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SJC-11885

  MARIA A. KITRAS, trustee,1 & others2   vs.   TOWN OF AQUINNAH &
                             others.3



         Suffolk.      December 8, 2015. - April 19, 2016.

 Present:   Gants, C.J., Spina, Cordy, Duffly, Lenk, & Hines, JJ.


Easement. Necessity.    Real Property, Easement.   Law of the
     Case.



     Civil action commenced in the Land Court Department on May
20, 1997.

     After review by the Appeals Court, 64 Mass. App. Ct. 285
(2005), the case was heard by Charles W. Trombly, Jr., J.



     1
       Of Bear Realty Trust, Bear II Realty Trust, and Gorda
Realty Trust.
     2
       James J. Decoulos, as trustee of Bear II Realty Trust and
Gorda Realty Trust; Mark D. Harding; and Sheila H. Besse and
Charles D. Harding, Jr., as trustees of Eleanor P. Harding
Realty Trust.
     3
       The Commonwealth; Joanne Fruchtman; Jack Fruchtman;
Benjamin L. Hall, Jr., as trustee of Gossamer Wing Realty Trust;
Brian M. Hall, as trustee of Baron Land Trust; Caroline Kennedy;
Edwin Schlossberg; Martha's Vineyard Land Bank; Vineyard
Conservation Society, Inc.; David Wice; and Betsy Wice.
                                                                     2


     After further review by the Appeals Court, the Supreme
Judicial Court granted leave to obtain further appellate review.


       Jennifer S.D. Roberts for Vineyard Conservation Society,
Inc.
     Diane C. Tillotson for Martha's Vineyard Land Bank.
     Ronald H. Rappaport for town of Aquinnah.
     Wendy H. Sibbison for Maria A. Kitras & another.
     Leslie Ann Morse for Mark D. Harding & others.
     Jennifer H. Flynn, Assistant Attorney General, for the
Commonwealth, was present but did not argue.
     The following submitted briefs for amici curiae:
     Lawrence H. Mirel, of the District of Columbia, for
Aquinnah/Gay Head Community Association.
     Andrew H. Cohn, Felicia H. Ellsworth, & Claire M. Specht
for Real Estate Bar Association for Massachusetts, Inc., &
another.
     Nicole Friederichs, Lorie Graham, & Jeffrey Pokorak for
Wampanoag Tribe of Gay Head (Aquinnah).
     Michael Pill, pro se.


       SPINA, J.   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


       4
       The town of Gay Head officially changed its name to the
town of Aquinnah in 1997. See St. 1998, c. 110.
       5
       The Wampanoag Tribe of Gay Head (Tribe) was federally
recognized as a tribe on April 10, 1987. 52 Fed. Reg. 4193
(1987).
                                                                   3


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

     1.   Procedural history.   The plaintiffs initiated this

action in 1997 by filing a complaint for declaratory judgment.

In June, 2001, a Land Court judge allowed the defendants'

motions to dismiss, concluding that the United States was an

indispensable party because any easement by necessity found

would burden the tribal lands held in trust by the United

States.   The plaintiffs appealed.   In 2005, the Appeals Court

decided that before addressing the issue whether the United

     6
       "An estate in severalty is one that is held by a person in
his own right only, without any other person being joined or
connected with him, in point of interest, during his estate
therein." Black's Law Dictionary 1374 (6th ed. 1990), citing 2
W. Blackstone, Commentaries *179.
     7
       We acknowledge the amicus briefs submitted by Aquinnah/Gay
Head Community Association; The Real Estate Bar Association for
Massachusetts, Inc., and The Abstract Club; Michael Pill; and
the Wampanoag Tribe of Gay Head.
                                                                     4


States was an indispensable party, it first had to decide

whether easements by necessity could be implied for all or some

of the lots.    Kitras v. Aquinnah, 64 Mass. App. Ct. 285, 291

(2005) (Kitras I).    The court concluded that lots numbered 189

and above were created by the partition of the common land and,

thus, had the requisite unity of title to establish an easement

by necessity.     Id. at 293-294.   Lots 189 and below were deemed

held in severalty by members of the Tribe, which foreclosed the

possibility of an easement by necessity because there was no

unity of title as to those lots.8     Id. at 292.   The Appeals Court

concluded that the United States was not an indispensable party

because the lands in question were subject to a 1983 settlement

agreement which provided that any land owned by the Wampanoag

Tribal Council of Gay Head, Inc., a federally recognized Native

American tribe, in the town of Aquinnah or in the Commonwealth,

would be subject to the civil jurisdiction of the Commonwealth.

