NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

12-P-260                                                  Appeals Court

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


                               No. 12-P-260.

         Suffolk.        January 18, 2013. - January 14, 2015.

              Present:     Kantrowitz, Berry, & Agnes, JJ.


           Easement.     Necessity.   Real Property, Easement.


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


     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; and Mark D. Harding, Sheila H. Besse, and
Charles D. Harding, Jr., as trustees of Eleanor P. Harding
Realty Trust.
     3
       Executive Office of Environmental Affairs; Joanne
Fruchtman; Jack Fruchtman; Benjamin L. Hall, Jr., trustee of
Gossamer Wing Realty Trust; Brian M. Hall, trustee of Baron's
Land Trust; Caroline Kennedy; Edwin Schlossberg; Martha's
Vineyard Land Bank; Barbara Vanderhoop, executrix of the estate
of Leonard F. Vanderhoop, Jr.; Vineyard Conservation Society,
Inc.; David Wice; and Betsy Wice. Also listed as defendants in
the third amended complaint are "persons unknown or
unascertained being the heirs of Savannah Cooper," and "persons
unknown or unascertained who may have an interest in any land
heretofore or hereinafter mentioned or described."
                                                                    2


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


     Wendy H. Sibbison for Maria A. Kitras & another.
     Leslie-Ann Morse for Mark D. Harding & others.
     Diane C. Tillotson for Martha's Vineyard Land Bank &
others.
     John Donnelly, Assistant Attorney General, for the
Commonwealth.
     Jennifer S.D. Roberts for Vineyard Conservation Society,
Inc.


    BERRY, J.    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
                                                                   3


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.

    To summarize the reasons for our conclusion that easements

by necessity exist, as discussed in more detail below:   (1) It

is absolutely undisputed that common access right by custom and

practices existed among the Gay Head Tribe members over the

lands in question.   Accordingly, there would not have been any

need for restatement of the access rights in the conveyance
                                                                    4


documents, given the preexisting access over the subject lands.

(2) The Gay Head Tribe members, first as grantees, and then as

grantors, would not be expected to manifest expressed or implied

intent regarding easements nor would intent be manifest in the

governmental land transfers to the Tribe members, or in the

later judicial partitioning process, which changed common

ownership to yield individual deeds in severalty ownership to

the Tribe members.   (3) Even were we to disregard the history of

common access as laying the predicate for easements by necessity

to avoid landlocking, it is appropriate to turn to and follow

§ 2.15 of the Restatement, which provides that an easement by

necessity exists where access would otherwise be cut off unless

the parties clearly indicate they intended a contrary result.

(4) Lastly, even apart from the Restatement, Massachusetts

property common law also supports easements by necessity in the

subject parcels.

    1.   The Gay Head Tribe's tradition of common access over

the subject lands.   First, it is not disputed -- to the contrary

it is definitely acknowledged on this record -- that the

prevailing custom of the Gay Head Tribe was to allow its members

access over the lands.   There is no evidence in the record that

this prevailing custom, prior to the governmental partition that

occurred in the 1870's, did not continue after the land,
                                                                   5


previously held in common, was partitioned and deeded to Tribe

members.

     In light of this land use fact as to which there is no

dispute, any intent regarding affirmative easements would not

have been expressed because there was no need to do so, with the

extant Tribe members' common access over the lands.4   There is

neither any basis to negate this undisputed fact, nor any basis

to negate easements by necessity simply because way back in the

historic lore -- which encompasses the Gay Head Tribe's common

access paths, the Massachusetts governmental common land grants,

and the judicially partitioned deeds changing the ownership to

deeds in severalty -- there was not expressed or implied intent

in the land history by the Gay Head Tribe grantees or grantors

with respect to conveying easements by necessity to avoid

creating landlocked parcels.   Again, the point to be emphasized

is that, given the Tribe's ancient history of custom and

practice, one would not likely discern or find intent, express


     4
       We note that litigation involving these lands was before
this court previously in Kitras v. Aquinnah, 64 Mass. App. Ct.
285 (2005) (Kitras I). However, Kitras I did not address
whether easements by necessity existed, and, if so, what the
parameters of such easements would be. Rather -- and it is an
important rather -- the only issue decided in Kitras I was
whether the United States was an indispensable party to the
case. This court held the United States was not a necessary
party. Because the easement by necessity questions were not the
issue resolved by this court in Kitras I, we remanded to the
Land Court to determine the easement question -- the precise
question in this appeal.
                                                                   6


or implied, to convey what already existed, in fact, by common

access.

     2.   The history of the Gay Head Tribe's common ownership,

judicial partition, and the Tribe's members' individual rights

by ownership in severalty.   Although quite arcane, it is

important to consider the property form of ownership of the

Tribe's lands before and after the 1870-1878 judicial partition.

     First, the subject lands were held in common ownership5

prior to the judicial partitioning process.   After the

partitioning process, the lands were held in severalty.6    The

deeds in severalty to the Tribe members/real parties in interest

     5
       Lands held in common are held as "tenements by several and
distinct titles . . . but occup[ied] in common, the only unity
recognized . . . being that of possession." Bouvier, Law
Dictionary Adapted to the Constitution & Laws of the United
States of America, and of the Several States of the American
Union 580 (14th ed. 1882). "[T]wo or more persons may have
concurrent interests in the land; the common characteristic of
all such interests being that the owners have no separate rights
as regards any distinct portion of the land, but each is
interested, according to the extent of his share, in every part
of the whole land." Tiffany, Law of Real Property & Other
Interests in Land § 161, at 370 (1903). Lands "granted in large
parcels, to a great number of grantees . . . for the purpose of
forming towns . . . have invariably, and from the earliest
settlement of the country, been considered as vesting in the
grantees and their heirs estates in common." Higbee v. Rice, 5
Mass. 343, 350 (1809).
     6
       An estate held in severalty is defined as "[a]n estate
which is held by the tenant in his own right only, without any
other being joined or connected with him in point of interest
during the continuance of his estate." Bouvier, supra at 517.
"[I]nterests . . . in which the right to possession is in one
person at a time . . . are called estates in severalty."
Hopkins, Law of Real Property 332 (1896).
                                                                   7


in the partitioning process, in our opinion, resulted in a

"carry-through" of the preexisting right of common access of the

Tribe members to their lands now held in severalty.

