Decoulos Appeals Court Brief 090820

COMMONWEALTH OF MASSACHUSETTS
MASSACHUSETTS APPEALS COURT

No. 2020-P-0509
James J. Decoulos
Plaintiff – Appellant
v.
Town of Aquinnah and the Commonwealth of Massachusetts
Defendants – Appellees
ON APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT
_______________________________________________________________________________
APPELLANT’S BRIEF AND ADDENDUM
_______________________________________________________________________________
September 8, 2020
James J. Decoulos, Pro Se

38 Bow Road
Belmont, MA 02478
jamesj@decoulos.com
(617) 489-7795
TABLE OF CONTENTS
I. STATEMENT OF THE ISSUES ......................... 7
II. STATEMENT OF PRIOR PROCEEDINGS .................. 8
III. STATEMENT OF FACTS ............................. 9
A. THE HISTORY OF INDIAN CITIZENRY AND PROPERTY RIGHTS ..... 9
B. THE DEVELOPMENT OF THE TOWN
AND THE ROLE OF THE LAND COURT ..................... 14
C. THE AGREEMENT BETWEEN THE COMMONWEALTH, COMMUNITY
ASSOCIATION, CONGRESS, TOWN AND THE WAMPANOAG TRIBE ... 16
D. ERRONEOUS FACTS AND NEWLY DISCOVERED FACTS ........... 19
IV. ARGUMENT ....................................... 24
A. PRE-EXISTING RIGHTS TO PROPERTY HAVE BEEN SQUASHED .... 25
B. PRE-EXISTING RIGHTS ARE IN MORTUA MANU ............... 31
C. THE TAKING OF PRE-EXISTING RIGHTS REQUIRES COMPENSATION 33
V. CONCLUSION ...................................... 42
2
TABLE OF CASES
Allen v. McCurry, 449 U.S. 90, 94-95 (1980) .............. 26
Bellermann et al. v. Fitchburg Gas and Electric Light
Company, 470 Mass. 43, 60 (2014) ....................... 27
Black et al. v. Cape Cod Company, et al.,
MA Land Court, Misc. Case No. 69813 ................. 15,16
Bortolotti v. Hayden, 449 Mass. 193, 201-204 ............. 31
Bowen v. Conner, 60 Mass. 132 (1850) ..................... 36
Building Inspector & Zoning Officer of Aquinnah v.
Wampanoag Aquinnah Shellfish Hatchery Corp.,
443 Mass. 1, 3-7 (2004) ................................ 34
Buss v. Dyer, 125 Mass, 287, 291 (1878 ................... 36
Daddario v. Cape Cod Commn., 425 Mass. 411, 414-418,
cert. denied, 522 U.S. 1036 (1997) ..................... 39
DaLuz v. Department of Correction, 434 Mass. 40, 45 (2001)25
Danzell v. Webquish, 108 Mass. 133, 134 (1871) ........... 13
Davis v. Sikes, 254 Mass. 540, 545-546 (1926) ............ 36
Dunham v. Ware Savings Bank, 384 Mass. 63, 66-67 (1981) .. 31
First English Evangelical Lutheran Church of Glendale v.
County of Los Angeles, California,
482 U.S. 304, 318 (1987) ............................... 40
Franklin v. Spadafora, 388 Mass. 764, 766-772 (1983) ..... 31
Heacock v. Heacock, 402 Mass. 21, 24 (1988 ............... 25
3
Hershman-Tcherepnin v. Tcherepnin,
452 Mass. 77, 93-95 (2008) ............................. 33
James R. DeGiacomo, trustee v. City of Quincy,
476 Mass. 38, 42 (2016) ................................ 27
James v. Watt, 716 F.2d 71, 74-75 (1st Cir. 1983),
cert. denied, 467 U.S. 1209 (1984) ..................... 29
Kobrin v. Board of Registration in Med.,
444 Mass. 837, 843 (2005) .............................. 25
Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903) ......... 30
Longval v. Commissioner of Correction,
448 Mass. 412, 416-417 (2007) .......................... 25
Lopes v. Peabody, 417 Mass. 299, 304 (1994) .............. 39
Lovequist v. Conservation Commn. of Dennis,
379 Mass. 7, 19-20 (1979) .............................. 39
Lucas v. South Carolina Coastal Council,
505 U.S. 1003,1019 (1992) .............................. 35
Luis Alicea v. Commonwealth, 466 Mass. 228 (2013) ........ 26
Maria A. Kitras et al. v. Town of Aquinnah et al.,
474 Mass. 132 (2016), cert. denied . 8,16,19,20,23-26,29-31
Moskow v. Commissioner of Envtl. Mgmt.,
384 Mass. 530, 533 (1981) .............................. 39
New York & New England Railroad v. Railroad Commissioners,
162 Mass. 81, 83 (1894) ................................ 36
Pernam v. Wead, 2 Mass. 203, 206 (1806 ................... 36
Polay v. McMahon, 468 Mass. 379, 382 (2014) ............... 9
4
Pub. Serv. Co. of N.M. v. Barboan,
857 F.3d 1101 (10th Cir., 2017) ......................... 30
Samuel Worcester v. State of Georgia,
31 U.S. 515, 580 (1832) ................................ 32
Steinbergh v. Cambridge, 413 Mass. 736, 741-744 (1992),
cert. denied, 508 U.S. 909 (1993) ...................... 39
Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl.
Prot., 560 U.S. 702, 713-715 (2010 ............ 35-37,39,41
Taylor et al. v. Vanderhoop et al., MA Land Court,
Misc. Case No. 129925 .................................. 16
United States v. Causby, 328 U.S. 256 (1946) ............. 40
United States v. Santa Fe Pac Co v. 12 8212 13, 1941,
314 U.S. 339, 345 (1941) ............................... 33
Wampanoag Tribal Council of Gay Head, Inc. v.
Town of Gay Head, 74-5826-G (D. Mass.) ................. 17
Webb’s Fabulous Pharmacies, Inc. v. Beckwith,
449 U.S. 155, 163-165 (1980) ........................... 35
5
STATUTES
Chapter 42 of the Resolves of 1863 ........................ 9
Chapter 67 of the Resolves of 1866 ....................... 10
St. 1870, c. 213, § 6 ........................ 11,13,17,28,33
St. of 1869, c. 463, §1 ......................... 10,13,27-29
G.L. c. 79, Massachusetts Eminent Domain Statute 7,8,41
G.L. c. 241, Massachusetts Partition Statute 33
TREATISES
Cohen, Handbook on Federal Indian Law .............. 27,29,35
Restatement (Second) of Judgments, Section 27 ............ 26
Sir William Blackstone, Commentaries on the Laws of England,
Volume I ............................................... 31
6
I. STATEMENT OF THE ISSUES
A. Whether there has been a taking of property
that requires the payment of damages under General Laws
c. 79, § 1, et seq.; and
B. Whether there has been a taking of property
that requires reasonable compensation under Article X of
the Massachusetts Constitution.
7
II. STATEMENT OF PRIOR PROCEEDINGS
This appeal arises from the Superior Court’s
dismissal of the case, where plaintiff-appellant James
J. Decoulos sought a determination that private property
has been taken, both temporarily and permanently, under
the provisions of General Laws Chapter 79, § 1, et seq.
and Article X of Massachusetts Constitution. The
property is vacant land in the town of Aquinnah,
Massachusetts1 (the “Town”) and the location is shown on
Figure 2 of the amended verified complaint dated July
10, 2019 (the “Complaint”). See Amended Complaint at
Record Appendix (“RA”) 6 and Figure 2 at RA 30.
The Superior Court allowed defendants’ motions to
dismiss the case on October 30, 2019, relying on the
doctrine of res judicata and claim preclusion. See
Addendum (“Add”) at 4. The Court concluded that the
findings of the Supreme Judicial Court in Maria A.
Kitras et al. v. Town of Aquinnah et al., 474 Mass. 132
(2016), cert. denied, were determinative. Add. 163.
1 Aquinnah is one of six towns on the island of Martha’s

Vineyard located in Dukes County. The town was formerly known as
Gay Head and changed its name to Aquinnah in 1997.
8
III. STATEMENT OF FACTS
The Complaint presents factual allegations that lay
the foundation for the taking claims. See Complaint ¶¶
7-132 at RA 7-25. Given the early dismissal of the
case, Plaintiff-Appellant is entitled to acceptance of
the allegations as true. Polay v. McMahon, 468 Mass.
379, 382 (2014).
A. The History of Indian Citizenry and Property Rights
By Chapter 42 of the Resolves of 1863, the General
Court appointed and commissioned the treasurer of the
district of Mashpee, 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...
Marston identified the homesteads of the
inhabitants and granted deeds for those properties.
Unable to complete his work, he issued a final report to
the Legislature shortly before his death.
9
The Governor appointed a new commissioner, Richard
L. Pease, by Chapter 67 of the Resolves of 1866, to
replace Commissioner Marston.
While Pease was completing the work begun by
Marston, the Legislature enfranchised the Indians of the
Commonwealth and granted them “all the rights,
privileges and immunities, and subject to all the duties
and liabilities to which citizens of this Commonwealth
are entitled or subject.” St. of 1869, c. 463, §1. Add.
58. Additionally, the Legislature provided that “all
Indians shall hereafter have the same rights as other
citizens to take, hold, convey and transmit real
estate.” St. of 1869, c. 463, §2. Add. 61.
Commissioner Richard L. Pease submitted his report
on the lands held in severalty to the Governor,
establishing set-off lots 1 through 173. The report was
entitled: 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 Martha’s Vineyard, under a Resolve of the Legislature
of 1866, Chapter 67, Richard L. Pease, 1871 (the “Pease
Report”). RA 264-292.
10
At the time of the Pease Report, approximately
nineteen hundred acres of land were unclaimed and
identified as common lands.2 The Pease Report also
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
indicated 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.” RA 291.
The Pease Report concluded with an executive
address of Governor William Claflin to a legislative
session in 1869:
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.
Page 28 of the Pease Report. RA 292.
Around the same time, the General Court abolished
the District of Gay Head, and in its place incorporated
the town of Gay Head. St. 1870, c. 213 (the “Town Act”).
Add. 64-65.
2 The Homestead Lots created by Commissioner Charles

Marston and Lots 1 through 173 created by Commissioner Pease are
hatched in black and white on Figure 1 at RA 29. The remaining
common lands are shown in green.
11
Under Section 2 of the Town Act, the common lands
were conveyed in fee simple absolute to the Town “and
shall be owned and enjoyed as like property and rights
of other towns are owned and enjoyed.” There were no
enclosures on the common lands, e.g. stone walls or
fences, no possessory rights – and no individual titles
to ratify, as existed with the Homestead Lots and Lots 1
through 173.
While Commissioners Marston and Pease were
undertaking their assignments, none of the Gay Head
Indians or any of the residents of the Town claimed any
right to the common lands.
Shortly thereafter, the SJC decided the rights to
partitioned land that was once a part of the Herring
Pond tribe in the town of Plymouth.
The remnants of the Indian tribes, residing

within the limits of the Commonwealth, having never
been recognized by any treaties or executive or
legislative acts of the government of the United
States as independent political communities, were
under the control of the legislature of the state.
Worcester v. Georgia, 6 Pet. 515, 580, 590, 593.
United States v. Holliday, 3 Wallace, 407, 419. The
Kansas Indians, 5 Wallace, 737. United States v.
Yellow Sun, 1 Dillon, 271. By the law of
Massachusetts, until very recently, these Indians
were not subjected to taxation, nor endowed with the
ordinary civil and political rights of citizens, but
were treated as the wards of the Commonwealth; the
title in the lands occupied by their tribes was in the
state, and could not be alienated by them without
the consent of the legislature; ...by recent
12
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.
Danzell v. Webquish, 108 Mass. 133, 134 (1871)

(emphasis added.) Add. 78-79.
In Gay Head, seventeen residents petitioned the
Dukes County Probate Court to partition (or divide) the
common land (the remaining Plantation of Gay Head) and
grant the divided land to the residents. St. 1870, c.
213, § 6. Add. 64-65.
By 1878, the Probate Court carved the common land
into 563 lots (lots 174-736), which it granted to the
residents – who were not all members of the Wampanoag
Tribe. Complaint, ¶124 at RA 19, RA 291.3 The probate
court left title to the clay cliffs, cranberry bogs and
herring creek with the Town.
A plan was prepared entitled “Plan of Gay Head
showing the Petition of the Common Lands as made by
Joseph T. Pease and Richard L. Pease, Commissioners
appointed by the Judge of the Probate Court under
3 The census contained in the Pease Report shows the

birthplace of the residents and their parents. RA 295-305.
13
Section 6 of Chapter 213 of the Acts of 1870, by John H.
Mullin.” (the “Set-Off Plan”)4
The deeds conveying the 563 new lots to the
residents were silent on how the new or pre-existing
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.
B. The Development of the Town and the Role of the
Land Court
In 1955, the Dukes County Commissioners took land
by eminent domain along the southerly portion of the
Town and laid out a new road called Moshope (or Moshup)
Trail. A grantor list of the owners whose land was taken
is available at the Registry. Those owners were justly
compensated for the taking of their property as the
Massachusetts and U.S. Constitutions require. RA 448.
The purpose of the taking was that “public
necessity or common convenience or necessity require
that said County Commissioners and Associate
4 A significant portion of Mullin’s plan has been scanned
by the Assessors and is available at

http://www.decoulos.com/1878_Set-Off_Plan.pdf
14
Commissioners should layout, alter, locate or relocate a
highway known as ‘Moshope Trail’”.5
The construction of Moshup Trail was lead by the
Dukes County Commissioners, with support from the
Massachusetts Department of Public Works (“DPW”.)6
In 1975, Chief Justice William J. Randall of the
Land Court issued a decision for access to vacant land
located south of Moshup Trail. Black et al. v. Cape Cod
Company, et al., MA Land Court, Misc. Case No. 69813,
Decision dated July 14, 1975. Add. 88.
In reviewing the history of the Town and the
circumstances of the partition of the common lands,
Justice Randall stated that there was “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. Rights of way of necessity are created by a
presumption of law.” (emphasis added). Add. 90.
5 See
http://decoulos.com/land_court/48-1955_MT_Layout.pdf
6 DPW ultimately became responsible for managing and

paying the full cost for the construction of Moshup Trail.
“The Town of Gay Head has not contributed anything toward the
construction of this project.” See page 2 of letter from
District Highway Engineer L.R. Sellew at
http://decoulos.com/legislative/DPW_to_DCC_082459.pdf
15
In 1988, Land Court Chief Justice Robert V. Cauchon
issued a decision granting access to vacant land near
the Gay Head cliffs that required passage over
registered land. Taylor et al. v. Vanderhoop et al., MA
Land Court, Misc. Case No. 129925, Decision dated July
19, 1989 (“the law implies from the resulting situation
of the parties that such person has a way of necessity
over the granted portion of the premises.”) Add. 93.
Until Kitras, these decisions and policies were
accepted by real estate attorneys and title examiners as
well-settled law. Both the Black and Taylor cases were
part of the record in Kitras.
The Town has always acted and planned as though all
the lots from the 1878 partition have access and the
Aquinnah Assessors have always valued the land as
accessible. For instance, Plaintiff-Appellant has spent
over $200,000 in taxes for his vacant unusable land.
Assessor valuations from the Town were provided to the
Superior Court. RA 455-466.
C. The Agreement between the Commonwealth, Community
Association, Congress, Town and the Wampanoag Tribe
In 1974, members of the Wampanoag Tribe sued the
Town in U.S. District Court claiming that the common

16
lands were 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 Commonwealth and the

7
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.8
In 1983, the Town, the Commonwealth, the Taxpayers’
Association, and the Wampanoag Tribal Council of Gay
Head, Inc., entered into a settlement agreement to
resolve the U.S. District court action.
To implement the settlement agreement, Congress
intervened to enact legislation that would bind the
parties to the settlement agreement. Complaint ¶¶ 57-58
at RA 15, RA 441-442.
7 Since 1974, the Taxpayers’ Association has been

represented by Hale and Dorr (now known as either Wilmer Cutler
Pickering Hale and Dorr LLP or WilmerHale). The Taxpayers are
now called the Aquinnah/Gay Head Community Association, Inc.
See http://aghca.org/ WilmerHale filed an amicus brief in Kitras
alleging they were an impartial party.
8
http://decoulos.com/legislative/AG_Intervene_Wampanoag_070981.pdf
17
Before Congress could act, the Tribe was required
to receive federal recognition from the United States
Department of the Interior, Bureau of Indian Affairs
(the “BIA”). On June 25, 1985, BIA issued a report
entitled “Evidence for Proposed Finding against Federal
Acknowledgment of the Wampanoag Tribal Council of Gay
Head, Inc.” (the “BIA Report”.) RA 320. The BIA Report
supported BIA’s initial determination that the Tribe did
not meet federal requirements for recognition as a
Native American Tribe.
BIA described the initial partition of Gay Head and
how the Indians even “today still believe in the freedom
of access to property, which includes access to the land
of others.” RA 326. “Today, except for the belief in
freedom of access to land, the Gay Head Wampanoag share
the same land concepts commonly held by the greater
society.” RA 327
In 1987, BIA reversed its initial denial of
recognition as described in the BIA Report and
officially recognized the Wampanoag Tribe of Gay Head
(Aquinnah) as a federally recognized Indian tribe (the
“Tribe”).
In January of 1988, the Tribe, and every other
entity at any time in the past known as Gay Head

18
Indians, waived all aboriginal claims on lands in
Aquinnah except for the Gay Head cliffs and cranberry
bogs (the “public settlement lands”); the herring creek
(the “Cook lands”); and, private land that was to be
purchased for the Tribe (the “private settlement
lands”). Complaint, ¶72 at RA 16. The location of these
lands are shown in Figure 2 of the Complaint. RA 30.
The United States now holds these lands in trust for the
Tribe.
In exchange for the grant of the Cook lands, public
settlement lands and private settlement lands, the
Legislature and Congress extinguished aboriginal title
on all other lands in Town “as of the date of such
transfer”. The Legislature authorized the agreement
through Chapter 277 of 1985 and Congress enacted the
Massachusetts Indian Claims Settlement Act of 1987,
Public Law 100-95 of the 100th Congress, 25 U.S.C. §1771
(the “Federal Act”). Add. 66-77.
D. Erroneous Facts and Newly Discovered Facts
There was a substantial record developed in Kitras
that extended far beyond the limited 19th century
documentary record. The evidence reveals why vacant
land has been purchased and sold since 1878; why the
Town assessed all the land as buildable; why the Town,

19
Martha’s Vineyard Commission and the Commonwealth have
anticipated that all the land is accessible; and why the
result from Kitras is wholly unjust, not just for
Plaintiff-Appellant, but for remaining land owners in
Aquinnah, Chappaquidick, Mashpee and Plymouth. Many of
the land owners are of Wampanoag heritage.
There were a number of facts in Kitras that were
unjustly inferred or presumed, which included:
1. The assumption that the common lands were “a large-
scale partition of Native American common land.”
Kitras at 135. The fact is that the land was
unclaimed by the residents – who were clearly not
all Native American - and was owned in fee simple
by the Town. See Figure 1 of Complaint at RA 29.
2. The unfounded presumption that “there was a tribal
custom that allowed the Tribe members to pass freely
over each other’s land as necessary.” Id at 138-139.
BIA made it clear that “The right of access to all
lands was an unwritten right.” RA 325-327.
3. The unfounded allegation that “this case was not
decided on documentary evidence alone.” Id at 138-
139. How could any other evidence be offered if
all the parties are deceased?
20
4. The assumption that it was the land owner’s “own
folly” that they took title to landlocked parcels
and they should not burden others. Id at 139. The
fact is that there remain Wampanoag members who
continue to hold title to landlocked parcels they
have inherited from their ancestors - original
grantees from the 1878 partition. Other individuals
purchased land based on long-standing Land Court
policies; the settlement of Wampanoag land claims
by the Legislature and Congress; and assessed
values that can only be justified if there is
access to land.
5. The assumption that “tribal custom” provided access
rights to members of the Tribe. Id at 142. There
was no evidence whatsoever to assume this custom
and this assumption was dismissed by Chief
Appellate Justice Mark V. Green while serving at
the Land Court.9 Add. 114.
9 “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.” Decision on
Cross-Motions for Summary Judgment and Motions to Dismiss, Land
Court Justice Mark V. Green, June 4, 2001, footnote 22.
21
6. The assumption that other easements were created, even
though no such evidence was ever offered. Id at 142.
See ¶¶ 18-50 of Affidavit of James J. Decoulos dated
September 30, 2019 (the “Decoulos Aff”) at RA 437.
7. The allegation that the Chappaquidick Tribe had
express rights of access. Id at 144. Portions of
Chappaquidick were partitioned at the same time as
Gay Head and had the same type of inaccessible
lots, created by the same commissioners and
engineer. RA 446.
8. The assumption that the common lands were in poor
condition in 1878. Id at 145. This assumption was
based on comments from off-island legislators who
visited Gay Head in 1856. Commissioner Richard L.
Pease, in his 1871 Report, described the land as “a
most picturesque object of scenery” and how it
would “attract the curious and the lovers of rare
natural scenery”. RA 267-269 and Decoulos Aff. ¶¶
24-28 at RA 438-439.
9. Recent information presented by David R. Foster of
Harvard Forest sheds a completely different light
on the SJC’s assumptions. RA 446. The newly
presented scientific information shows that the

22
landscape in Aquinnah during the nineteenth century
had suitable biological conditions for being
productive farmland.10
The inferences and assumptions by the SJC in Kitras
were simply not supported by the record. Although the
Massachusetts Appellate Courts maintain a public case
and database web site, the case information lacks the
full record that the Appellate Courts rely upon to
establish law. For Kitras, the public case docket lacks
the Record Appendix and Exhibits that were fundamental
to decide the matter on a “case stated” basis. See
https://www.ma-appellatecourts.org/docket/SJC-11885
Plaintiff-Appellant has provided the full Addendum,
Record Appendix and Exhibits of Kitras at
http://decoulos.com/kitras-record.htm
10 See http://mv1850.com/
23
IV. ARGUMENT
This case illustrates how long-standing property
rights can be ruthlessly denied. The calculated and
deliberate actions of the defendants in Kitras have
caused an unjust outcome not only on the Plaintiff-
Appellant, but on numerous descendants of the Wampanoag
Tribe, some of whom hold similar now-clouded title not
just in Aquinnah, but on Chappaquidick, Mashpee and in
Plymouth. The consequence of the injustice is the
sacrilegious theft of property.
Remaining lots in Aquinnah that do not benefit
from express easements were considered accessible by
the residents and the Land Court for over 100 years.
Prior to Kitras, the Town assessed the lands with
values that could only be justified with access. The
rights of access originate from bedrock principles of
property law known as easements by necessity. The
failure of Massachusetts courts to acknowledge this
fundamental rule has been described by Native American
legal expert, Joseph William Singer, as hostile. RA
384-385. https://scholar.harvard.edu/jsinger/kitras
24
A. Pre-Existing Rights to Property Have Been Squashed
The Superior Court relied on res judicata to apply
the doctrines of claim preclusion and issue preclusion
to dismiss the action. The doctrines are founded on the
notion “that the party to be precluded has had the
incentive and opportunity to litigate the matter fully
in the first lawsuit” quoting Heacock v. Heacock, 402
Mass. 21, 24 (1988).
There are three required elements for the
invocation of claim preclusion: "(1) the identity or
privity of the parties to the present and prior actions,
(2) identity of the cause of action, and (3) prior final
judgment on the merits." Kobrin v. Board of Registration
in Med., 444 Mass. 837, 843 (2005), quoting from DaLuz
v. Department of Correction, 434 Mass. 40, 45 (2001). As
the movants, the defendants carried the burden of
establishing all three elements. See Longval v.
Commissioner of Correction, 448 Mass. 412, 416-417
(2007).
The Superior Court took the position that plaintiff
had previously litigated a takings action in the Land
Court. Kitras was clearly limited to determining
whether an easement by necessity existed.
25
The opportunity to litigate a prior action is a
core principal of res judicata. In a bankruptcy
proceeding, a judgment debtor may be precluded from
relitigating an issue that was actually litigated and
decided in an earlier proceeding. Combs v. Richardson,
838 F.2d 112, 113 (4th Cir. 1988). However, the
“determination that an issue was actually litigated and
necessary to the judgment must be made with particular
care.” Id at 113.
The Restatement (Second) of Judgments, Section 27,
provides that when an issue of fact or law is actually
litigated and determined by a valid and final judgment –
and the determination is essential to the judgment – the
determination is conclusive in a subsequent action
between the parties, whether on the same or a different
claim.
In the Kitras action, the issues of pre-existing
rights and the taking of property were not intermingled.
The Supreme Court has declined to employ issue
preclusion when the party against whom it was asserted
did not have a “full and fair opportunity to litigate
the issue” in the earlier case. Allen v. McCurry, 449
U.S. 90, 94-95 (1980). See also Luis Alicea v.
Commonwealth, 466 Mass. 228 (2013) and James R.

26
DeGiacomo, trustee v. City of Quincy, 476 Mass. 38, 42
(2016) [claim preclusion requires a judgment on the
merits].
The “‘central inquiry’ becomes whether the
defendant had a ‘full and fair opportunity to litigate
the issue in the first action.’ Pierce v. Morrison
Mahoney LLP, 452 Mass. at 730, quoting Matter of
Goldstone, 445 Mass. 551, 559 (2005).” Bellermann et
al. v. Fitchburg Gas and Electric Light Company, 470
Mass. 43, 60 (2014). There was never a “full and fair
opportunity” for Plaintiff to litigate the merits of his
case.
The pre-existing rights that the Legislature
established stated that Native Americans were “entitled
to all the rights, privileges and immunities, and
subject to all the duties and liabilities to which
citizens of this Commonwealth are entitled or subject.”
St. 1869, c. 463, § 1. They were also granted full
rights to “take, hold, convey and transmit real estate.”
St. 1869, c. 463, § 2. Add. 58.
The rights conveyed to the Indians included full
citizenship - in both the Commonwealth and the United
States. See Cohen, Handbook on Federal Indian Law, §
14.01 (Nell Jessup Newton ed., 2012.)

27
The SJC has always recognized new rights that the
Legislature has granted, especially after the fresh
scars from the Civil War. “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.” Danzell v. Webquish,
108 Mass. 133, 134 (1871).
“In 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. The St. of 1869, c. 463,
provides that any land, known as Indian land, held by
any Indian in severalty, or which has been set off to
any Indian, shall be the property of him and his heirs
in fee simple.” Darius Coombs et al., petitioners, 127
Mass. 278, 279-280 (1879).
“In bestowing the privileges of citizenship upon
these wards of the Commonwealth, and giving a title in
fee simple to all lands held by them in severalty under

28
existing provisions of law, it 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 of the sale of such
lands, should be divided.” Id at 281.
In 1884, the U.S. Supreme Court recognized Danzell
and further described Massachusetts Indians as “remnants
of tribes never recognized by the treaties or executive
acts of the United States as distinct political bodies,
Danzell v. Webquish, 108 Mass. 133; Pells v. Webquish,
129 Mass. 469; Mass. St. 1862, c. 184; 1869, c. 463.”
Elk v. Wilkins, 112 U.S. 94, 108 (1884).
The First Circuit has interpreted the Legislature’s
actions to grant citizenship and convey property as
“giving Indians fee title and the power to alienate
land.” James v. Watt, 716 F.2d 71, 74-75 (1st Cir.
1983), cert. denied, 467 U.S. 1209 (1984).
The irrefutable effect of Kitras is that the lots
partitioned from the common lands in 1878 were conveyed
with a restraint on alienation. According to the SJC,
the pre-existing rights of access were limited to the
original grantees. Congress has sole authority to
impose this restraint. See Cohen, Handbook on Federal
Indian Law, §§ 15.06 to 15.09.

29
“Plenary authority over the tribal relations of
the Indians has been exercised by Congress from the
beginning, and the power has always been deemed a
political one, not subject to be controlled by the
judicial department of the government.” Lone Wolf v.
Hitchcock, 187 U.S. 553, 565 (1903).
“No one can feign surprise to learn that the
United States government's treatment of the original
inhabitants of this country has not been a model of
justice. The government spent much of the nineteenth
century emptying the eastern part of the country of
Indians and sending them west. See Choctaw Nation v.
Oklahoma , 397 U.S. 620, 623-26, 90 S.Ct. 1328, 25
L.Ed.2d 615 (1970)” quoting Pub. Serv. Co. of N.M. v.
Barboan, 857 F.3d 1101 (10th Cir., 2017).
The net effect of the unfounded presumptions in
Kitras was to render Plaintiff’s property worthless,
amounting to a confiscation of property that allows
public use without just compensation.
30
B. Pre-Existing Rights are in Mortua Manu
The rule against perpetuities prevents placing
qualifications and criteria in a deed that would
continue to affect the ownership of property long after
the grantor has died, a concept often referred to as
control by the “dead hand” or “mortmain”. “The reason
of [this] appellation Sir Edward Coke offers many
conjectures; but there is one which seems more probable
than any that he has given us: viz. that these purchases
being usually made by ecclesiastical bodies, the members
of which (being professed) were felt reckoned dead
persons in law, land therefore, holden by them, might
with great propriety be said to be held in mortua
manu. [in dead hands].” Sir William Blackstone,
Commentaries on the Laws of England, Volume I, "Of the
Rights of Persons" at page 224. University of Chicago
Press, 1979 (London, 1765).
Kitras violates this long-standing rule and imposes
a grossly unreasonable restraint on alienation by
claiming that easements were only intended for the
original grantees. Dunham v. Ware Savings Bank, 384
Mass. 63, 66-67 (1981); Franklin v. Spadafora, 388 Mass.
764, 766-772 (1983); and, Bortolotti v. Hayden, 449
Mass. 193, 201-204 (2007).