See id. at 297.    See also Building Inspector & Zoning Officer of

Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery Corp., 443

Mass. 1, 3, 14 (2004).    The Appeals Court reasoned that because

the Tribe had waived its sovereign immunity as to these lands in

the 1983 settlement agreement, the need to join the United

     8
       The record includes lot 189 with both land held in
severalty and land in common. For clarity and because no issue
turns on this fact, we will continue to designate lots 189 and
above as the lots created from the common land.
                                                                     5


States as a necessary party had been eliminated.     Kitras I,

supra at 298.   Ultimately, the Appeals Court reversed and

remanded the case to the Land Court to determine whether there

was an intent to create easements affecting lots 189 and above

and, if so, the scope of such easements.     Id. at 301.

    On remand, a Land Court judge bifurcated the trial,

addressing first whether rights of access were intended at the

time of the partition in 1878, creating easements by necessity.

If so, then the judge would decide the location and proper

routes of such easements.     The parties each submitted documents

and their respective objections.    The judge ruled that the

parties' focus on lot 178 was not relevant because the Appeals

Court had concluded that only lots 189 and above have the

required unity of title for an easement by necessity.      The judge

decided the case on documentary evidence submitted by the

parties, without testimony.    The judge concluded that easements

by necessity did not exist because there was sufficient evidence

to rebut the presumed intent of the grantor commissioners to

create access easements.    The plaintiffs appealed.

    A divided panel of the Appeals Court reversed and remanded

the case to the Land Court to determine the location of the

easements by necessity.    Kitras v. Aquinnah, 87 Mass. App. Ct.

10, 18 (2015) (Kitras II).    We granted the defendants'
                                                                    6


applications for further appellate review.9   The plaintiffs argue

(1) that there was a presumed intent that the grantees had legal

access to their lots and the defendants did not present

sufficient evidence to rebut the presumption; and (2) that lot

178, like the plaintiffs' other lots, is entitled to an easement

by necessity.   The defendants argue that the trial judge (1)

properly decided that no easements by necessity were created as

a result of the 1878 partition; and (2) properly declined to

reconsider whether lot 178 was included in the partition of the

common lands.   We affirm the judgment of the trial court.

     2.   Facts.   This case presents a unique set of facts in

which we must examine a large-scale partition of Native American

common land that occurred over one hundred years ago and

ascertain the intent of the parties.    The majority of the facts

arise from several reports written by commissioners appointed by

the probate court pursuant to statute who were ordered to visit

and describe the condition and circumstances of the various

Native American tribes located in Massachusetts.    For much of

the Nineteenth Century, a guardianship system managed the Native




     9
       The Vineyard Conservation Society, Inc.; Martha's Vineyard
Land Bank and the town of Aquinnah; and the Commonwealth
submitted applications for further appellate review.
                                                                    7


American tribes.10   St. 1828, c. 114, § 2.   Under this system,

Native Americans were designated "involuntary wards of the

State" where they could not sue or be sued, enter into legally

binding contracts, or sell land to people outside of their own

tribe.    Report to the Governor and Council, 1862 House Doc. No.

215, at 39.   See Report of the Commissioners, 1849 House Doc.

No. 46, at 20; 2 C.E. Banks, The History of Martha's Vineyard 14

(1966) (Banks); St. 1828, c. 114.    In the mid-Nineteenth

Century, the Legislature began to depart from a paternalistic

system of governance and move toward granting Native Americans

full citizenship.    Report to the Governor and Council, 1862

House Doc. No. 215, at 7.    Over the years, the Legislature

appointed commissioners and committees to visit the Native

American tribes and assess the tribes' condition, their way of

life, and whether citizenship would be in their best interest.

Id. at 6-7.