     Turning first to the real parties in interest, the historic

record demonstrates, and it is important to emphasize, that the

real parties in interest to the partitioning process,7,8 which

led to the crafting of deeds in severalty to the Gay Head Tribe

members, were not the commissioners, whose functions were

administrative.9   Indeed, given the administrative drafting

mandate to the commissioners to divide and reformulate the

Tribe's common lands to lands in severalty, one would not expect

to see, and there are not to be seen, expressions of the



     7
       Partition is the "dividing of lands held by . . . tenants
in common, into distinct portions, so that they may hold them in
severalty. . . . Partition is voluntary or judicial. . . . It
is judicial when it is made by the authority of the court, and
according to the formalities prescribed by law." Black's Law
Dictionary 876-877 (2d ed. 1910).
     8
       "In proceedings for partition, the court first determines
the share to which each cotenant is entitled, and then the
actual partition of the land by metes and bounds is made by
commissioners . . . and their report, if satisfactory, is
ratified by the court, and a final judgment or decree in
accordance therewith is entered." Tiffany, supra at § 175, at
407.
     9
       "The actual division of the land in partition is made by
commissioners appointed by the court. . . . Probate courts
. . . have power to make partition of estates over which they
have acquired jurisdiction." Hopkins, supra at 345-346. In
this case, Joseph T. Pease and Richard L. Pease were appointed
commissioners in 1870.
                                                                    8


commissioners' intent on easements yea or nay.   Intent was

beyond the pale of the commissioners.

    To be further noted in this land history are the

legislative enactments which preceded the judicial partition of

the Tribe's lands.   In 1869 and 1870, to address the inequity of

Native Americans having limited land ownership rights under

State law, the Legislature enacted St. 1869, c. 463, and St.

1870, cc. 213, 293, 350.   It is the 1870 statute10 involving

partition and common ownership that is important to consider in

this case.   As to the subject lands at issue here, the process

for division of the Tribe's common lands was set forth in St.

1870, c. 213, § 6:

    "The judge of probate of the county of Dukes-county, upon
    the application of the selectmen of Gay Head, or of any ten
    resident owners of land therein . . . if he shall adjudge
    that it is for the interest of said parties that any or all
    of the common lands of said town be divided, shall appoint
    two discreet, disinterested persons commissioners to make
    partition of the same, and their award, being confirmed by
    said court, shall be final in the premises."

    As previously noted it was the Gay Head Tribe members who

proceeded as the real parties in interest and filed petitions


    10
       Pursuant to St. 1869, c. 463, Native American lands held
in severalty became fee simple estates under State law. See
Danzell v. Webquish, 108 Mass. 133, 134 (1871) ("By recent
legislation, the Indians of the Commonwealth have been fully
enfranchised from the subjection in which they had heretofore
been kept, and put upon the same footing as other citizens, and
provision made for the division of their lands among them in
severalty as their absolute property. Sts. 1869, c. 463; 1870,
cc. 213, 293, 350").
                                                                   9


for partition of the common lands, which enjoyed common access

by custom and practice.    One petition in September, 1870,

requests the court "to divide and set off our parts in severalty

to us of all the common land in" Aquinnah.    Another petition,

dated October 17, 1870, states, "we shall be greatly benefited

if our part of the common land in Gay Head be set off to us in

severalty[11]. . . .   We the undersigned . . . take this method to


     11
       In construing a similar statute (St. 1870, c. 293, § 6)
applying to the common lands of the Mashpee Wampanoag Tribe
(Mashpee Tribe), the Supreme Judicial Court held that the common
lands were to be held by the town, subject to partition and
division of said common lands. In re Coombs, 127 Mass. 278, 280
(1879). As to the Mashpee Tribe's common lands, the court wrote
as follows:

          "In pursuance of the policy established by the St. of
     1869, the district . . . was incorporated as a town . . .
     and all common lands and other rights, belonging to the
     district, were transferred to the new town to be held as
     property and rights are held by other towns."

          ". . .

          "[I]t was not only a proper but a wise exercise of
     power for the Legislature to frame provisions by which
     common lands belonging to the town or the tribe, and the
     proceeds from the sale of such lands, should be divided.
     The Legislature could impose any reasonable qualifications
     or restrictions upon the privileges and powers conferred by
     the statute, either upon the town or upon the people. . . .
     [W]e are of opinion that it was the intention of the
     statute to provide a tribunal by which partition or sale of
     common lands could from time to time be directed; and that
     the power of the tribunal is exhausted only when all the
     common lands have been divided and sold." (Emphasis
     added).

Id. at 280-282.
                                                                 10


request your honor to put us in possession of what belongs to us

of the said common land" (emphasis added).   It is, of course,

not surprising that the newly enfranchised Tribe members, in

this petition to enforce for the first time their now real and

full well justified right to own property, did not in their

petition express any intent concerning easements.

    To complete the historic background, on December 5, 1870, a

judge of the Probate Court decreed as follows:

    "It appearing to the Court that it would be for the benefit
    of the people of said Town of Gay Head that their said
    Common Lands should be divided as prayed for and as the
    Statute in that case provides, [i]t is decreed that said
    Lands be so divided."

    Then, finally, on May 12, 1879, having completed the

partition of the lands, the commissioners wrote as follows:

    "Not considering it best for the interests of the parties
    owning the lands [that is, the Tribe members] referred to
    in the for[e]going Warrant that any part thereof should be
    sold, in which opinion said parties unanimously concurred,
    we have set off and divided the same among the people [the
    Tribe members] entitled thereto" (emphasis added).

    To end this aspect of this opinion, as demonstrated above,

in these large scale governmental partitioning land

transactions, the question of private grantor/grantee intent was

not present.   Simply put, this is not a case, such as is

presented in general private land conveyances, where "the actual



     However, specifically exempted from these provisions of the
1869 statute were "the Indians of Marshpee and Gay Head." Id.
at 280, quoting from St. 1869, c. 463.
                                                                    11


intention of the parties as disclosed by the oral testimony

makes it plain that there was express understanding that there

should be no right of way over other land of the grantor."

Orpin v. Morrison, 230 Mass. 529, 534 (1918).    Accordingly, our

analysis must account for the Gay Head Tribe's preexisting

access rights, which rights serve to establish that the Tribe's

members understood that there were rights of way and access.