31
“In some of the old states, Massachusetts,
Connecticut, Rhode Island and others, where small
remnants of tribes remain, surrounded by white
population, and who, by their reduced numbers, had lost
the power of self-government, the laws of the state have
been extended over them, for the protection of their
persons and property.” Samuel Worcester v. State of
Georgia, 31 U.S. 515, 580 (1832).
“The language used in treaties with the Indians
should never be construed to their prejudice. If words
be made use of which are susceptible of a more
extended meaning than their plain import, as connected
with the tenor of the treaty, they should be
considered as used only in the latter sense. To
contend that the word 'allotted,' in reference to the
land guaranteed to the Indians in certain treaties,
indicates a favour conferred, rather than a right
acknowledged, would, it would seem to me, do injustice
to the understanding of the parties. How the words of
the treaty were understood by this unlettered people,
rather than their critical meaning, should form the
rule of construction.” Id at 583.
32
C. The Taking of Pre-Existing Rights Requires Compensation
The record reveals that 1900 acres of common land
was conveyed in fee simple absolute to the Town from
the Commonwealth under Chapter 213, Section 2 of the
Acts of 1870 and Plaintiff’s property was carved from
those common lands. In 1870, the Wampanoag Tribe was
not recognized by the government, and there were no
individual Wampanoag tribal members or any residents
who claimed title to the common lands. See Figure 2 at
Add. 174.
Eight years later, the Probate Court partitioned
the common land and granted lots to the residents
following the procedures that the Legislature laid
out. St. 1870, c. 213, § 6. Add. 64-65.
Kitras limits the access rights of the partitioned
common land to life tenancy and violates the
Massachusetts partition statue, G.L. c. 241. Hershman-
Tcherepnin v. Tcherepnin, 452 Mass. 77, 93-95 (2008).
“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

33
settlement of Wampanoag land claims in the 1980s
squashed their existence. “The power of Congress in
that regard is supreme.” Id at 347.
During the 1980s, Congress heard extensive and
well-orchestrated testimony from Senators Edward M.
Kennedy and John F. Kerry; Representatives John S.
McCain, Joe Moakley, Gerry Studds and Mo Udall; the
Town; Tribe; and, the Community Association. Based on
their testimony, the previously negotiated Settlement
Agreement and the recognition of the Tribe by BIA,
Congress specifically extinguished all aboriginal
claims that members of the Tribe attempted to claim
“as of the date of transfer.” Add. 71-77.11
The SJC has recognized the ultimate authority
that Congress imposed to clarify rights on tribal
custom and aboriginal title in the Town. See Building
Inspector & Zoning Officer of Aquinnah v. Wampanoag
Aquinnah Shellfish Hatchery Corp., 443 Mass. 1, 3-7
(2004). There is no justification for the inequitable
application of federal Indian law on one matter and
11 The testimonies before the House of Representatives and the
Senate are available at www.decoulos.com/House_HR570.pdf and

www.decoulos.com/Senate_S1452.pdf The testimonies were obtained
from the Library of Congress. See Decoulos Aff. ¶36 at RA 441.
34
not the other. See Cohen, Handbook on Federal Indian
Law, § 5.01 et seq.
In Stop the Beach Renourishment, Inc. v.
Fla.Dep’t of Envtl. Prot., 560 U.S. 702, 713-715
(2010), the Supreme Court reviewed its jurisprudence
under the Takings Clause of the Fifth Amendment to the
U.S. Constitution 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 Webb’s Fabulous Pharmacies, Inc. v.
Beckwith, 449 U.S. 155, 163-165 (1980).
At the time of purchase, all the plaintiffs in
Kitras had clear expectations of access based on
common law, assessed values, Town planning documents,
prior Land Court policies and decisions, the
construction of Moshup Trail for “public necessity and
convenience” 12 with state funds and representations
12 Dukes County Registry of Deeds, Book 227, Page 564.
35
made by Town counsel’s office13. These investment-
backed expectations have been completely destroyed.
The common law related to easements by necessity
was settled in our state early in the nineteenth
century and has not been dependent on public policy.
Pernam v. Wead, 2 Mass. 203, 206 (1806); Bowen v.
Conner, 60 Mass. 132 (1850); New York & New England
Railroad v. Railroad Commissioners, 162 Mass. 81, 83
(1894); Davis v. Sikes, 254 Mass. 540, 545-546 (1926).14
The SJC has made it clear that “extrinsic
evidence may not be adduced to contradict or affect”
the language of deeds “in the case of ways of
necessity”. Buss v. Dyer, 125 Mass, 287, 291 (1878).
Extrinsic evidence – well outside the record - was
clearly adduced in Kitras.
The issues in Stop the Beach dealt with rights to
property “akin to easements”. Id. at 708. The taking
of easement rights is the same as classic takings of a
full estate in land. Id. at 713. The property rights
must have been established. Id. at 728. See also
13 RA 357-361.
14 See also amicus brief of Michael Pill at
https://www.ma-appellatecourts.org/Amicus_Michael_Pill_Brief
36
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.”)
The plurality in Stop the Beach, stated:
There is no textual justification for saying that

the existence or the scope of a State's power to
expropriate private property without just
compensation varies according to the branch of
government effecting the expropriation. Nor does
common sense recommend such a principle. It would be
absurd to allow a State to do by judicial decree
what the Takings Clause forbids it to do by
legislative fiat.
Id. at 714.
In sum, the Takings Clause bars the State from

taking private property without paying for it, no
matter which branch is the instrument of the taking.
To be sure, the manner of state action may matter:
Condemnation by eminent domain, for example, is
always a taking, while a legislative, executive, or
judicial restriction of property use may or may not
be, depending on its nature and extent. But the
particular state actor is irrelevant. If a
legislature or a court declares that what was once
an established right of private property no longer
exists, it has taken that property, no less than if
the State had physically appropriated it or
destroyed its value by regulation. “[A] State, by
ipse dixit, may not transform private property into
public property without compensation.” Ibid.
Id. at 715
37
Finally, the city and county argue that applying
the Takings Clause to judicial decisions would force
lower federal courts to review final state-court
judgments, in violation of the so called Rooker-
Feldman doctrine. See Rooker v. Fidelity Trust Co.,
263 U.S. 413, 415–416, 44 S.Ct. 149, 68 L.Ed. 362
(1923); District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 75
L.Ed.2d 206 (1983). That does not necessarily follow.
Id. at 727-728.
The Supreme Court also criticized the potential
actions of state judiciaries as violative of due process
protections, and went on to assert that “We must not say
that we are bound by the Constitution never to sanction
judicial elimination of clearly established property
rights.” Id. at 725.
By any yardstick, the SJC’s presumed interpretation
of access to the lots partitioned from the common lands
in 1878 has caused a complete destruction of previously
established property rights held by land owners in
Aquinnah who have no express access and constitutes a
physical taking of private property under the Takings
Clause and Article X of the Massachusetts Constitution.
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);
38
United States v. Sioux Nation of Indians, 448 U.S. 371
(1980); and, see also Pennsylvania Coal Co. v. Mahon,
260 U.S. 393, 413-416 (1922).
The SJC has always evaluated takings claims using a
Federal analysis. Lovequist v. Conservation Commn. of
Dennis, 379 Mass. 7, 19-20 (1979); Moskow v.
Commissioner of Envtl. Mgmt., 384 Mass. 530, 533 (1981);
Steinbergh v. Cambridge, 413 Mass. 736, 741-744 (1992),
cert. denied, 508 U.S. 909 (1993); Lopes v. Peabody, 417
Mass. 299, 304 (1994) [“Lopes I”]; Daddario v. Cape Cod
Commn., 425 Mass. 411, 414-418, cert. denied, 522 U.S.
1036 (1997). Federal analysis must consider Stop the
Beach.
In Lopes I, the SJC suggested that Article X may
offer even greater property rights protections than the
Fifth and Fourteenth Amendments. The issue was never
addressed because Lopes did not raise an Article X claim
until after he filed a “supplemental, post-Lucas brief
to the Appeals Court.” Id at 300 n.2. Unlike Lopes I,
this case has sought relief under Article X from the
very beginning.
In addition to the recovery of damages from the
permanent taking of property, Plaintiff-Appellant has
sought damages for the temporary taking of property

39
caused by taxes paid to the Town, including interest and
penalties, the costs to recover foreclosed title, lost
rent and other costs incurred during the period of the
temporary taking. RA 26-28.
For the purposes of determining taking liability,
there is no meaningful distinction between permanent and
temporary takings. “"[T]emporary" takings which, as
here, deny a landowner all use of his property, are not
different in kind from permanent takings, for which the
Constitution clearly requires compensation. Cf. San
Diego Gas & Electric Co., 450 U.S., at 657 (Brennan, J.,
dissenting) ("Nothing in the Just Compensation Clause
suggests that 'takings' must be permanent and
irrevocable")” quoting First English Evangelical
Lutheran Church of Glendale v. County of Los Angeles,
California, 482 U.S. 304, 318 (1987). See also United
States v. Cress, 243 U.S. 316, 328 ("it is the character
of the invasion, not the amount of damage resulting from
it, so long as the damage is substantial, that
determines the question whether it is a taking." ); and
United States v. Causby, 328 U.S. 256 (1946).
Massachusetts has recognized that temporary takings
may involve the reimbursement of back taxes. In Lopes v.
City of Peabody, 430 Mass. 305 (1999) [Lopes II], the

40
SJC found that Chapter 79 applied to temporary takings
and that Lopes is "entitled to a reimbursement of the
real estate taxes paid from 1981 to 1995. If the city
had taken the property through the usual eminent domain
process, Lopes would have been entitled to a measure of
compensation for the taxes he paid while his land was
taken.11..." Id at 312.
"The taking of land from a private owner against
his will for a public use under eminent domain is an
exercise of one of the highest powers of government."
Devine v. Nantucket, 449 Mass. 499, 506 (2007), quoting
from Lajoie v. Lowell, 214 Mass. 8, 9 (1913). Stop the
Beach now stands for the proposition that the
Legislature and municipalities are not the only
governmental entities that can wield this power. See
also Burnham v. Mayor & Aldermen of Beverly, 309 Mass.
388, 389 (1941); Newton v. Trustees of State Colleges,
359 Mass. 668, 669-670 (1971); Providence & Worcester
R.R. Co. v. Energy Facilities Siting Bd., 453 Mass. 135,
141 (2009).
41
V. CONCLUSION
Plaintiff has been thwarted by the Superior Court
to raise new claims for property taking caused by the
elimination of a pre-existing property right.
For the foregoing reasons, Plaintiff-Appellant
James J. Decoulos requests that the Appeals Court remand
the case to the Superior Court, allow the merits of his
complaint to be heard and assess damages and reasonable
compensation, as Chapter 79 and Article X of the
Massachusetts Constitution require.
September 8, 2020
Respectfully submitted,
/s/ James J. Decoulos, pro se

38 Bow Road
Belmont, MA 02478
jamesj@decoulos.com
617-489-7795
42
Certificate of Compliance
I certify that this brief complies with the rules
of court that pertain to the filing of briefs,
including, but not limited to: Mass. R. App. P.
16(a)(13) (addendum); Mass. R. App. P. 16(e) (references
to the record); Mass. R. App. P. Rule 18 (appendix to
the briefs); Mass. R. App. P. 16(f) (reproduction of
statutes, rules, regulations); Mass. R. App. P. 20 (form
of briefs, appendices, and other papers); and, Mass. R.
App. P. 21 (redaction.) Compliance with the length
limit of Rule 20 was obtained by extracting the
properties information from Microsoft Word™ 2016. The
proportionally spaced font used was Courier New, with a
size of 12 points. The number of non-excluded words was
7183.
/s/ James J. Decoulos, pro se
43
CERTIFICATE OF SERVICE
I, James J. Decoulos, hereby certify that a copy of the

APPELLANT’S BRIEF and ADDENDUM was served this day upon all
parties identified below by email and that all recipients appear
to have properly received the ENTRY, as I have not received any
email delivery failure notices. Due to the large file size, I
have made the RECORD APPENDIX available to all recipients for
download using my Microsoft OneDrive™ account.
Dated: September 8, 2020 /s/ James J. Decoulos

jamesj@decoulos.com
Ronald H. Rappaport, Esquire Town of Aquinnah

rrappaport@rrklaw.net
Reynolds, Rappaport & Kaplan, LLP
106 Cooke Street
P.O. Box 2540
Edgartown, MA 02539
Michael A. Goldsmith, Esquire Town of Aquinnah

mgoldsmith@rrklaw.net
Reynolds, Rappaport & Kaplan, LLP
106 Cooke Street
P.O. Box 2540
Edgartown, MA 02539
Kendra Kinscherf, Esquire Commonwealth of Massachusetts

kendra.kinscherf@state.ma.us
Office of the Attorney General
One Ashburton Place, 18th floor
Boston, MA 02108
COMMONWEALTH OF MASSACHUSETTS
MASSACHUSETTS APPEALS COURT

No. 2020-P-0509
James J. Decoulos
Plaintiff – Appellant
v.
Town of Aquinnah and the Commonwealth of Massachusetts
Defendants – Appellees
ON APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT
_______________________________________________________________________________
ADDENDUM
_______________________________________________________________________________
September 8, 2020
James J. Decoulos, Pro Se

38 Bow Road
Belmont, MA 02478
jamesj@decoulos.com
(617) 489-7795
ADDENDUM TABLE OF CONTENTS
Memorandum of Decision and Order on

Defendants’ Motion to Dismiss,
Justice David Ricciardone, October 30, 2019 44
Massachusetts Constitution, Article X,

with amendments 52
Chapter 463 of the Acts of 1869,

An Act to Enfranchise the
Indians of the Commonwealth 61

An Act to Incorporate the Town of Gay Head 64

An Act to Implement the Settlement of Gay Head
Indian Land Claims 66
Public Law 100-95 of the 100th Congress

An Act to Settle Indian Land claims in the
Town of Gay Head, Massachusetts
and for other purposes 71
General Laws Chapter 79, Section 1

Eminent Domain 78

Taking by Eminent Domain; Damages 79
Danzell v. Webquish, 108 Mass. 133 (1871) 81
Darius Coombs & others, 127 Mass. 278 (1879) 84

MA Land Court, Misc. Case No. 69813 (1975) 88
Taylor v. Vanderhoop
Kitras et al. v. Town of Aquinnah et al.


64 Mass. App. Ct. 285 (2005) 120
i

87 Mass. App. Ct. 10 (2015) 145

474 Mass. 132 (2016) 163
Plan showing the Common Lands Conveyed to Gay Head

Chapter 213 of 1870, Section 2, Aquinnah, MA
August, 2017; Scale: 1”= 2000’; Figure 1 174
Plan showing the Lands Held in Trust by the

United States of America for the Wampanoag Tribe
of Gay Head (Aquinnah), Aquinnah, MA
April, 2019; Scale: 1”= 2000’; Figure 2 175
ii
Add. 48
Add. 49
Add. 50
Add. 51
Add. 52
Add. 53
Add. 54
Add. 55
Add. 56
Add. 57
Add. 58
Add. 59
Add. 60
780 1869.— Chapter 463.
Corrupting the same, or renders it impure, or destroys or injures any

water, &c.
dam, aqueduct, pipe, conduit, hydrant, machinery, or other
works or property held, owned or used by said city under the
autliority and for the purposes of this act, shall forfeit and
pay to said city three times the amount of damages assessed
therefor, to be recovered in an action of tort and on con- ;
viction of either of the wanton or malicious acts aforesaid,

may also be punished by fine not exceeding three hundred
dollars, or by imprisonment in jail not exceeding one year :
Proviso. provided, that nothing herein contained shall be construed
to prevent persons from cutting and securing ice on Flax
and Sluice Ponds in the manner heretofore practised.
Act to be sub- Section 14. This act shall be void, unless submitted to
mitted to the
voters. and approved by a majority of the voters of said city present
and voting at meetings held simultaneously for the purpose,
in the several wards, on the first Monday of August next,
upon notice duly given, at least seven days before the time
of holding said meetings.
City council to
determine I'rom
Section 15. The city council shall, by joint ballot, at
wlience water least fourteen days before said first Monday of August,
sliall be talsen.
determine the source from which, in the event of the accept-
ance of this act, said city shall take the water and shall, ;
forthwith, notify the inhabitants of said city of its decision,

by publication in the newspapers of said city.
Aqueduct to be Section 16. This act shall be void unless the aqueduct
constructed
within three shall be constructed within three years.
years.
Section 17. This act shall take effect upon its passage.
Approved June 23, 1869.
Chap. 463 An Act to enfranchise the Indians of the commonwealth.

Be it enacted, S^'c, as follows :
Indians, &c., Section All Indians and people of color, heretofore

1.
made citizens.
known and called Indians, within this Commonwealth, are
hereby made and declared to be citizens of the Common-
wealth, and entitled to all the rights, privileges and immuni-
ties, and subject to all the duties and liabilities to which cit-
izens of this Commonwealth are entitled or subject.
Indian lauds. Section 2. All lands heretofore known as Indian lands,
and riglitfully held by any Indian in severalty, and all such
lands which have been or may be set off to any Indian, shall
be and become the property of such person and his heirs in
Proviso. fee simple provided, that such lands shall not be held liable
:
to be taken upon attachment or execution for any debt or

liability which existed before the passage of this act ; and all
Indians shall hereafter have the same rights as other citizens
to take, hold, convey and transmit real estate.
Add. 61
;
1869.— Chapter 463. 781
Section 3. The judge

of probate of the county in which
f."f/f, ".[ P,'^°;jt
any lands held in common
belonging to any tribe of Indians imniuis'si.nieis
may lie, except in tlie case of tlie Indians of Marshpee and *'^'''^'''''
^'''^'^'^•
Gay Head, upon the application of any member of said tribe,

after notice to all parties interested and a hearing of the
same, if in his opinion it is for the interest of said parties
that any or all of said lands be divided, shall appoint two
discreet, disinterested persons commissioners to make parti-
tion of the same, and their award, being confirmed by said
court, shall be final in the premises but if he shall adjudge
;
that it is for the interest of said parties that the same, or a

part of the same, be sold, he shall direct the said commis-
sioners, after they shall have given such bonds as the court
may require, to proceed to sell any or all of said lands, and
to divide the proceeds of the same among the parties right-
fully entitled thereto in proportion to their several interests
therein, under the direction of the said court and the judge
;
of probate of the county in which any lands heretofore and

now known as Indian lands, and claimed in severalty by any
Indians, may lie, shall direct the said commissioners to ex-
amine and define the boundaries of the lands rightfully held
by individual owners, and shall properly describe and set
forth the same in writing, and such description being ap-
proved by the court, shall be final in the premises and the ;
same, together with all deeds of partition, division or sale

made by such commissioners shall be recorded in the registry
of deeds in the county, and the expenses of said commis-
sioners, including the cost of recording said deeds, the same
being approved by the judge of probate, shall be paid out of
the treasury of the Commonwealth, the same being also ap-
proved by the governor and council.
Said commissioners are authorized to sue for, collect and commissioners
receive all funds belonging to, or held in trust for, any tribe fumis, &c.', and
and '^^"^^^
^''^'°^^'
of Indians for which said commissioners are appointed ;
all such funds shall be divided by said commissioners among

the parties rightfully entitled thereto under the direction of
the probate court of the county in which such tribe resides
and any property held in trust by any person for any tribe
of Indians shall be sold by such person under the direction
of the judge of probate, and the proceeds of such sale shall
be paid over to the commissioners to be divided as aforesaid.
The judge of probate of Plymouth county shall have juris-
diction over all matters relating to the Herring Pond Indians
under this section.
Any person aggrieved by any order, decree or denial of the Right of appeal.
judge of probate under this act, shall have the same right of
Add. 62
: —
782 1869.— Chapter 464.
appeal, under the same rules and regulations as provided for

in chapter one hundred and seventeen of the General Stat-
Proviso. utes provided^ that the attested copies and notices required
:
to be given by said chapter shall be served upon such parties

as the judge of probate shall direct.
Provision for SECTION 4. Upou the application of the overseers of the
pooriiidiaus^n poor of any town, to the board of state charities, said board
hmlses!'^*' sliall make provision in the state almshouses or elsewhere for
the support of any persons heretofore known as Indians who
may be unable to support themselves, and who have not ac-
quired a settlement in any town and upon the application
;
of any Indian who has heretofore received aid from the Com-
monwealth, the said board shall furnish to such person in the
state almshouses or elsewhere, such aid as they may deem
expedient.
Agent of board
or sttitG cniri*
SECTION5. The general agent of the board of state char-
ties may sell or itics shalltake chargc of the house, and all property con-
Webst'e""**^
'" ucctcd therewith, in the town of Webster, belonging to the
Commonwealth, and may lease the same to persons heretofore
known as members of the Dudley tribe of Indians, upon
terms substantially like those upon which they have hereto-
fore occupied it or he shall, under the direction of the board
;
of state charities, sell the same at public auction, and the

proceeds of such leases or sale shall be paid into the treasury
of the Commonwealth. Approved June 23, 1869.
further addition to an act making appropriations

'' 464
Chap, -^^ -'^ct in
to meet certain expenditures authorized the present year,
AND FOR other PURPOSES.
Be it enacted, Sj'c, as follows
Appropria- SECTION 1. The sums
hereinafter mentioned are appropri-
^^°"''"
ated to be paid out of the treasury of the Commonwealth,
from the ordinary revenue, except in cases otherwise ordered,
for the purposes specified in certain acts and resolves of the
present year, and for other purposes, to wit :
Compensation In the rcsolvc cliaptcr ninety-six, establishing the compen-

o^ egisaure,
gg^j-j^j^ of members of tlie senate and house of representatives
and of the clerks and chaplains thereof, and of the lieutenant-

governor and council, a sum not exceeding one hundred and
seventy-five thousand five hundred dollars in addition to the
amounts heretofore appropriated.
Daniel Lorden In the rcsolvc cliaptcr iiinety-scven, in favor of Daniel
Lordon and otlicrs, tlie sum of ten thousand two hundred
and seventy-two dollars and thirty-nine cents.
Invertebrate In the rcsolvc chapter ninety-eight, in relation to the
^ '
republication of the report on the invertebrate animals of
Massachusetts, a sum not exceeding seven thousand dollars.
Add. 63
Add. 64
Add. 65
ACTS AND
RESOLVESPASSED BY ruE
General Court of Massachusetts
IN THE YEAR
1985
VOLUME 1
Add. 66
The General Court, which was chosen November 6, 1984
assembled on Wednesday the first day of January 1985 for its
first annual session.
His Excellency Michael S. Dukakis continued to serve as
Governor for the political year of 1985.
Add. 67
ACTS, 1985. - Chap. 277.
General Laws are hereby repealed.
Approved September 18, 1985.
Chapter 277. AN ACT TO IMPLEMENT THE SETTLEMENT OF GAY

HEAD INDIAN LAND CLAIMS.
Be it enacted, etc .. as follows:
SECTION 1. It is hereby found and declared that:-

(a) there is pending before the United States Court for the District of
Massachusetts a civil action that involves Indian claims to certain lands
within the town of Gay Head;
(12) pendency of this lawsuit has resulted in severe economic hardships
for the residents of the town of Gay Head by clouding the titles to much
of the land in said town, including lands not involved in the lawsuits;
(Q) the general court shares with the United States and the parties to
the lawsuit a desire to remove all clouds on titles resulting from such
Indian land claims; and
(Q) the parties to the lawsuit and others interested in the settlement
of Indian land claims within the commonwealth executed a settlement
agreement which requires implementing legislation by the Congress of
the United States and by the general court.
SECTION 2. For the purpose of this act, the following words shan
have the following meanings:
(g) "Tribal council", the Wampanoag Tribal Council of Gay Head, Inc.;
(l:!) "Lawsuit", means the actions entitled Wampanoag Tribal Council
of Gay Head, et al v. Town of Gay Head, et aI., C.A, No. 74-5826-McN
(D. Mass.).
(Q) "Private settlement lands", approximately one hundred and
seventy-five acres of privately held land described in paragraph 6 of the
settlement agreement that are to be acquired by the Secretary of the
Interior from certain private landowners;
(g) "Public settlement lands", the lands described in paragraph 4 of
the settlement agreement that are to be conveyed by the Town of Gay
Head to the tribal council;
~) "Settlement lands", those lands defined in clauses (Q) and (g);
(f) "Settlement agreement", the document entitled "Joint
Memorandum of Understanding concerning Settlement of the Gay Head,
Massachusetts Indian Land Claims", executed as of November
nineteenth, nineteen hundred and eighty-three and November twentieth,
nineteen hundred and eighty-three, by representatives of the parties to
the lawsuit, as filed with the state secretary, or any extension or
renewal thereof;
(g) "Cook lands", the lands described in paragraph 5 of the settlement
agreement that are to be conveyed by the town of Gay Head to the
Tribal council.
538
Add. 68
ACTS, 1985. - Chap. 277.
SECTION 3. Notwithstanding any general or special law to the

contrary, the town of Gay Head is hereby authorized to convey to the
Tribal council, or an appropriate subsidiary, the Cook lands and the
public settlement lands.
SECTION 4. All federal, state, and town laws shall apply to the
settlement lands subject only to the following special provisions:-
(ill The settlement lands shall not be treated as real property subject
to taxation pursuant to chapter fifty-nine of the Massachusetts General
Laws, or any successor provision of law, but the Tribal council or any
successor in interest will make payments in lieu of property taxes to the
town of Gay Head or other appropriate entity if and when improvements
are placed on those lands. The quantity of land subject to such payments
in connection with each improvement shall be the minimum land area
established by the density requirements of the town zoning ordinance for
such an improvement. The amount of such payment shall be determined
by assessing the value of the improvement and the value of the land
attributable to such improvement, as determined in accordance with this
section, and applying the town property tax rate or any other applicable
tax rates just as though the improvements and attributable land were
held by any private person. With respect to in-lieu payments that
remain unpaid, neither the town nor any other person shall have the right
of foreclosure against the settlement lands. Instead of its right of
foreclosure, the town or any other person otherwise entitled to
foreclosure may enforce a lien against other assets of the Tribal council
or any subsidiary thereof, or any other entity controlled by the Tribal
council. If the in-lieu payments are not fully paid three years after they
are due, the town may seize the land and improvements on which the
in-lieu payments are in arrears and lease such land and improvements on
reasonable terms for periods of time not to exceed five years, the sums
realized from such leases to be applied, after costs, to the payment of
the amount in arrears. Seizure by the town under this provision shall in
no way affect title to the land, which shall remain with the Tribal
council, and at the expiration of any lease period during which all
arrearages have been paid in full, control of the land and improvements
shall be returned to the Tribal council.
(Q) The Tribal council or any successor in interest will have the right,
after consultation with appropriate state and local officials, to establish
its own regulations concerning hunting, but not trapping or fishing, by
Indians on the settlement lands by means other than firearms or
crossbow. These regulations by the Tribal council need not conform to
state or local law, but shall impose reasonable standards of safety for
persons and protection of wild life, and the absence of such safety
regulations shall be deemed unreasonable. These safety and protection
standards shall be subject to review for reasonableness in an action in
the superior court and may be enforced by state and local law
enforcement officers. Hunting by firearm or crossbow shall remain
subject to state law.
(Q) The zoning and subdivision ordinances and regulations of the town
of Gay Head shall not be applicable to the settlement lands except to the
539
Add. 69
ACTS, 1985. - Chap. 278.
extent and in the manner provided in the settlement agreement. The

settlement lands shall be subject to the land use plan made a part of the
settlement agreement which shall be enacted as part of the zoning
ordinance of the town of Gay Head, and such plan as embodied in the
zoning ordinance may be amended only with the agreement of the Tribal
council or any successor in interest, and by the town of Gay Head at two
town meetings not less than one month apart, at least one of which shall
be held during the month of July or August.
(Q) The zoning laws of the town of Gay Head which are currently in
force shall continue to apply to the Cook lands and any changes in those
zoning laws shall apply to the Cook lands only if adopted in the manner
provided by the settlement agreement.
SECTION 5. Except as provided in this act, all laws, statutes and

bylaws of the commonwealth, the town of Gay Head, and any other
properly constituted legal body, shall apply to all settlement lands and
any other lands owned now or at any time in the future by the Tribal
council or any successor organization.
SECTION 6. This act shall take effect upon enactment of legislation

by the United States providing for extinguishment of aboriginal and all
other Indian tribal land claims in the town of Gay Head which are
maintained under laws of the United States that are specifically
applicable to transfers of land or natural resources from, by or on behalf
of any Indian nation or tribe of Indians, provided that the conveyance of
the Cook lands and the public settlement lands authorized by section
three shall take effect upon the actual extinguishment of such aboriginal
and other Indian tribal land claims.
Chapter 278. AN ACT FURTHER REGULATING BUSINESS

PRACTICES FOR CONSUMERS PROTECTION.
Be it enacted. etc .. as follows:
SECTION 1. The first paragraph of section 11 of chapter 93A of the

General Laws, as appearing in the 1984 Official Edition, is hereby
amended by inserting after the word "proper", in line 12, the words:- ;
provided, however, that both such persons have a place of business within
the commonwealth at the time of said loss.
SECTION 2. The second paragraph of said section 11 of said chapter

93A, as so appearing, is hereby amended by striking out, in line 13, the
word "property" and inserting in place thereof the words:- ; provided,
however, that such injunction shall not be obtained unless both parties
have a place of business in the commonwealth at the time the unfair
method of competition, act or practice is employed.
540
Add. 70
101 STAT. 704 PUBLIC LAW 100-95—AUG. 18, 1987
Public Law 100-95

100th Congress
An Act
Aug. 18, 1987 To settle Indian land claims in the town of Gay Head, Massachusetts, and for other
[H.R. 2855] purposes. >< ^^,^ , _ , .(•
Be it enacted by the Senate and House of Representatives of the

Wampanoag United States of America in Congress assembled,
Tribal Council of
Gay Head, Inc., SECTION 1. SHORT TITLE.
Indian Claims
Settlement Act This Act may be cited as the "Wampanoag Tribal Council of Gay
of 1987. Head, Inc., Indian Claims Settlement Act of 1987".
25 u s e 1771
note. SEC. 2. CONGRESSIONAL FINDINGS AND DECLARATION OF POLICY.
25 u s e 1771. The Congress hereby finds and declares that—
(1) there is pending before the United States District Court for
the District of Massachusetts a lawsuit that involves Indian
claims to certain public lands within the town of Gay Head,
Massachusetts;
(2) the pendency of this lawsuit has resulted in severe eco-
nomic hardships for the residents of the town of Gay Head by
clouding the titles to much of the land in the town, including
land not involved in the lawsuit;
(3) the Congress shares with the Commonwealth of Massachu-
setts and the parties to the lawsuit a desire to remove all clouds
on titles resulting from such Indian land claim;
(4) the parties to the lawsuit and others interested in settle-
ment of Indian land claims within the Commonwealth of
Massachusetts executed a Settlement Agreement which, to
become effective, requires implementing legislation by the Con-
gress of the United States and the General Court of the
Commonwealth of Massachusetts;
(5) the town of Gay Head has agreed to contribute approxi-
mately 50 percent of the land involved in this settlement;
(6) the State of Massachusetts has agreed to provide up to
$2,250,000 to be used for the purchase of land to be held in trust
by the Secretary for the use and benefit of the Wampanoag
Tribal Council of Gay Head, Inc.; and
(7) the Secretary has acknowledged the existence of the
Wampanoag Tribal Council of Gay Head, Inc. as an Indian tribe
and Congress hereby ratifies and confirms that existence as an
Indian tribe with a government to government relationship
with the United States.
25 u s e 1771a. SEC. 3. GAY HEAD INDIAN CLAIMS SETTLEMENT FUND.
(a) FUND ESTABLISHED.—There is hereby established within the
Treasury of the United States a fund to be known as the
"Wampanoag Tribal Council of Gay Head, Inc. Claims Settlement
Fund". Amounts in the fund shall be available to the Secretary to
carry out the purposes of this Act. ,,, . x .„
Add. 71
PUBLIC LAW 100-95—AUG. 18, 1987 101 STAT. 705
(b) AUTHORIZATION FOR APPROPRIATION.—There is hereby au-

thorized to be appropriated $2,250,000 for such fund to remain
available until expended.
(c) STATE CONTRIBUTION REQUIRED.—Amounts may be expended
from the fund only upon deposit by the State of Massachusetts into
the fund of an amount equal to that amount to be expended by the
United States so that both the United States and the State of
Massachusetts bear one-half of the cost of the acquisition of lands
under section 6.
SEC. 4. APPROVAL OF PRIOR TRANSFERS AND EXTINGUISHMENT OF 25 u s e 1771b.
ABORIGINAL TITLE AND CLAIMS OF GAY HEAD INDIANS.
(a) APPROVAL OF PRIOR TRANSFERS.—(1) Any transfer before the
date of the enactment of this Act 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 the date of the enactment of this Act 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 Act, 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 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 extin-
guished as of the date of such transfer.
(c) EXTINGUISHMENT OF CLAIMS ARISING FROM PRIOR TRANSFERS
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 con-
sented to and approved in subsection (a), or
(2) any aboriginal title to land or natural resources the trans-
fer 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.
SEC. 5. CONDITIONS PRECEDENT TO FEDERAL PURCHASE OF SETTLE- 25 u s e 1771c.
M E N T LANDS.
(a) INITIAL DETERMINATION OF STATE AND LOCAL ACTION.—No Federal
action shall be taken by the Secretary under section 6 before the Register,
publication.
Add. 72
Secretary publishes notice in the Federal Rej;ister of the determina-

tion by the Secretary that—
(1) the Commonwealth of Massachusetts has enacted legisla-
tion which provides that—
(A) the town of Gay Head, Massachusetts, is authorized to
convey to the Secretary to be held in trust for the
<
' Wampanoag Tribal Council of Gay Head, Inc. the public
ai'i ..r settlement lands and the Cook lands subject to the condi-
tions and limitations set forth in the Settlement Agree-
ii .,., i ment; and
(B) the Wampanoag Tribal Council of Gay Head, Inc.
shall have the authority, after consultation with appro-
-f priate State and local officials, to regulate any hunting by
Indians on the settlement lands that is conducted by means
other than firearms or crossbow to the extent provided in,
and subject to the conditions and limitations set forth in,
the Settlement Agreement;
i (2) the Wampanoag Tribal Council of Gay Head, Inc., has
submitted to the Secretary an executed waiver or waivers of the
claims covered by the Settlement Agreement all claims extin-
guished by this Act, and all claims arising because of the
'" approval of transfers and extinguishment of titles and claims
^ under this Act; and
(3) the town of Gay Head, Massachusetts, has authorized the
conveyance of the public settlement lands and the Cook Lands
^ to the Secretary in trust for the Wampanoag Tribal Council of
Gay Head, Inc.
(b) RELIANCE UPON THE ATTORNEY GENERAL OF MASSACHUSETTS.—
In making the findings required in subsection (a) of this section, the
Secretary may rely upon the opinion of the Attorney General of the
Commonwealth of Massachusetts.
25 u s e 1771d. SEC. 6. PURCHASE AND TRANSFER OF SETTLEMENT LANDS.
(a) PURCHASE OF PRIVATE SETTLEMENT LANDS.—The Secretary is
authorized and directed to expend, at the request of the Wampanoag
Tribal Council of Gay Head, Inc., $2,125,000 to acquire the private
settlement lands. At the request of the Wampanoag Tribal Council
of Gay Head, Inc., the Secretary shall not purchase lots 705, 222, and
528 of the private settlement lands, but, a t the request of the
Wampanoag Tribal Council of Gay Head, Inc., the Secretary shall
acquire in lieu thereof such other lands that are contiguous to the
remaining private settlement lands. Upon the purchase of such
contiguous lands, those lands shall be subject to the same restric-
tions and benefits as the private settlement lands.
(b) PAYMENT FOR SURVEY AND APPRAISAL.—The Secretary is au-
thorized and directed to cause a survey of the public settlement
lands to be made within 60 days of acquiring title to the public
Paul O'Leary. settlement lands. The Secretary shall reimburse the Native Amer-
ican Rights Fund and the Gay Head Taxpayers Association for an
appraisal of the private settlement lands done by Paul O'Leary
dated May 1, 1987. Such funds as may be necessary may be with-
drawn from the Fund established in section 3(a) and may be used for
-V'
the purpose of conducting the survey and providing reimbursement
for the appraisal.
(c) ACQUISITION OF ADDITIONAL LANDS.—The Secretary shall
expend, at the request of the Wampanoag Tribal Council of Gay
Head, Inc., any remaining funds not required by subsection (a) or (b)
Add. 73
to acquire any additional lands that are contiguous to the private

settlement lands. Any lands acquired pursuant to this section, and
any other lands which are hereafter held in trust for the
Wampanoag Tribal Council of Gay Head, Inc., any successor, or
individual member, shall be subject to this Act, the Settlement
Agreement and other applicable laws. Any after acquired land held
in trust for the Wampanoag Tribal Council of Gay Head, Inc., any
successor, or individual member, shall be subject to the same bene-
fits and restrictions as apply to the most analogous land use
described in the Settlement Agreement.
(d) TRANSFER AND SURVEY OF LAND TO WAMPANOAG TRIBAL COUN-
CIL.—Any right, title, or interest to lands acquired by the Secretary
under this section, and the title to public settlement lands conveyed
by the town of Gay Head, shall be held in trust for the Wampanoag
Tribal Council of Gay Head, Inc. and shall be subject to this Act, the
Settlement Agreement, and other applicable laws.
(e) PROCEEDINGS AUTHORIZED TO ACQUIRE OR TO PERFECT TITLE.—
The Secretary is authorized to commence such condemnation
proceedings as the Secretary may determine to be necessary—
(1) to acquire or perfect any right, title, or interest in any
private settlement land, and
(2) to condemn any interest adverse to any ostensible owner of
such land,
(f) PUBLIC SETTLEMENT LANDS HELD IN TRUST.—The Secretary is
authorized to accept and hold in trust for the benefit of the
Wampanoag Tribal Council of Gay Head, Inc. the public settlement
lands as described in section 8(7) of this Act immediately upon the
effective date of this Act.
(g) APPLICATION.—The terms of this section shall apply to land in
the town of Gay Head. Any land acquired by the Wampanoag Tribal
Council of Gay Head, Inc., that is located outside the town of Gay
Head shall be subject to all the civil and criminal laws, ordinances,
and jurisdiction of the Commonwealth of Massachusetts.
(h) SPENDING AUTHORITY.—Any spending authority (as defined in
section 401(c)(2) of the Congressional Budget Act of 1974) provided in 2 use 651.
this section shall be effective for any fiscal year only to such extent
or in such amounts as are provided in appropriation Acts.
SEC. 7. JURISDICTION OVER SETTLEMENT LANDS; RESTRAINT ON 25 USC 177 le.
ALIENATION.
(a) LIMITATION ON INDIAN JURISDICTION OVER SETTLEMENT
LANDS.—The Wampanoag Tribal Council of Gay Head, Inc., shall
not have any jurisdiction over nontribal members and shall not
exercise any jurisdiction over any part of the settlement lands in
contravention of this Act, the civil regulatory and criminal laws of
the Commonwealth of Massachusetts, the town of Gay Head,
Massachusetts, and applicable Federal laws.
0)) SUBSEQUENT HOLDER BOUND TO SAME TERMS AND CONDI-
TIONS.—Any tribe or tribal organization which acquires any settle-
ment land or any other land that may now or in the future be owned
by or held in trust for any Indian entity in the town of Gay Head,
Massachusetts, from the Wampanoag Tribal Council of Gay Head,
Inc. shall hold such beneficial interest to such land subject to the
same terms and conditions as are applicable to such lands when held
by such council.
Add. 74
91-194 O - 90 - 24 : QL.3 Part 1
(c) RESERVATIONS OF RIGHT AND AUTHORITY RELATING TO SETTLE-