     10
       The Tribe at Gay Head was different. The Tribe grew
dissatisfied with their guardians in the early Nineteenth
Century, and the guardians subsequently resigned. Report of the
Commissioners, 1849 House Doc. No. 46, at 20. The Tribe had an
opportunity to accept an act of the Legislature in 1828 and have
a new guardian appointed. However, the Tribe never accepted the
act. See id.; St. 1828, c. 114. Therefore, for a majority of
the Nineteenth Century, the members of the Tribe "[were] without
any guardian, and the division of their lands, and indeed the
whole arrangements of their affairs, except of the school money,
[were] left to themselves." Report of the Commissioners, supra.
Despite this, the Tribe members were still considered
"involuntary wards of the State." Report of the Commissioners,
1862 House Doc. No. 215, at 39.
                                                                       8


     In 1862, the Legislature established the district of Gay

Head.     St. 1862, c. 184, §§ 4, 5.   Before the severance at issue

in this case, Gay Head consisted of about 2,400 acres, of which

about 450 acres were held in severalty and the remainder was

held by the Tribe in common.    Report of the Committee of the

Legislature of 1869 on the Condition of the Gay Head Indians,

1870 Senate Doc. No. 14, at 4 (Report of the Committee).      At

that time the prevailing custom of the Tribe admitted "that any

native could, at any time, appropriate to his own use such

portion of the unimproved common land, as he wished, and, as

soon as he enclosed it, with a fence, of however frail

structure, it belonged to him and his heirs forever."     Report of

the Commissioners, 1849 House Doc. No. 46, at 20.      See R.L.

Pease, Report of the Commissioner Appointed to Complete the

Examination and Determination of All Questions of Title to Land

and of All Boundary Lines Between the Individual Owners, at Gay

Head, on the Island of Martha's Vineyard, at 22 (May 22, 1871)

(Pease Report).    The Tribe had another custom that allowed each

member access, as necessary, across the common land and lands

held in severalty.11    The Legislature appointed Charles Marston


     11
       In the plaintiffs' reply brief, they argue for the first
time that there was no evidence of such tribal custom. We
decline to address this argument. Mass. R. A. P. 16 (a) (4), as
amended, 367 Mass. 921 (1975). See Canton v. Commissioner of
the Mass. Highway Dep't, 455 Mass. 783, 795 n.18 (2010).
                                                                      9


to determine the boundary lines of the land held in severalty by

Tribe members and the boundary line "between the common lands

. . . and the individual owners adjoining said common lands,"

and report the details and results of his efforts.    St. 1863,

c. 42.    Due to "advancing age and sickness," Marston was unable

to complete the task assigned, but he was able to prepare deeds

and determine the boundary lines for a number of lots.       Report

of the Commissioner, 1866 House Doc. No. 219, at 3.    The

Legislature appointed Richard Pease to complete Marston's

charge.   See St. 1866, c. 67; Pease Report, supra at 3.

    As the boundary lines were being determined in Gay Head,

the Legislature granted Native Americans full citizenship.       An

Act to Enfranchise the Indians of the Commonwealth, St. 1869,

c. 463.   While other tribes were able to take full advantage of

their citizenship status, the Tribe at Gay Head remained an

aberration.   Because Gay Head had not been incorporated as a

town, the Tribe could not freely enjoy the newly acquired

benefits of citizenship such as voting at town meetings or

electing town officers.    Pease Report, supra at 27-28; Report of

the Committee, 1870 Senate Doc. No. 14, at 4; Banks, supra at

17-18.    Governor Claflin underlined this "political anomaly"

during his annual address in 1869.    Report of the Committee,

1870 Senate Doc. No. 14, at 2-4.     See Pease Report, supra at 27;

Banks, supra at 17-18.    With the hope of resolving the
                                                                         10


situation, a committee of Massachusetts Senators and

Representatives visited Gay Head to determine whether it should

be incorporated as a town.     Report of the Committee, supra.       The

committee concluded that the members of the Tribe were capable

of self-governance, well qualified, and supportive of the

prospect of becoming a town.     Id. at 11.     As a result, the

committee unanimously recommended that the district of Gay Head

be incorporated as a town.     Id.     The Legislature responded

quickly and officially incorporated the town of Gay Head.          St.

1870, c. 213.   The Legislature simultaneously established a

process by which the members of the Tribe could choose to

partition the common land.     St. 1870, c. 213, § 6.     "[A]ny ten

resident owners of land" or, in the alternative, the selectmen

of Gay Head may petition the probate court to initiate a

division of the common land.     Id.    After notice and a hearing,

if a probate judge determined that it was in the best interest

of the parties for the common land to be divided, the judge

would appoint commissioners to partition the land.        Id.

