of Native Americans, the indigenous people 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,” according to the court decision.

Inferring the intentions of those commissioners from more than a century ago, the Supreme Judicial Court ruled the partition of Wampanoag Tribe of Gay Head’s land in 1878 purposefully excluded easement rights on the parcels, leaving those parcels “landlocked” unless the owners could arrange an agreement with other owners leading to a roadway.

“It is likely that the commissioners did not think that rights of access were necessary because it was provided by tribal custom,” read the opinion by Justice Spina. Tribal custom allowed people to pass freely over the land, according to the decision.

In his recitation of the facts, Judge Spina wrote, “In September 1870, 17 Gay Head residents petitioned a probate judge in Dukes County to divide the common land for the residents to hold in severalty. 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. 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.”

Justice Spina concluded: 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.’ We conclude that the plaintiffs failed to meet their burden of establishing that the commissioners intended to create easements by necessity.”

The ruling was met with relief by Aquinnah selectmen who have borne the burden of the long lawsuit. “I applaud the SJC decision,” chairman of the Aquinnah board of selectmen, Spencer Booker, a tribal member, told The Times Wednesday morning. “It’s been a long hard struggle for the town of Aquinnah to keep this fight going for as many years as we have. I’m just glad to hear that it’s come to an end and we have some closure and we can all just move forward, both the Decoulus-Kitrases and the town of Aquinnah.”

Asked for comment on the SJC decision, Tobias Vanderhoop, chairman of the Wampanoag Tribe, provided a written statement in which he said that while the tribe was not a party to the suit, it worked with professors from the Indigenous Peoples Rights Clinic at Suffolk University Law School to present an amicus brief that provided “pertinent information regarding traditional land use practices among our people.”

Mr. Decoulos did not respond to a message left on his voicemail or to an email seeking comment.

by Nelson Sigelman

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