MENT LANDS.—No provision of this Act shall affect or otherwise
impair—
(1) any authority to impose a lien or temporary seizure on the
settlement lands as provided in the State Implementing Act;
(2) the authority of the Secretary to approve leases in accord-
ance with the Act entitled "An Act to authorize the leasing of
restricted Indian lands for public, religious, educational, rec-
reational, residential, business, and other purposes requiring
the grant of long-term leases", approved August 9, 1955 (25
U.S.C. 415 et seq.); or
(3) the legal capacity of the Wampanoag Tribal Council of Gay
Head, Inc. to transfer the settlement lands to any tribal entity
which may be organized as a successor in interest to
Wampanoag Tribal Council of Gay Head, Inc. or to transfer—
(A) the right to use the settlement lands to its members,
(B) a n y e a s e m e n t for public or p r i v a t e purposes in accord-
~ -^ ance with t h e laws of t h e C o m m o n w e a l t h of Massachusetts
^"' or t h e ordinances of t h e town of Gay Head, Massachusetts,
- •{ or
/.fcfc (C) title to t h e West Basin S t r i p to t h e town of G a y Head,
Massachusetts, pursuant to the terms of the Settlement
Agreement.
(d) EXEMPTION FROM STATE ASSESSMENT.—Any land held in trust
by the Secretary for the benefit of the Wampanoag Tribal Council of
Gay Head, Inc. shall be exempt from taxation or lien or "in lieu of
payment" or other assessment by the State or any political subdivi-
sion of the State to the extent provided by the Settlement Agree-
ment: Provided, however, That such taxation or lien or "in lieu of
payment" or other assessment will only apply to lands which are
zoned and utilized as commercial: Provided further. That this sec-
tion shall not be interpreted as restricting the Tribe from entering
into an agreement with the town of Gay Head to reimburse such
town for the delivery of specific public services on the tribal lands.
25USC1771f SEC. 8. DEFINITIONS. ^\,/^ '.;«-•.':=«:;
For the purposes of this Act:
(1) COOK LANDS.—The term "Cook lands" means the lands
described in paragraph (5) of the Settlement Agreement.
.r ' ; c.£ (2) WAMPANOAG TRIBAL COUNCIL OF GAY HEAD, INC.—The term
"Wampanoag Tribal Council of Gay Head, Inc." means the
tribal entity recognized by the Secretary of the Interior as
having a government to government relationship with the
United States. The Wampanoag Tribal Council of Gay Head,
Inc. is the sole and legitimate tribal entity which has a claim
under the Trade and Intercourse Act of 1790, Act of July 22,
1790 (ch. 33, sec. 4, 1 Stat. 137), to land within the town of Gay
Head. The membership of the Wampanoag Tribal Council of
Gay Head, Inc., includes those 521 individuals who have been
recognized by the Secretary of the Interior as being members of
the Wampanoag Tribal Council of Gay Head, Inc., and such
Indians of Gay Head ancestry as may be added from time to
time by the governing body of the Wampanoag Tribal Council of
Gay Head, Inc.: Provided, That nothing in this section shall
prevent the voluntary withdrawal from membership in the
Wampanoag Tribal Council of Gay Head, Inc., pursuant to
procedures established by the Tribe. The governing body of the
Add. 75
Wampanoag Tribal Council of Gay Head, Inc. is hereby au-

thorized to act on behalf of and bind the Wampanoag Tribal
Council of Gay Head, Inc., in all matters related to carrying out
this Act. "^ >' '-'^
(3) FUND.—The term "fund" means the Wampanoag Tribal
Council of Gay Head, Inc. Claims Settlement Fund established
under section 3.
(4) LAND OR NATURAL RESOURCES.—The term "land or natural
; resources" means any real property or natural resources or any
interest in or right involving any real property or natural
resource, including but not limited to, minerals and mineral
rights, timber and timber rights, water and water rights, and r *<
rights to hunt and fish. *«
(5) LAWSUIT.—The term "lawsuit" means the action entitled
Wampanoag Tribal Council of Gay Head, and others versus
Town of Gay Head, and others (C.A. No. 74-5826-McN
(D. Mass.)).
(6) PRIVATE SETTLEMENT LANDS.—The term "private settle-
ment lands" means approximately 177 acres of privately held
land described in paragraph 6 of the Settlement Agreement.
(7) PUBLIC SETTLEMENT LANDS.—The term "public settlement
lands" means the lands described in paragraph (4) of the Settle- ;?- f J.;;J
ment Agreement.
(8) SETTLEMENT LANDS.—The term "settlement lands" means
the private settlement lands and the public settlement lands.
(9) SECRETARY.—The term "Secretary means the Secretary of
the Interior.
(10) SETTLEMENT AGREEMENT.—The term "Settlement Agree-
ment" means the document entitled "Joint Memorandum of
Understanding Concerning Settlement of the Gay Head,
Massachusetts, Indian Land Claims," executed as of Novem-
ber 22, 1983, and renewed thereafter by representatives of the
parties to the lawsuit, and as filed with the Secretary of the
(11) STATE IMPLEMENTING ACT.—The term "State implement-
ing act" means legislation enacted by the Commonwealth of
Massachusetts conforming to the requirements of this Act and
the requirements of the Massachusetts Constitution.
(12) TRANSFER.—The term "transfer" includes—
(A) any sale, grant, lease, allotment, partition, or
conveyance,
(B) any transaction the purpose of which is to effect a
sale, grant, lease, allotment, partition, or conveyance, or
(C) any event or events that resulted in a change of
possession or control of land or natural resources.
(13) WEST BASIN STRIP.—The term "West Basin Strip" means a
strip of land along the West Basin which the Wampanoag Tribal
Council is authorized to convey, under paragraph (11) of the
Settlement Agreement, to the town of Gay Head.
SEC. 9. APPLICABILITY OF STATE LAW. 25 USC 1771g.
Except as otherwise expressly provided in this Act or in the State
Implementing Act, the settlement lands and any other land that
may now or hereafter be owned by or held in trust for any Indian
tribe or entity in the town of Gay Head, Massachusetts, shall be
subject to the civil and criminal laws, ordinances, and jurisdiction of
the Commonwealth of Massachusetts and the town of Gay Head,
Add. 76
Massachusetts (including those laws and regulations which prohibit
or regulate the conduct of bingo or any other game of chance).
25 u s e 1771h. SEC. 10. LIMITATIONS OF ACTION; JURISDICTION.
Notwithstanding any other provision of law, any action to contest
the constitutionality or validity under law of this Act shall be
barred unless the complaint is filed within thirty days after the date
of enactment of this Act. Exclusive original jurisdiction over any
such action and any proceedings under section 6(e) is hereby vested
in the United States District Court of the District of Massachusetts.
25 u s e 1771 SEC. 11. EFFECTIVE DATE.
note.
(a) IN GENERAL.—Except as provided in subsection (b), this Act
shall take effect upon the date of enactment.
(b) EXCEPTION.—Section 4 shall take effect upon the date on which
the title of all of the private settlement lands provided for in this
Act to the Wampanoag Tribal Council of Gay Head, Inc. is trans-
ferred. The fact of such transfer, and the date thereof, shall be
certified and recorded by the Secretary of the Commonwealth of
Massachusetts.
25USei771i. SEC. 12. ELIGIBILITY.
For the purpose of eligibility for Federal services made available
to members of federally recognized Indian tribes, because of their
status as Indians, members of this tribe residing on Martha's Vine-
yard, Massachusetts, shall be deemed to be living on or near an
Indian reservation.
Approved August 18, 1987. ,).
";»?''!
LEGISLATIVE HISTORY—H.R. 2855:

HOUSE REPORTS: No. 100-238 (Comm. on Interior and Insular Affairs).
CONGRESSIONAL RECORD, Vol. 133 (1987):
July 28, considered and passed House.
Aug. 6, considered and passed Senate. 1^*?./, ?« I.) >; *? >
Add. 77
Add. 78
Add. 79
Add. 80
Danzell v. Webquish, 108 Mass. 133 (1871)
but she has no present intention of returning there at any

definite time. Mary Perry and her husband and family
108 Mass. 133
reside at Fall River. The case was submitted to the decision
Supreme Judicial Court of Massachusetts.
of this court upon the facts above stated.
ALONZO DANZELL & others
v.
SOLOMON F. WEBQUISH & others. West Headnotes (1)
October Term, 1871.

[1] Indians
Opinion Persons Entitled; Enrollment and
**1 *133 A child of Indian parents, who was not born Record Thereof
upon the lands belonging to the Herring Pond tribe of
A child of Indian parents, who was not
Indians and never resided thereon, whose father is not
born on lands belonging to the Herring Pond
shown to have been a member of the tribe or to have
tribe of Indians, and never resided thereon,
ever resided on their lands, and whose mother, although
whose father is not shown to have been
a proprietor of those lands and born thereon, resides with
a member of the tribe, and whose mother,
her husband and children elsewhere, is not entitled to
though a proprietor of those lands and
share in the division of those lands under the St. of 1869,
born thereon, resides with her husband and
c. 463, § 3.
children elsewhere, is not entitled to share in
the division of those lands, under St.1869, c.
APPEAL by the minor children of Deborah Danzell and
463, § 3, providing for the division of lands
of Mary Perry from a decree of the judge of probate, under
held in common by the Herring Pond tribe of
the St. of 1869, c. 463, § 3, for the division of the lands
Indians.
held in common and belonging to the Herring Pond tribe
of Indians. 10 Cases that cite this headnote
The judge of probate ordered the division to be made

equally among all persons, whether of full age or minors,
of Indian descent, residing at Herring Pond, or who were
Attorneys and Law Firms
born there, although now residing elsewhere; including
Deborah Danzell and her sister Mary Perry, who were *134 G. Marston, for the appellants.
born on those lands of Indian parents, and whose mother,
Clarissa Joseph, was an Indian, and had all the rights of C. G. Davis & E. S. Whittemore, for the appellees.
an Indian proprietor of Herring Pond Plantation; and also
GRAY, J.
including Clara Perry, a daughter of Mary, who was born
at Herring Pond; but excluding all the other children of **2 The remnants of the Indian tribes, residing within
Deborah Danzell and of Mary Perry, of whom the eldest, the limits of the Commonwealth, having never been
Alonzo Danzell, was seventeen years of age, and none recognized by any treaties or executive or legislative acts
of whom were born on the Herring Pond lands or ever
of the government of the United States as independent
resided there. Christopher Danzell, husband of Deborah
political communities, were under the control of the
and father of her children, is a colored man of Indian
legislature of the state. Worcester v. Georgia, 6 Pet. 515,
descent, but not a proprietor of Herring Pond Plantation,
580, 590, 593. United States v. Holliday, 3 Wallace, 407,
has no original right there, and resides with his family 419. The Kansas Indians, 5 Wallace, 737. United States v.
at New Bedford. His wife owns lands at Herring Pond
Yellow Sun, 1 Dillon, 271. By the law of Massachusetts,
in severalty, set off to her by the division made under
until very recently, these Indians were not subjected to
the St. of 1850, c. 168, on some of which she has made
taxation, nor endowed with the ordinary civil and political
improvements. She claims that she is intending at some rights of citizens, but were treated as the wards of the
time to return to Herring Pond to reside on her lands, Commonwealth; the title in the lands occupied by their
Add. 81U.S. Government Works.

© 2017 Thomson Reuters. No claim to original 1
tribes was in the state, and could not be alienated by them occupying lands within the plantation, had no other
without the consent of the legislature; and the use and title to the same but what they derived from grants or
improvement thereof by the Indians was regulated by the assignments made to them by the original proprietors;
legislature from time to time at its discretion, all the earlier and that it was necessary clearly to ascertain who are the
allotments being limited to short terms. Sts. 1788, c. 38; proprietors of said plantation; enacted, in § 3, that the
1789, c. 52; 1796, c. 23; 1807, c. 109; 1809, c. 70; 1811, overseers or guardians of the plantation should “make
c. 78; 1818, c. 105. Gen. Sts. c. 11, § 5, cl. 12; c. 14, § out a fair record of all the names of the proprietors of
48; c. 36, §§ 5, 6; c. 141, §§ 15-19. Andover v. Canton, 13 said plantation who usually reside within the same; and
Mass. 547. Thaxter v. Grinnell, 2 Met. 13. Mayhew v?? in all cases where the title of proprietorship shall appear
Gay Head, 13 Allen, 129. Jaha v. Belleg, 105 Mass. 208. doubtful, the guardian or guardians shall examine into
Clark v. Williams, 19 Pick. 499. Johnson v. McIntosh, 8 the same, and if they find the claim of such Indian??
Wheat. 543. Jackson v. Goodell, 20 Johns. 188, 693. Strong mulatto or negro, either by descent, marriage or otherwise,
v. Waterman, 11 Paige, 607. well founded (the overseers confirming the same) his
name shall be entered on said record, and such Indian,
By recent legislation, the Indians of the Commonwealth mulatto or negro shall be considered as a proprietor of
have been fully enfranchised from the subjection in which said plantation to all intents and purposes;” and in § 4,
they had heretofore been kept, and put upon the same that “those who are not proprietors in their own rights or
footing as other citizens, and provision made for the in the right of their wives, or who shall not be admitted
division of their lands among them in severalty as their as proprietors by the overseers, guardian or guardians
absolute property. Sts. 1869, c. 463; 1870, cc. 213, 293, 350. in manner aforesaid, shall not be deemed or reputed
inhabitants of said plantation.”
By the St. of 1869, c. 463, § 1, “all Indians, and people
of color, heretofore known and called Indians, within *136 By the St. of 1807, c. 109, the overseers of the
this Commonwealth, are hereby made and declared to Marshpee tribe were made also overseers of the Herring
be citizens of the Commonwealth, and entitled to all Pond tribe of Indians. And by the St. of 1818, c. 105,
the rights, privileges and immunities, and subject to the § 1, it was enacted that “to constitute a proprietor of
duties and liabilities, to which citizens of *135 this the plantation or district of Marshpee, or a member
Commonwealth are entitled or subject.” By § 2, “all lands of said Herring Pond tribe, the person alleged to be a
heretofore known as Indian lands, and rightfully held by proprietor must be a child or lineal descendant of some
any Indian in severalty, and all such lands which have been person who is now a proprietor; and in no other way or
or may be set off to any Indian, shall be and become the manner shall the rights of proprietorship be acquired;”
property of such person and his heirs in fee simple;” “and and the overseers were directed to “cause to be made an
all Indians shall hereafter have the same rights as other enumeration or census of all the proprietors and members
citizens to take, hold, convey and transmit real estate.” of the said tribes, and of all other persons resident on their
plantations respectively, distinguishing proprietors from
**3 Section 3 of the same act (under which the present all other persons; and make a record thereof, of the names
case arises) confers jurisdiction upon the judge of probate and ages of all such proprietors and members, which
of this county to make partition of the lands held in record shall distinguish the said tribes” and be revised and
common belonging to the Herring Pond tribe of Indians, corrected annually.
but lays down no rule for ascertaining who should be
deemed proprietors of these lands and entitled as such The earliest statutes which provided for allotments in
to share in the division. In seeking for such a rule, our fee, out of the common lands in Marshpee, to the
attention has been directed to the earlier statutes upon the Indian proprietors, included none but “the legal adult
same subject, the material provisions of which it may be proprietors of Marshpee, male and female,” and “any
convenient to state. minors who may be the descendants or children of a
deceased proprietor or proprietors,” counting among such
The St. of 1789, c. 52, concerning the plantation of lineal descendants “every person of Indian descent, who
Marshpee in the county of Barnstable, after reciting was born in said Marshpee, or within the counties of
that many of the Indian, mulatto and negro inhabitants, Barnstable or Plymouth, and who had resided, or whose

parents or ancestors had resided, in Marshpee for twenty entitled to any land in Marshpee.” And it was declared
years or upwards” previously to the passage of the first that no person should be considered a proprietor of the
of those statutes; required the commissioners to give Herring Pond Plantation, who should have received, or be
public notice and hold meetings in such manner as should entitled to receive, any lands or apportionment of lands in
“enable the inhabitants of said district, claiming to be Marshpee under the acts relating to that district. St. 1850,
proprietors, or the descendants or children of deceased c. 168, § 3. By § 6, all the remaining lands in the Herring
Pond Plantation, not divided and allotted by force of this
proprietors, to present their claims to be recorded and to
act, were to remain the common land of the plantation.
be fully heard thereon;” and declared that “no person shall
And § 7 reserved to the legislature the right to alter, amend
ever become a proprietor of said district, by operation
or repeal the act at its pleasure, except so far as rights of
of law, unless he be a lineal descendant of a proprietor;
property in severalty might have been acquired under its
and upon the death of any proprietor without such
provisions.
descendant, all his interest in the lands of the district shall
escheat to the proprietary; provided, however, that any
*138 The whole effect of these statutes may be summed
proprietor of lands in severalty may devise or otherwise
up thus: The only persons recognized as proprietors by
convey the same to any other proprietor.” Sts. 1834, c. 166,
the Sts. of 1789 and 1818 are persons residing within
and especially §§ 4, 9; 1842, c. 72, and especially § 3; 1844,
the plantation. The Sts. of 1834 and 1842 add only
c. 130.
descendants of deceased proprietors. The St. of 1850
further includes those proved to be proprietors according
**4 *137 The St. of 1850, c. 168, provided for a division
to custom, usage, or general acquiescence, as recognized
of a part of the lands belonging to the Herring Pond
and practised upon in the plantation among the Indians
Indians, by three commissioners, among the legal adult
and their descendants, or who, though not distinctly
proprietors of Herring Pond Plantation, male and female,
provided for, have a manifest, equitable and just claim to
of the age of eighteen years or upwards on December 31,
proprietorship, within the spirit and meaning of the act.
1850, as ascertained and recorded by the commissioners
The legislature expressly reserved the power of repealing
after public notice and meetings, including the following
this statute, except as to rights in severalty acquired under
persons: 1st. Those whose proprietorship should be
its provisions, the lands now in question are not affected
established by evidence in the judgment and decision of a
by it, and all the appellants were born since its passage.
majority of the commissioners, “according to the customs,
usages, descent, inhabitancy, or general acquiescence in
**5 No evidence of custom, usage or general
such proprietorship, heretofore recognized and practised
acquiescence has been introduced; and no countenance
upon in said plantation, among the said Indians and
is given by any of the statutes to the proposition, (upon
their descendants.” 2d. “All other persons of the age of
which the claims of the appellants are based,) that
eighteen years or upwards at the time aforesaid,” “who
children, who were not born and never resided upon the
are of Indian descent, born in the counties of Plymouth
Indian lands, whose father is not shown to have been a
or Barnstable, and who shall have married a proprietor
member of the tribe or to have ever resided there, and
of said Herring Pond Plantation, and were inhabitants of
whose mother, although a proprietor of the lands and
and permanent residents in said plantation” on January
born thereon, is still living, and resides with her husband
1, 1850.3d. Any person whose case, though not distinctly
and children elsewhere, are to be deemed themselves
provided for in this act, yet should in the unanimous
proprietors of the lands or entitled to share in the division
opinion of the commissioners “so come within the spirit
thereof under the St. of 1869, c. 463, § 3.
and meaning of this act as to constitute a manifest,
equitable and just claim to proprietorship,” and be
Decree affirmed.
assented to by vote of a majority of the adult proprietors at
a meeting called for the purpose. 4th. One Indian woman,
by name, the wife of a Marshpee Indian, herself “having All Citations
been a proprietor of and domiciled in said Herring Pond
Plantation before her marriage, and not having nor being 108 Mass. 133, 1871 WL 8773
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

278 JULY, 1879.
ing, though it exceeded the amount it could be compelled to pay

under its contract with the builder. The power to build in-
cluded the power to make contracts and to annul, waive, alter or
disregard them.
If the statutes had made no provisions for the appointment of
enginemen and the payment of compensation to them, it might
be argued that, as an incident of the general power to protect its
inhabitants from fire, a town would have the pO'wer to appoint
enginemen, and to vote them a reasonable compensation. But,
as the statutes have dealt with the subject-matter, and have given
to towns only the limited power to make compensation to engine-
men appointed by an independent authority, it cannot be held
that, as an incident of this limited power, a town can appoint
enginemen, or vote compensation to persons as enginemen, who
have not been appointed as such by the proper authority. We
are of opinion that the cases are distinguishable.
Injunction made perpetual.
DARIUS COOMBS & others, petitioners.

Barnstable. Jan. 21. - July 24,1879. AlliES & SOULE, JJ., absent.
The St. of 1870, c. 293, § 6, providing that any justice of the Superior Court, upon
the application of the selectmen of the town of Mashpee, after hearing all par-
ties interested, may appoint commissioners to make partition of "any or all of
the common lands of said town, or of the people heretofore known as the
Marshpee tribe of Indians," and that he may direct that the same or any part
thereof be sold, and the proceeds paid over to the treasurer of the town, is con-
stitutional; and if, upon a petition presented by the selectmen, a sale of a por-
tion of the common lands has been ordered by the court, the selectmen may,
while the first petition is still pending, file a second petition for the sale of the
lands not included in the order.
PETITION to the Superior Court, dated March 11, 1878, by

·the selectmen of the town of Mashpee, under the St. of 1870,
c. 293, § 6, for an order to sell certain hay and meadow lands of
that town, or of the people theretofore known as the Marshpee
tribe of Indians. Hearing before Wilkinson, J., who ruled that
the petition could not be maintained; and reported the case for
the determination of this court, in substance as follows:
Add. 84
COOMBS, PETITIONER. 279
On October 11, 1870, a petition was presented to the Superior

Court, by the selectmen of the town of Mashpee, representing
"that there are in said town certain lands, amounting as nearly
as can be ascertained to 3150 acres, which are the common
lands of said town of Mashpee, and of the people heretofore
known as the Marshpee tribe of Indians; that it is for the
interest of aU parties concerned and interested in said lands that
the same be divided among the parties entitled thereto; and
that the same be sold in accordance with the provisions of law; "
and praying the court to appoint three disinterested persons
as commissioners to make partition of said lands, or to sell the
same, as the court should determine, and also that the commis-
sioners be authorized and directed to perform all such other
acts as they might do under the p~ovisions of the St. of 1870,
c. 293. Upon that petition Brigham, C. J., appointed three com-
missioners, ordering them to sell all the common lands of the
town, except such as the commissioners should determine to be
meadow and hay lands, "with full powers to do all the matters
and things contemplated by said act to be done by such com-
missioners." On April 2, 1878, the commissioners presented
their report to the court, stating that "all the common lands
of Mashpee, excepting meadow and hay lands, covering an area
of 2536t acres, were surveyed and divided into 187 lots or par-
cels, and sold by public auction, after due notice, the aggregate
of such sales amounting to $7052.76," which report was duly
approved and confirmed by the court.
T. H. Tyndale, fqr the petitioners.
J. M. ])ay, for the respondents.
ENDICOTT, J. By the St. of 1869, c. 463, all Indians within
the Commonwealth were declared to be citizens, entitled to the
rights and subject to the duties of other citizens of the Com-
monwealth. Previously to that statute, they were the wards of
the Commonwealth, and the title to the lands occupied by the
several tribes was in the Commonwealth, and its use and un-
provement were regulated from time to time by the Legislature.
])anzell v. Webquish, 108 Mass. 133, 134. See also St. 1862,
~lM. .
In thufl enfranchising the Indians and conferring on them the
rights of citizens, it was not the intention of the Legislature to
Add. 85
280 JULY, 1879.
gi ve 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. The St. of 1869, c. 463, pro-
vides that any land, known as Indian land, held by any Indian
in severalty, or which has been set off to any Indian, shall be
the property of him and his heirs in fee simple. But where
such land is held and occupied in common by any Indian tribe,
" except in the case of the Indians of Marshpee and Gay Head,"
the judge of probate, in the county where such lands lie, may
appoint commissioners to make partition of any or all of the
lands to be divided, or he may direct that the whole or a part of
the same may be sold and the proceeds divided among the parties
rightfully entitled, in proportion to their respective interests.
Not only does the statute provide for the division or sale of com-
mon lands, but also for the collection of all funds and the sale
of all property held in trust for any tribe of Indians, and the
division of the same among them. §§ 2, 3. The guardianship
of the State was thus to be exercised over all Indians, included
within the terms of the act, after they were declared to be citi-
zens; and provision was made for the final distribution among
them of property thus held in common.
In pursuance of the policy established by the St. of 1869, the
district of Marshpee was incorporated as a town by the name of
Mashpee, and all common lands and other rights, belonging to
the district, were transferred to the new town to be held as prop-
erty and rights are held by other towns. St. 1870, c. 293, §§ 1, 2.
By this act, the division of common lands in Mashpee is not to
be made in the Probate Court, as provided in the Sts. of 1869,
c. 463, and 1870, c. 213, incorporating the town of Gay Head,
but upon application by the selectmen to any justice of the
Superior Court, who, after hearing all parties interested, may
appoint commissioners to make partition of "any or all of the
common lands of said town, or of the people heretofore known
as the Marshpee tribe of Indians;" or he may direct that the
same or any part be sold, and the proceeds paid over to the
treasurer of the town. § 6. Although this section does not in
terms state among whom these hinds are to be divided, yet it is
clear that the division is to be made among the Indians inhabit-
ing the territory, whose rights are more clearly defined and
Add. 86
enumerated in previous statutes, relating to the district of

Marshpee. Sts. 1834, c. 166; 1842, c. 72; 1862, c. 184. And
if any uncertainty exists in regard to the disposition of the pro-
ceeds of the sale of lands to be paid by the commissioners into
the hands of the treasurer of the town, it is removed by the St.
of 1878, c. 248, which provides that such proceeds shall be
divided among the persons entitled to the lands prior to the sale,
in proportion to their several interests therein.
There is no constitutional objection to any of these provisions.
The tenure by which these lands were held was peculiar. In
bestowing the privileges of citizenship upon these wards of the
Commonwealth, and giving a title in fee simple to all lands held
by them in severalty under existing provisions of law, it 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 of 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 known as the
Marshpee tribe of Indians.
Nor can we hold that the proceedings instituted in 1870, by
the selectmen of Mashpee, which were pending in the Superior
Court when this petition was filed, have judicially determined
all questions which the selectmen of Mashpee can bring to the
attention of a justice of the Superior Court. In that case, com-
missioners were appointed to divide, and did divide, all the
common lands in Mashpee except meadow and hay lands. The
justice of the Superior Court to whom an application is made,
may determine whether it is for the interest of all parties to sell
or divide all or any part of the common lands. He may thus
designate a part only to be sold, as was done in that case by the
Chief Justice of the Superior Court; and' we may fairly infer
from his decision that, at that time, it was for the interest of the
parties that the meadow and hay lands should not then be sold.
But circumstances may change; the statute does not in terms
restrict the selectmen to one application; and, as a large discre-
tion is lodged in the justice to whom application is made, we are
of opinion that it was the intention of the statute to provide a
Add. 87
Black v. Cape Cod Co. (Commonwealth of Massachusetts Trial
Court Land Court Department, 1975)
EVEREL A. BLACK, JOHN L. BLACK, FRANCIS F. COURNOYER,

GERTRUDE R. COURNOYER
v.
CAPE COD COMPANY, HENRY HORNBLOWER II
COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT

LAND COURT DEPARTMENT
MISC 69813 DUKES, ss.
July 14, 1975
Randall, J
DECISION
The Complaint was brought under the provisions of the General Laws,
Chapter 185, section 1(k) and Chapter 240, Section 6, by the Plaintiffs [Note
1] who pray that an easement by necessity be established to and from their
land "over land of respondents at a point to be designated by order of the
Court and to include the right to install and maintain public utility systems"
thereon. In addition to other prayers not now applicable, plaintiffs seek to
enjoin defendants from blocking the public way passing through their
property.
The plaintiffs filed a stipulation dismissing the complaint as against Henry