     In September, 1870, seventeen Gay Head residents petitioned

a probate judge in Dukes County to divide the common land for

the residents to hold in severalty.12       Petition, Citation, and


     12
       The selectmen and a group of other residents of Gay Head
filed a petition in opposition, characterizing the partition as
"premature and unsafe," adding that it would "be attended with
                                                                     11


Decree for Division and Setting Off Our Lands in Gay Head,

Sept. 1, 1870.   Court records reveal that after a hearing at

which no one objected, Theodore Mayhew, a probate judge in Dukes

County, concluded that the partition would be beneficial for the

residents of Gay Head.     Joseph L. and Richard L. Pease were

appointed commissioners.    In addition to partition, Richard

Pease also was assigned to determine the boundary lines between

the common land and the land held in severalty.    St. 1866,

c. 67.   The commissioners completed the partition in 1878.      The

land was divided into more than 500 lots.     Not one lot included

an express easement of access.    As a result, the majority of the

lots divided from the common land were landlocked.     The

commissioners expressly included a right of access over three

lots to a creek for the purpose of fishing.     They also reserved

to certain lots the right to remove peat from other lots.

    At the time of the division, there was an existing road

that provided access from the Gay Head lighthouse to Chilmark,

the neighboring town to the east.    Report of the Committee, 1870

Senate Doc. No. 14, at 9.    The road was in such "deplorable

condition" that the committee in 1870 insisted that the


disastrous consequences" to the inhabitants. Petition of
persons in Gay Head for Division of Common Lands, Sept. 7, 1870.
Subsequently, another petition was filed by various residents in
support of the division of the common land. Petition in and of
the Petition of Citizens of Gay Head for Division of Common
Lands, Oct. 17, 1870.
                                                                    12


Legislature repair the road.    Id.   However, the lots at issue in

this case did not abut this road.     Over the past one hundred

years, the landscape of Gay Head has changed.    There are other

roads in existence, such as the Moshup Trail that was created

decades after the partition of the common land.    The plaintiffs'

lots do not abut these roads and remain landlocked.

     3.   Standard of review.   Generally, in a jury-waived case

we review the trial judge's findings of fact for clear error.

See U.S. Bank Nat'l Ass'n v. Schumacher, 467 Mass. 421, 427

(2014); Board of Registration in Med. v. Doe, 457 Mass. 738, 742

(2010).   However, "[w]here findings are predicated not on the

assessment of witness credibility but, rather, on documentary

materials, this highly deferential standard is inapplicable."

Commonwealth v. Pugh, 462 Mass. 482, 494-495 (2012).     In this

case, we are in the same position as the trial judge to view the

evidence and therefore no special deference is shown.     However,

this case was not decided on documentary evidence alone.     It was

presumed and undisputed that there was a tribal custom that

allowed the Tribe members to pass freely over each other's land

as necessary.   This presumed fact is the law of the case and

with respect to this one issue.     We will continue to treat it as

fact.   We review the judge's conclusions of law de novo.    U.S.

Bank Nat'l Ass'n, 467 Mass. at 427.
                                                                     13


    4.      Easement by necessity.   An easement is a limited,

nonpossessory interest in the land of another that can be

created expressly, see Cheever v. Graves, 32 Mass. App. Ct. 601,

605-606 (1992), by prescription, see G. L. c. 187, § 2 (easement

by prescription), or by implication, see Kitras I, 64 Mass. App.

Ct. at 291.     An easement by necessity is a type of implied

easement.    "An implied easement is 'founded on the idea that it

is the purpose of the parties that the conveyance shall be

beneficial to the grantee,'" even if it had not been expressed

in the instrument of conveyance.      Ward v. McGlory, 358 Mass.

322, 325 (1970), quoting Orpin v. Morrison, 230 Mass. 529, 533

(1918).     An easement by necessity most often arises when a

conveyance renders a parcel of land landlocked.     It provides

access over the parcel that is not landlocked, if the parties so

intended.     There is no public policy that creates an easement by

necessity to make land accessible.      Kitras I, supra at 298.

Richards v. Attleborough Branch R.R. Co., 153 Mass. 120, 122

(1891).     It is a purchaser's "own folly" that he purchased land

that had no access to some or all of the land "and he should not

burden another with a way over his land, for his convenience."

