The Court of Appeals recently issued an interesting decision, Kitras v. Town of Aquinnah, 87 Mass. App. Ct. 10 (2015), concerning easements and accessibility rights to parcels of land owned in the late 1800s by members of the Wampanoag Tribe of Gay Head in Martha’s Vineyard. The parcels in question had been part of a larger tract of land owned by the Tribe in common ownership. In the 1870s, members of the Tribe petitioned the Court to partition, or divide, the land into individual parcels which were then given to individual Tribe members to be held in severalty. Many of the parcels that resulted from that division were landlocked. At the time the land was partitioned, provisions were not made for easements that would provide a right of access to those landlocked parcels. Over a century later, the owners of the landlocked parcels brought an action asking the Court to declare that the parcels of land had access easements across neighboring lots.
The Appeals Court concluded that easements providing access to those parcels existed for multiple reasons. To begin with, it rested its decision on the fact that, at the time the land was partitioned, it was the custom and practice of the Tribe to permit access to all members of the Tribe to all parts of the property in question. That practice was expected to, and did, continue after the land was partitioned. Consequently, the Court held, it would not be expected that the deeds that resulted from the division of the land would reflect easements – because none were necessary as a result of this practice. Instead, the Court found, this practice created “a “carry-through” of the preexisting right of common access of the Tribe members to their lands now held in severalty.”
The Court noted that it could not be determined from the circumstances presented that there was an express understanding between the grantors and grantees that there should be no right of way over the land. That finding was particularly significant because both Massachusetts common law and the Restatement of (Third) of Property, on which the decision also rested, provide that parties may convey land without access rights and that where it is clear that they intended to do so the law will not create an access easement that contravenes that intent. As a result, in order to effectuate what it concluded the parties’ expectations were, namely that the parcels would not have access rights, the Court concluded that “easements by necessity” exist for the otherwise inaccessible parcels. The Court remanded the case to the Land Court with instructions to that Court to craft easements consistent with its opinion.
Judge Agnes wrote a lengthy dissent to the Appeals Court’s decision, in which he reached an opposite conclusion about the parties’ intentions from the underlying facts and in which he concluded that the Restatement calls for easements by necessity only where at the time of the conveyance access would not exist unless an easement was created.