Hornblower, II. The Cape Cod Company answered plaintiffs’ complaint,
denying the claimed right of way by necessity over its land, the right to
install and maintain public utility systems thereon and their unlawful
interference with plaintiffs' ingress and egress. Further, defendants claim
that plaintiffs were guilty of laches, but not having been argued this is
deemed to have been waived.
The case was heard on June 4, 1974, at the Dukes County Courthouse in
Edgartown, Massachusetts. A view of the premises was taken on that day
with plaintiffs, defendants, and their attorneys present. Five witnesses were
called by the plaintiffs with their testimony being taken by a stenographer
who was sworn by the Court. Eight exhibits were introduced into evidence
and are incorporated herein for the purpose of any appeal. All references to
book and page numbers are to documents recorded at the Dukes County
Registry of Deeds unless otherwise noted.
The evidence produced at the trial shows that plaintiffs Cournoyer own the
northwesterly half and plaintiffs Black own the southeasterly half of Lot 594
as shown on the plan introduced into evidence as Exhibit No. 5. Defendants
Add. 88
own Lot 587 which abuts Lot 594 at the northwesterly corner thereof as
shown on said plan.
The land in question was formerly held for the benefit of the Indians located
in the Indian district of Gay Head. Until the passage of the St. of 1869 c. 463
the Indians were wards of the Commonwealth and the title to the lands
occupied by them was held by the Commonwealth. Coombs, Petitioner, 127
Mass. 278 , Danzell v. Webquish, 108 Mass. 133 , 134. The Court takes
judicial notice of Chapter 42 of the Resolves of 1863 entitled “Resolve
Relating To The Establishment of Boundary Lines of Indian Lands at Gay
Head.” As a result of this resolve, a commissioner was appointed “to
examine, and fully and finally to determine, all boundary lines between the
individual owners of the land located in the Indian district of Gay Head ...
and also to determine the boundary lines between the common lands of said
district and the individual owners adjoining said common lands….” By
Chapter 67 of the Resolves of 1866 the report of the Honorable Charles M.
Marston, the commissioner so appointed under Chapter 42 of the Resolves
of 1863, was accepted and a further resolve authorized the appointment of
still another commissioner to complete “the examination and determination
of questions of title under said resolve, not passed upon by said
commissioner.” A map of “Gay Head” was prepared [Exhibit No.8] “under
the direction of Richard L. Pease, Eng., Commissioner appointed by Gov.
Bullock under Resolve Chap. 67 of 1866,” recorded in Book 5, Pages 34 and
35.
By Section 6 of St. 1870, Chapter 213, “An Act to Incorporate the Town of
Gay Head” the General Court as part thereof authorized the Probate Court of
Dukes County to appoint two commissioners to recommend the division of
these lands among the Indians. Richard Pease and Joseph Pease were
appointed commissioners in 1878 and submitted their report recommending
the parceling of the common land to individual Indians [Exhibit No. 1].
Thereafter, Lot 587 was parceled out to Leander Basset and Lot 594 to Amy
Spencer [Exhibits No. 2 and 3] as shown on the plan submitted by the
commissioners in connection with the set off. [Exhibit No.6]. Each lot was
described by making reference to abutting lots in accordance with the plan
which showed the lots set forth as on a grid. The plan itself [Exhibit No. 6]
showed that the only road ran from the Chilmark town line westerly to the
Gay Head Light House. The deeds to the individual lots made no provision
for any rights of way or easements to get to and from any of the lots. There
was evidence that showed that at the time of the set-off the whole area was
used in common by the Indians for planting corn, as pasture for their wild
ponies and presumably in part for their abodes. The lots were undefined on
the ground as there were no fences or any other separation of the lots. The
Indians traveled on foot or on horseback without reference to anyone
Add. 89
person's land or boundaries. None of the trails were more than three feet
wide and vehicles were never used.
Plaintiffs’ title to Lot 594 comes by mesne conveyance from the title set-off
to Amy Spencer [Exhibit No. 2] while defendant’s title to Lot 587 comes
from thee lot set off to Leander Bassett [Exhibit 3]. Moshup Trail is a two-
lane tar road built according to testimony in 1963-1964 which loops
southerly from the state road. There is one new house on the south side of
Moshup Trail 1/3 to 1/2 mile east of the turn off sought to be established as a
right of way to 594. Utility lines end at this house, coming to it from the east.
Except for this house, the area is wild and uninhabited, being sparsely
covered with grass growing in loose, sandy soil ever more sparse as one
approaches the beach to the south. The terrain itself is made up of small hills
that may be passed over in a jeep or four-wheel drive vehicle.
The way over which plaintiffs claim their easement is part of an ancient way
which commences at an undetermined point off “Old South Road" (which
appears on Exhibit No.5) and runs thence in a generally southeasterly
direction to Moshup Trail. Ink lines on Exhibit No. 5 indicate that the way
runs from Moshup Trail across Lots 577, 581 and 582 to Lot 587 where it
divides into two ways, one curving to the north, and the other, with which
this case is concerned, to the south across Lot 587 to and through Lot 594.
From there, it proceeds across Lot 595, a beach area, and thence westerly
across Lots 585, 584, 583, 575, and 572 to Moshup Trail. The portion
running from Lot 595 westerly to Moshup Trail is known as “Zack’s Cliff
Road.” Since the Complaint alleges the right claimed by the plaintiffs to lie
across Lot 587, the Court is unconcerned with Zack’s Cliff Road. Because the
necessity of access is to Moshup Trail, the Court is unconcerned with that
part of the ancient way running between Old South Road and Moshup Trail.
The way from Moshup Trail to Lot 594 was originally a horse trail which was
widened by the repeated driving of an automobile over it. There is a gate
across the way at the westerly boundary line of Lot 587, built by the
defendants and kept locked by them since 1964. There was evidence
indicating that the plaintiffs and others would, whenever they found it
locked, cut the locks and throw them into the bushes in order to pass
through Lot 587 to Lot 594 and beyond.
The partition of 1878 of the land held in common by the Indians was to
establish parcels to be owned individually by the Indians, and this partition
contained no provision for access to and from landlocked parcels by the
designated owners of such parcels. There 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. Rights of
way of necessity are created by a presumption of law. Where a landowner
conveys a portion of his land in such a manner that he is unable to reach the
Add. 90
land retained without travelling over the land conveyed, the law presumes in
the absence of contrary evidence that the intent of the parties to the
conveyance was to provide access to the former by passage over the latter.
Davis v. Sikes, 254 Mass. 540 . The necessity of the right of access does not
of itself create the right, but it is evidence that the right can be implied from
the intent of the parties. Orpin v. Morrison, 230 Mass. 529 , Gorton-Pew
Fisheries Co. v. Tolman, 210 Mass. 402 . This principle is not disrupted by
the fact that these parcels were all created at one and the same time in a
partition of the land and not as a result of a landowner conveying out or
retaining an inaccessible parcel.
That the Commonwealth in 1878 did not provide for specific means of access
to the parcels partitioned perhaps indicates its awareness of the Indians'
customary travelling on horseback and on foot without regard to the
boundaries of individual lots as a means of access. Use of such a means was,
perhaps, an exercise of an easement which now may need only specific
location because of the changes in the use and occupation of the land
involved and because of changes in modes of transportation. One cannot,
obviously, drive an automobile to a landlocked parcel in complete disregard
of the boundaries of other parcels.
If the Court were to rule that plaintiffs did have, as a result of the necessity
of access and the lack of evidence of an intent on the part of the
Commonwealth to deny access, an easement of access to Lot 594, it would
not compel any conclusion that their easement lies over the way which they
have been using to reach their Lot 594. The most direct way to reach
Moshup Trail might be across Lots 586, 582, 583, 575, 576 and 572, in
addition to Lot 587. The owners of these lots are not before the Court and
thus the Court cannot issue in their absence any decree or ,judgment that
would affect their rights. Even if, as plaintiffs allege, their right were to lie
across the way over which they claim an easement, perhaps by prescription,
that way runs across Lots 582, 581 and 577, in addition to Lot 587. The
owners of these lots are likewise not before the Court, and the Court is
powerless to issue in their absence any decree or judgment that would affect
their rights. Finally, the Court notes that there are other landlocked parcels
which may have rights over Lot 594. While this fact does not of itself prevent
the Court from determining plaintiffs' claim, it does suggest the crying need
for a thorough and comprehensive planning of access to the entire area. One
manner of providing access, which might under other circumstances be
judicially imposed, would be to plan ways sufficiently wide to allow vehicular
use along the boundary lines of each lot (on all four sides if necessary to give
access to Moshup Trail to any given lot), burdening each lot with one-half
the width of the way and in turn benefiting each lot with a right of way over
such of the other remaining lots as is necessary to reach Moshup Trail. This
Add. 91
would be imposed in such a manner as would divide the burden of ways as

equitably as possible.
The Court reluctantly concludes that the owners of at least Lots 571, 572,
575, 576, 577, 581, 582, 583, and 586 are indispensable parties to this action,
and relief cannot without their presence in the action be granted. Rule 1A of
the new Rules of Civil Procedure, designed to provide guidance in the
transition of procedure from the old rules to the new rules, provides in Rule
1A(3) and 1A(8) authority for the Court to dispose of this case under the
procedure effected by new Rules of Civil Procedure. Under Rule 19 (a) of the
new rules, the Court can on its own motion order these other owners to be
joined in these proceedings. Rule 19(a) (1), Rule 19(a) (2) (i). Alternatively,
under Rule 19(b), the Court can dismiss the case without prejudice until
such time as the plaintiffs upon proper pleadings and process can join in this
action these indispensable parties. It is the Court’s view that any judgment
that could issue at this point in these proceedings, assuming such a
judgment would be favorable to the plaintiffs, would be either unavoidably
prejudicial to one or more parties not now before the Court, or completely
inadequate to the needs of the plaintiffs. The Court chooses in its discretion
to dismiss the case without prejudice under Rule 19(b) because the
information necessary to make an order under Rule 19(a) is not now before
the Court. More important, a dismissal without prejudice under Rule 19 (b)
will not only tend to accomplish the same purpose as an order under Rule
19(a), should the plaintiffs desire to file the appropriate motions and
pleadings, but also a dismissal will tend to give the present parties ample
latitude in their pursuit of this litigation. The Court is a suitable place for
determining rights of the parties before it under the law, but legal process is
not always the best means for planning access to a large number of lots; the
Court has no special expertise in land development. However, the Court is
quite prepared to decide whatever legal issues are presented to it provided
all the proper parties are before it.
The Court orders that the petition be dismissed without prejudice to the
plaintiffs to file appropriate motions and pleadings for further hearings in
this matter.
So Ordered.
FOOTNOTES
[Note 1] Francis F. Cournoyer was joined as plaintiff by an amendment to

the complaint.
Add. 92
Taylor v. Vanderhoop (Commonwealth of Massachusetts Trial
HUGH C. TAYLOR and JEANNE S. TAYLOR

v.
DAVID E. VANDERHOOP and EVELYN VANDERHOOP.
Commonwealth of Massachusetts Trial Court Land Court

Department
MISC 129925
July 19, 1989
Dukes, ss.
CAUCHON, J.
DECISION
Hugh C. and Jeanne S. Taylor ("Plaintiffs") commenced this action on

October 4, 1988 seeking a declaration, pursuant to G. L. c. 231A, that David
E. and Evelyn Vanderhoop ("Defendants") have no right to enter upon or to
pass over a forty (40) foot wide right of way ("Way") depicted on Land Court
Plan Nos. 35915A and 35915B as running across a portion of a parcel of
registered land owned by the Plaintiffs located on Lobsterville Road in
Gayhead, Massachusetts, shown as Lot No. 4 on Land Court Plan No.
35915B ("Locus") (Exhibit No. 1-B), or in the alternative, a declaration that
any right of access which the Defendants may possess on or over said Way,
does not include the right to use it for vehicular traffic or to install utilities
or other services in or over the same. Pending a trial on the merits, the
parties filed cross-motions for preliminary injunctive relief. These motions
were allowed by Order of this Court dated October 20, 1988, as follows:
(a) The defendants are enjoined, until further order of this Court, from (i)
using for vehicular traffic, (ii) disturbing, or (iii) altering the "Way (40.00
wide)" shown on Land Court Plan No. 35915B except that defendants may
use the Way, during reasonable working hours, until noon on October 22,
1988, for the purpose of causing one vehicle to pass over said Way in order
to reach defendants' land and to excavate a foundation hole on said land;
and
(b) The plaintiffs are ordered, until further order of this Court, to remove
from the Way the boat or any other items which may obstruct passage over
said Way.
Thereafter, on November 3, 1988, the Order was amended to read as

follows:
Add. 93
A. The plaintiffs are ordered, until further order of this Court, to refrain
from obstructing passage over the disputed [Way] . . . or from interfering
with the use of the Way by the defendants for passage to and from their land
by foot or by ordinary vehicle.
B. The defendants are enjoined, until further order of this Court, from using
the Way for construction vehicles of any nature . . or from altering or
causing damage to the Way. . . .
A trial was held in the Land Court, sitting at Edgartown, on January 30,
1988, at which time a stenographer was appointed to record and transcribe
the testimony. The matter was submitted on a partial Statement of Agreed
Facts (Exhibit No. 1) and oral testimony. Five witnesses testified and five
exhibits were introduced into evidence. All exhibits, and certain of the
agreed facts, are incorporated herein for the purpose of any appeal.
Following trial, the Court viewed the subject premises in the presence of
counsel.
On all of the evidence, I find as follows:
1. The Plaintiffs acquired title to Locus by Transfer Certificate of Title No.

3806 (Exhibit No. 1-A) on July, 19, 1974. Locus constitutes a portion of the
land originally registered to Isaac and Gertrude Taylor ("Taylors") by Final
Decree dated August 9, 1971 (See Exhibits No. 1-C-1, 1-C-2 and 1-D). The
Taylors' Original Certificate of Title, dated August 9, 1971 (Exhibit No. l-C-
2), contains the following language:
. . . So much of the land hereby registered as is included within the areas

marked "Way-20.00 feet wide; and "Way-40.00 feet wide," approximately
shown on [Land Cout Plan No. 35915A] (Exhibit No. 1-D), is subject to the
rights of all persons lawfully entitled thereto in and over the same. . . .
Although this language is omitted from the Plaintiffs' Transfer Certificate of

Title, the aforesaid forty (40) foot wide Way is depicted on the Plaintiffs'
Land Court Plan No. 35915B (Exhibit 1-B) and is clearly visible on the
ground. In any event, the unexplained omission in a Transfer Certificate of a
right in a dominant estate does not extinguish that right absent a release or
other appropriate document.
2. By deed from John O. Vanderhoop, Pauline Vanderhoop and Leonard F.

Vanderhoop, Sr. dated December 30, 1976, recorded at Book 341, Page 314
in the Dukes County Registry of Deeds (Exhibit No. 1-E), the Defendants
acquired title to a certain parcel of unregistered land located to the
northwest of Locus and shown in part as a lot marked "Edwin D.
Vanderhoop" on Land Court Plan No. 35915A.
Add. 94
3. As shown on said Plan, the Defendants' property lies between a parcel of

registered land located to the north and another parcel of registered land
located to the south, both of which parcels are owned by Frances A.
Ginnochio ("Ginnochio"). The foregoing parcels appear as Lots No. 1 and 2
on Land Court Plan No. 19215A (Exhibit No. 1-G).
4. At the time of Ginnochio's registration petition, an objection thereto was

filed by David F. Vanderhoop, Leonard F. Vanderhoop and Pauline A.
Vanderhoop (Exhibit No. 1-H). Thereafter, on November 27, 1946, two
Stipulations for Decree (Exhibit Nos. 1-I and 1-J) were entered into by the
parties and duly incorporated into Ginnochio's registration decree. The
pertinent portion of the Stipulation identified as "Exhibit No. 1-I" reads as
follows:
. . . any decree registering the title in [Lot 1] on the Petitioner's plan

[19215A], shall subject the fee therein to a right of way over the so-called
Coast Guard Station Road as laid out on said plan . . . for the benefit of the
present owners of [the Vanderhoop parcel], their heirs or assigns.
5. On November 20, 1953, a Final Decree (Exhibit No. 1F) entered in

Ginnochio's registration case incorporating the Stipulation for Decree
quoted above in Finding No. 4 as follows:
So much of said lots 1 and 2 [on Land Court Plan No. 19215A] as is included
within the limits of the way forty (40) feet wide, . . . is subject to the rights of
all persons lawfully entitled thereto in and over the same. (emphasis
added), and to the terms of [the] stipulation [referenced above]. . . .
There is appurtenant to said lots 1 and 2 the right to use the way forty (40)
feet wide, . . . in common with all other persons lawfully entitled thereto. . .
(emphasis supplied).
6. The parcels depicted on Land Court Plan No. 35915B as belonging to

Taylor, Vanderhoop, Ginnochio and one Broacher were all held at one time
as common lands of the District of Gay Head, the same being transferred
thereafter to the Town of Gay Head and later partitioned in accordance with
Chapter 213 of the Acts and Resolves of 1870.
7. Following the filing of an additional objection to the Ginnochio

registration petition by the United States of America ("USA"), an Agreement
for Decree (Exhibit No. 1-K) was executed, whereby a perpetual easement
for the benefit of the USA was granted in:
a strip of land twenty (20) feet each side of the center line of existing ways as
identified by dotted lines on a plan of land in Gay Head of [Ginnochio] . . .
Add. 95
dated April, 1944 ("1944 Plan") (Exhibit No. 1-L) . . . with full right of egress
and ingress over said lands by those in the employ of the [USA] , on foot or
with vehicles of any kind, with boats or any articles used for the purpose of
carrying out the intentions of Congress provided for the establishment of
life-saving stations; and the right to pass over said lands in any manner in
the prosecution of said purposes and to erect such structures upon said land
as the [USA] may see fit. . . .
Some time after 1947, the U. S. Coast Guard took over the Life Saving
Station ("Station") situated on the parcel marked "1" on the 1944 Plan.
8. The forty (40) foot wide Way appears to have been created some time in
the late nineteenth century for purposes of accessing the Station. As it
presently appears, the Way runs from Lobsterville Road, a public way, to the
site of the Station, crossing over the lands of the Plaintiffs', Defendants',
Ginnochios' and other parcels. The Way constitutes the Defendants' sole
means of access from their land to a public way. The evidence is somewhat
vague as to the precise year of the Way's establishment, but I note that the
1887 U.S. Geodetic Survey Map on file with the Land Court shows what now
appears to be South Road as the only road then located in Gayhead.
9. From the 1940's through the 1960's, the Vanderhoop family used the Way,
or footpaths connecting thereto, to reach the Station for purposes of
delivering newspapers and milk, and collecting swill for their pigs. At times,
the Vanderhoops crossed over the Way in the course of hunting rabbits or
searching for ancient artifacts over the surrounding area. In addition, they
occasionally used the Way or connecting footpaths for recreational purposes
and/or observing the extent of any erosion of the cliffs of Gayhead. At no
time during this period did the Vanderhoops find their use of the Way
blocked or obstructed.
10. In 1954, extensive erosion of the surrounding cliffs threatened the

station's structural soundness. Accordingly, the U.S. Coast Guard
abandoned the station and relocated thereafter to Menemsha (See Exhibit
No. 3).
The Defendants Vanderhoop assert rights in the subject forty (40) foot wide
Way based on the following legal theories: 1) easement by prescription; 2)
easement by implication or necessity and 3) easement in a private way for
which the public has acquired rights of use by motor vehicle. For the reasons
enunciated below, I find and rule on the evidence that the Defendants have
acquired an easement by implication or necessity to pass and repass without
obstruction, by foot or by motor vehicle, along the entire length of the Way
for purposes of access to and egress from their property.
Add. 96
It is familiar law in this Commonwealth that one may acquire a right of way
by prescription through twenty years of uninterrupted, open, notorious and
adverse use. G.L. c. 187, s. 2; Boston Seaman's Friend Society, Inc. v. Rifkin
Management, Inc., 19 Mass. App. Ct. 248 , 251 (1985); Glenn v. Poole, 12
Mass. App. Ct. 292 (1981); Brown v. Sneider, 9 Mass. App. Ct. 329 , 331
(1980); Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Garrity v. Sherin, 346
Mass. 180 , 182 (1963); Nocera v. DeFeo, 340 Mass. 783 (1959). In the
matter herein, the Vanderhoops' use of the subject Way spans the 1940's
through the 1960's. I find such use, however, to be irregular and/or for
purposes of reaching the Station. Accordingly, the Vanderhoops' use of the
Way is of an insufficient nature to establish their acquisition of prescriptive
easement rights in and over the Way. See Uliasz v. Gillette, 357 Mass. 96 ,
101-102 (1970); Akasu v. Power, 325 Mass. 497 , 502 (1950). Similarly, I find
there to be insufficient evidence in the record before the Court to establish
that the Vanderhoops, or the general public, have acquired easement rights
in the Way under the theory that it is a private way for which the public has
obtained rights.
The Defendant Vanderhoops further assert that they hold an easement by

implication or necessity over the Way as it crosses Locus. Implied easements
do not arise out of necessity alone. Perodeau v. O'Connor, 336 Mass. 472 ,
474 (1958). Their origin must be found in the presumed intention of the
parties to be gathered from the language of the relevant instruments read in
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 , 347 (1967); Perodeau at
474; Sorel v. Boisjolie, 330 Mass. 513 , 517 (1953); Joyce v. Devaney, 322
Mass. 544 , 549 (1948); Dale v. Bedal, 305 Mass. 102 , 103 (1940).
Additionally, where as here the Way in which an easement by implication or
necessity is claimed traverses registered land, the proponents thereof bear
the burden of proving that such easement rights accrued prior to the date of
a Final Decree in such registration case and that they are members of the
class referred to in the Decree as having said rights. The imposition of this
burden is consistent with the well-settled rule that an easement by
implication may not be created against registered land. G.L. c. 185, s. 53;
Goldstein v. Beal, 317 Mass. 750 , 757 (1945).
One particular set of circumstances which will give rise to an easement by

implication, and which I find to be relevant hereto, exists where, during the
common ownership of a tract of land, an apparent and obvious use of one
part of the parcel is made for the benefit of another part thereof and such
use is being actually made up to the time of the severance and is reasonably
necessary for the enjoyment of the other part of the tract. Sorel at 516;
Jasper v. Worcester Spinning and Finishing Co., 318 Mass. 752 , 756-757
Add. 97
(1945); Joyce at 549. Further, where one conveys a portion of his land in
such a way as to deprive himself of access to the remainder thereof unless he
crosses the land sold, the law implies from the resulting situation of the
parties that such person has a way of necessity over the granted portion of
the premises. The law thus presumes that one will not sell land to another
without an understanding that the grantee shall have a legal right of access
to 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. New York &
New England Railroad Company v. Board of Railroad Commissioners, 162
Mass. 81 , 83 (1894); Gorton-Pew Fisheries, Co. v. Tolman, 210 Mass. 402 ,
411 (1912); Orpin v. Morrison, 230 Mass. 529 , 533 (1918); Davis v. Sikes,
254 Mass. 540 , 545-546 (1926); Restatement of the Law: Property, Section
474.
In the instant matter, the respective properties of the Plaintiffs' and

Defendants' originally comprised a portion of the common lands of the
District of Gay Head. Following the enactment of Chapter 213 of the Acts
and Resolves of 1870, however, the District of Gay Head was abolished and
the Town of Gay Head established. Thereafter, the common lands were
partitioned and conveyed to individual owners, the parcels owned by the
Plaintiffs and Defendants being among those created by such partition.
Accordingly, as it is immaterial whether the severance of common
ownership results from execution of law, See Viall v. Carpenter, 80 Mass.
(Gray XIV) 126 (1859); Flax v. Smith, 20 Mass. App. Ct. 149 (1985), a
reasonable implication arises that some means of ingress to and egress from
the resulting lots is necessary to the lot owners' enjoyment of their property.
While the foregoing facts do not support an easement by prescription, they
do demonstrate that the subject forty (40) foot wide Way has been the
accepted means of access to and from the surrounding parcels since its
establishment in the late 1800's. While the record is devoid of evidence that
the Way existed at the time of the partitioning of the common lands, the
easement, nevertheless, came into existence at that time as an undefined
easement by necessity. Where a right of way is not precisely located or
established, its existence is not affected. Emery v. Crowley, 371 Mass. 489 ,
495 (1976). In such instances, the Court has the authority to establish the
easement or the same may come into being by acquiescence of the parties
involved. Here, the establishment of the Way on the ground, its use and the
surrounding circumstances, including the Vanderhoops' filing of an
objection in the Ginnochio Registration Case No. 19215A (See Finding No.
4), all serve to define the easement created by the partition. Additionally, as
the Final Decree in the Ginnochio registration case incorporates a
Stipulation for Decree whereby the registration of the Ginnochio land was
made subject to the Vanderhoops' right to cross over the same for purposes
Add. 98
of accessing their land, the reasonable inference to be drawn therefrom is

that at that time the parties deemed the Way to be the access route to their
properties.
As noted above in Finding No. 1, the Original Certificate of Title held by the
Plaintiffs' predecessors in title also refers to Land Court Plan No. 35915A,
which depicts the forty (40) foot wide Way and which expressly
acknowledges that such registration is subject to the rights which others may
lawfully possess therein. The Vanderhoop's status as persons so entitled to
use the Way accounts for their failure to file an objection in Land Court
Registration Case No 35915. Accordingly, when the Final Decrees of the
Land Court of November 20, 1953 (Ginnochio) and August 9, 1971 (Taylor)
were extended onto Land Court Plan Nos. 19215A and 35915A and said
plans and decrees were made a matter of public record, some easement of
passage over the Ways depicted thereupon became appurtenant to the lot
now owned by the Defendants. See Dubinsky v. Cama, 261 Mass. 47 , 53-54
(1927); Walter Kassuba Realty Corp. v. Akeson, 359 Mass. 725 , 728 (1971).
The Plaintiffs' Transfer Certificate of Title fails to include any language

subjecting the registration of Locus to similar easement rights in and over
the subject Way, but Land Court Plan No. 35915B, which is specifically
referred to therein, shows said Way. I therefore deem this omission of no
consequence since the Certificate's reference to the plan places the Plaintiffs
on notice as to the existence of the Way, and accordingly, causes the
registration of Locus to be subject to any and all easement rights which
other persons may lawfully possess in and over said Way. See Anderson v.
DeVries, 326 Mass. 121 ; 132 (1950); Myers v. Stalin, 13 Mass. App. Ct. 127 ,
137 (1971); Brooks v. Capitol Truck Leasing, Inc., 13 Mass. App. Ct. 471 ,
478-479 (1971). The Plaintiffs thus took title to Locus subject to the
Vanderhoops' right of way and must be estopped to deny the existence of
whatever easement of travel was created in and over the Way under the land
registration records. See Dubinsky at 56. I note in addition thereto that such
"easement of travel" is not limited to access in and over the Way up to the
Ginnochio parcel, as the Taylors' Original Certificate of Title contains no
express language so limiting the Defendants' rights in and over the Way.
Had the Taylors intended to restrict the extent of such passage to that
portion of the Way running in front of the Ginnochio property, and not to
any point beyond, they should have so petitioned the Court, rather than
leaving the Way open to "the rights of all persons lawfully entitled thereto in
and over the same". I thus find the Certificate's reference to the Way, and to
the rights contained therein (See Finding No. 1), to further substantiate an
acknowledgment on the part of the Plaintiffs' predecessors in title that the
Vanderhoops, and others similarly entitled to use the Way, possess rights to
pass and repass over the entire length of the Way for purposes of accessing
Add. 99
their land. Further, as it is fundamental that where an easement or other

property right is granted or created, every right necessary for its enjoyment
is included by implication, Sullivan v. Donohoe, 287 Mass. 265 , 267 (1934);
Anderson at 134, the Defendants' right to so use the Way carries with it the
right to make reasonable repairs and improvements thereto at their own
expense. Such right further includes the right to install utilities therein, or
thereupon as conditions may dictate, for purposes of servicing their
property. G.L. c. 187, s. 5; Nantucket Conservation Foundation, Inc. v.
Russell Management, Inc., 380 Mass. 212 , 217 (1980).
In consideration of the foregoing, I rule in summary that the Defendant

Vanderhoops have acquired a right of way by implication to enter upon and
to pass and repass without obstruction, by foot or by vehicle, over and along
the entire length of the forty (40) foot wide Way, such easement
encompassing each and every right necessary or incidental to the
Defendants' enjoyment thereof, and that the Vanderhoops, their heirs and
assigns are members of the class so entitled to use the Way.
Judgment accordingly.
Add. 100
Add. 101
Add. 102
Add. 103
Add. 104
Add. 105
Add. 106
Add. 107
Add. 108
Add. 109
Add. 110
Add. 111
Add. 112
Add. 113
Add. 114
Add. 115
Add. 116
Add. 117
Add. 118
Add. 119
Kitras v. Town of Aquinnah, 833 N.E.2d 157, 64 Mass. App. Ct.
285 (Mass. 2005)
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.
Page 158
COPYRIGHT MATERIAL OMITTED
Page 159
Page 160
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
Add. 120
285 (Mass. 2005)
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.
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
Page 161
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
Add. 121
285 (Mass. 2005)
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
Page 162
Add. 122
285 (Mass. 2005)
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,
Add. 123
285 (Mass. 2005)
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
Page 163
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 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,
256 N.E.2d 290 (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, 67 P.3d 412 (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. Babbitt, 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 necessity. See and
compare Bay Colony Constr. Co. v. Town of Norwell, 5 Mass.App.Ct. 801,
360 N.E.2d 1278 (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.
A. "An easement is by definition a limited, nonpossessory interest in

realty." M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 92, 809 N.E.2d 1053
(2004). It may be created either expressly, see, e.g., id. at 88, 809 N.E.2d
1053, 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.
Add. 124
285 (Mass. 2005)
73, 76-77, 818 N.E.2d 561 (2004), quoting from New England Continental
Media, Inc. v. Milton, 32 Mass.App.Ct. 374, 378, 588 N.E.2d 1382 (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,
120 N.E. 183 (1918). See Nichols v. Luce, 41 Mass. 102, 24 Pick. 102, 104
(1834); Davis v. Sikes, 254 Mass. 540, 545-546, 151 N.E. 291 (1926); Joyce
v. Devaney, 322 Mass. 544, 549, 78 N.E.2d 641 (1948); Nylander v. Potter,
423 Mass. 158, 162, 667 N.E.2d 244 (1996); Restatement (Third) of Property
(Servitudes) § 2.15 (2000).
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, 564 N.E.2d 1 (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
Page 164
v. Attleboro Branch R. Co., 153 Mass. 120, 122, 26 N.E. 418 (1891). See
Uliasz v. Gillette, 357 Mass. at 102, 256 N.E.2d 290. 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.
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."
Add. 125
285 (Mass. 2005)
Report of the Commissioners, 1849 House Doc. No. 46, at 20. As another
commissioner noted, "the title to land, 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, § 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, 104 S.Ct. 2397, 81 L.Ed.2d 354 (1984) (internal
quotation marks, citation and emphasis omitted).
Thus, considered most favorably from the complainants' perspective,

the titles for
Page 165
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 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. Attleboro Branch R. Co., 153 Mass. at 122, 26 N.E. 418;
Uliasz v. Gillette, 357 Mass. at 102, 256 N.E.2d 290.
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
Add. 126
285 (Mass. 2005)
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. 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 Town of Bedford v. Cerasuolo, 62 Mass.App.Ct. at 80, 818
N.E.2d 561 (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
Page 166
to be constructed in the first instance (that it be used by local residents to

gain access to State 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 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
Add. 127
285 (Mass. 2005)
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, 120 N.E. 183, 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, 78 S.E. 233
(1913) (upon severance of common parcel, "parties may well be presumed to
have contemplated such conditions as the future was likely to bring forth").
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 Town of Bedford v. Cerasuolo, 62 Mass.App.Ct. at 78,
818 N.E.2d 561, 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) § 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) (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," when owner of
servient estate blocked usual route); Crotty v. New River & Pocahontas
Consol. Coal Co., 72 W.Va. at 71, 78 S.E. 233 (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, 809 N.E.2d 1053 (adopting Restatement
[Third] of Property [Servitudes] § 4.8[3] [2000]); Restatement (Third) of
Property (Servitudes) § 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
Page 167
Title 25 of the United States Code, § 1771e(c)(3)(B) (2000), specifically

reserves to the Tribe, not the United States, the right to transfer "any
Add. 128
285 (Mass. 2005)
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. Wampanoag Aquinnah Shellfish
Hatchery Corp., 443 Mass. 1, 818 N.E.2d 1040 (2004) (Shellfish Hatchery
Corp.), decided after the partial judgment before us entered. In Shellfish
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, 818 N.E.2d 1040, the Supreme Judicial Court "concluded
that the Tribe waived its sovereign immunity as to land use on the Cook
Lands." Id. at 16-17, 818 N.E.2d 1040. 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,
818 N.E.2d 1040.
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 . . . ."
We also note that § 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, § 5; 25 U.S.C. § 1771g
(2000).
In light of Shellfish Hatchery Corp., and given the explicit right to

transfer easements, 25 U.S.C. § 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
Add. 129
285 (Mass. 2005)
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
Page 168
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, 818 N.E.2d
1040 (footnote omitted). The same rationale also eliminates any need to join
the United States as trustee. See id. at 15 n.14, 818 N.E.2d 1040.
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 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, 327 N.E.2d 690 (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.
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, 41 Mass. 102, 24 Pick. at 104. Orpin v.
Morrison, 230 Mass. at 533, 120 N.E. 183. Neither does there exist a public
policy favoring the creation of implied easements when needed to render
land either accessible or productive. Richards v. Attleboro Branch R. Co.,
153 Mass. at 122, 26 N.E. 418 ("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, 120 N.E.
183, quoting from Gayetty v. Bethune, 14 Mass. 49, 56 (1817) (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"). As previously noted, our charge,
Add. 130
285 (Mass. 2005)
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, 120 N.E. 183. 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.
Page 169
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, 25 N.E.2d 175 (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" 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.
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, 479 N.E.2d
183 ("[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").
Add. 131
285 (Mass. 2005)
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, 592 N.E.2d 758 (1992).
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, 80 Mass. 126, 14 Gray 126,
128 (1859); Hart v. Deering, 222 Mass. 407, 411, 111 N.E. 37 (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, 289 N.E.2d 847 (1972); New England Continental Media, Inc. v.
Milton, 32 Mass.App.Ct. at 378, 588 N.E.2d 1382. We also leave the
question of scope of any easements to trial.
Page 170
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.
APPENDIX
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT

VIEWABLE
---------------
Notes:
Add. 132
285 (Mass. 2005)
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; Victoria Brown; Gardner Brown, Jr.; Mark D. Harding; and Eleanor
P. Harding, as trustee of the Eleanor P. Harding Trust.
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.
4. The lot numbered 189 is an anomaly, described in the record as held prior
to these events both in severalty and in common.
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 § 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) §
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.
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'
Add. 133
285 (Mass. 2005)
[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.
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, 818 N.E.2d 1040.
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.
---------------
Add. 134
Kitras v. Town of Aquinnah (Commonwealth of Massachusetts
Trial Court Land Court Department, 2010)
18 LCR 424
MARIA A. KITRAS, as Trustee of BEAR REALTY TRUST, et al.

v.
TOWN OF AQUINNAH, et al.