Orpin, supra at 533-534.     Gayetty v. Bethune, 14 Mass. 49, 56

(1817).     "The law does not give a right of way over the land of

other persons to every owner of land who otherwise would have no

means of access to it."     Richards, supra.
                                                                   14


    The party claiming an easement by necessity has the burden

of establishing that the parties intended to create an easement

that is not expressed in the deed.    Mt. Holyoke Realty Corp. v.

Holyoke Realty Corp., 284 Mass. 100, 105 (1933).    The law has

devised a presumption to assist the inquiry into the intent of

the parties when a conveyance renders a parcel of land

landlocked.   It is the presumed intent of the parties that when

a parcel of land becomes landlocked as a result of a conveyance

the land conveyed included rights of access.    Orpin, 230 Mass.

at 533.   See Davis v. Sikes, 254 Mass. 540, 545 (1926); Schmidt

v. Quinn, 136 Mass. 575, 576 (1884) ("for when land is conveyed

which is inaccessible without trespass, except by passing over

the land of the grantor, a right of way by necessity is presumed

to be granted; otherwise, the grant would be practically

useless"); Bedford v. Cerasuolo, 62 Mass. App. Ct. 73, 76-77

(2004).   It is a "pure presumption raised by the law" that an

easement by necessity exists, and this presumption is construed

with strictness.   Orpin, supra.   A presumption of 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, most often when a lot

becomes landlocked.   Kitras I, 64 Mass. App. Ct. at 291.    The

necessity must have existed at the time of the division.     See

Viall v. Carpenter, 14 Gray 126, 127 (1859).
                                                                    15


     The parties opposing the easement may rebut the presumption

by presenting evidence that at the time of conveyance the

parties did not intend to create rights of access.     Orpin, 230

Mass. at 531, 534 (presenting oral testimony of conversation

between original parties to rebut presumption).13,14   The intent

of the parties can 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.   Dale v. Bedal, 305 Mass. 102,

103 (1940); Davis, 254 Mass. at 545; Orpin, supra at 533.




     13
       Section 301(d) of the Massachusetts Guide to Evidence
(2015) is applicable. That section states: "A presumption
imposes on the party against whom it is directed the burden of
production to rebut or meet that presumption. . . . If that
party fails to come forward with evidence to rebut or meet that
presumption, the fact is to be taken by the fact finder as
established. If that party comes forward with evidence to rebut
or meet the presumption, the presumption shall have no further
force or effect. A presumption does not shift the burden of
persuasion, which remains throughout the trial on the party on
whom it was originally cast."
     14
       The defendants rely somewhat on the Restatement (Third)
of Property (Servitudes) § 2.15 (2000) (Restatement) to describe
the applicable law governing easements by necessity in
Massachusetts. The Appeals Court determined that the
Restatement was applicable. See Kitras v. Aquinnah, 87 Mass.
App. Ct. 10, 16-17 (2015) (Kitras II). We decline to decide
whether we should adopt the Restatement, as our result would be
the same under our common law as well as the Restatement. The
Restatement includes a broader range of issues than this case
presents, and we reserve for another day the question whether to
adopt that section of the Restatement.
                                                                    16


     5.    Discussion.   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.

     We first must determine whether the requisite elements

exist that give rise to a presumption of an intent to create an

easement by necessity.    There is no dispute amongst the parties

that, as to the first two elements, there was unity of title

(aside from lot 178) and a subsequent severance of that unity of

title.15   The defendants contend that the plaintiffs have not

satisfied the third element of necessity arising from the

severance.    There is no question that the lots at issue are

landlocked.   However, we must look to the circumstances at the

time of the conveyance to determine whether necessity existed.

Mt. Holyoke Realty Corp., 284 Mass. at 104.     Richards, 153 Mass.

at 122.    Schmidt, 136 Mass. at 576-577.   At the time of the


     15
       Vineyard Conservation Society, Inc. (VCS), argues that
the plaintiffs' contention that title to the common land was
owned by the town of Gay Head with the Commonwealth retaining
the power to convey is contrary to the historical record.
However, VCS acknowledges that "nothing turns on the dispute."
                                                                  17


partition in question, 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.    In other words, the lots

already had access rights, rendering express rights of access

unnecessary.   Despite this question of necessity, where the lots

in question appear to be landlocked because of the partition, we

proceed under the assumption that the plaintiffs have

established the three elements that give rise to the presumption

of an intent to create an easement by necessity.   The

defendants' contention is more appropriately analyzed as

rebuttal.