    3.     The Restatement § 2.15 rule of law on easements by

necessity.   The implication of easements by necessity accord

with the property law set forth in § 2.15 of the Restatement.

The black letter rule of the Restatement § 2.15 provides as

follows:

    "A conveyance that would otherwise deprive the land
    conveyed to the grantee . . . of rights necessary to
    reasonable enjoyment of the land implies the creation of a
    servitude granting . . . such rights, unless the language
    or circumstances of the conveyance clearly indicate that
    the parties intended to deprive the property of those
    rights."

    Comment b to Restatement § 2.15 on easements further

supports easements by necessity in this case:

    "Access rights are almost always necessary to the enjoyment
    of property. In a conveyance that would otherwise deprive
    the owner of access to property, access rights will always
    be implied, unless the parties clearly indicate they
    intended a contrary result. The most commonly implied
    access rights are those to connect property with a public
    road, but there are others."

    Further, comment e to Restatement § 2.15 emphasizes that

"[m]ere proof that [the parties] failed to consider access
                                                                    12


rights, or incorrectly believed other means to be available, is

not sufficient to justify exclusion of implied servitudes for

rights necessary to its enjoyment."    See Restatement § 2.15

comment a (describing history and rationale of "[p]ublic policy

favoring use and occupation of land").

    Here, the Massachusetts governmental land grant and

judicial partitioning process involved neither private

negotiations nor parties on either side who likely would, or

actually did, state or express intent concerning easements vis-

a-vis the lands, and the parties certainly did not "clearly

indicate that [they] intended to deprive the property of those

rights."    Restatement § 2.15.

    4.     Massachusetts property law on easements by necessity

follows Restatement § 2.15.    Even were we not to adopt per se or

follow Restatement § 2.15 as controlling, Massachusetts property

law -- albeit developed in the context of private land

conveyancing -- would still presume easements by necessity here.

    The implied presumption in favor of easements by necessity

over otherwise landlocked property underlying § 2.15 of the

Restatement is in accord with the Massachusetts common law of

property.    Thus, even if we declined to follow the Restatement,

easements by necessity should exist here.    That the Tribe's land

transfer involved governmental actions and a judicial
                                                                    13


partitioning process does not alter the presumptions of a legal

right of access under Restatement § 2.15 or Massachusetts law.

    Under Massachusetts law, in a conveyance with the prospect

of leaving property landlocked, there is presumed access by an

easement by necessity, absent contrary evidence rebutting the

presumption and proving that the conveying parties did not

intend access, but rather intended to cut off access and convey

land that is landlocked.   "The law presumes that one will not

sell land to another without an understanding that the grantee

shall have a legal right of access to it, if it is in the power

of the grantor to give it, and it equally presumes an

understanding of the parties that one selling a portion of his

land shall have a legal right of access to the remainder over

the part sold if he can reach it in no other way.    This

presumption prevails over the ordinary covenants of a warranty

deed."   Davis v. Sikes, 254 Mass. 540, 545-546 (1926), quoting

from New York & New England R.R. v. Railroad Commrs., 162 Mass.

81, 83 (1894).   "A right of way of necessity over land of the

grantor is implied by the law as a part of the grant when the

granted premises are otherwise inaccessible, because that is

presumed to be the intent of the parties. . . .     It is founded

on the idea that it is the purpose of the parties that the

conveyance shall be beneficial to the grantee. . . . It is,

however, a pure presumption raised by the law."     Orpin v.
                                                                    14


Morrison, 230 Mass. at   533.   "'Easements by necessity' refer to

rights-of-way presumed at common law when a landowner conveys a

portion of his land but still needs access over the transferred

property to reach the property he retained."     Bedford v.

Cerasuolo, 62 Mass. App. Ct. 73, 77 (2004).     See generally Eno &

Hovey, Real Estate Law § 8.14 (4th ed. 2004).

    In conclusion, this record presents a historical background

supporting the presumption of easements by necessity in that the

original grantees, the members of the Gay Head Tribe, by custom

and practice, enjoyed rights of access to cross over the subject

lands.   Further, the record also tracks the presumption in our

State property law which favors easements by necessity to keep

"free" lots from being landlocked.    Accordingly, we reverse the

judgment, and remand for further proceedings consistent with

this opinion.

                                     So ordered.
    AGNES, J. (dissenting).    It is settled law necessity alone

does not give rise to an implied easement.    Kitras v. Aquinnah,

64 Mass. App. Ct. 285, 298 (2005) (Kitras I), citing Nichols v.

Luce, 24 Pick. 102, 104 (1834).    "Neither does there exist a

public policy favoring the creation of implied easements when

needed to render land either accessible or productive."    Ibid.,

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

122 (1891).   As a result, conventional legal doctrine requires

the plaintiffs to prove that at the time the partition deeds

were approved by the Probate Court judge in 1878, there was an

intent, shared by the parties, albeit unexpressed, to grant

access easements in hundreds of deeds which were shown on the

plan drawn by the commissioners as clearly landlocked.    Based on

the record before us, I do not believe the plaintiffs met their

burden to prove that the parties shared an intent to create

access easements.   Indeed, for the following reasons, I believe

there was no such shared intent:    (1) the glaring omission of

access roads or paths not only on the nineteenth century

partition plan, but also on contemporary plot maps which show

that most of the set-off lots lack frontage or access to or from

any public amenity; (2) the condition of the land at the time of

partition, described as "uneven, rough, and not remarkably

fertile," Kitras I, 64 Mass. App. Ct. at 288; (3) the

expectation that these lots would "lie untilled and
                                                                    2


