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Massachusetts Supreme Judicial Court Holds No Easements of Necessity Created by 1878 Partition of Native American Land

In a newly published decision, the Supreme Judicial Court of Massachusetts determined whether easements by necessity were created as a result of an 1878 partition of Native American common land in the town of Aquinnah (formerly known as Gay Head). In Maria A. Kitras, trustee, & others v. Town of Aquinnah & others (Mass. Dec. 8, 2015), the common land at issue was partitioned in 1878 by the court into hundreds of lots to be held in severalty by members of the Tribe. Significantly, the drafters 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 sought easements by necessity over the lots of the defendants. The Land Court found in favor of the defendants, and the plaintiffs appealed.grass-field-1397829-640x480

The facts of the case underscore the evolving property and citizenship rights of Native Americans during the time. In the mid-nineteenth century, Massachusetts began to depart from a paternalistic system of governance and move toward granting Native Americans full citizenship. In 1862, the Legislature established the district of Gay Head, which consisted of 450 acres of land held in severalty and the remainder held by the Tribe in common. As the boundary lines were being determined in Gay Head, Native Americans were granted full citizenship in Massachusetts. Gay Head was subsequently incorporated as a town, and commissioners appointed by the probate judge divided the common land for the residents to hold in severalty, as well as the boundary lines. However, none of the lots included an express easement of access, and as a result, the majority of the lots divided from the common land were landlocked.

An easement is a limited, non-possessory interest in the land of another that can be created expressly, by prescription, or by implication. An easement by necessity is a type of implied easement, which often arises when a conveyance renders a parcel of land landlocked. A presumption of an 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 that must have existed at the time of division. This presumption may be rebutted by presenting evidence that the parties did not intend to create rights of access. Intent may 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.

In Kitras, the court looked to the circumstances at the time of the conveyance to determine whether necessity existed. The court noted that at the time of the partition, 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. As a result, the lots already had access rights, rendering express rights of access unnecessary. The court also noted that the situation was not typical, in that it involved a large-scale partition of common lands with multiple grantees and grantors who were appointed commissioners. Ultimately, the court concluded that tribal custom, the existence of other easements included in the deeds, and the condition of the land provided more than sufficient evidence to rebut the presumption that the commissioners intended to create access rights when they partitioned the common land. Accordingly, the plaintiffs’ claim for easements by necessity was properly denied.

If you have concerns regarding your rights to property or land use, obtaining legal guidance from a property law attorney may help you determine your options. The real estate lawyers at the Massachusetts firm of Pulgini & Norton provide assistance to landowners regarding land use and zoning issues, easements, closings, mortgages, and other property transactions. To discuss your real estate needs with one of our skilled attorneys, call (781) 843-2200 or contact us online.

More Blog Posts:

Appeals Court of Massachusetts Decides Easement Issue in Neighbors’ Dispute, Massachusetts Real Estate Lawyer Blog, published September 4, 2015

Massachusetts Land Court Interprets 1927 Deed to Determine Easement Rights, Massachusetts Real Estate Lawyer Blog, published January 18, 2016

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