    The primary question in this case is whether, at the time

of partition, the parties intended to provide rights of access

to the hundreds of lots divided from the common land.

Admittedly, this case does not present circumstances that

typically support the presumption of an easement by necessity.

The typical situation involves one grantor and one grantee, and

it is their intent that is dispositive.   In this case, we have a

large scale partition of Native American common lands that have

multiple grantees, and the commissioners who were appointed by

the probate court (as authorized by the Legislature) as the

grantors.   We look to the intent of these parties to determine
                                                                  18


whether they intended to create rights of access in the hundreds

of lots partitioned.16

     After analyzing the circumstances surrounding the 1878

partition and the information known to the commissioners at the

time of the partition, we conclude that at that time the parties

did not intend to create easements, and that therefore the

defendants presented sufficient evidence to rebut the

presumption.   There was evidence that tribal custom provided

access rights to members of the Tribe, other easements were

created, and the land was in poor condition at the time of

partition.   This evidence is sufficient to rebut the presumption

that the grantor intended to include easements by necessity.

     The plaintiffs argue that the historical context of the

partition makes it clear the intention was to provide rights of

access to the lots.   According to the plaintiffs, one of the

goals of granting Native Americans citizenship was to allow them

to own and sell property and that is why the Legislature

authorized the partition of the common land.   The plaintiffs


     16
       It is not clear whether the plaintiffs are relying on the
intention of the Legislature or the commissioners, or both, as
they identified the grantor as the "General Court" who
authorized the commissioners and the probate court to act on its
behalf. We interpret St. 1870, c. 213, § 6, as the Legislature
empowering the probate court to appoint commissioners to
partition the land and leaving the details of the division to
the appointed commissioners. It is the commissioners' intent
that we view as dispositive.
                                                                      19


maintain that if easements of access were not intended, the

Tribe members' lots would not be salable and this would

undermine the Legislature's purpose of granting Native Americans

citizenship.   The plaintiffs are correct in saying that the

Legislature considered the ability to exercise control over

one's own property as a privilege of citizenship.      See Report of

the Committee, 1870 Senate Doc. No. 14, at 5.      However, we do

not glean from the record the Legislature's intention to create

access rights for the purpose of dividing the common lands into

salable property.    See St. 1870, c. 213, § 6.    The historical

record demonstrates that it was for the members of the Tribe to

determine whether to partition their common land because "[t]his

. . . is a question of 'property,' which every 'citizen' should

have the privilege of determining for himself."     Report of the

Committee, supra.    The Legislature merely gave the Tribe the

authority to choose to partition their common land and a method

by which to do so.   Furthermore, it was the commissioners who

carried out the division of the common lands with input from the

Tribe.

    At the time of the partition, the tribal custom admitted

free access over all the land, as necessary.      It is likely that

the commissioners did not think that rights of access were

necessary because it was provided by tribal custom.      The
                                                                    20


plaintiffs argue that the Legislature knew that Indian title17

was nonexistent at the time of partition and that, even if it

did not, the Legislature did not intend for tribal customs to

prevail after partition.    This argument fails.   "[W]e see no

reason why the common practice, understanding and expectations

of those persons receiving title could not shed light on the

parties' probable, objectively considered intent."     Kitras I, 64

Mass. App. Ct. at 300.     The commissioners partitioned the common

land after a lengthy process that took into consideration the

wants of members of the Tribe.    We find evidence of this process

in the reservation of the right to remove peat, and in the

decision to leave the cranberry bogs and cliffs in common

ownership.   We infer that the commissioners, upon learning of

this tribal custom, determined that it was not necessary to

include access rights for the partitioned lots.     Also, whether

the tribal custom continued after the partition is not relevant.