comparatively unused" following the partition, Report of the

Committee, 1869 Senate Doc. No. 14, at 5; (4) the fact that the

Native American grantees shared a custom of free access over

lands held in common by the tribe, and had no need for a

reservation of access rights; and (5) the absence of any

evidence that the Native American grantees did not continue to

exercise and enjoy their tribal rights and customs following the

partition.1   Therefore, I believe the decision of the Land Court

judge should be affirmed.2

     It may be that a presumption should exist that when land

previously held in common by members of a Native American tribe

is partitioned pursuant to an act of the Legislature,


     1
       I also believe that respect for the comprehensive process
that the commissioners and the probate judge engaged in more
than 135 years ago to partition the land, and a regard for the
certainty and predictability of land titles conferred by the
town, suggests that we should proceed with caution "in
determining whether the circumstances surrounding a government
land grant are sufficient to overcome the inference prompted by
the omission of an express reference to a reserved right of
access." Murphy v. Burch, 46 Cal. 4th 157, 165 (2009).
     2
       The plaintiffs challenge the judge's declining to
reconsider this court's conclusion in Kitras I that each of lots
1 through 188 or 189 were "owned by a different individual, and
the unity of title required to imply an easement by necessity
fails," Kitras I, 64 Mass. App. Ct. at 293, on the grounds that,
because the finding was not necessary to the Kitras I court's
decision, it is not binding under the doctrine of res judicata.
However, under the doctrine of law of the case, that question
was not open to reconsideration below, and we have not been
presented with any persuasive reason to revisit it. See Lunn &
Sweet Co. v. Wolfman, 268 Mass. 345, 348-349 (1929). See also
United States v. Matthews, 643 F.3d 9, 12-13 (1st Cir. 2011).
                                                                     3


preexisting tribal rights and customs are perpetuated and become

binding on the successor grantees in perpetuity.   However, to

date there is no such presumption under our law.    I believe that

such an extraordinary alteration of traditional principles of

Massachusetts law should be accomplished by the Supreme Judicial

Court and not by this court.

    What follows is a brief history of the events leading up to

the 1878 partition, and a detailed analysis of the legal

principles governing easements by necessity.

    Background.   1.   Procedural history.   In Kitras I, this

court considered whether the United States, which holds a number

of lots in trust for the Wampanoag Tribal Council of Gay Head,

Inc., a Federally recognized Native American Tribe (Wampanoag

Tribe), was an indispensable party to the plaintiffs' action.

This court held that the inability to join the United States as

a party was not fatal because the Wampanoag Tribe had waived

sovereign immunity in matters concerning the land at issue and

could be sued directly.   Id. at 298.   However, because an

easement by necessity ultimately depends on the facts,

particularly the intent of the parties at the time of the

conveyance (or, in this case, partition), this court reversed

and remanded the matter for trial with instructions that the

Land Court was to determine, after appropriate proceedings,

whether (i) easements by necessity properly could be implied
                                                                     4


from the circumstances attendant at the time of the lots'

creation and in light of subsequent events; and (ii) if so,

where such easements were located.   Id. at 298-301.   In doing

so, this court cautioned that notwithstanding that each of the

plaintiffs' lots is landlocked, a finding that an easement was

intended by the parties in the circumstances of this case is not

inevitable and the question "requires thoughtful consideration"

by a fact finder of the "presumed objective intent of the

grantor and grantee based upon the circumstances of the

conveyance."   Id. at 300, quoting from Flax v. Smith, 20 Mass.

App. Ct. 149, 153 (1985).   In addition, this court noted that

even if the requisite intent is found, numerous questions remain

including merger, extinguishment, lack of continuing necessity,

and impacts of eminent domain takings.    Ibid.

    On remand, the judge ordered a bifurcation of the issues

and first addressed whether the commissioners who partitioned

the land in the 1870's in accordance with a legislative

directive intended to create easements.    The parties initially

attempted to present the judge with an agreed statement of

facts, but, when that failed, submitted the question on their

respective documentary presentations.    Correctly concluding that

live testimony was unlikely to be helpful given the age of the

matters in issue, the judge made comprehensive findings and

rulings on the basis of a voluminous documentary record, and
                                                                     5


determined that an intent to create easements could not

reasonably be implied.    Accordingly, on August 12, 2010, in

accordance with his findings and rulings that there was no

intent to create easements by necessity, the judge entered a

judgment for the defendants; a "second amended and final

judgment" was entered on May 17, 2011.   The plaintiffs now

appeal.   In particular, the judge reasoned that (i) the

condition of the land was such that access easements are not

reasonably implied; (ii) the presence of some easements negates

the imposition of an easement by necessity; and (iii) access

easements were unnecessary because all the grantees in question

were members of the Wampanoag Tribe of Gay Head (Gay Head Tribe

or Tribe) and the Gay Head Tribe's custom at the time allowed

access over all property by all members of the Tribe.

    2.    Factual background.   In the 1800's, what is now known

as Aquinnah in Martha's Vineyard was occupied nearly exclusively

by the descendants of the Gay Head Tribe members.     Located east

of Chilmark on the island of Martha's Vineyard, it consisted of

approximately 2500 acres of land; 450 of it held in severalty

and occupied by Gay Head Tribe members, and the remainder held

by the Tribe in common.    Kitras I, supra at 287.   The judge

correctly recognized that the lots were held by the Commonwealth

under English common law rules of property and occupied by the
                                                                   6


Gay Head Tribe under traditional Native American law.3

Importantly, he also recognized that the prevailing custom of

the Gay Head Tribe was to allow all members access over all

lands, whether held in common or in severalty.4




     3
       The distinction between fee title and Native American
Indian title is well settled. "American courts recognize two
distinct levels of ownership in Indian lands: fee title and
Indian title. The common-law fee title passed to the European
sovereign at discovery, and it could be transferred by him to
his grantees. The fee title in lands that the British king
retained passed to the individual states at the time of the
revolution. These states, in turn, ceded to the central
government their claims to the western territories beyond their
present boundaries. Title to Indian lands within their borders,
however, was retained by the thirteen original states. . . .
Indian title, which gave Indians a 'right of occupancy,'
coexisted with the fee title." James v. Watt, 716 F.2d 71, 74
(1st Cir. 1983), cert. den., 467 U.S. 1209 (1984).
Nevertheless, "[t]he rudimentary propositions that Indian title
is a matter of federal law and can be extinguished only with
federal consent apply in all of the States, including the
original 13. It is true that the United States never held fee
title to the Indian lands in the original States as it did to
almost all the rest of the continental United States and that
fee title to Indian lands in these States; or the pre-emptive
right to purchase from the Indians, was in the State. But this
reality did not alter the doctrine that federal law, treaties,
and statutes protected Indian occupancy and that its termination
was exclusively the province of federal law." Oneida Indian
Nation of New York v. County of Oneida, New York, 414 U.S. 661,
670 (1974). In the absence of abandonment, only the sovereign
has the power to extinguish aboriginal rights. County of
Oneida, New York v. Oneida Indian Nation of New York State, 470
U.S. 226, 234 (1985).
     4
       This is a finding of fact as to which there is no dispute.
There is no evidence in the record that this practice among the
members of the Gay Head Tribe prior to the partitions that
occurred in the 1870's, did not continue after the partitions.
I assume that it did.
                                                                   7