August 12, 2010
Trombly, J.
DECISION
Related Cases:
• 19 LCR 140
• 64 Mass. App. Ct. 285
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 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 set-off 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.
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.”
On March 29, 2007, this court (Lombardi, J.) granted Plaintiffs leave to
amend their complaint. Plaintiffs Third Amended Verified Complaint
Add. 135
contains two counts: one asserting an easement by necessity and one

asserting an easement by prescription. [Note 1] The parties agreed to submit
this action to the court on a case stated basis, without calling witnesses.
[Note 2] The 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: [Note 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.
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.
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 (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.
7.By St. 1862, c. 184, § 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.”
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
Add. 136
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.
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.
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.
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 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
Add. 137
commissioners to carry out the partition of common lands and the

determination of claims to other lands held in severalty.
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
[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.
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. [Note 10]
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.”
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.
15. The commissioners explicitly granted to certain individuals, some

identified and some not, the right to take peat from various lots.
16. The commissioners also expressly reserved an easement for fishing and
clearing creeks over Lots 382, 384, and 395.
Add. 138
17. 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 conveyed
in 1878, which are now owned by Defendants.
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. [Note
4]
*****
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, 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). [Note 5]
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.”
Add. 139
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.”); Home Inv. v. Iovieno, 243
Mass. 121 , 124 (1922) (“It is a strong exercise of the power of the law to raise
a 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.”).
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.
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).
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.
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
Add. 140
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.
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. Hoffman, 326 Mass. 683 , 688
(1951) (“[The trial judge] could have attached considerable weight to the fact
that, while the 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,
Particularly noteworthy in our estimation is the commissioners’ silence on

this issue, as is the fact that even the most cursory glance at a
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.
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
Add. 141
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.
[Note 6]
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. [Note 7] As the Appeals Court stated in Kitras, 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’ 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.
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
Add. 142
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. [Note 8]
Judgment to issue accordingly.
Charles W. Trombly, Jr.
Justice
Dated: August 12, 2010
FOOTNOTES
[Note 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.
[Note 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.
[Note 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 4th Decision, but not
relevant to this court’s determination of the issues herein at issue have been
omitted.
[Note 10] The set-off plan is the map which accompanied the
commissioners’ 1878 report.
[Note 4] The federal government did eventually extinguish Indian title by

passing 25 U.S.C. § 1771, et seq. in 1987. 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.”
[Note 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,
Add. 143
this court understands Plaintiffs’ argument to be one for an easement by

necessity.
[Note 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.
[Note 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. . . .”
[Note 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.
Add. 144
Supreme Judicial Court/Massachusetts Appeals Court
Citation: 87 Mass. App. Ct. 10 (2015)

Parties: MARIA A. KITRAS, trustee, [1] & others [2] vs. TOWN OF AQUINNAH &
others [3]
Docket No.: No. 12-P-260
County: Suffolk
Hearing Date: January 18, 2013
Decision Date: January 14, 2015
Judges: KANTROWITZ, BERRY, & AGNES, JJ.
Easement. Necessity. Real Property, Easement.
In a civil action brought by the owners of certain landlocked lots lying in

the town of Aquinnah on Martha's Vineyard (who were subsequent grantees
in a chain of conveyances from the members of the Wampanoag Tribe of Gay
Head [Tribe]) claiming easements by necessity, this court concluded that
such easements by necessity existed, where it was undisputed that there
were common access rights over the land by custom and practices among
the Tribe members; where the Tribe members, first as grantees, and then
as grantors, would not be expected to manifest express or implied intent
regarding easements, nor would intent be manifest in the governmental
land transfers to Tribe members or in the later judicial partitioning
process (changing common ownership to yield individual deeds in
severalty ownership to Tribe members); where, in any event, it was
appropriate to follow § 2.15 of the Restatement (Third) of Property
(Servitudes) (2000) (providing that easements by necessity exist where
access would otherwise be cut off unless the parties clearly indicate
they intended a contrary result); and where Massachusetts common law
also supported easements by necessity in the land. [12-18] AGNI.S, J.,
dissenting.
CIVIL ACTION commenced in the Land Court Department on May 20, 1997.
After review by this court, 64 Mass. App. Ct. 285 (2005), the
---------------------------
[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; and Mark D. Harding, Sheila H. Besse, and Charles D.
Harding, Jr., as trustees of Eleanor P. Harding Realty Trust.
[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."
87 Mass. App. Ct. 10 (2015) Page 11
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
Add. 145
© 2020, Social Law Library. All Rights Reserved. Page 1 of 18
Donnelly, Assistant Attorney General, for the Commonwealth.
Jennifer S.D. Roberts for Vineyard Conservation Society, Inc.
BERRY, J. From the earliest time, the members of the Warnpanoag 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 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 long-standing tribal
custom and practice so as to leave the plaintiffs' lots landlocked and
bereft of easements.
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) § 2.15 (2000) and Massachusetts common
law. We remand to the Land Court to draw the necessary easement lines in
accord with these legal doctrines — a practice well within the great skills
of that court.
87 Mass. App. Ct. 10 (2015) Page 12
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 § 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.
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. There is no evidence
in the record that this prevailing custom, prior to the governmental
partition that occurred in the 1870s, did not continue after the land,
previously held in common, was partitioned and deeded to Tribe members.
Add. 146
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 ease-
---------------------------
[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 1 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 1 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
the easement question — the precise question in this appeal.
87 Mass. App. Ct. 10 (2015) Page 13
ments 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.
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.
First, the subject lands were held in common ownership [5] prior to the
judicial partitioning process. 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.
Turning first to the real parties in interest, the historic record
demonstrates, and it is important to emphasize, that the real parties
---------------------------
[5] 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 § 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.
Add. 147
344, 350 (1809).
[6] An estate held in severalty is defined as "fain 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. "Pinterests . . . 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).
87 Mass. App. Ct. 10 (2015) Page 14

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 severally, 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.
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 statute [10] 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, § 6:
"The judge of probate of the county of Dukes-county, upon the

application of the selectmen of Gay Head, or of 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,
---------------------------
[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. . . . 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).
[8] "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 § 175,
at 407.
[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
Add. 148
them in severalty as their absolute property. Sts. 1869, c. 463; 1870,
cc. 213, 293, 350").
87 Mass. App. Ct. 10 (2015) Page 15
disinterested persons commissioners to make partition of the same, and

their award, being confirmed by said court, shall be final in the
premises."
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 severalty [11]. . . . 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.
---------------------------
[11] In construing a similar statute (St. 1870, c. 293, § 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 said common lands. In re
Coombs, 127 Mass. 278, 280 (1879). As to the Mashpee Tribe's common
lands, the court wrote as follows:
"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."
"[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. . . . [Wie 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.)
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.
87 Mass. App. Ct. 10 (2015) Page 16
To complete the historic background, on December 5, 1870, a judge of the

Probate Court decreed 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
Add. 149
divided as prayed for and as the Statute in that case provides, [i]t is
decreed that said Lands be so divided."
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).
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.
3. The Restatement § 2.15 rule of law on easements by necessity. The
implication of easements by necessity accord with the property law set forth
in § 2.15 of the Restatement. The black letter rule of the Restatement §
2.15 provides as follows:
"A conveyance that would otherwise deprive the land conveyed to the
grantee . . . of rights necessary to 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."
Comment b to Restatement § 2.15 on easements further supports easements
by necessity in this case:
87 Mass. App. Ct. 10 (2015) Page 17
"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 § 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 §
2.15 comment a (describing history and rationale of "[p]ublic policy
favoring use and occupation of land").
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 vis-à-vis the lands, and the parties certainly did not
"clearly indicate that [they] intended to deprive the property of those
rights." Restatement § 2.15.
4. Massachusetts property law on easements by necessity follows
Restatement § 2.15. Even were we not to adopt per se or follow Restatement §
2.15 as controlling, Massachusetts property law — albeit developed in the
context of private land conveyancing — would still presume easements by
necessity here.
Add. 150
The implied presumption in favor of easements by necessity over
otherwise landlocked property underlying § 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 § 2.15 or Massachusetts law.
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
87 Mass. App. Ct. 10 (2015) Page 18
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 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 rights-
of-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 § 8.14 (4th ed. 2004).
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, 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,
87 Mass. App. Ct. 10 (2015) Page 19
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
Add. 151
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 1, 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. [1]
Therefore, I believe the decision of the Land Court judge should be
affirmed. [2]
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
---------------------------
[1] 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 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).
[2] 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 1, 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.
WoIfman, 268 Mass. 345, 348-349 (1929). See also United States v.
Matthews, 643 F.3d 9, 12-13 (1st Cir. 2011).
87 Mass. App. Ct. 10 (2015) Page 20

extraordinary alteration of traditional principles of Massachusetts law
should be accomplished by the Supreme Judicial Court and not by this court.
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.
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. (Wampanoag Tribe), a Federally
recognized Native American 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
Add. 152
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, 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.
On remand, the judge ordered a bifurcation of the issues and first
addressed whether the commissioners who partitioned the land in the 1870s 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
87 Mass. App. Ct. 10 (2015) Page 21

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 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.
2. Factual background. In the 1800s, what is now known as Aquinnah in
Martha's Vineyard was occupied nearly exclusively by the descendants of the
Gay Head Tribe members. Located west of Chilmark on the island of Martha's
Vineyard, it consisted of approximately 2,500 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. [3] Importantly,
---------------------------
[3] 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 states.... Indian title, which gave Indians a 'right
of occupancy,' coexisted with the fee title." James v. Watt, 716 F.2d
Add. 153
71, 74 (1st Cir. 1983), cert. den., 467 U.S. 1209 (1984). Nevertheless,
"[tjhe 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
87 Mass. App. Ct. 10 (2015) Page 22
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. [4]
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. [5] In 1863,
---------------------------
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).
[4] 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 1870s did
not continue after the partitions. I assume that it did.
[5] 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 "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."
In 1859, John Milton Earle was appointed "to examine into the condition
of all Indians and the descendants of Indians domiciled in this
Add. 154
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 considered the earlier distribution of land in
severalty to individual Mashpee Tribe members to have been "disastrous."
/d. at 42. Earle concluded that the Native American traditional law
employed in Gay Head, allowing as it
87 Mass. App. Ct. 10 (2015) Page 23
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." [6] Ibid.
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," [7] they suffered from the "slight
drawback that being neither a town by
---------------------------
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.
[6] 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, § 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.
[7] See St. 1869, c. 463, § 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 "hats] 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 estate." St. 1869, c. 463, § 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
Add. 155
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, § 3. Also, the 1870 statute
authorized, but did not mandate, the division of the common lands. St.
87 Mass. App. Ct. 10 (2015) Page 24
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, education,
occupations, physical characteristics of the land, and general well-being.
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 unfilled 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.
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
---------------------------
1870, c. 213, § 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,
Coombs, petitioner, 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."
87 Mass. App. Ct. 10 (2015) Page 25
Chilmark across Gay Head "to the United States light-house [on the western
end of] Gay Head" greatly isolated the community and also made it difficult
for visitors to Martha's Vineyard to view the lighthouse. Id. at 9. The
committee recommended that the Commonwealth shoulder the financial burden of
putting the road "in good travelling order." Id. at 10.
Following receipt of the committee's report, the Legislature enacted St.
Add. 156
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, § 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, §
5. In addition, the statute provided that upon application of the board of
selectmen or any ten citizens, a judge of the Probate Court could partition
the common lands of the town and divide or sell the lands. St. 1870, c. 213,
§ 6. Notably, this legislation did not purport to extinguish any tribal
rights or privileges enjoyed individually or severally by the Gay Head
Tribe. [8]
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 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 cliffs undivided," but to divide the rest of the common property.
Under the direction of the commissioners, a plan of over 500 properties,
the first 189 of which had been previously divided as
---------------------------
[8] It appears that it was not until 1987, when Congress passed 25
U.S.C. § 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. Wampanoag
Aquinnah Shellfish Hatchery Corp., 443 Mass. 1, 3 (2004). See also St.
1985, c. 277 ("An Act to Implement the Settlement of Gay Head Indian
Land 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.
87 Mass. App. Ct. 10 (2015) Page 26
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.
The parties agree that the partition deeds contained no access
easements. [9] The parties further agree that some of the partition deeds,
however, did include a reservation over three lots (lots 382, 384, and 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. [10] 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.
Add. 157
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.
"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
---------------------------
[9] Curiously absent from the record are the actual partition deeds and
any subsequent deeds from the original Gay Head Tribe grantees.
[10] So, for example, the description of lot 193 includes a statement
Irjeserving 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, 240-241, 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.
87 Mass. App. Ct. 10 (2015) Page 27

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."
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.' "[11]
Oldfield v. Smith, 304 Mass. 590, 594 (1939), quoting from Mt. Holyoke
Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100, 105 (1933).
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 exists an easement by necessity. See Kitras I, supra at 298-300.
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
Add. 158
---------------------------
[11] 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.
87 Mass. App. Ct. 10 (2015) Page 28
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 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.
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 with respect to a Tribe
member's property rights in relation to other members of the Tribe well
after the partition occurred in the 1870s. 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
87 Mass. App. Ct. 10 (2015) Page 29
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).
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
Add. 159
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." [12] 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.
2. Massachusetts law is consistent with the Restatement (Third) of
Property (Servitudes). Section 2.15 of the Restatement (Third) of Property
(Servitudes) (2000) (Restatement) [13] provides that an easement or
servitude not expressly granted in a 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 § 2.15 of the Restatement informs us that this principle embodies the
common law. Comment c to § 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
---------------------------
[12] 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.
[13] 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
tights."
87 Mass. App. Ct. 10 (2015) Page 30
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 § 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.
As discussed above, the members of the Gay Head Tribe had no need for an
access easement following the partition in the 1870s 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 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");
Add. 160
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).
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
87 Mass. App. Ct. 10 (2015) Page 31
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 1, supra at 291 (quotation
omitted). See Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. at
104 (existence of easement 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 1, 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 "Wustice, common sense and the probable intention of the parties." Shane
v. Winter Hill Fed. Says. & Loan Assn., 397 Mass. 479, 483 (1986), quoting
from Stop & Shop, Inc. v. Ganem, 347 Mass. 697, 701 (1964). [14]
---------------------------
[14] There is no basis for reliance on comments b and e to § 2.15 of the
Restatement. Comment b has no application to the facts in this case
because, as discussed in the text, the 1870s 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
Add. 161
not abut the road running from Gay Head to the northwest end of the
peninsula would be a problem in the absence of an
87 Mass. App. Ct. 10 (2015) Page 32
For these reasons, I respectfully dissent.

---------------------------
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 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 § 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).
Add. 162
Citation: 474 Mass. 132

Parties: MARIA A. KITRAS, trustee,[1] & others[2] vs. TOWN OF AQUINNAH &
others.[3]
County: Suffolk
Hearing Date: December 8, 2015
Decision Date: April 19, 2016
Judges: Present: GANTS, C.J., SPINA, CORDY, DUFFLY, LENK, & HINES, JJ.
Easement.
Necessity. Real Property, Easement. Law of the Case.
A Land Court judge properly concluded that easements by necessity were not
created as a result of a partition in 1878 of Native American common
land, where, even assuming the satisfaction of the elements giving rise
to a presumption of an intent to establish an easement by necessity,
sufficient evidence existed to rebut the presumed intent to establish
such an easement, given that tribal custom provided access rights to members
of the Native American tribe involved in the partition, thus making the
inclusion of access rights for the partitioned lots not necessary; given
that other easements were created at the time of the partition and were
included in the deeds, supporting a finding that the absence of access
easements in the conveyance flowing from the partition was intentional; and
given that the poor condition of the land at that time likely was a
factor in reckoning whether rights of access were needed. [140-146]
A Land Court judge did not err in excluding a particular lot from a
determination whether easement rights by necessity existed over Native
American common land that was the subject of a partition in 1878, where
the issue whether that lot could possibly have an easement by necessity
had been decided in a previous appeal and was the law of the case. [146]
After review by the Appeals Court, 64 Mass. App. Ct. 285 (2005) , the
case was heard by Charles W Trombly, Jr., J.
After further review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
[133] 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.
Leslie Ann Morse 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 for Real Estate
Bar Association for Massachusetts, Inc., & another.
Nicole Friederichs, Lone Graham, & Jeffrey Pokorak for Wampanoag Tribe
of Gay Head (Aquinnah).
Michael Pill, pro se.
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
Add. 163
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 severalty[6]
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]
[134] 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 /). 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. Wainpanoag 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 [135] 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). 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
Add. 164
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. [136] 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 [137] 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. 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
Add. 165
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 self-governance,
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 [138 ] 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" 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, 494495 (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 de- [139] cided 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
grantee,' " even if it had not been expressed in the instrument of
conveyance. Ward v. McGlory, 358 Mass. 322, 325 (1970), quoting Orpin v.
Add. 166
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 533-534. 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 inacces- [140] sible without trespass, except
by passing over the land of the grantor, a right of way by necessity is
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 64 Mass. App. Ct. at 291. The necessity must have existed
at the time of the division. See Vialll 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. Rectal, 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 submit- [143.] ted
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
Add. 167
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 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 [142 ] 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 com- [143] missioners
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 title[17] 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
Add. 168
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 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 a pren- [144 ] dre,[19] which the
plaintiffs correctly observe is different from an easement. Although a
profit a 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 a 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 commis- [145 ] sioners 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 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
"Sahara-like desolation" and implored the Legislature to provide a remedy to
Add. 169
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 [1 4
6] 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.
---------------------------
Footnotes
[page 132]
[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.
[3] The Commonwealth; Joanne Fruchtman; Jack Fruchtman; Benjamin L.

Add. 170
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.
[page 133]
[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.
[page 134]
[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.
[page 135]
[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." Report of the Commissioners, 1862 House Doc. No. 215, at
39.
[page 136]
[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 11.18 (2010).
[page 138]
[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
Add. 171
for Division of Common Lands, Sept. 7, 1870. 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.
[page 140]
[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.
[page 141]
[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."
[page 142]
[16] 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.
[page 143]
[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 Hatchety 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. Hall v. Carpenter, 14 Gray 126,
Add. 172
127 (1859).
[page 144]
[19] A profit a 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).
[20] 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.
[page 145]
[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.
[page 146]
[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.
Add. 173
Add. 174
DECOULOS & COMPANY LLC

185 ALEWIFE BROOK PARKWAY
COMMON LANDS CONVEYED TO GAY HEAD CAMBRIDGE, MA 02138
DECOULOS.COM
1
DATE
CHAPTER 213 OF 1870, SECTION 2 617.489.7795

SCALE
FIGURE
1”= 2000’
AQUINNAH, MASSACHUSETTS
August, 2017
CAMBRIDGE, MA 02138
DECOULOS.COM
617.489.7795
Clay Pit Road
WAMPANOAG TRIBE OF GAY HEAD (AQUINNAH)

THE UNITED STATES OF AMERICAN FOR THE
LANDS HELD IN TRUST BY
Lands owned by Plaintiff
LEGEND
REFERENCES
COMMON LANDS CONVEYED TO THE TOWN OF GAY HEAD
FROM THE COMMONWEALTH OF MASSACHUSETTS UNDER
THE AUTHORITY OF CHAPTER 213 OF THE ACTS OF 1870,
SECTION 2.
SETTLEMENT OF WAMPANOAG LAND CLAIMS

CHAPTER 277 OF THE ACTS OF 1985 AND 25 U.S.C. §1771
DATE
April, 2019
SCALE
1”= 2000’
FIGURE
2
Add. 175
ADDENDUM TABLE OF CONTENTS
Memorandum of Decision and Order on

Defendants’ Motion to Dismiss,
Justice David Ricciardone, October 30, 2019 4
Massachusetts Constitution, Article X,

with amendments 8

An Act to Enfranchise the
Indians of the Commonwealth 17

An Act to Incorporate the Town of Gay Head 20

An Act to Implement the Settlement of Gay Head
Indian Land Claims 22
Public Law 100-95 of the 100th Congress

An Act to Settle Indian Land claims in the
Town of Gay Head, Massachusetts
and for other purposes 27

Eminent Domain 34

Taking by Eminent Domain; Damages 35
Danzell v. Webquish, 108 Mass. 133 (1871) 37
Darius Coombs & others, 127 Mass. 278 (1879) 40

Taylor v. Vanderhoop


64 Mass. App. Ct. 285 (2005) 76
i
Add. 176

87 Mass. App. Ct. 10 (2015) 101

474 Mass. 132 (2016) 119
Plan showing the Common Lands Conveyed to Gay Head

Chapter 213 of 1870, Section 2, Aquinnah, MA
August, 2017; Scale: 1”= 2000’; Figure 1 130
Plan showing the Lands Held in Trust by the

United States of America for the Wampanoag Tribe
of Gay Head (Aquinnah), Aquinnah, MA
April, 2019; Scale: 1”= 2000’; Figure 2 131
ii
Add. 177
Add. 178
Add. 179
Add. 180
Add. 181
Add. 182
Add. 183
Add. 184
Add. 185
Add. 186
Add. 187
Add. 188
Add. 189
Add. 190
780 1869.— Chapter 463.
Corrupting the same, or renders it impure, or destroys or injures any

water, &c.
dam, aqueduct, pipe, conduit, hydrant, machinery, or other
works or property held, owned or used by said city under the
autliority and for the purposes of this act, shall forfeit and
pay to said city three times the amount of damages assessed
therefor, to be recovered in an action of tort and on con- ;
viction of either of the wanton or malicious acts aforesaid,

may also be punished by fine not exceeding three hundred
dollars, or by imprisonment in jail not exceeding one year :
Proviso. provided, that nothing herein contained shall be construed
to prevent persons from cutting and securing ice on Flax
and Sluice Ponds in the manner heretofore practised.
Act to be sub- Section 14. This act shall be void, unless submitted to
mitted to the
voters. and approved by a majority of the voters of said city present
and voting at meetings held simultaneously for the purpose,
in the several wards, on the first Monday of August next,
upon notice duly given, at least seven days before the time
of holding said meetings.
City council to
determine I'rom
Section 15. The city council shall, by joint ballot, at
wlience water least fourteen days before said first Monday of August,
sliall be talsen.
determine the source from which, in the event of the accept-
ance of this act, said city shall take the water and shall, ;
forthwith, notify the inhabitants of said city of its decision,

by publication in the newspapers of said city.
Aqueduct to be Section 16. This act shall be void unless the aqueduct
constructed
within three shall be constructed within three years.
years.
Section 17. This act shall take effect upon its passage.
Approved June 23, 1869.
Chap. 463 An Act to enfranchise the Indians of the commonwealth.

Be it enacted, S^'c, as follows :
Indians, &c., Section All Indians and people of color, heretofore

1.
made citizens.
known and called Indians, within this Commonwealth, are
hereby made and declared to be citizens of the Common-
wealth, and entitled to all the rights, privileges and immuni-
ties, and subject to all the duties and liabilities to which cit-
izens of this Commonwealth are entitled or subject.
Indian lauds. Section 2. All lands heretofore known as Indian lands,
and riglitfully held by any Indian in severalty, and all such
lands which have been or may be set off to any Indian, shall
be and become the property of such person and his heirs in
Proviso. fee simple provided, that such lands shall not be held liable
:
to be taken upon attachment or execution for any debt or

liability which existed before the passage of this act ; and all
Indians shall hereafter have the same rights as other citizens
to take, hold, convey and transmit real estate.
Add. 191
;
1869.— Chapter 463. 781
Section 3. The judge

of probate of the county in which
f."f/f, ".[ P,'^°;jt
any lands held in common
belonging to any tribe of Indians imniuis'si.nieis
may lie, except in tlie case of tlie Indians of Marshpee and *'^'''^'''''
^'''^'^'^•
Gay Head, upon the application of any member of said tribe,

after notice to all parties interested and a hearing of the
same, if in his opinion it is for the interest of said parties
that any or all of said lands be divided, shall appoint two
discreet, disinterested persons commissioners to make parti-
tion of the same, and their award, being confirmed by said
court, shall be final in the premises but if he shall adjudge
;
that it is for the interest of said parties that the same, or a

part of the same, be sold, he shall direct the said commis-
sioners, after they shall have given such bonds as the court
may require, to proceed to sell any or all of said lands, and
to divide the proceeds of the same among the parties right-
fully entitled thereto in proportion to their several interests
therein, under the direction of the said court and the judge
;
of probate of the county in which any lands heretofore and

now known as Indian lands, and claimed in severalty by any
Indians, may lie, shall direct the said commissioners to ex-
amine and define the boundaries of the lands rightfully held
by individual owners, and shall properly describe and set
forth the same in writing, and such description being ap-
proved by the court, shall be final in the premises and the ;
same, together with all deeds of partition, division or sale

made by such commissioners shall be recorded in the registry
of deeds in the county, and the expenses of said commis-
sioners, including the cost of recording said deeds, the same
being approved by the judge of probate, shall be paid out of
the treasury of the Commonwealth, the same being also ap-
proved by the governor and council.
Said commissioners are authorized to sue for, collect and commissioners
receive all funds belonging to, or held in trust for, any tribe fumis, &c.', and
and '^^"^^^
^''^'°^^'
of Indians for which said commissioners are appointed ;
all such funds shall be divided by said commissioners among

the parties rightfully entitled thereto under the direction of
the probate court of the county in which such tribe resides
and any property held in trust by any person for any tribe
of Indians shall be sold by such person under the direction
of the judge of probate, and the proceeds of such sale shall
be paid over to the commissioners to be divided as aforesaid.
The judge of probate of Plymouth county shall have juris-
diction over all matters relating to the Herring Pond Indians
under this section.
Any person aggrieved by any order, decree or denial of the Right of appeal.
judge of probate under this act, shall have the same right of
Add. 192
: —
782 1869.— Chapter 464.
appeal, under the same rules and regulations as provided for

in chapter one hundred and seventeen of the General Stat-
Proviso. utes provided^ that the attested copies and notices required
:
to be given by said chapter shall be served upon such parties

as the judge of probate shall direct.
Provision for SECTION 4. Upou the application of the overseers of the
pooriiidiaus^n poor of any town, to the board of state charities, said board
hmlses!'^*' sliall make provision in the state almshouses or elsewhere for
the support of any persons heretofore known as Indians who
may be unable to support themselves, and who have not ac-
quired a settlement in any town and upon the application
;
of any Indian who has heretofore received aid from the Com-
monwealth, the said board shall furnish to such person in the
state almshouses or elsewhere, such aid as they may deem
expedient.
Agent of board
or sttitG cniri*
SECTION5. The general agent of the board of state char-
ties may sell or itics shalltake chargc of the house, and all property con-
Webst'e""**^
'" ucctcd therewith, in the town of Webster, belonging to the
Commonwealth, and may lease the same to persons heretofore
known as members of the Dudley tribe of Indians, upon
terms substantially like those upon which they have hereto-
fore occupied it or he shall, under the direction of the board
;
of state charities, sell the same at public auction, and the

proceeds of such leases or sale shall be paid into the treasury
of the Commonwealth. Approved June 23, 1869.
further addition to an act making appropriations

'' 464
Chap, -^^ -'^ct in
to meet certain expenditures authorized the present year,
AND FOR other PURPOSES.
Be it enacted, Sj'c, as follows
Appropria- SECTION 1. The sums
hereinafter mentioned are appropri-
^^°"''"
ated to be paid out of the treasury of the Commonwealth,
from the ordinary revenue, except in cases otherwise ordered,
for the purposes specified in certain acts and resolves of the
present year, and for other purposes, to wit :
Compensation In the rcsolvc cliaptcr ninety-six, establishing the compen-

o^ egisaure,
gg^j-j^j^ of members of tlie senate and house of representatives
and of the clerks and chaplains thereof, and of the lieutenant-

governor and council, a sum not exceeding one hundred and
seventy-five thousand five hundred dollars in addition to the
amounts heretofore appropriated.
Daniel Lorden In the rcsolvc cliaptcr iiinety-scven, in favor of Daniel
Lordon and otlicrs, tlie sum of ten thousand two hundred
and seventy-two dollars and thirty-nine cents.
Invertebrate In the rcsolvc chapter ninety-eight, in relation to the
^ '
republication of the report on the invertebrate animals of
Massachusetts, a sum not exceeding seven thousand dollars.
Add. 193
Add. 194
Add. 195
ACTS AND
RESOLVESPASSED BY ruE
General Court of Massachusetts
IN THE YEAR
1985
VOLUME 1
Add. 196
The General Court, which was chosen November 6, 1984
assembled on Wednesday the first day of January 1985 for its
first annual session.
His Excellency Michael S. Dukakis continued to serve as
Governor for the political year of 1985.
Add. 197
ACTS, 1985. - Chap. 277.
General Laws are hereby repealed.
Chapter 277. AN ACT TO IMPLEMENT THE SETTLEMENT OF GAY

HEAD INDIAN LAND CLAIMS.
Be it enacted, etc .. as follows:
SECTION 1. It is hereby found and declared that:-

(a) there is pending before the United States Court for the District of
Massachusetts a civil action that involves Indian claims to certain lands
within the town of Gay Head;
(12) pendency of this lawsuit has resulted in severe economic hardships
for the residents of the town of Gay Head by clouding the titles to much
of the land in said town, including lands not involved in the lawsuits;
(Q) the general court shares with the United States and the parties to
the lawsuit a desire to remove all clouds on titles resulting from such
Indian land claims; and
(Q) the parties to the lawsuit and others interested in the settlement
of Indian land claims within the commonwealth executed a settlement
agreement which requires implementing legislation by the Congress of
the United States and by the general court.
SECTION 2. For the purpose of this act, the following words shan
have the following meanings:
(g) "Tribal council", the Wampanoag Tribal Council of Gay Head, Inc.;
(l:!) "Lawsuit", means the actions entitled Wampanoag Tribal Council
of Gay Head, et al v. Town of Gay Head, et aI., C.A, No. 74-5826-McN
(D. Mass.).
(Q) "Private settlement lands", approximately one hundred and
seventy-five acres of privately held land described in paragraph 6 of the
settlement agreement that are to be acquired by the Secretary of the
Interior from certain private landowners;
(g) "Public settlement lands", the lands described in paragraph 4 of
the settlement agreement that are to be conveyed by the Town of Gay
Head to the tribal council;
~) "Settlement lands", those lands defined in clauses (Q) and (g);
(f) "Settlement agreement", the document entitled "Joint
Memorandum of Understanding concerning Settlement of the Gay Head,
Massachusetts Indian Land Claims", executed as of November
nineteenth, nineteen hundred and eighty-three and November twentieth,
nineteen hundred and eighty-three, by representatives of the parties to
the lawsuit, as filed with the state secretary, or any extension or
renewal thereof;
(g) "Cook lands", the lands described in paragraph 5 of the settlement
agreement that are to be conveyed by the town of Gay Head to the
Tribal council.
538
Add. 198
ACTS, 1985. - Chap. 277.
SECTION 3. Notwithstanding any general or special law to the

contrary, the town of Gay Head is hereby authorized to convey to the
Tribal council, or an appropriate subsidiary, the Cook lands and the
public settlement lands.
SECTION 4. All federal, state, and town laws shall apply to the
settlement lands subject only to the following special provisions:-
(ill The settlement lands shall not be treated as real property subject
to taxation pursuant to chapter fifty-nine of the Massachusetts General
Laws, or any successor provision of law, but the Tribal council or any
successor in interest will make payments in lieu of property taxes to the
town of Gay Head or other appropriate entity if and when improvements
are placed on those lands. The quantity of land subject to such payments
in connection with each improvement shall be the minimum land area
established by the density requirements of the town zoning ordinance for
such an improvement. The amount of such payment shall be determined
by assessing the value of the improvement and the value of the land
attributable to such improvement, as determined in accordance with this
section, and applying the town property tax rate or any other applicable
tax rates just as though the improvements and attributable land were
held by any private person. With respect to in-lieu payments that
remain unpaid, neither the town nor any other person shall have the right
of foreclosure against the settlement lands. Instead of its right of
foreclosure, the town or any other person otherwise entitled to
foreclosure may enforce a lien against other assets of the Tribal council
or any subsidiary thereof, or any other entity controlled by the Tribal
council. If the in-lieu payments are not fully paid three years after they
are due, the town may seize the land and improvements on which the
in-lieu payments are in arrears and lease such land and improvements on
reasonable terms for periods of time not to exceed five years, the sums
realized from such leases to be applied, after costs, to the payment of
the amount in arrears. Seizure by the town under this provision shall in
no way affect title to the land, which shall remain with the Tribal
council, and at the expiration of any lease period during which all
arrearages have been paid in full, control of the land and improvements
shall be returned to the Tribal council.
(Q) The Tribal council or any successor in interest will have the right,
after consultation with appropriate state and local officials, to establish
its own regulations concerning hunting, but not trapping or fishing, by
Indians on the settlement lands by means other than firearms or
crossbow. These regulations by the Tribal council need not conform to
state or local law, but shall impose reasonable standards of safety for
persons and protection of wild life, and the absence of such safety
regulations shall be deemed unreasonable. These safety and protection
standards shall be subject to review for reasonableness in an action in
the superior court and may be enforced by state and local law
enforcement officers. Hunting by firearm or crossbow shall remain
subject to state law.
(Q) The zoning and subdivision ordinances and regulations of the town
of Gay Head shall not be applicable to the settlement lands except to the
539
Add. 199
ACTS, 1985. - Chap. 278.
extent and in the manner provided in the settlement agreement. The

settlement lands shall be subject to the land use plan made a part of the
settlement agreement which shall be enacted as part of the zoning
ordinance of the town of Gay Head, and such plan as embodied in the
zoning ordinance may be amended only with the agreement of the Tribal
council or any successor in interest, and by the town of Gay Head at two
town meetings not less than one month apart, at least one of which shall
be held during the month of July or August.
(Q) The zoning laws of the town of Gay Head which are currently in
force shall continue to apply to the Cook lands and any changes in those
zoning laws shall apply to the Cook lands only if adopted in the manner
provided by the settlement agreement.
SECTION 5. Except as provided in this act, all laws, statutes and

bylaws of the commonwealth, the town of Gay Head, and any other
properly constituted legal body, shall apply to all settlement lands and
any other lands owned now or at any time in the future by the Tribal
council or any successor organization.
SECTION 6. This act shall take effect upon enactment of legislation

by the United States providing for extinguishment of aboriginal and all
other Indian tribal land claims in the town of Gay Head which are
maintained under laws of the United States that are specifically
applicable to transfers of land or natural resources from, by or on behalf
of any Indian nation or tribe of Indians, provided that the conveyance of
the Cook lands and the public settlement lands authorized by section
three shall take effect upon the actual extinguishment of such aboriginal
and other Indian tribal land claims.
Chapter 278. AN ACT FURTHER REGULATING BUSINESS