We look to the condition and circumstances at the time of the

partition and not subsequent events.18    Mt. Holyoke Realty Corp.,

284 Mass. at 104.   Richards, 153 Mass. at 122.


     17
       Indian title "gave Indians a 'right of occupancy.'"
James v. Watt, 716 F.2d 71, 74 (1st Cir. 1983), cert. denied,
467 U.S. 1209 (1984).
     18
       In 1987, aboriginal title was extinguished retroactive to
the date of transfer by a member of the Tribe. 25 U.S.C.
§ 1771b(b) (2012). Title 25 U.S.C. § 1771 (2012) was passed in
                                                                  21


     The Land Court judge also found persuasive the existence of

reserved rights in a number of the deeds, and applied the rule

of construction "expressio unius est exclusio alterius" (i.e.,

to express or include one thing implies the exclusion of the

other) when concluding that the omission of other rights of

access was intentional.   Joyce v. Devaney, 322 Mass. 544, 549

(1948).   A number of deeds reserved rights to gather peat from

another's land.   There were also three instances where rights

were reserved for access to a creek for purposes of fishing.

The right to gather peat included in a number of deeds is known

as a profit à prendre,19 which the plaintiffs correctly observe

is different from an easement.   Although a profit à prendre does

not specifically grant a right of access, some access is implied

in order to go onto specific land to remove that which is


response to the 1983 settlement when the Tribe agreed to
extinguish all aboriginal claims. See Building Inspector &
Zoning Officer of Aquinnah v. Wampanoag Aquinnah Shellfish
Hatchery Corp., 443 Mass. 1, 3-7 (2004). Subsequent events that
render a lot landlocked do not give rise to an easement by
necessity. See New England Continental Media, Inc. v. Milton,
32 Mass. App. Ct. 374, 378 (1992); Swartz v. Sinnot, 6 Mass.
App. Ct. 838, 838 (1978). The necessity must have existed at
the time of the division. Viall v. Carpenter, 14 Gray 126, 127
(1859).
     19
       A profit à prendre "is a right in one person to take from
the land of another either a part of the soil, such as minerals
of all kinds from mines, stones from quarries, sand and gravel;
or part of its produce, such as grass, crops of any kind, trees
or timber, fish from lakes or streams, game from the woods,
seaweed, and the like . . . " (citation omitted). Gray v.
Handy, 349 Mass. 438, 441 (1965).
                                                                    22


described therein.    See Gray v. Handy, 349 Mass. 438, 440

(1965).   More to the point, a profit à prendre indicates that

the commissioners knew how to reserve rights when drafting

deeds.    The commissioners also clearly provided for a right of

access to a creek "for the purpose of fishing and clearing the

creek."   The fact that the commissioners had the knowledge and

foresight to reserve peat rights and expressly grant access to a

creek for certain Tribe members is evidence that the omission of

access rights to the rest of the land was intentional.

     Additionally, the Chappaquiddick Tribe, located on a small

island on the eastern coast of Martha's Vineyard, had their

common lands divided.    The commissioners who partitioned

Chappaquiddick's common land included in their deeds express

rights of access to roads.    It is likely that the commissioners

of the Gay Head partition were well aware of the division of the

common land at Chappaquiddick because Richard Pease, in his

report written in 1871, frequently quoted and cited prior

commissioners' reports that described the Chappaquiddick Tribe

(as well as other tribes residing in Massachusetts).20   See Pease

Report, supra at 22.    See also Report of the Commissioners, 1849

House doc. No. 46, at 8, 11; Report of the Commissioner, 1862

     20
       One of the commissioners who divided the common land at
Chappaquiddick was Jeremiah Pease. The relation, if any,
between Jeremiah and the brothers Richard and Joseph Pease is
unknown.
                                                                    23


House Doc. No. 215, at 16.    The fact that an earlier partition

of common land on Martha's Vineyard provided rights of access to

Tribe members, known to the Gay Head commissioners, supports a

finding that the absence of access easements in the conveyance

flowing from the Gay Head partitions was intentional, thereby

rebutting the presumption of easements by necessity.

    The physical condition of the land in question also is a

factor when determining the intent of the parties in this case.

Dale, 305 Mass. at 103.    The multiple reports authored by

various commissioners provide detailed descriptions of the

quality of the land and the landscape at Gay Head at the time of

the partition in 1878.    The plaintiffs rely on the many

descriptions that praise the land of Gay Head, and assert that

the Land Court unnecessarily focused on the few poor

descriptions.   The plaintiffs are correct in saying that there

are some descriptions that praise the land at Gay Head.     A group

of commissioners described the land as containing "almost every

variety of soil; a portion of the land is of the very best

quality, and capable, under good culture, of producing most

abundant harvests."   Report of the Commissioners, 1849 House

Doc. No. 46, at 19.   John Milton Earle, an appointed

commissioner in 1862, described the land as "a great variety of

soil, some of it of excellent quality."    Report to the Governor

and Council, 1862 House Doc. No. 215, at 33.    Commissioners
                                                                     24


further observed that the land could be "reasonably productive"

if there were more money available to tend to the land.    Report

of the Committee, 1870 Senate Doc. No. 14, at 5.

