Kitras v. Town of Aquinnah Cert Petition


Kitras Cert Petition

Questions presented:

1. Whether an assumed tribal custom can survive the extinguishment of aboriginal rights by Congress and undermine conveyances of land that were transferred in fee simple absolute?
2. Whether the legal presumption of an “easement by necessity” is protected against contradiction by the parol evidence rule, and whether the relaxation of the rule amounts to a taking of property under the Due Process Clause?
3. Whether the judicial elimination of a well-established common law right to private property, absolutely necessary for the enjoyment of property, constitutes a judicial taking under the Fifth and Fourteenth Amendments?
Lower court materials here.

Mass. High Court Rejects Easements by Necessity that would Favor Wampanoag Tribe

Here are the materials in Kitras v. Town of Aquinnah:

Aquinnah Gay Head Amicus Brief

Kitras Brief

Kitras Reply Brief

Kitras Supplemental Brief

Martha’s Vineyard Land Bank Commn Brief

Mass SJC Opinion

Massachusetts Brief

Pill Amicus Brief

Real Estate Bar Assn Amicus Brief

Vineyard Conservation Society Brief

Wampanoag Tribe Amicus Brief

Excerpts from the opinion:

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 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 severalty6 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


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 submitted 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.

Mass. Appeals Court Affirms Gay Head Aquinnah Retain Easements on Martha’s Vineyard

For all you property profs out there….

Here is the opinion in Kitras v. Town of Aquinnah.

An excerpt:

From the earliest time, the members of the Wampanoag 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 longstanding 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.