PRACTICES FOR CONSUMERS PROTECTION.
Be it enacted. etc .. as follows:
SECTION 1. The first paragraph of section 11 of chapter 93A of the

General Laws, as appearing in the 1984 Official Edition, is hereby
amended by inserting after the word "proper", in line 12, the words:- ;
provided, however, that both such persons have a place of business within
the commonwealth at the time of said loss.
SECTION 2. The second paragraph of said section 11 of said chapter

93A, as so appearing, is hereby amended by striking out, in line 13, the
word "property" and inserting in place thereof the words:- ; provided,
however, that such injunction shall not be obtained unless both parties
have a place of business in the commonwealth at the time the unfair
method of competition, act or practice is employed.
540
Add. 200
Public Law 100-95

100th Congress
An Act
Aug. 18, 1987 To settle Indian land claims in the town of Gay Head, Massachusetts, and for other
[H.R. 2855] purposes. >< ^^,^ , _ , .(•
Be it enacted by the Senate and House of Representatives of the

Wampanoag United States of America in Congress assembled,
Tribal Council of
Gay Head, Inc., SECTION 1. SHORT TITLE.
Indian Claims
Settlement Act This Act may be cited as the "Wampanoag Tribal Council of Gay
of 1987. Head, Inc., Indian Claims Settlement Act of 1987".
25 u s e 1771
note. SEC. 2. CONGRESSIONAL FINDINGS AND DECLARATION OF POLICY.
25 u s e 1771. The Congress hereby finds and declares that—
(1) there is pending before the United States District Court for
the District of Massachusetts a lawsuit that involves Indian
claims to certain public lands within the town of Gay Head,
Massachusetts;
(2) the pendency of this lawsuit has resulted in severe eco-
nomic hardships for the residents of the town of Gay Head by
clouding the titles to much of the land in the town, including
land not involved in the lawsuit;
(3) the Congress shares with the Commonwealth of Massachu-
setts and the parties to the lawsuit a desire to remove all clouds
on titles resulting from such Indian land claim;
(4) the parties to the lawsuit and others interested in settle-
ment of Indian land claims within the Commonwealth of
Massachusetts executed a Settlement Agreement which, to
become effective, requires implementing legislation by the Con-
gress of the United States and the General Court of the
Commonwealth of Massachusetts;
(5) the town of Gay Head has agreed to contribute approxi-
mately 50 percent of the land involved in this settlement;
(6) the State of Massachusetts has agreed to provide up to
$2,250,000 to be used for the purchase of land to be held in trust
by the Secretary for the use and benefit of the Wampanoag
Tribal Council of Gay Head, Inc.; and
(7) the Secretary has acknowledged the existence of the
Wampanoag Tribal Council of Gay Head, Inc. as an Indian tribe
and Congress hereby ratifies and confirms that existence as an
Indian tribe with a government to government relationship
with the United States.
25 u s e 1771a. SEC. 3. GAY HEAD INDIAN CLAIMS SETTLEMENT FUND.
(a) FUND ESTABLISHED.—There is hereby established within the
Treasury of the United States a fund to be known as the
"Wampanoag Tribal Council of Gay Head, Inc. Claims Settlement
Fund". Amounts in the fund shall be available to the Secretary to
carry out the purposes of this Act. ,,, . x .„
Add. 201
(b) AUTHORIZATION FOR APPROPRIATION.—There is hereby au-

thorized to be appropriated $2,250,000 for such fund to remain
available until expended.
(c) STATE CONTRIBUTION REQUIRED.—Amounts may be expended
from the fund only upon deposit by the State of Massachusetts into
the fund of an amount equal to that amount to be expended by the
United States so that both the United States and the State of
Massachusetts bear one-half of the cost of the acquisition of lands
under section 6.
SEC. 4. APPROVAL OF PRIOR TRANSFERS AND EXTINGUISHMENT OF 25 u s e 1771b.
ABORIGINAL TITLE AND CLAIMS OF GAY HEAD INDIANS.
(a) APPROVAL OF PRIOR TRANSFERS.—(1) Any transfer before the
date of the enactment of this Act 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 the date of the enactment of this Act 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 Act, 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 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 extin-
guished as of the date of such transfer.
(c) EXTINGUISHMENT OF CLAIMS ARISING FROM PRIOR TRANSFERS
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 con-
sented to and approved in subsection (a), or
(2) any aboriginal title to land or natural resources the trans-
fer 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.
SEC. 5. CONDITIONS PRECEDENT TO FEDERAL PURCHASE OF SETTLE- 25 u s e 1771c.
M E N T LANDS.
(a) INITIAL DETERMINATION OF STATE AND LOCAL ACTION.—No Federal
action shall be taken by the Secretary under section 6 before the Register,
publication.
Add. 202
Secretary publishes notice in the Federal Rej;ister of the determina-

tion by the Secretary that—
(1) the Commonwealth of Massachusetts has enacted legisla-
tion which provides that—
(A) the town of Gay Head, Massachusetts, is authorized to
convey to the Secretary to be held in trust for the
<
' Wampanoag Tribal Council of Gay Head, Inc. the public
ai'i ..r settlement lands and the Cook lands subject to the condi-
tions and limitations set forth in the Settlement Agree-
ii .,., i ment; and
(B) the Wampanoag Tribal Council of Gay Head, Inc.
shall have the authority, after consultation with appro-
-f priate State and local officials, to regulate any hunting by
Indians on the settlement lands that is conducted by means
other than firearms or crossbow to the extent provided in,
and subject to the conditions and limitations set forth in,
the Settlement Agreement;
i (2) the Wampanoag Tribal Council of Gay Head, Inc., has
submitted to the Secretary an executed waiver or waivers of the
claims covered by the Settlement Agreement all claims extin-
guished by this Act, and all claims arising because of the
'" approval of transfers and extinguishment of titles and claims
^ under this Act; and
(3) the town of Gay Head, Massachusetts, has authorized the
conveyance of the public settlement lands and the Cook Lands
^ to the Secretary in trust for the Wampanoag Tribal Council of
Gay Head, Inc.
(b) RELIANCE UPON THE ATTORNEY GENERAL OF MASSACHUSETTS.—
In making the findings required in subsection (a) of this section, the
Secretary may rely upon the opinion of the Attorney General of the
25 u s e 1771d. SEC. 6. PURCHASE AND TRANSFER OF SETTLEMENT LANDS.
(a) PURCHASE OF PRIVATE SETTLEMENT LANDS.—The Secretary is
authorized and directed to expend, at the request of the Wampanoag
Tribal Council of Gay Head, Inc., $2,125,000 to acquire the private
settlement lands. At the request of the Wampanoag Tribal Council
of Gay Head, Inc., the Secretary shall not purchase lots 705, 222, and
528 of the private settlement lands, but, a t the request of the
Wampanoag Tribal Council of Gay Head, Inc., the Secretary shall
acquire in lieu thereof such other lands that are contiguous to the
remaining private settlement lands. Upon the purchase of such
contiguous lands, those lands shall be subject to the same restric-
tions and benefits as the private settlement lands.
(b) PAYMENT FOR SURVEY AND APPRAISAL.—The Secretary is au-
thorized and directed to cause a survey of the public settlement
lands to be made within 60 days of acquiring title to the public
Paul O'Leary. settlement lands. The Secretary shall reimburse the Native Amer-
ican Rights Fund and the Gay Head Taxpayers Association for an
appraisal of the private settlement lands done by Paul O'Leary
dated May 1, 1987. Such funds as may be necessary may be with-
drawn from the Fund established in section 3(a) and may be used for
-V'
the purpose of conducting the survey and providing reimbursement
for the appraisal.
(c) ACQUISITION OF ADDITIONAL LANDS.—The Secretary shall
expend, at the request of the Wampanoag Tribal Council of Gay
Head, Inc., any remaining funds not required by subsection (a) or (b)
Add. 203
to acquire any additional lands that are contiguous to the private

settlement lands. Any lands acquired pursuant to this section, and
any other lands which are hereafter held in trust for the
Wampanoag Tribal Council of Gay Head, Inc., any successor, or
individual member, shall be subject to this Act, the Settlement
Agreement and other applicable laws. Any after acquired land held
in trust for the Wampanoag Tribal Council of Gay Head, Inc., any
successor, or individual member, shall be subject to the same bene-
fits and restrictions as apply to the most analogous land use
described in the Settlement Agreement.
(d) TRANSFER AND SURVEY OF LAND TO WAMPANOAG TRIBAL COUN-
CIL.—Any right, title, or interest to lands acquired by the Secretary
under this section, and the title to public settlement lands conveyed
by the town of Gay Head, shall be held in trust for the Wampanoag
Tribal Council of Gay Head, Inc. and shall be subject to this Act, the
Settlement Agreement, and other applicable laws.
(e) PROCEEDINGS AUTHORIZED TO ACQUIRE OR TO PERFECT TITLE.—
The Secretary is authorized to commence such condemnation
proceedings as the Secretary may determine to be necessary—
(1) to acquire or perfect any right, title, or interest in any
private settlement land, and
(2) to condemn any interest adverse to any ostensible owner of
such land,
(f) PUBLIC SETTLEMENT LANDS HELD IN TRUST.—The Secretary is
authorized to accept and hold in trust for the benefit of the
Wampanoag Tribal Council of Gay Head, Inc. the public settlement
lands as described in section 8(7) of this Act immediately upon the
effective date of this Act.
(g) APPLICATION.—The terms of this section shall apply to land in
the town of Gay Head. Any land acquired by the Wampanoag Tribal
Council of Gay Head, Inc., that is located outside the town of Gay
Head shall be subject to all the civil and criminal laws, ordinances,
and jurisdiction of the Commonwealth of Massachusetts.
(h) SPENDING AUTHORITY.—Any spending authority (as defined in
section 401(c)(2) of the Congressional Budget Act of 1974) provided in 2 use 651.
this section shall be effective for any fiscal year only to such extent
or in such amounts as are provided in appropriation Acts.
SEC. 7. JURISDICTION OVER SETTLEMENT LANDS; RESTRAINT ON 25 USC 177 le.
ALIENATION.
(a) LIMITATION ON INDIAN JURISDICTION OVER SETTLEMENT
LANDS.—The Wampanoag Tribal Council of Gay Head, Inc., shall
not have any jurisdiction over nontribal members and shall not
exercise any jurisdiction over any part of the settlement lands in
contravention of this Act, the civil regulatory and criminal laws of
the Commonwealth of Massachusetts, the town of Gay Head,
Massachusetts, and applicable Federal laws.
0)) SUBSEQUENT HOLDER BOUND TO SAME TERMS AND CONDI-
TIONS.—Any tribe or tribal organization which acquires any settle-
ment land or any other land that may now or in the future be owned
by or held in trust for any Indian entity in the town of Gay Head,
Massachusetts, from the Wampanoag Tribal Council of Gay Head,
Inc. shall hold such beneficial interest to such land subject to the
same terms and conditions as are applicable to such lands when held
by such council.
Add. 204
91-194 O - 90 - 24 : QL.3 Part 1
(c) RESERVATIONS OF RIGHT AND AUTHORITY RELATING TO SETTLE-

MENT LANDS.—No provision of this Act shall affect or otherwise
impair—
(1) any authority to impose a lien or temporary seizure on the
settlement lands as provided in the State Implementing Act;
(2) the authority of the Secretary to approve leases in accord-
ance with the Act entitled "An Act to authorize the leasing of
restricted Indian lands for public, religious, educational, rec-
reational, residential, business, and other purposes requiring
the grant of long-term leases", approved August 9, 1955 (25
U.S.C. 415 et seq.); or
(3) the legal capacity of the Wampanoag Tribal Council of Gay
Head, Inc. to transfer the settlement lands to any tribal entity
which may be organized as a successor in interest to
Wampanoag Tribal Council of Gay Head, Inc. or to transfer—
(A) the right to use the settlement lands to its members,
(B) a n y e a s e m e n t for public or p r i v a t e purposes in accord-
~ -^ ance with t h e laws of t h e C o m m o n w e a l t h of Massachusetts
^"' or t h e ordinances of t h e town of Gay Head, Massachusetts,
- •{ or
/.fcfc (C) title to t h e West Basin S t r i p to t h e town of G a y Head,
Massachusetts, pursuant to the terms of the Settlement
Agreement.
(d) EXEMPTION FROM STATE ASSESSMENT.—Any land held in trust
by the Secretary for the benefit of the Wampanoag Tribal Council of
Gay Head, Inc. shall be exempt from taxation or lien or "in lieu of
payment" or other assessment by the State or any political subdivi-
sion of the State to the extent provided by the Settlement Agree-
ment: Provided, however, That such taxation or lien or "in lieu of
payment" or other assessment will only apply to lands which are
zoned and utilized as commercial: Provided further. That this sec-
tion shall not be interpreted as restricting the Tribe from entering
into an agreement with the town of Gay Head to reimburse such
town for the delivery of specific public services on the tribal lands.
25USC1771f SEC. 8. DEFINITIONS. ^\,/^ '.;«-•.':=«:;
For the purposes of this Act:
(1) COOK LANDS.—The term "Cook lands" means the lands
described in paragraph (5) of the Settlement Agreement.
.r ' ; c.£ (2) WAMPANOAG TRIBAL COUNCIL OF GAY HEAD, INC.—The term
"Wampanoag Tribal Council of Gay Head, Inc." means the
tribal entity recognized by the Secretary of the Interior as
having a government to government relationship with the
United States. The Wampanoag Tribal Council of Gay Head,
Inc. is the sole and legitimate tribal entity which has a claim
under the Trade and Intercourse Act of 1790, Act of July 22,
1790 (ch. 33, sec. 4, 1 Stat. 137), to land within the town of Gay
Head. The membership of the Wampanoag Tribal Council of
Gay Head, Inc., includes those 521 individuals who have been
recognized by the Secretary of the Interior as being members of
the Wampanoag Tribal Council of Gay Head, Inc., and such
Indians of Gay Head ancestry as may be added from time to
time by the governing body of the Wampanoag Tribal Council of
Gay Head, Inc.: Provided, That nothing in this section shall
prevent the voluntary withdrawal from membership in the
Wampanoag Tribal Council of Gay Head, Inc., pursuant to
procedures established by the Tribe. The governing body of the
Add. 205
Wampanoag Tribal Council of Gay Head, Inc. is hereby au-

thorized to act on behalf of and bind the Wampanoag Tribal
Council of Gay Head, Inc., in all matters related to carrying out
this Act. "^ >' '-'^
(3) FUND.—The term "fund" means the Wampanoag Tribal
Council of Gay Head, Inc. Claims Settlement Fund established
under section 3.
(4) LAND OR NATURAL RESOURCES.—The term "land or natural
; resources" means any real property or natural resources or any
interest in or right involving any real property or natural
resource, including but not limited to, minerals and mineral
rights, timber and timber rights, water and water rights, and r *<
rights to hunt and fish. *«
(5) LAWSUIT.—The term "lawsuit" means the action entitled
Wampanoag Tribal Council of Gay Head, and others versus
Town of Gay Head, and others (C.A. No. 74-5826-McN
(D. Mass.)).
(6) PRIVATE SETTLEMENT LANDS.—The term "private settle-
ment lands" means approximately 177 acres of privately held
land described in paragraph 6 of the Settlement Agreement.
(7) PUBLIC SETTLEMENT LANDS.—The term "public settlement
lands" means the lands described in paragraph (4) of the Settle- ;?- f J.;;J
ment Agreement.
(8) SETTLEMENT LANDS.—The term "settlement lands" means
the private settlement lands and the public settlement lands.
(9) SECRETARY.—The term "Secretary means the Secretary of
the Interior.
(10) SETTLEMENT AGREEMENT.—The term "Settlement Agree-
ment" means the document entitled "Joint Memorandum of
Understanding Concerning Settlement of the Gay Head,
Massachusetts, Indian Land Claims," executed as of Novem-
ber 22, 1983, and renewed thereafter by representatives of the
parties to the lawsuit, and as filed with the Secretary of the
(11) STATE IMPLEMENTING ACT.—The term "State implement-
ing act" means legislation enacted by the Commonwealth of
Massachusetts conforming to the requirements of this Act and
the requirements of the Massachusetts Constitution.
(12) TRANSFER.—The term "transfer" includes—
(A) any sale, grant, lease, allotment, partition, or
conveyance,
(B) any transaction the purpose of which is to effect a
sale, grant, lease, allotment, partition, or conveyance, or
(C) any event or events that resulted in a change of
possession or control of land or natural resources.
(13) WEST BASIN STRIP.—The term "West Basin Strip" means a
strip of land along the West Basin which the Wampanoag Tribal
Council is authorized to convey, under paragraph (11) of the
Settlement Agreement, to the town of Gay Head.
SEC. 9. APPLICABILITY OF STATE LAW. 25 USC 1771g.
Except as otherwise expressly provided in this Act or in the State
Implementing Act, the settlement lands and any other land that
may now or hereafter be owned by or held in trust for any Indian
tribe or entity in the town of Gay Head, Massachusetts, shall be
subject to the civil and criminal laws, ordinances, and jurisdiction of
the Commonwealth of Massachusetts and the town of Gay Head,
Add. 206
Massachusetts (including those laws and regulations which prohibit
or regulate the conduct of bingo or any other game of chance).
25 u s e 1771h. SEC. 10. LIMITATIONS OF ACTION; JURISDICTION.
Notwithstanding any other provision of law, any action to contest
the constitutionality or validity under law of this Act shall be
barred unless the complaint is filed within thirty days after the date
of enactment of this Act. Exclusive original jurisdiction over any
such action and any proceedings under section 6(e) is hereby vested
in the United States District Court of the District of Massachusetts.
25 u s e 1771 SEC. 11. EFFECTIVE DATE.
note.
(a) IN GENERAL.—Except as provided in subsection (b), this Act
shall take effect upon the date of enactment.
(b) EXCEPTION.—Section 4 shall take effect upon the date on which
the title of all of the private settlement lands provided for in this
Act to the Wampanoag Tribal Council of Gay Head, Inc. is trans-
ferred. The fact of such transfer, and the date thereof, shall be
certified and recorded by the Secretary of the Commonwealth of
Massachusetts.
25USei771i. SEC. 12. ELIGIBILITY.
For the purpose of eligibility for Federal services made available
to members of federally recognized Indian tribes, because of their
status as Indians, members of this tribe residing on Martha's Vine-
yard, Massachusetts, shall be deemed to be living on or near an
Indian reservation.
Approved August 18, 1987. ,).
";»?''!
LEGISLATIVE HISTORY—H.R. 2855:

HOUSE REPORTS: No. 100-238 (Comm. on Interior and Insular Affairs).
CONGRESSIONAL RECORD, Vol. 133 (1987):
July 28, considered and passed House.
Aug. 6, considered and passed Senate. 1^*?./, ?« I.) >; *? >
Add. 207
Add. 208
Add. 209
Add. 210
but she has no present intention of returning there at any

definite time. Mary Perry and her husband and family
108 Mass. 133
reside at Fall River. The case was submitted to the decision
Supreme Judicial Court of Massachusetts.
of this court upon the facts above stated.
ALONZO DANZELL & others
v.
SOLOMON F. WEBQUISH & others. West Headnotes (1)
October Term, 1871.

[1] Indians
Opinion Persons Entitled; Enrollment and
**1 *133 A child of Indian parents, who was not born Record Thereof
upon the lands belonging to the Herring Pond tribe of
A child of Indian parents, who was not
Indians and never resided thereon, whose father is not
born on lands belonging to the Herring Pond
shown to have been a member of the tribe or to have
tribe of Indians, and never resided thereon,
ever resided on their lands, and whose mother, although
whose father is not shown to have been
a proprietor of those lands and born thereon, resides with
a member of the tribe, and whose mother,
her husband and children elsewhere, is not entitled to
though a proprietor of those lands and
share in the division of those lands under the St. of 1869,
born thereon, resides with her husband and
c. 463, § 3.
children elsewhere, is not entitled to share in
the division of those lands, under St.1869, c.
APPEAL by the minor children of Deborah Danzell and
463, § 3, providing for the division of lands
of Mary Perry from a decree of the judge of probate, under
held in common by the Herring Pond tribe of
the St. of 1869, c. 463, § 3, for the division of the lands
Indians.
held in common and belonging to the Herring Pond tribe
of Indians. 10 Cases that cite this headnote
The judge of probate ordered the division to be made

equally among all persons, whether of full age or minors,
of Indian descent, residing at Herring Pond, or who were
Attorneys and Law Firms
born there, although now residing elsewhere; including
Deborah Danzell and her sister Mary Perry, who were *134 G. Marston, for the appellants.
born on those lands of Indian parents, and whose mother,
Clarissa Joseph, was an Indian, and had all the rights of C. G. Davis & E. S. Whittemore, for the appellees.
an Indian proprietor of Herring Pond Plantation; and also
GRAY, J.
including Clara Perry, a daughter of Mary, who was born
at Herring Pond; but excluding all the other children of **2 The remnants of the Indian tribes, residing within
Deborah Danzell and of Mary Perry, of whom the eldest, the limits of the Commonwealth, having never been
Alonzo Danzell, was seventeen years of age, and none recognized by any treaties or executive or legislative acts
of whom were born on the Herring Pond lands or ever
of the government of the United States as independent
resided there. Christopher Danzell, husband of Deborah
political communities, were under the control of the
and father of her children, is a colored man of Indian
legislature of the state. Worcester v. Georgia, 6 Pet. 515,
descent, but not a proprietor of Herring Pond Plantation,
580, 590, 593. United States v. Holliday, 3 Wallace, 407,
has no original right there, and resides with his family 419. The Kansas Indians, 5 Wallace, 737. United States v.
at New Bedford. His wife owns lands at Herring Pond
Yellow Sun, 1 Dillon, 271. By the law of Massachusetts,
in severalty, set off to her by the division made under
until very recently, these Indians were not subjected to
the St. of 1850, c. 168, on some of which she has made
taxation, nor endowed with the ordinary civil and political
improvements. She claims that she is intending at some rights of citizens, but were treated as the wards of the
time to return to Herring Pond to reside on her lands, Commonwealth; the title in the lands occupied by their
© 2017 Thomson Reuters. No claim to Add. 211U.S. Government Works.

original 1
tribes was in the state, and could not be alienated by them occupying lands within the plantation, had no other
without the consent of the legislature; and the use and title to the same but what they derived from grants or
improvement thereof by the Indians was regulated by the assignments made to them by the original proprietors;
legislature from time to time at its discretion, all the earlier and that it was necessary clearly to ascertain who are the
allotments being limited to short terms. Sts. 1788, c. 38; proprietors of said plantation; enacted, in § 3, that the
1789, c. 52; 1796, c. 23; 1807, c. 109; 1809, c. 70; 1811, overseers or guardians of the plantation should “make
c. 78; 1818, c. 105. Gen. Sts. c. 11, § 5, cl. 12; c. 14, § out a fair record of all the names of the proprietors of
48; c. 36, §§ 5, 6; c. 141, §§ 15-19. Andover v. Canton, 13 said plantation who usually reside within the same; and
Mass. 547. Thaxter v. Grinnell, 2 Met. 13. Mayhew v?? in all cases where the title of proprietorship shall appear
Gay Head, 13 Allen, 129. Jaha v. Belleg, 105 Mass. 208. doubtful, the guardian or guardians shall examine into
Clark v. Williams, 19 Pick. 499. Johnson v. McIntosh, 8 the same, and if they find the claim of such Indian??
Wheat. 543. Jackson v. Goodell, 20 Johns. 188, 693. Strong mulatto or negro, either by descent, marriage or otherwise,
v. Waterman, 11 Paige, 607. well founded (the overseers confirming the same) his
name shall be entered on said record, and such Indian,
By recent legislation, the Indians of the Commonwealth mulatto or negro shall be considered as a proprietor of
have been fully enfranchised from the subjection in which said plantation to all intents and purposes;” and in § 4,
they had heretofore been kept, and put upon the same that “those who are not proprietors in their own rights or
footing as other citizens, and provision made for the in the right of their wives, or who shall not be admitted
division of their lands among them in severalty as their as proprietors by the overseers, guardian or guardians
absolute property. Sts. 1869, c. 463; 1870, cc. 213, 293, 350. in manner aforesaid, shall not be deemed or reputed
inhabitants of said plantation.”
By the St. of 1869, c. 463, § 1, “all Indians, and people
of color, heretofore known and called Indians, within *136 By the St. of 1807, c. 109, the overseers of the
this Commonwealth, are hereby made and declared to Marshpee tribe were made also overseers of the Herring
be citizens of the Commonwealth, and entitled to all Pond tribe of Indians. And by the St. of 1818, c. 105,
the rights, privileges and immunities, and subject to the § 1, it was enacted that “to constitute a proprietor of
duties and liabilities, to which citizens of *135 this the plantation or district of Marshpee, or a member
Commonwealth are entitled or subject.” By § 2, “all lands of said Herring Pond tribe, the person alleged to be a
heretofore known as Indian lands, and rightfully held by proprietor must be a child or lineal descendant of some
any Indian in severalty, and all such lands which have been person who is now a proprietor; and in no other way or
or may be set off to any Indian, shall be and become the manner shall the rights of proprietorship be acquired;”
property of such person and his heirs in fee simple;” “and and the overseers were directed to “cause to be made an
all Indians shall hereafter have the same rights as other enumeration or census of all the proprietors and members
citizens to take, hold, convey and transmit real estate.” of the said tribes, and of all other persons resident on their
plantations respectively, distinguishing proprietors from
**3 Section 3 of the same act (under which the present all other persons; and make a record thereof, of the names
case arises) confers jurisdiction upon the judge of probate and ages of all such proprietors and members, which
of this county to make partition of the lands held in record shall distinguish the said tribes” and be revised and
common belonging to the Herring Pond tribe of Indians, corrected annually.
but lays down no rule for ascertaining who should be
deemed proprietors of these lands and entitled as such The earliest statutes which provided for allotments in
to share in the division. In seeking for such a rule, our fee, out of the common lands in Marshpee, to the
attention has been directed to the earlier statutes upon the Indian proprietors, included none but “the legal adult
same subject, the material provisions of which it may be proprietors of Marshpee, male and female,” and “any
convenient to state. minors who may be the descendants or children of a
deceased proprietor or proprietors,” counting among such
The St. of 1789, c. 52, concerning the plantation of lineal descendants “every person of Indian descent, who
Marshpee in the county of Barnstable, after reciting was born in said Marshpee, or within the counties of
that many of the Indian, mulatto and negro inhabitants, Barnstable or Plymouth, and who had resided, or whose

original 2
parents or ancestors had resided, in Marshpee for twenty entitled to any land in Marshpee.” And it was declared
years or upwards” previously to the passage of the first that no person should be considered a proprietor of the
of those statutes; required the commissioners to give Herring Pond Plantation, who should have received, or be
public notice and hold meetings in such manner as should entitled to receive, any lands or apportionment of lands in
“enable the inhabitants of said district, claiming to be Marshpee under the acts relating to that district. St. 1850,
proprietors, or the descendants or children of deceased c. 168, § 3. By § 6, all the remaining lands in the Herring
Pond Plantation, not divided and allotted by force of this
proprietors, to present their claims to be recorded and to
act, were to remain the common land of the plantation.
be fully heard thereon;” and declared that “no person shall
And § 7 reserved to the legislature the right to alter, amend
ever become a proprietor of said district, by operation
or repeal the act at its pleasure, except so far as rights of
of law, unless he be a lineal descendant of a proprietor;
property in severalty might have been acquired under its
and upon the death of any proprietor without such
provisions.
descendant, all his interest in the lands of the district shall
escheat to the proprietary; provided, however, that any
*138 The whole effect of these statutes may be summed
proprietor of lands in severalty may devise or otherwise
up thus: The only persons recognized as proprietors by
convey the same to any other proprietor.” Sts. 1834, c. 166,
the Sts. of 1789 and 1818 are persons residing within
and especially §§ 4, 9; 1842, c. 72, and especially § 3; 1844,
the plantation. The Sts. of 1834 and 1842 add only
c. 130.
descendants of deceased proprietors. The St. of 1850
further includes those proved to be proprietors according
**4 *137 The St. of 1850, c. 168, provided for a division
to custom, usage, or general acquiescence, as recognized
of a part of the lands belonging to the Herring Pond
and practised upon in the plantation among the Indians
Indians, by three commissioners, among the legal adult
and their descendants, or who, though not distinctly
proprietors of Herring Pond Plantation, male and female,
provided for, have a manifest, equitable and just claim to
of the age of eighteen years or upwards on December 31,
proprietorship, within the spirit and meaning of the act.
1850, as ascertained and recorded by the commissioners
The legislature expressly reserved the power of repealing
after public notice and meetings, including the following
this statute, except as to rights in severalty acquired under
persons: 1st. Those whose proprietorship should be
its provisions, the lands now in question are not affected
established by evidence in the judgment and decision of a
by it, and all the appellants were born since its passage.
majority of the commissioners, “according to the customs,
usages, descent, inhabitancy, or general acquiescence in
**5 No evidence of custom, usage or general
such proprietorship, heretofore recognized and practised
acquiescence has been introduced; and no countenance
upon in said plantation, among the said Indians and
is given by any of the statutes to the proposition, (upon
their descendants.” 2d. “All other persons of the age of
which the claims of the appellants are based,) that
eighteen years or upwards at the time aforesaid,” “who
children, who were not born and never resided upon the
are of Indian descent, born in the counties of Plymouth
Indian lands, whose father is not shown to have been a
or Barnstable, and who shall have married a proprietor
member of the tribe or to have ever resided there, and
of said Herring Pond Plantation, and were inhabitants of
whose mother, although a proprietor of the lands and
and permanent residents in said plantation” on January
born thereon, is still living, and resides with her husband
1, 1850.3d. Any person whose case, though not distinctly
and children elsewhere, are to be deemed themselves
provided for in this act, yet should in the unanimous
proprietors of the lands or entitled to share in the division
opinion of the commissioners “so come within the spirit
thereof under the St. of 1869, c. 463, § 3.
and meaning of this act as to constitute a manifest,
equitable and just claim to proprietorship,” and be
Decree affirmed.
assented to by vote of a majority of the adult proprietors at
a meeting called for the purpose. 4th. One Indian woman,
by name, the wife of a Marshpee Indian, herself “having All Citations
been a proprietor of and domiciled in said Herring Pond
Plantation before her marriage, and not having nor being 108 Mass. 133, 1871 WL 8773
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

original 3
278 JULY, 1879.
ing, though it exceeded the amount it could be compelled to pay

under its contract with the builder. The power to build in-
cluded the power to make contracts and to annul, waive, alter or
disregard them.
If the statutes had made no provisions for the appointment of
enginemen and the payment of compensation to them, it might
be argued that, as an incident of the general power to protect its
inhabitants from fire, a town would have the pO'wer to appoint
enginemen, and to vote them a reasonable compensation. But,
as the statutes have dealt with the subject-matter, and have given
to towns only the limited power to make compensation to engine-
men appointed by an independent authority, it cannot be held
that, as an incident of this limited power, a town can appoint
enginemen, or vote compensation to persons as enginemen, who
have not been appointed as such by the proper authority. We
are of opinion that the cases are distinguishable.
Injunction made perpetual.
DARIUS COOMBS & others, petitioners.