     During the first half of the nineteenth century, the

Massachusetts Legislature was deeply involved in determining the

future of the Gay Head Tribe.   Attitudes gradually shifted from

paternalistic treatment of the Native Americans toward granting

them full citizenship and independent ownership of their lands.5


     5
       Guardianship legislation was first passed in 1811.
Provision was made for a partitioning of common lands as early
as 1828, but it required approval of the Gay Head Tribe, which
did not occur. A partitioning plan for lands of the Wampanoag
Tribe of Marshpee (now Mashpee) (Mashpee Tribe) was established
in 1842, see St. 1842, c. 72, but in a subsequent report known
as the "Bird Report," 1849 House Doc. No. 46, the effort was
considered a failure. The members of the Mashpee Tribe who had
received title to land sold off the wood and were left with no
means to support themselves. The Bird Report also noted that by
comparison to other Native Americans in the area, "[t]he Gay
Head Indians are differently situated. They live on a
peninsula, and have little intercourse with the whites;
consequently, they are more peculiar in their manners and
customs, and are not so far advanced in the art and science of
agriculture, as the two first-mentioned tribes [Chappaquiddick
and Christiantown Tribes]." The Bird Report described the legal
condition of land titles among the Gay Head Tribe members as
"singularly anomalous." "None of the lands are held, as far as
we could learn, by any title, depending for its validity upon
statute law." Ibid. If a member of the Gay Head Tribe enclosed
an area of unimproved common land with a makeshift fence "it
belonged to him and his heirs forever." Ibid. The authors of
the Bird Report "urge[d] particularly the importance of
confirming the titles of proprietors of lands held in severalty,
and of fixing the law of division and descent."

     In 1859, John Milton Earle was appointed "to examine into
the condition of all Indians and the descendants of Indians
domiciled in this Commonwealth, and make report to the
governor." St. 1859, c. 266. Leavitt Thaxter, a member of the
Bird Commission, wrote to Earle regarding the Gay Head Tribe and
the division of their lands: "I fear the consequences of any
material change, especially relative to the Indians of Gay Head,
who are differently situated than any others, especially, from
their isolated position." In his report, 1862 House Doc. No.
                                                                    8


In 1863, after some years of purported "guardianship," the

Legislature established the "district" of Gay Head, see St.

1862, c. 184, § 4, and directed the clerk to create a "register

of the lands of [the district], as at present held, whether in

common or severally," and to identify the lots held in severalty

and their owners.   The following year, the Legislature appointed

Charles Marston to "fully and finally . . . determine, all

boundary lines between the individual owners of land located in

the Indian district of Gay Head, . . . and also to determine the

boundary line between the common lands of said district and the

individual owners adjoining said common lands.   St. 1863, c. 42.

Marston was authorized, in particular, "to adjust, and fully and

finally to settle, equitably, and as the interest of the

petitioners and all other parties may require, all the matters,

claims and controversies, now existing and growing out of or in

connection with the boundaries of the aforesaid lands."6   Ibid.



215, Earle considered the earlier distribution of land in
severalty to individual Mashpee Tribe members to have been
"disastrous." Id. at 42. Earle concluded that the Native
American traditional law employed in Gay Head, allowing as it
did for ownership of land in common, rather than the
Commonwealth's laws, "worked well." Id. at 44. In fact, Earle
noted that the members of the Gay Head Tribe adhered to their
unwritten tribal law regarding common ownership of property
"with great tenacity, and are fearful of any innovations upon
it." Id. at 34.
     6
       The legislation further provided for hearing, following
notice by publication, of all claims by interested parties,
directed Marston to "make a report of his doings to the governor
                                                                   9


     It soon became apparent, however, that despite efforts to

enfranchise the Gay Head Tribe members by conferring "the

glorious privileges of Massachusetts citizenship in full,"7 they




and council," and appropriated a sum not exceeding $100 as
compensation for his services. St. 1863, § 42. Marston
submitted a report in 1866, but was unable to complete his work.
However, he did create a book of records setting forth
descriptions of a large portion of the lots of land, including
the set-off of lots 1-173, which was recorded at the Dukes
County registry of deeds in book 49, page 1.
     7
       See St. 1869, c. 463, § 1 (granting the "Indians" within
the Commonwealth "all the rights, privileges and immunities" of
State citizens). Massachusetts had ratified the Fourteenth
Amendment to the United States Constitution in 1867. The
legislation explicitly stated that all lands "rightfully held by
any Indian in severalty" as well as any land that "ha[s] been or
may be set off to any Indian, shall be and become the property
of such person and his heirs in fee simple . . . and all Indians
shall hereafter have the same rights as other citizens to take,
hold, convey and transmit real estate." St. 1869, c. 463, § 2.
It is an oversimplification of a complex history to suggest, as
the plaintiffs do, that as of 1869, the legal status of Native
Americans was equivalent to the other citizens of the
Commonwealth. For example, the 1869 statute denied to the Gay
Head Tribe the right to seek division of the common lands. St.
1869, c. 463, § 3. Also, the 1870 statute authorized, but did
not mandate, the division of the common lands. St. 1870, c.
213, § 6. Under that statute, the common lands would remain
undivided unless the selectmen or any ten resident land owners
petitioned the local probate judge, who then had the discretion
to determine whether to grant or deny the petition, the right of
appeal from that decision being reserved. Ibid. In Drew v.
Carroll, 154 Mass. 181, 183 (1891), the Supreme Judicial Court
made this observation about the 1869 statute: it "put them [the
Indians], for the most part, on the basis of ordinary
citizenship" (emphasis added). In an earlier decision, In Re
Coombs, 127 Mass. 278, 279-280 (1879), the Supreme Judicial
Court stated that "[i]n thus enfranchising the Indians and
conferring on them the rights of citizens, it was not the
intention of the Legislature to give at once to the several
tribes, or to the individual Indians composing those tribes, the
                                                                     10


suffered from the "slight drawback that being neither a town by

themselves, nor part of any other town," their privileges of

citizenship "could neither be exercised or enjoyed."     Report of

the Committee, 1870 Senate Doc. No. 14, at 1.    "To prepare the

way for remedying this continuation of the "political anomaly,"

in 1869, the Legislature appointed a committee which "visited

the people of that district, and carefully noted their

condition, their prospects, their situation, their views and

opinions."   Id. at 4.   The committee reported on all aspects of

Gay Head and its citizens, including population, health, wealth,

religion, education, occupations, physical characteristics of

the land, and general well-being.

