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Christopher R. Vaccaro
After years of litigation, last April a group of Martha’s Vineyard property owners learned in Kitras v. Town of Aquinnah that Massachusetts courts will not help them secure access to their landlocked properties.
The unusual facts of this case begin over 150 years ago, during a regrettable time when a guardianship system governed most Native American tribes. Native Americans were considered “involuntary wards of the state,” with legal status similar to that of children and mentally disabled individuals today. They could not sue or be sued, enter into legally binding contracts or sell land to people outside their tribe. The government abandoned this demeaning system during the latter half of the 19th century. The Massachusetts legislature granted Native Americans full citizenship in 1869.
As part of this transition, in 1862 the legislature established the district of Gay Head with an area of roughly 2,400 acres, mostly held by Wampanoag Native Americans as common lands under tribal customs. These customs allowed individual tribe members to claim land for themselves by fencing it in, while maintaining access rights over neighboring lands.
After Native Americans attained citizenship, the legislature incorporated Gay Head as a town in 1870 and established a process to partition commonly owned tribal lands. The Wampanoags quickly availed themselves of this process. The local probate court appointed commissioners who divided tribal land into over 500 separate, but mostly landlocked, lots. The commissioners neglected to include express access rights for the landlocked lots, but did grant three lots access to a nearby creek for fishing. At the time, there was a poorly maintained road through Gay Head from Chilmark to the lighthouse. Additional roads were built over ensuing decades, but the landlocked lots remained inaccessible.
Owners of these lots sued in Land Court in 1997, claiming access easements over neighboring lots. Easements generally can be created in three ways: by written grant, by prescription when claimants openly and regularly use another property for at least 20 years, and by necessity when one person is deemed to have acquired an easement without a written grant. The landlocked owners in Gay Head had no easements by written grant or prescription, so they claimed easements by necessity.
Easements by necessity usually involve properties that are subdivided into two lots, with one lot requiring easements over the other to access the nearest road. Under those circumstances, the parties probably intended that the landlocked lot would have access rights although no written easement exists.
Courts do not recognize a public policy that favors creation of easements by necessity. Persons claiming such easements bear the burden of proof, but courts presume that such easements were intended if the properties involved were under common ownership, one of the properties was transferred to a different owner, and a property becomes landlocked at the time of the transfer, creating the necessity. Opponents can rebut this presumption by proving that there was no intent to create the easement by necessity.
Thwarted By The SJC
In Kitras, the Land Court denied the landlocked owners’ claims to easements by necessity. On appeal, a majority of the Appeals Court judges recognized that commonly owned tribal lands were partitioned and transferred to different tribe members who would have assumed that tribal customs establishing access rights continued although not specified in their deeds. Based on this reasoning, the Appeals Court ruled in favor of the landlocked owners, whose titles were derived from the original tribal owners.
The Supreme Judicial Court saw things differently. The SJC framed the issue as whether parties to the 19th century partition intended to provide easements to hundreds of landlocked lots, distinguishing this case from the usual situation where a parcel is subdivided to create a single landlocked lot. While assuming sufficient facts to establish the presumption favoring the landlocked owners, the SJC found the defendants’ rebuttal arguments persuasive.
The SJC focused on the possible intent of the commissioners who managed the partition, instead of the tribe members who acquired landlocked properties. Because the original owners of the partitioned lands relied on traditional tribal access rights, the SJC surmised that the commissioners never intended to create easement rights.
The SJC also noted that some of the partitioned lots had express access easements for the nearby creek. According to the SJC, the commissioners’ explicit grant of creek access to some lots indicated that they never intended to grant general access rights to all lots.
Finally, the SJC discussed ancient reports on the “Sahara-like desolation” of Gay Head, suggesting that 19th century Wampanoags were unconcerned with access rights to land unfit for agriculture. The SJC reversed the Appeals Court, thwarting the landlocked owners’ effort to gain access rights, while warning that it is a purchaser’s “own folly” to acquire land without access.
The SJC presumed that the landlocked owners had easement rights, but allowed the defendants to rebut that presumption based on imagined mental states of disinterested court-appointed commissioners who partitioned common tribal lands nearly 140 years ago. The landlocked owners’ frustration is understandable.
Christopher R. Vaccaro is a partner at Dalton & Finegold LLP in Andover. His email address is cvaccaro@dfllp.com.
