Home MARIA A. KITRAS, as Trustee of BEAR REALTY TRUST, et al. v. TOWN OF AQUINNAH, et al.

MISC 238738

August 12, 2010

DUKES, ss.

Trombly, J.


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Plaintiffs filed this action in May 1997 seeking to determine their access rights in the portion of Aquinnah, Dukes County, sometimes referred to as the "Zack's Cliffs" region. The question of access arises from the set-offs, completed in 1871 and 1878, of separate lots of land for ownership by individual members of the Wampanoag tribe. Neither of the set-off reports created express provisions regarding access rights across or for the benefit of the various set-off lots. Plaintiffs are the successors in title to certain of the set-off lots who claim rights of access, under various legal theories, over other of the set-off lots now owned by Defendants.

By order dated June 4, 2001, this court (Green, J.) dismissed Plaintiffs' complaint for failure to join an indispensable party. This court (Lombardi, J.) later issued a judgment dismissing Plaintiffs' claims and Plaintiffs appealed from that judgment. The Appeals Court reversed the judgment and this action was returned to this court for further proceedings consistent with the Appeals Court opinion. See Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285 (2005). On August 14, 2006, this court (Lombardi, J.) issued an order bifurcating the case.

On March 29, 2007, this court (Lombardi, J.) granted Plaintiffs leave to amend their complaint. Plaintiffs Third Amended Verified Complaint contains two counts: one asserting an easement by necessity and one asserting an easement by prescription. The parties agreed to submit this action to the court on a case stated basis, without calling witnesses. The parties submitted proposed exhibit lists and this court ruled on three motions to strike, after which eighty-six exhibits were entered into evidence.

After careful consideration of all of the evidence, the court has issued a decision of today's date, ruling that there was no intent to create easements by necessity providing access to Plaintiffs' lots.

In accordance with that decision, it is hereby

ADJUDGED and DECLARED that lots 178, 711, 713, 232, 243, 238, 554, 555, 707, 710, and 302 as shown on a plan of land entitled "Plan of Gay Head Showing the Partition of the Common Lands As Made by Joseph T. Pease and Richard L. Pease, Commissioners Appointed by the Judge of Probate Under Section 6, Chapter 213 of the Acts of 1870 By John H. Mullin Civil Engineer," are not benefited by any easements by necessity for access over any of the lots owned by Defendants to this action.

By the Court (Trombly, J.)