Barnstable. Jan. 21. - July 24,1879. AlliES & SOULE, JJ., absent.
The St. of 1870, c. 293, § 6, providing that any justice of the Superior Court, upon
the application of the selectmen of the town of Mashpee, after hearing all par-
ties interested, may appoint commissioners to make partition of "any or all of
the common lands of said town, or of the people heretofore known as the
Marshpee tribe of Indians," and that he may direct that the same or any part
thereof be sold, and the proceeds paid over to the treasurer of the town, is con-
stitutional; and if, upon a petition presented by the selectmen, a sale of a por-
tion of the common lands has been ordered by the court, the selectmen may,
while the first petition is still pending, file a second petition for the sale of the
lands not included in the order.
PETITION to the Superior Court, dated March 11, 1878, by

·the selectmen of the town of Mashpee, under the St. of 1870,
c. 293, § 6, for an order to sell certain hay and meadow lands of
that town, or of the people theretofore known as the Marshpee
tribe of Indians. Hearing before Wilkinson, J., who ruled that
the petition could not be maintained; and reported the case for
the determination of this court, in substance as follows:
Add. 214
On October 11, 1870, a petition was presented to the Superior

Court, by the selectmen of the town of Mashpee, representing
"that there are in said town certain lands, amounting as nearly
as can be ascertained to 3150 acres, which are the common
lands of said town of Mashpee, and of the people heretofore
known as the Marshpee tribe of Indians; that it is for the
interest of aU parties concerned and interested in said lands that
the same be divided among the parties entitled thereto; and
that the same be sold in accordance with the provisions of law; "
and praying the court to appoint three disinterested persons
as commissioners to make partition of said lands, or to sell the
same, as the court should determine, and also that the commis-
sioners be authorized and directed to perform all such other
acts as they might do under the p~ovisions of the St. of 1870,
c. 293. Upon that petition Brigham, C. J., appointed three com-
missioners, ordering them to sell all the common lands of the
town, except such as the commissioners should determine to be
meadow and hay lands, "with full powers to do all the matters
and things contemplated by said act to be done by such com-
missioners." On April 2, 1878, the commissioners presented
their report to the court, stating that "all the common lands
of Mashpee, excepting meadow and hay lands, covering an area
of 2536t acres, were surveyed and divided into 187 lots or par-
cels, and sold by public auction, after due notice, the aggregate
of such sales amounting to $7052.76," which report was duly
approved and confirmed by the court.
T. H. Tyndale, fqr the petitioners.
J. M. ])ay, for the respondents.
ENDICOTT, J. By the St. of 1869, c. 463, all Indians within
the Commonwealth were declared to be citizens, entitled to the
rights and subject to the duties of other citizens of the Com-
monwealth. Previously to that statute, they were the wards of
the Commonwealth, and the title to the lands occupied by the
several tribes was in the Commonwealth, and its use and un-
provement were regulated from time to time by the Legislature.
])anzell v. Webquish, 108 Mass. 133, 134. See also St. 1862,
~lM. .
In thufl enfranchising the Indians and conferring on them the
rights of citizens, it was not the intention of the Legislature to
Add. 215
280 JULY, 1879.
gi ve 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. The St. of 1869, c. 463, pro-
vides that any land, known as Indian land, held by any Indian
in severalty, or which has been set off to any Indian, shall be
the property of him and his heirs in fee simple. But where
such land is held and occupied in common by any Indian tribe,
" except in the case of the Indians of Marshpee and Gay Head,"
the judge of probate, in the county where such lands lie, may
appoint commissioners to make partition of any or all of the
lands to be divided, or he may direct that the whole or a part of
the same may be sold and the proceeds divided among the parties
rightfully entitled, in proportion to their respective interests.
Not only does the statute provide for the division or sale of com-
mon lands, but also for the collection of all funds and the sale
of all property held in trust for any tribe of Indians, and the
division of the same among them. §§ 2, 3. The guardianship
of the State was thus to be exercised over all Indians, included
within the terms of the act, after they were declared to be citi-
zens; and provision was made for the final distribution among
them of property thus held in common.
In pursuance of the policy established by the St. of 1869, the
district of Marshpee was incorporated as a town by the name of
Mashpee, and all common lands and other rights, belonging to
the district, were transferred to the new town to be held as prop-
erty and rights are held by other towns. St. 1870, c. 293, §§ 1, 2.
By this act, the division of common lands in Mashpee is not to
be made in the Probate Court, as provided in the Sts. of 1869,
c. 463, and 1870, c. 213, incorporating the town of Gay Head,
but upon application by the selectmen to any justice of the
Superior Court, who, after hearing all parties interested, may
appoint commissioners to make partition of "any or all of the
common lands of said town, or of the people heretofore known
as the Marshpee tribe of Indians;" or he may direct that the
same or any part be sold, and the proceeds paid over to the
treasurer of the town. § 6. Although this section does not in
terms state among whom these hinds are to be divided, yet it is
clear that the division is to be made among the Indians inhabit-
ing the territory, whose rights are more clearly defined and
Add. 216
enumerated in previous statutes, relating to the district of

Marshpee. Sts. 1834, c. 166; 1842, c. 72; 1862, c. 184. And
if any uncertainty exists in regard to the disposition of the pro-
ceeds of the sale of lands to be paid by the commissioners into
the hands of the treasurer of the town, it is removed by the St.
of 1878, c. 248, which provides that such proceeds shall be
divided among the persons entitled to the lands prior to the sale,
in proportion to their several interests therein.
There is no constitutional objection to any of these provisions.
The tenure by which these lands were held was peculiar. In
bestowing the privileges of citizenship upon these wards of the
Commonwealth, and giving a title in fee simple to all lands held
by them in severalty under existing provisions of law, it 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 of 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 known as the
Marshpee tribe of Indians.
Nor can we hold that the proceedings instituted in 1870, by
the selectmen of Mashpee, which were pending in the Superior
Court when this petition was filed, have judicially determined
all questions which the selectmen of Mashpee can bring to the
attention of a justice of the Superior Court. In that case, com-
missioners were appointed to divide, and did divide, all the
common lands in Mashpee except meadow and hay lands. The
justice of the Superior Court to whom an application is made,
may determine whether it is for the interest of all parties to sell
or divide all or any part of the common lands. He may thus
designate a part only to be sold, as was done in that case by the
Chief Justice of the Superior Court; and' we may fairly infer
from his decision that, at that time, it was for the interest of the
parties that the meadow and hay lands should not then be sold.
But circumstances may change; the statute does not in terms
restrict the selectmen to one application; and, as a large discre-
tion is lodged in the justice to whom application is made, we are
of opinion that it was the intention of the statute to provide a
Add. 217
EVEREL A. BLACK, JOHN L. BLACK, FRANCIS F. COURNOYER,

GERTRUDE R. COURNOYER
v.
CAPE COD COMPANY, HENRY HORNBLOWER II

July 14, 1975
Randall, J
DECISION
The Complaint was brought under the provisions of the General Laws,
Chapter 185, section 1(k) and Chapter 240, Section 6, by the Plaintiffs [Note
1] who pray that an easement by necessity be established to and from their
land "over land of respondents at a point to be designated by order of the
Court and to include the right to install and maintain public utility systems"
thereon. In addition to other prayers not now applicable, plaintiffs seek to
enjoin defendants from blocking the public way passing through their
property.
The plaintiffs filed a stipulation dismissing the complaint as against Henry

Hornblower, II. The Cape Cod Company answered plaintiffs’ complaint,
denying the claimed right of way by necessity over its land, the right to
install and maintain public utility systems thereon and their unlawful
interference with plaintiffs' ingress and egress. Further, defendants claim
that plaintiffs were guilty of laches, but not having been argued this is
deemed to have been waived.
The case was heard on June 4, 1974, at the Dukes County Courthouse in
Edgartown, Massachusetts. A view of the premises was taken on that day
with plaintiffs, defendants, and their attorneys present. Five witnesses were
called by the plaintiffs with their testimony being taken by a stenographer
who was sworn by the Court. Eight exhibits were introduced into evidence
and are incorporated herein for the purpose of any appeal. All references to
book and page numbers are to documents recorded at the Dukes County
Registry of Deeds unless otherwise noted.
The evidence produced at the trial shows that plaintiffs Cournoyer own the
northwesterly half and plaintiffs Black own the southeasterly half of Lot 594
as shown on the plan introduced into evidence as Exhibit No. 5. Defendants
Add. 218
own Lot 587 which abuts Lot 594 at the northwesterly corner thereof as
shown on said plan.
The land in question was formerly held for the benefit of the Indians located
in the Indian district of Gay Head. Until the passage of the St. of 1869 c. 463
the Indians were wards of the Commonwealth and the title to the lands
occupied by them was held by the Commonwealth. Coombs, Petitioner, 127
Mass. 278 , Danzell v. Webquish, 108 Mass. 133 , 134. The Court takes
judicial notice of Chapter 42 of the Resolves of 1863 entitled “Resolve
Relating To The Establishment of Boundary Lines of Indian Lands at Gay
Head.” As a result of this resolve, a commissioner was appointed “to
examine, and fully and finally to determine, all boundary lines between the
individual owners of the land located in the Indian district of Gay Head ...
and also to determine the boundary lines between the common lands of said
district and the individual owners adjoining said common lands….” By
Chapter 67 of the Resolves of 1866 the report of the Honorable Charles M.
Marston, the commissioner so appointed under Chapter 42 of the Resolves
of 1863, was accepted and a further resolve authorized the appointment of
still another commissioner to complete “the examination and determination
of questions of title under said resolve, not passed upon by said
commissioner.” A map of “Gay Head” was prepared [Exhibit No.8] “under
the direction of Richard L. Pease, Eng., Commissioner appointed by Gov.
Bullock under Resolve Chap. 67 of 1866,” recorded in Book 5, Pages 34 and
35.
By Section 6 of St. 1870, Chapter 213, “An Act to Incorporate the Town of
Gay Head” the General Court as part thereof authorized the Probate Court of
Dukes County to appoint two commissioners to recommend the division of
these lands among the Indians. Richard Pease and Joseph Pease were
appointed commissioners in 1878 and submitted their report recommending
the parceling of the common land to individual Indians [Exhibit No. 1].
Thereafter, Lot 587 was parceled out to Leander Basset and Lot 594 to Amy
Spencer [Exhibits No. 2 and 3] as shown on the plan submitted by the
commissioners in connection with the set off. [Exhibit No.6]. Each lot was
described by making reference to abutting lots in accordance with the plan
which showed the lots set forth as on a grid. The plan itself [Exhibit No. 6]
showed that the only road ran from the Chilmark town line westerly to the
Gay Head Light House. The deeds to the individual lots made no provision
for any rights of way or easements to get to and from any of the lots. There
was evidence that showed that at the time of the set-off the whole area was
used in common by the Indians for planting corn, as pasture for their wild
ponies and presumably in part for their abodes. The lots were undefined on
the ground as there were no fences or any other separation of the lots. The
Indians traveled on foot or on horseback without reference to anyone
Add. 219
person's land or boundaries. None of the trails were more than three feet
wide and vehicles were never used.
Plaintiffs’ title to Lot 594 comes by mesne conveyance from the title set-off
to Amy Spencer [Exhibit No. 2] while defendant’s title to Lot 587 comes
from thee lot set off to Leander Bassett [Exhibit 3]. Moshup Trail is a two-
lane tar road built according to testimony in 1963-1964 which loops
southerly from the state road. There is one new house on the south side of
Moshup Trail 1/3 to 1/2 mile east of the turn off sought to be established as a
right of way to 594. Utility lines end at this house, coming to it from the east.
Except for this house, the area is wild and uninhabited, being sparsely
covered with grass growing in loose, sandy soil ever more sparse as one
approaches the beach to the south. The terrain itself is made up of small hills
that may be passed over in a jeep or four-wheel drive vehicle.
The way over which plaintiffs claim their easement is part of an ancient way
which commences at an undetermined point off “Old South Road" (which
appears on Exhibit No.5) and runs thence in a generally southeasterly
direction to Moshup Trail. Ink lines on Exhibit No. 5 indicate that the way
runs from Moshup Trail across Lots 577, 581 and 582 to Lot 587 where it
divides into two ways, one curving to the north, and the other, with which
this case is concerned, to the south across Lot 587 to and through Lot 594.
From there, it proceeds across Lot 595, a beach area, and thence westerly
across Lots 585, 584, 583, 575, and 572 to Moshup Trail. The portion
running from Lot 595 westerly to Moshup Trail is known as “Zack’s Cliff
Road.” Since the Complaint alleges the right claimed by the plaintiffs to lie
across Lot 587, the Court is unconcerned with Zack’s Cliff Road. Because the
necessity of access is to Moshup Trail, the Court is unconcerned with that
part of the ancient way running between Old South Road and Moshup Trail.
The way from Moshup Trail to Lot 594 was originally a horse trail which was
widened by the repeated driving of an automobile over it. There is a gate
across the way at the westerly boundary line of Lot 587, built by the
defendants and kept locked by them since 1964. There was evidence
indicating that the plaintiffs and others would, whenever they found it
locked, cut the locks and throw them into the bushes in order to pass
through Lot 587 to Lot 594 and beyond.
The partition of 1878 of the land held in common by the Indians was to
establish parcels to be owned individually by the Indians, and this partition
contained no provision for access to and from landlocked parcels by the
designated owners of such parcels. There 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. Rights of
way of necessity are created by a presumption of law. Where a landowner
conveys a portion of his land in such a manner that he is unable to reach the
Add. 220
land retained without travelling over the land conveyed, the law presumes in
the absence of contrary evidence that the intent of the parties to the
conveyance was to provide access to the former by passage over the latter.
Davis v. Sikes, 254 Mass. 540 . The necessity of the right of access does not
of itself create the right, but it is evidence that the right can be implied from
the intent of the parties. Orpin v. Morrison, 230 Mass. 529 , Gorton-Pew
Fisheries Co. v. Tolman, 210 Mass. 402 . This principle is not disrupted by
the fact that these parcels were all created at one and the same time in a
partition of the land and not as a result of a landowner conveying out or
retaining an inaccessible parcel.
That the Commonwealth in 1878 did not provide for specific means of access
to the parcels partitioned perhaps indicates its awareness of the Indians'
customary travelling on horseback and on foot without regard to the
boundaries of individual lots as a means of access. Use of such a means was,
perhaps, an exercise of an easement which now may need only specific
location because of the changes in the use and occupation of the land
involved and because of changes in modes of transportation. One cannot,
obviously, drive an automobile to a landlocked parcel in complete disregard
of the boundaries of other parcels.
If the Court were to rule that plaintiffs did have, as a result of the necessity
of access and the lack of evidence of an intent on the part of the
Commonwealth to deny access, an easement of access to Lot 594, it would
not compel any conclusion that their easement lies over the way which they
have been using to reach their Lot 594. The most direct way to reach
Moshup Trail might be across Lots 586, 582, 583, 575, 576 and 572, in
addition to Lot 587. The owners of these lots are not before the Court and
thus the Court cannot issue in their absence any decree or ,judgment that
would affect their rights. Even if, as plaintiffs allege, their right were to lie
across the way over which they claim an easement, perhaps by prescription,
that way runs across Lots 582, 581 and 577, in addition to Lot 587. The
owners of these lots are likewise not before the Court, and the Court is
powerless to issue in their absence any decree or judgment that would affect
their rights. Finally, the Court notes that there are other landlocked parcels
which may have rights over Lot 594. While this fact does not of itself prevent
the Court from determining plaintiffs' claim, it does suggest the crying need
for a thorough and comprehensive planning of access to the entire area. One
manner of providing access, which might under other circumstances be
judicially imposed, would be to plan ways sufficiently wide to allow vehicular
use along the boundary lines of each lot (on all four sides if necessary to give
access to Moshup Trail to any given lot), burdening each lot with one-half
the width of the way and in turn benefiting each lot with a right of way over
such of the other remaining lots as is necessary to reach Moshup Trail. This
Add. 221
would be imposed in such a manner as would divide the burden of ways as

equitably as possible.
The Court reluctantly concludes that the owners of at least Lots 571, 572,
575, 576, 577, 581, 582, 583, and 586 are indispensable parties to this action,
and relief cannot without their presence in the action be granted. Rule 1A of
the new Rules of Civil Procedure, designed to provide guidance in the
transition of procedure from the old rules to the new rules, provides in Rule
1A(3) and 1A(8) authority for the Court to dispose of this case under the
procedure effected by new Rules of Civil Procedure. Under Rule 19 (a) of the
new rules, the Court can on its own motion order these other owners to be
joined in these proceedings. Rule 19(a) (1), Rule 19(a) (2) (i). Alternatively,
under Rule 19(b), the Court can dismiss the case without prejudice until
such time as the plaintiffs upon proper pleadings and process can join in this
action these indispensable parties. It is the Court’s view that any judgment
that could issue at this point in these proceedings, assuming such a
judgment would be favorable to the plaintiffs, would be either unavoidably
prejudicial to one or more parties not now before the Court, or completely
inadequate to the needs of the plaintiffs. The Court chooses in its discretion
to dismiss the case without prejudice under Rule 19(b) because the
information necessary to make an order under Rule 19(a) is not now before
the Court. More important, a dismissal without prejudice under Rule 19 (b)
will not only tend to accomplish the same purpose as an order under Rule
19(a), should the plaintiffs desire to file the appropriate motions and
pleadings, but also a dismissal will tend to give the present parties ample
latitude in their pursuit of this litigation. The Court is a suitable place for
determining rights of the parties before it under the law, but legal process is
not always the best means for planning access to a large number of lots; the
Court has no special expertise in land development. However, the Court is
quite prepared to decide whatever legal issues are presented to it provided
all the proper parties are before it.
The Court orders that the petition be dismissed without prejudice to the
plaintiffs to file appropriate motions and pleadings for further hearings in
this matter.
So Ordered.
FOOTNOTES
[Note 1] Francis F. Cournoyer was joined as plaintiff by an amendment to

the complaint.
Add. 222
HUGH C. TAYLOR and JEANNE S. TAYLOR

v.
DAVID E. VANDERHOOP and EVELYN VANDERHOOP.
Commonwealth of Massachusetts Trial Court Land Court

Department
MISC 129925
July 19, 1989
Dukes, ss.
CAUCHON, J.
DECISION
Hugh C. and Jeanne S. Taylor ("Plaintiffs") commenced this action on

October 4, 1988 seeking a declaration, pursuant to G. L. c. 231A, that David
E. and Evelyn Vanderhoop ("Defendants") have no right to enter upon or to
pass over a forty (40) foot wide right of way ("Way") depicted on Land Court
Plan Nos. 35915A and 35915B as running across a portion of a parcel of
registered land owned by the Plaintiffs located on Lobsterville Road in
Gayhead, Massachusetts, shown as Lot No. 4 on Land Court Plan No.
35915B ("Locus") (Exhibit No. 1-B), or in the alternative, a declaration that
any right of access which the Defendants may possess on or over said Way,
does not include the right to use it for vehicular traffic or to install utilities
or other services in or over the same. Pending a trial on the merits, the
parties filed cross-motions for preliminary injunctive relief. These motions
were allowed by Order of this Court dated October 20, 1988, as follows:
(a) The defendants are enjoined, until further order of this Court, from (i)
using for vehicular traffic, (ii) disturbing, or (iii) altering the "Way (40.00
wide)" shown on Land Court Plan No. 35915B except that defendants may
use the Way, during reasonable working hours, until noon on October 22,
1988, for the purpose of causing one vehicle to pass over said Way in order
to reach defendants' land and to excavate a foundation hole on said land;
and
(b) The plaintiffs are ordered, until further order of this Court, to remove
from the Way the boat or any other items which may obstruct passage over
said Way.
Thereafter, on November 3, 1988, the Order was amended to read as

follows:
Add. 223
A. The plaintiffs are ordered, until further order of this Court, to refrain
from obstructing passage over the disputed [Way] . . . or from interfering
with the use of the Way by the defendants for passage to and from their land
by foot or by ordinary vehicle.
B. The defendants are enjoined, until further order of this Court, from using
the Way for construction vehicles of any nature . . or from altering or
causing damage to the Way. . . .
A trial was held in the Land Court, sitting at Edgartown, on January 30,
1988, at which time a stenographer was appointed to record and transcribe
the testimony. The matter was submitted on a partial Statement of Agreed
Facts (Exhibit No. 1) and oral testimony. Five witnesses testified and five
exhibits were introduced into evidence. All exhibits, and certain of the
agreed facts, are incorporated herein for the purpose of any appeal.
Following trial, the Court viewed the subject premises in the presence of
counsel.
On all of the evidence, I find as follows:
1. The Plaintiffs acquired title to Locus by Transfer Certificate of Title No.

3806 (Exhibit No. 1-A) on July, 19, 1974. Locus constitutes a portion of the
land originally registered to Isaac and Gertrude Taylor ("Taylors") by Final
Decree dated August 9, 1971 (See Exhibits No. 1-C-1, 1-C-2 and 1-D). The
Taylors' Original Certificate of Title, dated August 9, 1971 (Exhibit No. l-C-
2), contains the following language:
. . . So much of the land hereby registered as is included within the areas

marked "Way-20.00 feet wide; and "Way-40.00 feet wide," approximately
shown on [Land Cout Plan No. 35915A] (Exhibit No. 1-D), is subject to the
rights of all persons lawfully entitled thereto in and over the same. . . .
Although this language is omitted from the Plaintiffs' Transfer Certificate of

Title, the aforesaid forty (40) foot wide Way is depicted on the Plaintiffs'
Land Court Plan No. 35915B (Exhibit 1-B) and is clearly visible on the
ground. In any event, the unexplained omission in a Transfer Certificate of a
right in a dominant estate does not extinguish that right absent a release or
other appropriate document.
2. By deed from John O. Vanderhoop, Pauline Vanderhoop and Leonard F.

Vanderhoop, Sr. dated December 30, 1976, recorded at Book 341, Page 314
in the Dukes County Registry of Deeds (Exhibit No. 1-E), the Defendants
acquired title to a certain parcel of unregistered land located to the
northwest of Locus and shown in part as a lot marked "Edwin D.
Vanderhoop" on Land Court Plan No. 35915A.
Add. 224
3. As shown on said Plan, the Defendants' property lies between a parcel of

registered land located to the north and another parcel of registered land
located to the south, both of which parcels are owned by Frances A.
Ginnochio ("Ginnochio"). The foregoing parcels appear as Lots No. 1 and 2
on Land Court Plan No. 19215A (Exhibit No. 1-G).
4. At the time of Ginnochio's registration petition, an objection thereto was

filed by David F. Vanderhoop, Leonard F. Vanderhoop and Pauline A.
Vanderhoop (Exhibit No. 1-H). Thereafter, on November 27, 1946, two
Stipulations for Decree (Exhibit Nos. 1-I and 1-J) were entered into by the
parties and duly incorporated into Ginnochio's registration decree. The
pertinent portion of the Stipulation identified as "Exhibit No. 1-I" reads as
follows:
. . . any decree registering the title in [Lot 1] on the Petitioner's plan

[19215A], shall subject the fee therein to a right of way over the so-called
Coast Guard Station Road as laid out on said plan . . . for the benefit of the
present owners of [the Vanderhoop parcel], their heirs or assigns.
5. On November 20, 1953, a Final Decree (Exhibit No. 1F) entered in

Ginnochio's registration case incorporating the Stipulation for Decree
quoted above in Finding No. 4 as follows:
So much of said lots 1 and 2 [on Land Court Plan No. 19215A] as is included
within the limits of the way forty (40) feet wide, . . . is subject to the rights of
all persons lawfully entitled thereto in and over the same. (emphasis
added), and to the terms of [the] stipulation [referenced above]. . . .
There is appurtenant to said lots 1 and 2 the right to use the way forty (40)
feet wide, . . . in common with all other persons lawfully entitled thereto. . .
(emphasis supplied).
6. The parcels depicted on Land Court Plan No. 35915B as belonging to

Taylor, Vanderhoop, Ginnochio and one Broacher were all held at one time
as common lands of the District of Gay Head, the same being transferred
thereafter to the Town of Gay Head and later partitioned in accordance with
Chapter 213 of the Acts and Resolves of 1870.
7. Following the filing of an additional objection to the Ginnochio

registration petition by the United States of America ("USA"), an Agreement
for Decree (Exhibit No. 1-K) was executed, whereby a perpetual easement
for the benefit of the USA was granted in:
a strip of land twenty (20) feet each side of the center line of existing ways as
identified by dotted lines on a plan of land in Gay Head of [Ginnochio] . . .
Add. 225
dated April, 1944 ("1944 Plan") (Exhibit No. 1-L) . . . with full right of egress
and ingress over said lands by those in the employ of the [USA] , on foot or
with vehicles of any kind, with boats or any articles used for the purpose of
carrying out the intentions of Congress provided for the establishment of
life-saving stations; and the right to pass over said lands in any manner in
the prosecution of said purposes and to erect such structures upon said land
as the [USA] may see fit. . . .
Some time after 1947, the U. S. Coast Guard took over the Life Saving
Station ("Station") situated on the parcel marked "1" on the 1944 Plan.
8. The forty (40) foot wide Way appears to have been created some time in
the late nineteenth century for purposes of accessing the Station. As it
presently appears, the Way runs from Lobsterville Road, a public way, to the
site of the Station, crossing over the lands of the Plaintiffs', Defendants',
Ginnochios' and other parcels. The Way constitutes the Defendants' sole
means of access from their land to a public way. The evidence is somewhat
vague as to the precise year of the Way's establishment, but I note that the
1887 U.S. Geodetic Survey Map on file with the Land Court shows what now
appears to be South Road as the only road then located in Gayhead.
9. From the 1940's through the 1960's, the Vanderhoop family used the Way,
or footpaths connecting thereto, to reach the Station for purposes of
delivering newspapers and milk, and collecting swill for their pigs. At times,
the Vanderhoops crossed over the Way in the course of hunting rabbits or
searching for ancient artifacts over the surrounding area. In addition, they
occasionally used the Way or connecting footpaths for recreational purposes
and/or observing the extent of any erosion of the cliffs of Gayhead. At no
time during this period did the Vanderhoops find their use of the Way
blocked or obstructed.
10. In 1954, extensive erosion of the surrounding cliffs threatened the

station's structural soundness. Accordingly, the U.S. Coast Guard
abandoned the station and relocated thereafter to Menemsha (See Exhibit
No. 3).
The Defendants Vanderhoop assert rights in the subject forty (40) foot wide
Way based on the following legal theories: 1) easement by prescription; 2)
easement by implication or necessity and 3) easement in a private way for
which the public has acquired rights of use by motor vehicle. For the reasons
enunciated below, I find and rule on the evidence that the Defendants have
acquired an easement by implication or necessity to pass and repass without
obstruction, by foot or by motor vehicle, along the entire length of the Way
for purposes of access to and egress from their property.
Add. 226
It is familiar law in this Commonwealth that one may acquire a right of way
by prescription through twenty years of uninterrupted, open, notorious and
adverse use. G.L. c. 187, s. 2; Boston Seaman's Friend Society, Inc. v. Rifkin
Management, Inc., 19 Mass. App. Ct. 248 , 251 (1985); Glenn v. Poole, 12
Mass. App. Ct. 292 (1981); Brown v. Sneider, 9 Mass. App. Ct. 329 , 331
(1980); Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Garrity v. Sherin, 346
Mass. 180 , 182 (1963); Nocera v. DeFeo, 340 Mass. 783 (1959). In the
matter herein, the Vanderhoops' use of the subject Way spans the 1940's
through the 1960's. I find such use, however, to be irregular and/or for
purposes of reaching the Station. Accordingly, the Vanderhoops' use of the
Way is of an insufficient nature to establish their acquisition of prescriptive
easement rights in and over the Way. See Uliasz v. Gillette, 357 Mass. 96 ,
101-102 (1970); Akasu v. Power, 325 Mass. 497 , 502 (1950). Similarly, I find
there to be insufficient evidence in the record before the Court to establish
that the Vanderhoops, or the general public, have acquired easement rights
in the Way under the theory that it is a private way for which the public has
obtained rights.
The Defendant Vanderhoops further assert that they hold an easement by

implication or necessity over the Way as it crosses Locus. Implied easements
do not arise out of necessity alone. Perodeau v. O'Connor, 336 Mass. 472 ,
474 (1958). Their origin must be found in the presumed intention of the
parties to be gathered from the language of the relevant instruments read in
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 , 347 (1967); Perodeau at
474; Sorel v. Boisjolie, 330 Mass. 513 , 517 (1953); Joyce v. Devaney, 322
Mass. 544 , 549 (1948); Dale v. Bedal, 305 Mass. 102 , 103 (1940).
Additionally, where as here the Way in which an easement by implication or
necessity is claimed traverses registered land, the proponents thereof bear
the burden of proving that such easement rights accrued prior to the date of
a Final Decree in such registration case and that they are members of the
class referred to in the Decree as having said rights. The imposition of this
burden is consistent with the well-settled rule that an easement by
implication may not be created against registered land. G.L. c. 185, s. 53;
Goldstein v. Beal, 317 Mass. 750 , 757 (1945).
One particular set of circumstances which will give rise to an easement by

implication, and which I find to be relevant hereto, exists where, during the
common ownership of a tract of land, an apparent and obvious use of one
part of the parcel is made for the benefit of another part thereof and such
use is being actually made up to the time of the severance and is reasonably
necessary for the enjoyment of the other part of the tract. Sorel at 516;
Jasper v. Worcester Spinning and Finishing Co., 318 Mass. 752 , 756-757
Add. 227
(1945); Joyce at 549. Further, where one conveys a portion of his land in
such a way as to deprive himself of access to the remainder thereof unless he
crosses the land sold, the law implies from the resulting situation of the
parties that such person has a way of necessity over the granted portion of
the premises. The law thus presumes that one will not sell land to another
without an understanding that the grantee shall have a legal right of access
to 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. New York &
New England Railroad Company v. Board of Railroad Commissioners, 162
Mass. 81 , 83 (1894); Gorton-Pew Fisheries, Co. v. Tolman, 210 Mass. 402 ,
411 (1912); Orpin v. Morrison, 230 Mass. 529 , 533 (1918); Davis v. Sikes,
254 Mass. 540 , 545-546 (1926); Restatement of the Law: Property, Section
474.
In the instant matter, the respective properties of the Plaintiffs' and

