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On Behalf of | Feb 27, 2015 | Real Estate Law |

A few weeks ago, the Appeals Court issued a decision that potentially affects several landlocked parcels in Aquinnah (Gay Head) on Martha’s Vineyard. As a result of this decision (Kitras v. Town of Aquinnah, 87 Mass. App. Ct. 10 (2015)), which reversed and remanded a Land Court decision/judgment, these landlocked parcels have been deemed to have easement rights that have been in dispute for some time. Or at least that’s what the majority opinion decided. There was a stong dissent written by Associate Justice Peter W. Agnes.

The decision is worth a read for anyone interested in easements and real property law as well at least a partial history of legislation in the 19th Century regarding Native American land ownership rights. But briefly, this land had once been under common ownership (including the custom and practice allowing rights of access across the land) of the Wampanoag Tribe of Gay Head, but was judicially partitioned/governmentally conveyed to Tribe members in the late 1800s under legislative enactments devised to “to address the inequity of Native Americans having limited land ownership rights under State law . . . .” Many of the partitioned parcels (there were hundreds of parcels created) were landlocked, a key fact in this case. The issue in the case was whether the customary rights of access were preserved upon the partitioning of land even though there was no express reservation or grant of such rights in the relevant conveyances. The thrust of arguments in favor of the existence of the access rights even today was that of easement by necessity. Litigation relative to these parcels has been going on for more than a decade.

The majority opinion spells out a four-point rationale in favor of viable easement and access rights for these parcels. However, the decision is quite an interesting read beyond that primarily because the lengthy dissent opinion offers much insight to the kind of deliberation and thought that takes place in many land use cases. Such deliberations were complicated by the confluence of tribal custom as to land use, the common law of easements and the effect of legislatively engendered partition. And because of the differing opinions, it also seems likely that further appellate review will be a possibility, as is reported here, so stay tuned. (For another report on the story, click here.)

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

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