    With regard to the land, the committee reported that in

addition to the land held in severalty, "there is the large

tract of some nineteen hundred acres held in common.   This land

is uneven, rough and not remarkably fertile.    A good deal of it,

however, is, or might be made, reasonably productive with a

slight expenditure, and, doubtless, would be if the owners had

the means; but, deficient as they are in 'worldly gear,' it is,

perhaps, better that these lands should continue to lie in

common for the benefit of the whole community as pasturage and

berry lands, than to be divided up into small lots to lie



absolute and unqualified control of common lands occupied by
them."
                                                                    11


untilled and comparatively unused.    This, however, is a question

of 'property,' which every 'citizen' should have the privilege

of determining for himself, and the people of Gay Head have

certainly the right to claim, as among the first proofs of their

recognition to full citizenship, the disposition of their landed

property, in accordance with their own wishes.    Accordingly we

have inserted in the bill accompanying this Report, a section

making the same provision for a distribution of their lands as

was made last year for the other tribes."     Id. at 5.

    The committee unanimously recommended that Gay Head be made

a town of the Commonwealth.   In addition, the committee noted

that the deplorable condition of the road leading from Chilmark

across Gay Head "to the United States light-house [on the

eastern end of] Gay Head" greatly isolates the community and

also makes it difficult for visitors to Martha's Vineyard to

view the lighthouse.   Id. at 9.   The committee recommended that

the Commonwealth shoulder the financial burden of putting the

road "in good travelling order."     Id. at 10.

    Following receipt of the committee's report, the

Legislature enacted St. 1870, c. 213, which incorporated Gay

Head as a town and directed that "all common lands, common

funds, and all fishing and other rights held by the district of

Gay Head are hereby transferred to the town of Gay Head, and

shall be owned and enjoyed as like property and rights of other
                                                                   12


towns are owned and enjoyed."   St. 1870, c. 213, § 2.      It

further directed that the county commissioners shall "lay out

and construct a road from the line of Chilmark and Gay Head to

the light-house on Gay Head."   St. 1870, c. 213, § 5.      In

addition, the statute provided that upon application of the

board of selectmen or any ten citizens, a judge of the Probate

Court may partition the common lands of the town and divide or

sell the lands.   St. 1870, c. 213, § 6.   Notably, this

legislation did not purport to extinguish any tribal rights or

privileges enjoyed individually or severally by the Gay Head

Tribe.8

     In 1870, a group of more than ten citizens petitioned the

Probate Court to divide and set off the common land.       The

probate judge appointed Joseph L. Pease and Richard L. Pease as

commissioners (commissioners) to partition the property, and

specifically ordered them to "give to all parties interested due

notice of the times and places appointed . . . for making such

division, and establishing such boundaries and lines."       In their


     8
       It appears that it was not until 1987, when Congress
passed 25 U.S.C. § 1771, that aboriginal rights formally were
extinguished retroactive to the date of transfer by any member
of the Gay Head Tribe. See Building Inspector & Zoning Officer
of Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery Corp., 443
Mass. 1, 3 (2004). See also St. 1985, c. 277 ("An Act to
Implement the Settlement of Gay Head Indian Land Claims").
There is no support in the record for the claim by the
plaintiffs that the Legislature knew that all tribal and
aboriginal rights were extinguished prior to the partition.
                                                                  13


report to the Probate Court, the commissioners reported that

"the almost unanimous desire of the inhabitants" was "to leave

cranberry lands near the sea-shore and the clay in the cliffs

undivided," but to divide the rest of the common property.

     Under the direction of the commissioners, a plan of over

500 properties, the first 189 of which had been previously

divided as held severally by individual Gay Head Tribe members,

was created and approved by the Probate Court in 1878.     One road

is shown on the map running from Gay Head's southeastern border

with Chilmark between Menamsha Pond and Squibnocket Pond to the

northwest end of the peninsula where it meets the Vineyard Sound

(at the likely location of the lighthouse).   All of the

properties at issue lie to the south of this road.   Even a

cursory view of the grid-like plan created by the commissioners

reveals the landlocked nature of the vast majority of the lots,

other than those relatively few lots that abut the road.

     The parties agree that the partition deeds contained no

access easements.9   The parties further agree that some of the

partition deeds, however, did include a reservation over three

lots (382, 384, 393) "for the use of the proprietors in the

Herring Fishery, for the purpose of fishing and clearing the

creeks, a strip of land, one rod wide, on each side of the

     9
       Curiously absent from the record are the actual partition
deeds and any subsequent deeds from the original Gay Head Tribe
grantees.
                                                                    14


creek, so long as the said reservation may be needed for that

purpose."   Many others explicitly granted to certain

individuals, some identified and some not, the right to the peat

on various lots partitioned to others.10    In 1955, a taking was

made by the Commonwealth for the purpose of laying out the

Moshup Trail, which gave access to some of the lots now owned by

the defendants.    Another road, Zack's Cliffs Road, also now

exists and intersects with Moshup Trail.    The plaintiffs'

properties do not abut these ways.

     Discussion.   1.    The plaintiffs have not met their burden

to prove the existence of an intent to create easements at the

time of the partition.

     "A right of way of necessity over land of the grantor
     is implied by the law as a part of the grant when the
     granted premises are otherwise inaccessible, because
     that is presumed to be the intent of the parties. The
     way is created, not by the necessity of the grantee,
     but as a deduction as to the intention of the parties
     from the instrument of grant, the circumstances under
     which it was executed and all the material conditions
     known to the parties at the time. The rule has its
     basis in a construction of the deed with reference to
     all the facts within the knowledge of the parties
     respecting the subject of the grant, to the end that
     their assumed design may be carried into effect. It

     10
       So, for example, the description of lot 193 includes a
statement "[r]eserving however any right or rights to peat on
the premises that may justly belong to any person or persons, to
them, their heirs and assigns," and the description of lot 218
includes a statement of such rights “to William Jeffers, his
heirs and assigns." Similar language is found in descriptions
for lots 221, 225, 240-241, 244-246, 254, 277, 293-296, 298,
304, 306-308, 311, 321, 329, 334, 340, 351-356, 365-366 1/2,
369, 378, and 419.
                                                                    15


     is founded on the idea that it is the purpose of the
     parties that the conveyance shall be beneficial to the
     grantee."