     Despite the intermittent praise, there were many contrary

descriptions of the land as desolate and deficient.     One report

described Gay Head as a "Sahara-like desolation" and implored

the Legislature to provide a remedy to the poor condition of the

Gay Head land, predicting that "unless some remedy is found, the

whole will eventually become one cheerless desert waste."21

Report of the Commissioners, 1856 House Doc. No. 48, at 9.       The

special joint committee of Massachusetts senators and

representatives who visited Gay Head in 1869, and whose

assessment of the land the trial judge credited, thought it

better for the common land to be held in common for the whole

Tribe "as pasturage and berry lands," than for the land to be

divided into lots that ultimately would "lie untilled and

comparatively unused."   Report of the Committee, 1870 Senate

Doc. No. 14, at 5.   The land also was described as "uneven,

rough and not remarkably fertile."   Id.   As the descriptions

     21
       The commissioners explained that the "sands of the beach,
no longer covered, as formerly, with an abundant growth of
beach-grass, become the sport of the breeze, and are every year
extending inland, covering acre after acre of meadow and tillage
land; many acres of which have, within the memory of our
informants, been thus swallowed up, and now lie wholly waste and
useless." Report of the Commissioners, 1856 House Doc. No. 48,
at 9.
                                                                   25


recited above indicate, contrary to the plaintiffs' assertions,

the poor condition of the land was predominant and widely

documented.   It is likely that the commissioners, observing the

poor condition of the land, reckoned that rights of access were

not needed for land that would "lie untilled and comparatively

unused."22

     We agree with the Land Court judge's conclusions that (1)

tribal customs, (2) the existence of other easements included in

the deeds, and (3) the condition of the land provide more than

sufficient evidence to rebut the presumption that the

commissioners intended to create access rights when they

partitioned the common land, and that the "[p]laintiffs have

failed to introduce evidence sufficient to carry their

substantial burden of proving easements by necessity."     See

Kitras II, 87 Mass. App. Ct. at 30-31 (Agnes, J., dissenting).

We conclude that the plaintiffs failed to meet their burden of

establishing that the commissioners intended to create easements

by necessity.

     22
       Although not contemporary with the partition at issue, a
depiction of Gay Head in an 1887 photograph has been described
as "little changed" from an 1844 description as "a level,
desolate moor, treeless, shrubless, and barren of all
vegetation, save coarse grass and weeds, and a profusion of
stunted dog-roses" (citation omitted). P.W. Dunwiddle, Martha's
Vineyard Landscapes: The Nature of Change (1994). Based on
this information, we infer that the unfavorable condition of the
land at Gay Head continued after the division of the common
land.
                                                                    26


    6.   Lot 178.    The plaintiffs argue that the trial court

erroneously excluded lot 178, owned by the plaintiff Maria

Kitras (as trustee of Bear Realty Trust), from the remand

proceedings.   We disagree.   In Kitras I, 64 Mass. App. Ct. at

293-294, the Appeals Court concluded that only lots 189 and

above could possibly have an easement by necessity.       The "law of

the case" doctrine applies.   "The 'law of the case' doctrine

reflects this court's reluctance 'to reconsider questions

decided upon an earlier appeal in the same case'" (citation

omitted).   King v. Driscoll, 424 Mass. 1, 7-8 (1996).     An

already decided issue should not be reopened "unless the

evidence on a subsequent trial was substantially different,

controlling authority has since made a contrary decision of the

law applicable to such issues, or the decision was clearly

erroneous and would work a manifest injustice."    Id. at 8,

quoting United States v. Rivera-Martinez, 931 F.2d 148, 151 (1st

Cir.), cert. denied, 502 U.S. 862 (1991).    In this case, the

issue only could have been reopened if the Appeals Court

decision in Kitras I, supra, clearly was erroneous and would

work a manifest injustice.    We see no reason to reopen the issue

regarding lot 178.

    7.   Conclusion.   For the foregoing reasons, we affirm the

judgment of the Land Court.

                                     Judgment affirmed.