Defendants' originally comprised a portion of the common lands of the
District of Gay Head. Following the enactment of Chapter 213 of the Acts
and Resolves of 1870, however, the District of Gay Head was abolished and
the Town of Gay Head established. Thereafter, the common lands were
partitioned and conveyed to individual owners, the parcels owned by the
Plaintiffs and Defendants being among those created by such partition.
Accordingly, as it is immaterial whether the severance of common
ownership results from execution of law, See Viall v. Carpenter, 80 Mass.
(Gray XIV) 126 (1859); Flax v. Smith, 20 Mass. App. Ct. 149 (1985), a
reasonable implication arises that some means of ingress to and egress from
the resulting lots is necessary to the lot owners' enjoyment of their property.
While the foregoing facts do not support an easement by prescription, they
do demonstrate that the subject forty (40) foot wide Way has been the
accepted means of access to and from the surrounding parcels since its
establishment in the late 1800's. While the record is devoid of evidence that
the Way existed at the time of the partitioning of the common lands, the
easement, nevertheless, came into existence at that time as an undefined
easement by necessity. Where a right of way is not precisely located or
established, its existence is not affected. Emery v. Crowley, 371 Mass. 489 ,
495 (1976). In such instances, the Court has the authority to establish the
easement or the same may come into being by acquiescence of the parties
involved. Here, the establishment of the Way on the ground, its use and the
surrounding circumstances, including the Vanderhoops' filing of an
objection in the Ginnochio Registration Case No. 19215A (See Finding No.
4), all serve to define the easement created by the partition. Additionally, as
the Final Decree in the Ginnochio registration case incorporates a
Stipulation for Decree whereby the registration of the Ginnochio land was
made subject to the Vanderhoops' right to cross over the same for purposes
Add. 228
of accessing their land, the reasonable inference to be drawn therefrom is

that at that time the parties deemed the Way to be the access route to their
properties.
As noted above in Finding No. 1, the Original Certificate of Title held by the
Plaintiffs' predecessors in title also refers to Land Court Plan No. 35915A,
which depicts the forty (40) foot wide Way and which expressly
acknowledges that such registration is subject to the rights which others may
lawfully possess therein. The Vanderhoop's status as persons so entitled to
use the Way accounts for their failure to file an objection in Land Court
Registration Case No 35915. Accordingly, when the Final Decrees of the
Land Court of November 20, 1953 (Ginnochio) and August 9, 1971 (Taylor)
were extended onto Land Court Plan Nos. 19215A and 35915A and said
plans and decrees were made a matter of public record, some easement of
passage over the Ways depicted thereupon became appurtenant to the lot
now owned by the Defendants. See Dubinsky v. Cama, 261 Mass. 47 , 53-54
(1927); Walter Kassuba Realty Corp. v. Akeson, 359 Mass. 725 , 728 (1971).
The Plaintiffs' Transfer Certificate of Title fails to include any language

subjecting the registration of Locus to similar easement rights in and over
the subject Way, but Land Court Plan No. 35915B, which is specifically
referred to therein, shows said Way. I therefore deem this omission of no
consequence since the Certificate's reference to the plan places the Plaintiffs
on notice as to the existence of the Way, and accordingly, causes the
registration of Locus to be subject to any and all easement rights which
other persons may lawfully possess in and over said Way. See Anderson v.
DeVries, 326 Mass. 121 ; 132 (1950); Myers v. Stalin, 13 Mass. App. Ct. 127 ,
137 (1971); Brooks v. Capitol Truck Leasing, Inc., 13 Mass. App. Ct. 471 ,
478-479 (1971). The Plaintiffs thus took title to Locus subject to the
Vanderhoops' right of way and must be estopped to deny the existence of
whatever easement of travel was created in and over the Way under the land
registration records. See Dubinsky at 56. I note in addition thereto that such
"easement of travel" is not limited to access in and over the Way up to the
Ginnochio parcel, as the Taylors' Original Certificate of Title contains no
express language so limiting the Defendants' rights in and over the Way.
Had the Taylors intended to restrict the extent of such passage to that
portion of the Way running in front of the Ginnochio property, and not to
any point beyond, they should have so petitioned the Court, rather than
leaving the Way open to "the rights of all persons lawfully entitled thereto in
and over the same". I thus find the Certificate's reference to the Way, and to
the rights contained therein (See Finding No. 1), to further substantiate an
acknowledgment on the part of the Plaintiffs' predecessors in title that the
Vanderhoops, and others similarly entitled to use the Way, possess rights to
pass and repass over the entire length of the Way for purposes of accessing
Add. 229
their land. Further, as it is fundamental that where an easement or other

property right is granted or created, every right necessary for its enjoyment
is included by implication, Sullivan v. Donohoe, 287 Mass. 265 , 267 (1934);
Anderson at 134, the Defendants' right to so use the Way carries with it the
right to make reasonable repairs and improvements thereto at their own
expense. Such right further includes the right to install utilities therein, or
thereupon as conditions may dictate, for purposes of servicing their
property. G.L. c. 187, s. 5; Nantucket Conservation Foundation, Inc. v.
Russell Management, Inc., 380 Mass. 212 , 217 (1980).
In consideration of the foregoing, I rule in summary that the Defendant

Vanderhoops have acquired a right of way by implication to enter upon and
to pass and repass without obstruction, by foot or by vehicle, over and along
the entire length of the forty (40) foot wide Way, such easement
encompassing each and every right necessary or incidental to the
Defendants' enjoyment thereof, and that the Vanderhoops, their heirs and
assigns are members of the class so entitled to use the Way.
Judgment accordingly.
Add. 230
Add. 231
Add. 232
Add. 233
Add. 234
Add. 235
Add. 236
Add. 237
Add. 238
Add. 239
Add. 240
Add. 241
Add. 242
Add. 243
Add. 244
Add. 245
Add. 246
Add. 247
Add. 248
Add. 249
285 (Mass. 2005)
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.
Page 158
Page 159
Page 160
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
Add. 250
285 (Mass. 2005)
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.
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
Page 161
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
Add. 251
285 (Mass. 2005)
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
Page 162
Add. 252
285 (Mass. 2005)
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,
Add. 253
285 (Mass. 2005)
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
Page 163
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 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,
256 N.E.2d 290 (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, 67 P.3d 412 (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. Babbitt, 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 necessity. See and
compare Bay Colony Constr. Co. v. Town of Norwell, 5 Mass.App.Ct. 801,
360 N.E.2d 1278 (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.
A. "An easement is by definition a limited, nonpossessory interest in

realty." M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 92, 809 N.E.2d 1053
(2004). It may be created either expressly, see, e.g., id. at 88, 809 N.E.2d
1053, 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.
Add. 254
285 (Mass. 2005)
73, 76-77, 818 N.E.2d 561 (2004), quoting from New England Continental
Media, Inc. v. Milton, 32 Mass.App.Ct. 374, 378, 588 N.E.2d 1382 (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,
120 N.E. 183 (1918). See Nichols v. Luce, 41 Mass. 102, 24 Pick. 102, 104
(1834); Davis v. Sikes, 254 Mass. 540, 545-546, 151 N.E. 291 (1926); Joyce
v. Devaney, 322 Mass. 544, 549, 78 N.E.2d 641 (1948); Nylander v. Potter,
423 Mass. 158, 162, 667 N.E.2d 244 (1996); Restatement (Third) of Property
(Servitudes) § 2.15 (2000).
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, 564 N.E.2d 1 (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
Page 164
v. Attleboro Branch R. Co., 153 Mass. 120, 122, 26 N.E. 418 (1891). See
Uliasz v. Gillette, 357 Mass. at 102, 256 N.E.2d 290. 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.
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."
Add. 255
285 (Mass. 2005)
Report of the Commissioners, 1849 House Doc. No. 46, at 20. As another
commissioner noted, "the title to land, 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, § 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, 104 S.Ct. 2397, 81 L.Ed.2d 354 (1984) (internal
quotation marks, citation and emphasis omitted).
Thus, considered most favorably from the complainants' perspective,

the titles for
Page 165
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 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. Attleboro Branch R. Co., 153 Mass. at 122, 26 N.E. 418;
Uliasz v. Gillette, 357 Mass. at 102, 256 N.E.2d 290.
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
Add. 256
285 (Mass. 2005)
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. 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 Town of Bedford v. Cerasuolo, 62 Mass.App.Ct. at 80, 818
N.E.2d 561 (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
Page 166
to be constructed in the first instance (that it be used by local residents to

gain access to State 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 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
Add. 257
285 (Mass. 2005)
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, 120 N.E. 183, 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, 78 S.E. 233
(1913) (upon severance of common parcel, "parties may well be presumed to
have contemplated such conditions as the future was likely to bring forth").
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 Town of Bedford v. Cerasuolo, 62 Mass.App.Ct. at 78,
818 N.E.2d 561, 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) § 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) (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," when owner of
servient estate blocked usual route); Crotty v. New River & Pocahontas
Consol. Coal Co., 72 W.Va. at 71, 78 S.E. 233 (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, 809 N.E.2d 1053 (adopting Restatement
[Third] of Property [Servitudes] § 4.8[3] [2000]); Restatement (Third) of
Property (Servitudes) § 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
Page 167
Title 25 of the United States Code, § 1771e(c)(3)(B) (2000), specifically

reserves to the Tribe, not the United States, the right to transfer "any
Add. 258
285 (Mass. 2005)
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. Wampanoag Aquinnah Shellfish
Hatchery Corp., 443 Mass. 1, 818 N.E.2d 1040 (2004) (Shellfish Hatchery
Corp.), decided after the partial judgment before us entered. In Shellfish
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, 818 N.E.2d 1040, the Supreme Judicial Court "concluded
that the Tribe waived its sovereign immunity as to land use on the Cook
Lands." Id. at 16-17, 818 N.E.2d 1040. 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,
818 N.E.2d 1040.
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 . . . ."
We also note that § 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, § 5; 25 U.S.C. § 1771g
(2000).
In light of Shellfish Hatchery Corp., and given the explicit right to

transfer easements, 25 U.S.C. § 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
Add. 259
285 (Mass. 2005)
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
Page 168
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, 818 N.E.2d
1040 (footnote omitted). The same rationale also eliminates any need to join
the United States as trustee. See id. at 15 n.14, 818 N.E.2d 1040.
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 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, 327 N.E.2d 690 (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.
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, 41 Mass. 102, 24 Pick. at 104. Orpin v.
Morrison, 230 Mass. at 533, 120 N.E. 183. Neither does there exist a public
policy favoring the creation of implied easements when needed to render
land either accessible or productive. Richards v. Attleboro Branch R. Co.,
153 Mass. at 122, 26 N.E. 418 ("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, 120 N.E.
183, quoting from Gayetty v. Bethune, 14 Mass. 49, 56 (1817) (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"). As previously noted, our charge,
Add. 260
285 (Mass. 2005)
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, 120 N.E. 183. 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
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.
Page 169
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, 25 N.E.2d 175 (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" 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.
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, 479 N.E.2d
183 ("[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").
Add. 261
285 (Mass. 2005)
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, 592 N.E.2d 758 (1992).
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, 80 Mass. 126, 14 Gray 126,
128 (1859); Hart v. Deering, 222 Mass. 407, 411, 111 N.E. 37 (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, 289 N.E.2d 847 (1972); New England Continental Media, Inc. v.
Milton, 32 Mass.App.Ct. at 378, 588 N.E.2d 1382. We also leave the
question of scope of any easements to trial.
Page 170
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.
APPENDIX
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT

VIEWABLE
---------------
Notes:
Add. 262
285 (Mass. 2005)
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; Victoria Brown; Gardner Brown, Jr.; Mark D. Harding; and Eleanor
P. Harding, as trustee of the Eleanor P. Harding Trust.
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.
4. The lot numbered 189 is an anomaly, described in the record as held prior
to these events both in severalty and in common.
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 § 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) §
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.
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'
Add. 263
285 (Mass. 2005)
[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.
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, 818 N.E.2d 1040.
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.
---------------
Add. 264
18 LCR 424
MARIA A. KITRAS, as Trustee of BEAR REALTY TRUST, et al.

v.
TOWN OF AQUINNAH, et al.

August 12, 2010
Trombly, J.
DECISION
Related Cases:
• 19 LCR 140
• 64 Mass. App. Ct. 285
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 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 set-off 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.
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.”
On March 29, 2007, this court (Lombardi, J.) granted Plaintiffs leave to
amend their complaint. Plaintiffs Third Amended Verified Complaint
Add. 265
contains two counts: one asserting an easement by necessity and one

asserting an easement by prescription. [Note 1] The parties agreed to submit
this action to the court on a case stated basis, without calling witnesses.
[Note 2] The 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: [Note 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.
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.
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 (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.
7.By St. 1862, c. 184, § 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.”
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
Add. 266
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.
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.
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.
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 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
Add. 267
commissioners to carry out the partition of common lands and the

determination of claims to other lands held in severalty.
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
[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.
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. [Note 10]
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.”
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.
15. The commissioners explicitly granted to certain individuals, some

identified and some not, the right to take peat from various lots.
16. The commissioners also expressly reserved an easement for fishing and
clearing creeks over Lots 382, 384, and 395.
Add. 268
17. 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 conveyed
in 1878, which are now owned by Defendants.
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. [Note
4]
*****
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, 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). [Note 5]
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.”
Add. 269
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.”); Home Inv. v. Iovieno, 243
Mass. 121 , 124 (1922) (“It is a strong exercise of the power of the law to raise
a 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.”).
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.
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).
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.
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
Add. 270
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.
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. Hoffman, 326 Mass. 683 , 688
(1951) (“[The trial judge] could have attached considerable weight to the fact
that, while the 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,
Particularly noteworthy in our estimation is the commissioners’ silence on

this issue, as is the fact that even the most cursory glance at a
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.
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
Add. 271
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.
[Note 6]
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. [Note 7] As the Appeals Court stated in Kitras, 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’ 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.
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
Add. 272
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. [Note 8]
Judgment to issue accordingly.
Charles W. Trombly, Jr.
Justice
Dated: August 12, 2010
FOOTNOTES
[Note 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.
[Note 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.
[Note 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 4th Decision, but not
relevant to this court’s determination of the issues herein at issue have been
omitted.
[Note 10] The set-off plan is the map which accompanied the
commissioners’ 1878 report.
[Note 4] The federal government did eventually extinguish Indian title by

passing 25 U.S.C. § 1771, et seq. in 1987. 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.”
[Note 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,
Add. 273
this court understands Plaintiffs’ argument to be one for an easement by

necessity.
[Note 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.
[Note 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. . . .”
[Note 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.
Add. 274
Citation: 87 Mass. App. Ct. 10 (2015)

Parties: MARIA A. KITRAS, trustee, [1] & others [2] vs. TOWN OF AQUINNAH &
others [3]
Docket No.: No. 12-P-260
County: Suffolk
Hearing Date: January 18, 2013
Decision Date: January 14, 2015
Judges: KANTROWITZ, BERRY, & AGNES, JJ.
Easement. Necessity. Real Property, Easement.
In a civil action brought by the owners of certain landlocked lots lying in

the town of Aquinnah on Martha's Vineyard (who were subsequent grantees
in a chain of conveyances from the members of the Wampanoag Tribe of Gay
Head [Tribe]) claiming easements by necessity, this court concluded that
such easements by necessity existed, where it was undisputed that there
were common access rights over the land by custom and practices among
the Tribe members; where the Tribe members, first as grantees, and then
as grantors, would not be expected to manifest express or implied intent
regarding easements, nor would intent be manifest in the governmental
land transfers to Tribe members or in the later judicial partitioning
process (changing common ownership to yield individual deeds in
severalty ownership to Tribe members); where, in any event, it was
appropriate to follow § 2.15 of the Restatement (Third) of Property
(Servitudes) (2000) (providing that easements by necessity exist where
access would otherwise be cut off unless the parties clearly indicate
they intended a contrary result); and where Massachusetts common law
also supported easements by necessity in the land. [12-18] AGNI.S, J.,
dissenting.
After review by this court, 64 Mass. App. Ct. 285 (2005), the
---------------------------
[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; and Mark D. Harding, Sheila H. Besse, and Charles D.
[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."
87 Mass. App. Ct. 10 (2015) Page 11
case was heard by Charles W. Trombly, Jr, J.

Leslie-Ann Morse for Mark D. Harding & others.
Diane C. Tillotson for Martha's Vineyard Land Bank & others. John
Add. 275
Donnelly, Assistant Attorney General, for the Commonwealth.
Jennifer S.D. Roberts for Vineyard Conservation Society, Inc.
BERRY, J. From the earliest time, the members of the Warnpanoag 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 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 long-standing tribal
custom and practice so as to leave the plaintiffs' lots landlocked and
bereft of easements.
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) § 2.15 (2000) and Massachusetts common
law. We remand to the Land Court to draw the necessary easement lines in
accord with these legal doctrines — a practice well within the great skills
of that court.
87 Mass. App. Ct. 10 (2015) Page 12
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 § 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.
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. There is no evidence
in the record that this prevailing custom, prior to the governmental
partition that occurred in the 1870s, did not continue after the land,
previously held in common, was partitioned and deeded to Tribe members.
Add. 276
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 ease-
---------------------------
[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 1 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 1 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
the easement question — the precise question in this appeal.
87 Mass. App. Ct. 10 (2015) Page 13
ments 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.
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.
First, the subject lands were held in common ownership [5] prior to the
judicial partitioning process. 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.
Turning first to the real parties in interest, the historic record
demonstrates, and it is important to emphasize, that the real parties
---------------------------
[5] 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 § 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.
Add. 277
344, 350 (1809).
[6] An estate held in severalty is defined as "fain 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. "Pinterests . . . 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).
87 Mass. App. Ct. 10 (2015) Page 14

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 severally, 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.
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 statute [10] 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, § 6:
"The judge of probate of the county of Dukes-county, upon the

application of the selectmen of Gay Head, or of 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,
---------------------------
[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. . . . 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).
[8] "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 § 175,
at 407.
[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
Add. 278
them in severalty as their absolute property. Sts. 1869, c. 463; 1870,
cc. 213, 293, 350").
87 Mass. App. Ct. 10 (2015) Page 15
disinterested persons commissioners to make partition of the same, and

their award, being confirmed by said court, shall be final in the
premises."
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 severalty [11]. . . . 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.
---------------------------
[11] In construing a similar statute (St. 1870, c. 293, § 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 said common lands. In re
Coombs, 127 Mass. 278, 280 (1879). As to the Mashpee Tribe's common
lands, the court wrote as follows:
"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."
"[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. . . . [Wie 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.)
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.
87 Mass. App. Ct. 10 (2015) Page 16
To complete the historic background, on December 5, 1870, a judge of the

Probate Court decreed 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
Add. 279
divided as prayed for and as the Statute in that case provides, [i]t is
decreed that said Lands be so divided."
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).
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.
3. The Restatement § 2.15 rule of law on easements by necessity. The
implication of easements by necessity accord with the property law set forth
in § 2.15 of the Restatement. The black letter rule of the Restatement §
2.15 provides as follows:
"A conveyance that would otherwise deprive the land conveyed to the
grantee . . . of rights necessary to 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."
Comment b to Restatement § 2.15 on easements further supports easements
by necessity in this case:
87 Mass. App. Ct. 10 (2015) Page 17
"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 § 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 §
2.15 comment a (describing history and rationale of "[p]ublic policy
favoring use and occupation of land").
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 vis-à-vis the lands, and the parties certainly did not
"clearly indicate that [they] intended to deprive the property of those
rights." Restatement § 2.15.
4. Massachusetts property law on easements by necessity follows
Restatement § 2.15. Even were we not to adopt per se or follow Restatement §
2.15 as controlling, Massachusetts property law — albeit developed in the
context of private land conveyancing — would still presume easements by
necessity here.
Add. 280
The implied presumption in favor of easements by necessity over
otherwise landlocked property underlying § 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 § 2.15 or Massachusetts law.
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
87 Mass. App. Ct. 10 (2015) Page 18
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 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
grantee. . . . It is, however, a pure presumption raised by the law." Orpin
v. Morrison, 230 Mass. at 533. " 'Easements by necessity' refer to rights-
of-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 § 8.14 (4th ed. 2004).
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, 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,
87 Mass. App. Ct. 10 (2015) Page 19
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
Add. 281
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 1, 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. [1]
Therefore, I believe the decision of the Land Court judge should be
affirmed. [2]
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
---------------------------
[1] 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 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).
[2] 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 1, 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.
WoIfman, 268 Mass. 345, 348-349 (1929). See also United States v.
Matthews, 643 F.3d 9, 12-13 (1st Cir. 2011).
87 Mass. App. Ct. 10 (2015) Page 20

extraordinary alteration of traditional principles of Massachusetts law
should be accomplished by the Supreme Judicial Court and not by this court.
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.
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. (Wampanoag Tribe), a Federally
recognized Native American 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
Add. 282
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, 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.
On remand, the judge ordered a bifurcation of the issues and first
addressed whether the commissioners who partitioned the land in the 1870s 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
87 Mass. App. Ct. 10 (2015) Page 21

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 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.
2. Factual background. In the 1800s, what is now known as Aquinnah in
Martha's Vineyard was occupied nearly exclusively by the descendants of the
Gay Head Tribe members. Located west of Chilmark on the island of Martha's
Vineyard, it consisted of approximately 2,500 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. [3] Importantly,
---------------------------
[3] 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 states.... Indian title, which gave Indians a 'right
of occupancy,' coexisted with the fee title." James v. Watt, 716 F.2d
Add. 283
71, 74 (1st Cir. 1983), cert. den., 467 U.S. 1209 (1984). Nevertheless,
"[tjhe 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
87 Mass. App. Ct. 10 (2015) Page 22
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. [4]
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. [5] In 1863,
---------------------------
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).
[4] 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 1870s did
not continue after the partitions. I assume that it did.
[5] 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 "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."
In 1859, John Milton Earle was appointed "to examine into the condition
of all Indians and the descendants of Indians domiciled in this
Add. 284
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 considered the earlier distribution of land in
severalty to individual Mashpee Tribe members to have been "disastrous."
/d. at 42. Earle concluded that the Native American traditional law
employed in Gay Head, allowing as it
87 Mass. App. Ct. 10 (2015) Page 23
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." [6] Ibid.
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," [7] they suffered from the "slight
drawback that being neither a town by
---------------------------
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.
[6] 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, § 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.
[7] See St. 1869, c. 463, § 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 "hats] 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 estate." St. 1869, c. 463, § 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
Add. 285
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, § 3. Also, the 1870 statute
authorized, but did not mandate, the division of the common lands. St.
87 Mass. App. Ct. 10 (2015) Page 24
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, education,
occupations, physical characteristics of the land, and general well-being.
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 unfilled 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.
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
---------------------------
1870, c. 213, § 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,
Coombs, petitioner, 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."
87 Mass. App. Ct. 10 (2015) Page 25
Chilmark across Gay Head "to the United States light-house [on the western
end of] Gay Head" greatly isolated the community and also made it difficult
for visitors to Martha's Vineyard to view the lighthouse. Id. at 9. The
committee recommended that the Commonwealth shoulder the financial burden of
putting the road "in good travelling order." Id. at 10.
Following receipt of the committee's report, the Legislature enacted St.
Add. 286
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, § 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, §
5. In addition, the statute provided that upon application of the board of
selectmen or any ten citizens, a judge of the Probate Court could partition
the common lands of the town and divide or sell the lands. St. 1870, c. 213,
§ 6. Notably, this legislation did not purport to extinguish any tribal
rights or privileges enjoyed individually or severally by the Gay Head
Tribe. [8]
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 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 cliffs undivided," but to divide the rest of the common property.
Under the direction of the commissioners, a plan of over 500 properties,
the first 189 of which had been previously divided as
---------------------------
[8] It appears that it was not until 1987, when Congress passed 25
U.S.C. § 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. Wampanoag
Aquinnah Shellfish Hatchery Corp., 443 Mass. 1, 3 (2004). See also St.
1985, c. 277 ("An Act to Implement the Settlement of Gay Head Indian
Land 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.
87 Mass. App. Ct. 10 (2015) Page 26
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.
The parties agree that the partition deeds contained no access
easements. [9] The parties further agree that some of the partition deeds,
however, did include a reservation over three lots (lots 382, 384, and 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. [10] 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.
Add. 287
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.
"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
---------------------------
[9] Curiously absent from the record are the actual partition deeds and
any subsequent deeds from the original Gay Head Tribe grantees.
[10] So, for example, the description of lot 193 includes a statement
Irjeserving 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, 240-241, 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.
87 Mass. App. Ct. 10 (2015) Page 27

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."
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.' "[11]
Oldfield v. Smith, 304 Mass. 590, 594 (1939), quoting from Mt. Holyoke
Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100, 105 (1933).
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 exists an easement by necessity. See Kitras I, supra at 298-300.
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
Add. 288
---------------------------
[11] 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.
87 Mass. App. Ct. 10 (2015) Page 28
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 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.
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 with respect to a Tribe
member's property rights in relation to other members of the Tribe well
after the partition occurred in the 1870s. 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
87 Mass. App. Ct. 10 (2015) Page 29
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).
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
Add. 289
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." [12] 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.
2. Massachusetts law is consistent with the Restatement (Third) of
Property (Servitudes). Section 2.15 of the Restatement (Third) of Property
(Servitudes) (2000) (Restatement) [13] provides that an easement or
servitude not expressly granted in a 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 § 2.15 of the Restatement informs us that this principle embodies the
common law. Comment c to § 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
---------------------------
[12] 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.
[13] 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
tights."
87 Mass. App. Ct. 10 (2015) Page 30
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 § 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.
As discussed above, the members of the Gay Head Tribe had no need for an
access easement following the partition in the 1870s 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 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");
Add. 290
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).
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
87 Mass. App. Ct. 10 (2015) Page 31
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 1, supra at 291 (quotation
omitted). See Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. at
104 (existence of easement 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 1, 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 "Wustice, common sense and the probable intention of the parties." Shane
v. Winter Hill Fed. Says. & Loan Assn., 397 Mass. 479, 483 (1986), quoting
from Stop & Shop, Inc. v. Ganem, 347 Mass. 697, 701 (1964). [14]
---------------------------
[14] There is no basis for reliance on comments b and e to § 2.15 of the
Restatement. Comment b has no application to the facts in this case
because, as discussed in the text, the 1870s 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
Add. 291
not abut the road running from Gay Head to the northwest end of the
peninsula would be a problem in the absence of an
87 Mass. App. Ct. 10 (2015) Page 32
For these reasons, I respectfully dissent.

---------------------------
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 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 § 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).
Add. 292
Citation: 474 Mass. 132

Parties: MARIA A. KITRAS, trustee,[1] & others[2] vs. TOWN OF AQUINNAH &
others.[3]
County: Suffolk
Hearing Date: December 8, 2015
Decision Date: April 19, 2016
Judges: Present: GANTS, C.J., SPINA, CORDY, DUFFLY, LENK, & HINES, JJ.
Easement.
Necessity. Real Property, Easement. Law of the Case.
A Land Court judge properly concluded that easements by necessity were not
created as a result of a partition in 1878 of Native American common
land, where, even assuming the satisfaction of the elements giving rise
to a presumption of an intent to establish an easement by necessity,
sufficient evidence existed to rebut the presumed intent to establish
such an easement, given that tribal custom provided access rights to members
of the Native American tribe involved in the partition, thus making the
inclusion of access rights for the partitioned lots not necessary; given
that other easements were created at the time of the partition and were
included in the deeds, supporting a finding that the absence of access
easements in the conveyance flowing from the partition was intentional; and
given that the poor condition of the land at that time likely was a
factor in reckoning whether rights of access were needed. [140-146]
A Land Court judge did not err in excluding a particular lot from a
determination whether easement rights by necessity existed over Native
American common land that was the subject of a partition in 1878, where
the issue whether that lot could possibly have an easement by necessity
had been decided in a previous appeal and was the law of the case. [146]
After review by the Appeals Court, 64 Mass. App. Ct. 285 (2005) , the
case was heard by Charles W Trombly, Jr., J.
After further review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
[133] 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.
Leslie Ann Morse 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 for Real Estate
Bar Association for Massachusetts, Inc., & another.
Nicole Friederichs, Lone Graham, & Jeffrey Pokorak for Wampanoag Tribe
of Gay Head (Aquinnah).
Michael Pill, pro se.
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
Add. 293
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 severalty[6]
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]
[134] 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 /). 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. Wainpanoag 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 [135] 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). 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
Add. 294
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. [136] 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 [137] 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. 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
Add. 295
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 self-governance,
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 [138 ] 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" 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, 494495 (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 de- [139] cided 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
grantee,' " even if it had not been expressed in the instrument of
conveyance. Ward v. McGlory, 358 Mass. 322, 325 (1970), quoting Orpin v.
Add. 296
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 533-534. 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 inacces- [140] sible without trespass, except
by passing over the land of the grantor, a right of way by necessity is
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 64 Mass. App. Ct. at 291. The necessity must have existed
at the time of the division. See Vialll 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. Rectal, 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 submit- [143.] ted
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
Add. 297
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 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 [142 ] 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 com- [143] missioners
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 title[17] 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
Add. 298
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 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 a pren- [144 ] dre,[19] which the
plaintiffs correctly observe is different from an easement. Although a
profit a 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 a 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 commis- [145 ] sioners 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 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
"Sahara-like desolation" and implored the Legislature to provide a remedy to
Add. 299
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 [1 4
6] 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.
---------------------------
Footnotes
[page 132]
[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.
[3] The Commonwealth; Joanne Fruchtman; Jack Fruchtman; Benjamin L.

Add. 300
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.
[page 133]
[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.
[page 134]
[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.
[page 135]
[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." Report of the Commissioners, 1862 House Doc. No. 215, at
39.
[page 136]
[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 11.18 (2010).
[page 138]
[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
Add. 301
for Division of Common Lands, Sept. 7, 1870. 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.
[page 140]
[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.
[page 141]
[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."
[page 142]
[16] 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.
[page 143]
[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 Hatchety 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. Hall v. Carpenter, 14 Gray 126,
Add. 302
127 (1859).
[page 144]
[19] A profit a 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).
[20] 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.
[page 145]
[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.
[page 146]
[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.
Add. 303
Add. 304

COMMON LANDS CONVEYED TO GAY HEAD CAMBRIDGE, MA 02138
DECOULOS.COM
1
DATE
CHAPTER 213 OF 1870, SECTION 2 617.489.7795

SCALE
FIGURE
1”= 2000’
August, 2017
CAMBRIDGE, MA 02138
DECOULOS.COM
617.489.7795
Clay Pit Road
WAMPANOAG TRIBE OF GAY HEAD (AQUINNAH)

THE UNITED STATES OF AMERICAN FOR THE
LANDS HELD IN TRUST BY
Lands owned by Plaintiff
LEGEND
REFERENCES
COMMON LANDS CONVEYED TO THE TOWN OF GAY HEAD
FROM THE COMMONWEALTH OF MASSACHUSETTS UNDER
THE AUTHORITY OF CHAPTER 213 OF THE ACTS OF 1870,
SECTION 2.
SETTLEMENT OF WAMPANOAG LAND CLAIMS

CHAPTER 277 OF THE ACTS OF 1985 AND 25 U.S.C. §1771
DATE
April, 2019
SCALE
1”= 2000’
FIGURE
2
Add. 305

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COMMONWEALTH OF MASSACHUSETTS

MASSACHUSETTS APPEALS COURT

ON APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT

APPELLANT’S BRIEF AND ADDENDUM

James J. Decoulos, Pro Se

I. STATEMENT OF THE ISSUES ......................... 7

II. STATEMENT OF PRIOR PROCEEDINGS .................. 8

III. STATEMENT OF FACTS ............................. 9

A. THE HISTORY OF INDIAN CITIZENRY AND PROPERTY RIGHTS ..... 9

B. THE DEVELOPMENT OF THE TOWN

AND THE ROLE OF THE LAND COURT ..................... 14

C. THE AGREEMENT BETWEEN THE COMMONWEALTH, COMMUNITY

ASSOCIATION, CONGRESS, TOWN AND THE WAMPANOAG TRIBE ... 16

D. ERRONEOUS FACTS AND NEWLY DISCOVERED FACTS ........... 19

IV. ARGUMENT ....................................... 24

A. PRE-EXISTING RIGHTS TO PROPERTY HAVE BEEN SQUASHED .... 25

B. PRE-EXISTING RIGHTS ARE IN MORTUA MANU ............... 31

C. THE TAKING OF PRE-EXISTING RIGHTS REQUIRES COMPENSATION 33

Allen v. McCurry, 449 U.S. 90, 94-95 (1980) .............. 26

Bellermann et al. v. Fitchburg Gas and Electric Light

Company, 470 Mass. 43, 60 (2014) ....................... 27

Black et al. v. Cape Cod Company, et al.,

MA Land Court, Misc. Case No. 69813 ................. 15,16

Bortolotti v. Hayden, 449 Mass. 193, 201-204 ............. 31

Bowen v. Conner, 60 Mass. 132 (1850) ..................... 36

Building Inspector & Zoning Officer of Aquinnah v.

Wampanoag Aquinnah Shellfish Hatchery Corp.,

443 Mass. 1, 3-7 (2004) ................................ 34

Buss v. Dyer, 125 Mass, 287, 291 (1878 ................... 36

Daddario v. Cape Cod Commn., 425 Mass. 411, 414-418,

cert. denied, 522 U.S. 1036 (1997) ..................... 39

DaLuz v. Department of Correction, 434 Mass. 40, 45 (2001)25

Danzell v. Webquish, 108 Mass. 133, 134 (1871) ........... 13

Davis v. Sikes, 254 Mass. 540, 545-546 (1926) ............ 36

Dunham v. Ware Savings Bank, 384 Mass. 63, 66-67 (1981) .. 31

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, California,

482 U.S. 304, 318 (1987) ............................... 40

Franklin v. Spadafora, 388 Mass. 764, 766-772 (1983) ..... 31

Heacock v. Heacock, 402 Mass. 21, 24 (1988 ............... 25

452 Mass. 77, 93-95 (2008) ............................. 33

James R. DeGiacomo, trustee v. City of Quincy,

476 Mass. 38, 42 (2016) ................................ 27

James v. Watt, 716 F.2d 71, 74-75 (1st Cir. 1983),

cert. denied, 467 U.S. 1209 (1984) ..................... 29

Kobrin v. Board of Registration in Med.,

444 Mass. 837, 843 (2005) .............................. 25

Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903) ......... 30

Longval v. Commissioner of Correction,

448 Mass. 412, 416-417 (2007) .......................... 25

Lopes v. Peabody, 417 Mass. 299, 304 (1994) .............. 39

Lovequist v. Conservation Commn. of Dennis,

379 Mass. 7, 19-20 (1979) .............................. 39

Lucas v. South Carolina Coastal Council,

505 U.S. 1003,1019 (1992) .............................. 35

Luis Alicea v. Commonwealth, 466 Mass. 228 (2013) ........ 26

Maria A. Kitras et al. v. Town of Aquinnah et al.,

474 Mass. 132 (2016), cert. denied . 8,16,19,20,23-26,29-31

Moskow v. Commissioner of Envtl. Mgmt.,