Orpin v. Morrison, 230 Mass. 529, 533 (1918).

     It being "a pure presumption raised by the law," an intent

to grant or reserve an easement by necessity "ought to be and is

construed with strictness.    There is no reason in law or ethics

why parties may not convey land without direct means of access,

if they desire to do so."     Ibid.   "The burden of proving the

intent of the parties to create an easement that is unexpressed

in terms in a deed is upon the party asserting it, and, when the

evidence establishes the requisite intent, 'it is now settled

that the necessity of the easement for the enjoyment of the land

conveyed is not an absolute physical necessity, but no more than

a reasonable necessity.'"11    Oldfield v. Smith, 304 Mass. 590,

594 (1939), quoting from Mt. Holyoke Realty Corp. v. Holyoke

Realty Corp., 284 Mass. 100, 105 (1933).

     I disagree with a major premise of the arguments advanced

by the plaintiffs, namely, that only two factors were relevant

to the fact finder's determination:     (i) that the lots were,

before partition, held by a single grantor; and (ii) as a result

of the partition, the lots in question were landlocked.     As this

     11
       In Krinsky v. Hoffman, 326 Mass. 683, 688-689 (1951), the
Supreme Judicial Court noted some inconsistency in its cases as
to whether the necessity required is a "reasonable necessity" or
a "strict necessity." Here, nothing turns on the degree of
necessity required to imply an easement.
                                                                  16


court explained in Kitras I and in the cases cited above, far

more than these two basic factors go into the calculus when

determining probable intent as a foundation for a determination

of whether there exits an easement by necessity.    See Kitras I,

supra at 298-300.   Indeed, what was said in Kitras I bears

significantly on the decision in this case.   In Kitras I this

court noted that while an assumption of intent to create

easements "seemingly arises naturally from the necessity created

by dividing the common land," "necessity alone does not an

easement create," and "our charge . . . is not to look simply at

the necessity, but to consider all 'the circumstances under

which [the severance] was executed and all the material

conditions known to the parties at the time.'"     Id. at 298-299,

quoting from Orpin v. Morrison, 230 Mass. at 533.    See Richards

v. Attleborough Branch R.R. Co., 153 Mass. 120, 121-122 (1891)

(law does not prevent owner from cutting himself off from all

access to his land by conveyances if that is his intent);

Gorton-Pew Fisheries Co. v. Tolman, 210 Mass. 402, 411 (1912)

(it is not necessity that creates way, but intention of parties

as shown by their instruments and situation and circumstances

with reference to which those instruments were made); Perodeau

v. O'Connor, 336 Mass. 472, 474-475 (1957) (necessity merely one

element to determine intention); Harrington v. Lamarque, 42

Mass. App. Ct. 371, 375 (1997).   This court added that "in the
                                                                    17


unique circumstances of this case, the fact that certain lots

were landlocked as a result of partition does not persuade us as

being the definitive measure of intent."      Kitras I, supra at

299.   This court also reminded the parties that "it is the

proponents' burden to prove the existence of an implied

easement."   Id. at 300.

       Now, after all the evidence has been presented and the case

has been considered on the merits, I believe the judge ruled

correctly that the plaintiffs did not meet their burden of proof

as to whether there was an intent to create the claimed

easements by necessity, and any presumption to the contrary has

been successfully rebutted.     See Mass. G. Evid. 301(d) (2014).

This is not to say that the commissioners who partitioned the

property were unmindful of whether the citizens of Gay Head had

access to their lots.      Rather, the officials involved in the

design and implementation of the partition understood that the

members of the Gay Head Tribe enjoyed access rights under tribal

custom and practice.    Thus, the most reasonable view of the

state of mind of those involved in the partition is that there

simply was no need for easements.

       At the time the partition deeds were granted, the parties

were aware that Gay Head tribal custom was such that all Tribe

members enjoyed access over all Tribe properties whether owned

severally or in common.     The record contains no evidence that
                                                                   18


suggests that this practice was to end (or ended) upon partition

of the common property.   Indeed, there is evidence that Native

American custom and law superseded State law with respect to a

Tribe member's property rights in relation to other members of

the Tribe well after the partition occurred in the 1870's.      See

Cornwall v. Forger, 27 Mass. App. Ct. at 340-341.   That this

issue has arisen only some 135 years later, suggests that

following the partition, access rights to and over the land

continued to be exercised in accordance with tribal custom.

"The practical construction given the deed by the parties as

shown by their subsequent conduct may . . . be considered."

Murphy v. Donovan, 4 Mass. App. Ct. 519, 527 (1976).

      In addition, the record reflects that the partitioning of

the Gay Head Tribe's land was the result of a methodical process

that unfolded over most of the nineteenth century and was

presided over by commissioners who clearly were aware of how to

create an easement and who had input from the citizens of the

town of Gay Head.   As the judge concluded, the absence of access

easements in the face of other express easements, "negate[s] any

presumed intent of the grantors to create an easement by

necessity for any of Plaintiffs' lots."12   See Joyce v. Devaney,


     12
       Because I believe the judge was correct in his ultimate
conclusion that no easements by necessity existed due to lack of
any intent to create such easements, I do not think it is
necessary to address the plaintiffs' argument regarding the
                                                                  19


322 Mass. 544, 549 (1948) ("The creation of such express

easements in the deeds negatives, we think, any intention to

create easements by implication").     I note, as well, that

earlier partitions of other tribal lands on Martha's Vineyard

did create a roadway system, making the glaring absence of such

provisions here appear intentional.

     2.   Massachusetts law is consistent with the Restatement

(Third) of Property (Servitudes).     Section 2.15 of the

Restatement (Third) of Property (Servitudes) (2000)

(Restatement)13 provides that an easement or servitude not

expressly granted in a conveyance of land will be implied by

judicial action if it is determined that otherwise the grantee

will be deprived of rights necessary to reasonable enjoyment of

the land.   Comment a to § 2.15 of the Restatement informs us

that this principle embodies the common law.    Comment c to

§ 2.15, consistent with Massachusetts common law, informs us

that a servitude or easement will be implied only when "prior to

the conveyance, the property did enjoy such rights and that,



exclusion of certain materials allegedly demonstrating that lot
178 was part of the commonly owned land and thus ought to be
considered eligible for potential easements.
     13
        Section 2.15 of the Restatement reads as follows: "A
conveyance that would otherwise deprive the land conveyed to the
grantee, or land retained by the grantor, of rights necessary to
reasonable enjoyment of the land implies the creation of a
servitude granting or reserving such rights, unless the language
or circumstances of the conveyance clearly indicate that the
parties intended to deprive the property of those rights."
                                                                    20


absent the implied servitude, the conveyance would deprive it of

such rights."    In other words, under § 2.15 of the Restatement,

the necessity requirement for an implied easement must arise at

the same time as the conveyance.    See Restatement § 2.15 comment

c ("Servitudes by necessity arise only on severance of rights

held in a unity of ownership"); American Small Bus. Inv. Co. v.

Frenzal, 238 Va. 453, 456 (1989).    This court previously decided

that the requirement that the necessity must exist at the time

of the conveyance applies regardless of whether the grantor is a

government or private entity.    Kitras I, 64 Mass. App. Ct at 292

n.5.

       As discussed above, the members of the Gay Head Tribe had

no need for an access easement following the partition in the

1870's because they enjoyed a right of access to and over the

land in question as a result of tribal custom and practice.

This state of affairs thus precludes the plaintiffs from

establishing an essential element of the required proof, namely,

that the need for an easement existed at the time of the

original deed.   See Nichols v. Luce, 24 Pick. at 104 ("It is not

the necessity which creates the right of way, but the fair

construction of the acts of the parties"); Orpin v. Morrison,

230 Mass. at 534 (in upholding judge's decision that no easement

by necessity should be implied even though parcel lacked access

to any public or private road, court stated that "[t]here are
                                                                   21


circumstances in the case at bar which apart from the oral

testimony give color to the contention that the parties did not

intend a right of way by necessity"); Darman v. Dunderdale, 362

Mass. 633, 639-640 (1972) (eminent domain taking cutting off

access does not give rise to easement by necessity when

necessity did not exist at time of original conveyance); Swartz

v. Sinnot, 6 Mass. App. Ct. 838, 838-839 (1978) (no easement by

necessity where necessity arose later by virtue of railroad

cutting off access to public way; convenience alone does not

give rise to easement by necessity); New England Continental

Media, Inc. v. Milton, 32 Mass. App. Ct. 374, 378 (1992)

(subsequent eminent domain taking does not give rise to easement

by necessity).

    Conclusion.    That the access the original owners enjoyed

following partition does not continue today does not give rise

to an inference of necessity when the partition was made.    The

plaintiffs have framed their argument in part on the basis of

contemporary views about the utility and value of landlocked

parcels in proximity to the ocean on an island that has become

principally a recreational destination, rather than the

condition of the land in the nineteenth century at the time of

the partition when it was considered uneven, rough, and

infertile.   Necessity must be derived from the facts known by

the parties at the time of the partition "to the end that their
                                                                   22


assumed design may be carried into effect."    Kitras I, supra at

291 (quotation omitted).   See Mt. Holyoke Realty Corp. v.

Holyoke Realty Corp., 284 Mass. at 104 (existence of easement by

necessity must be determined "from the terms of the instrument

and from the circumstances existing and known to the parties at

the time the instrument of conveyance was delivered").    The

doctrine of easement by necessity does not spring forth from a

public policy against ownership of landlocked land.   See Kitras

I, supra at 298.   See also Yellowstone River, LLC v. Meriwether

Land Fund I, LLC, 362 Mont. 273, 291-293 (2011).   The doctrine

of easement by necessity was not recognized in order to

vindicate the interests of the grantees.   Instead, the doctrine

is designed "to effectuate the intent of the parties."    Ward v.

McGlory, 358 Mass. 322, 325 (1970).

    To allow contemporary circumstances to inform a

determination of the intent of the parties at the time of a

conveyance of land more than a century earlier contravenes the

overarching principle that "[t]he aim of all interpretation of

writings is to ascertain the meaning intended to be attached to

the words by the parties who used them, and to effectuate the

true purpose of the parties as thus ascertained.   All rules are

ancillary to that dominating aim."    Clark v. State St. Trust

Co., 270 Mass. 140, 151-152 (1930).   Indeed, the canonical

guides to construction of a written instrument are "[j]ustice,
                                                                  23


common sense and the probable intention of the parties."     Shane

v. Winter Hill Fed. Savs. & Loan Assn., 397 Mass. 479, 483

(1986), quoting from Stop & Shop, Inc. v. Ganem, 347 Mass. 697,

701 (1964).14

     For these reasons, I respectfully dissent.




     14
        There is no basis for reliance on comments b and e to
§ 2.15 of the Restatement. Comment b has no application to the
facts in this case because, as discussed in the text, the 1870's
partition did not deprive the grantees of access to the land
conveyed. Comment e also has no application to the facts in
this case because it merely recognizes that when parties to a
conveyance of land fail to consider access rights with the
result that the parcel conveyed is landlocked a rebuttable
presumption of an implied easement arises. There is evidence in
this case, discussed in the text, that the failure to include
access easements in most of the deeds was not the result of
mere oversight. Some of the partition deeds did include
easement rights. Moreover, even a cursory examination of the
grid-like plan prepared by the commissioners reveals that access
to the vast majority of lots that did not abut the road running
from Gay Head to the northwest end of the peninsula would be a
problem in the absence of an alternative arrangement, namely the
tribal custom and practice which allowed the Gay Head Tribe
grantees to pass over the land of other Gay Head Tribe members.
A broad reading of comment e as the expression of a public
policy that there is a presumption of an easement by necessity
merely on a showing that a conveyance of land does not include a
right of access, is contrary to settled Massachusetts law, which
insists that the party seeking judicial recognition of an
easement by necessity prove that it was the intention of the
parties. An expansive, public policy based approach to the
scope of the doctrine of easement by necessity under § 2.15 of
the Restatement has been criticized as unsound and an alteration
of the common law. See Hernandez, Restating Implied,
Prescriptive & Statutory Easements, 40 Real Prop., Prob. & Tr.
J. 75, 82 (2005).
