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

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.

On August 12, 2010, this court ruled that Plaintiffs had failed to introduce evidence sufficient to carry their substantial burden of proving easements by necessity and finding for Defendants with respect to Count I of Plaintiffs' Third Amended Verified Complaint. On February 16, 2011, Defendant Vineyard Conservation Society, Inc. filed a motion for summary judgment on Count II of the Third Amended Verified Complaint, to which Defendants Joann Fruchtman, Jack Fruchtman, Jr., Martha's Vineyard Land Bank Commission, David H. Wice and Betsy W. Wice, and the Town of Aquinnah have joined. The Commonwealth of Massachusetts filed its own motion for summary judgment on Count II. Plaintiffs and Defendants Gossamer Wing Realty Trust & Barons Land Trust have opposed the motion for summary judgment, through a written opposition filed on March 21, 2011. [Note 1]

Count II of the Third Amended Verified Complaint seeks easements by prescription over Defendants' properties to gain access to Plaintiffs' lots and to install above and below ground utilities. [Note 2] A plaintiff seeking to establish an easement by prescription has the burden of proving that use of a defendant's property was open, notorious, adverse or hostile, and continuous and uninterrupted for a period of at least twenty years. Ryan v. Stavros, 348 Mass. 251 , 263 (1964); see also Tucker v. Poch, 321 Mass. 323 (1947). Where the land is large, unenclosed, and in its natural state, as it is in the instant case, the party claiming the easement faces an increased burden to show that the use was sufficiently notorious to permit an inference of knowledge and implied acquiescence on the part of the owner. See Gadreault v. Hillman, 317 Mass. 656 , 663 (1945). Further, the "extent of the easement arising by prescription, unlike an easement by grant, is fixed by the use through which it was created." Cumbie v. Goldsmith, 387 Mass. 409 , 411 n. 8 (1982).

Each plaintiff claiming a prescriptive easement is required to rely on personal use of the claimed easement, or use by predecessors-in-title. Plaintiffs may not rely on use by third parties with respect to any of the elements of proof. See Labounty v. Vickers, 352 Mass. 337 , 349-50 (1967). As a result, this court looks to each claim individually.

The Harding Plaintiffs

There is no evidence of any use of the claimed easement area by the Harding plaintiffs or their predecessors-in-title. In response to interrogatories propounded by Defendant Vineyard Conservation Society, Inc., the Harding plaintiffs did not provide any evidence of actual use of the claimed easement area. Given that the Hardings' lot does not abut the claimed easement area, it is likely that no actual use was ever taken by the Hardings or their predecessors. Accordingly, for substantially the reasons set forth in pages eight through thirteen of the Memorandum of Law in Support of Motion for Summary Judgment of Defendant Vineyard Conservation Society, Inc. on Count II of the Complaint, summary judgment hereby is GRANTED in favor of Defendants on Count II of the Third Amended Verified Complaint.

The Kitras/Decoulos Plaintiffs

Although there is some evidence of use of the claimed area by the Kitras/Decoulos Plaintiffs and their predecessors-in-title, that use is nonetheless insufficient to establish an easement by prescription. The use by the predecessors-in-title to the Kitras/Decoulos plaintiffs was use of the claimed area to reach the ocean and is insufficient to establish an easement for access to the Kitras/Decoulos lots. See Cumbie, 387 Mass. at 411 n. 8 (1982). Additionally, while Mr. Kitras did traverse the claimed area at least once, that use occurred in 2008--some eleven years after the commencement of this litigation. Consequently, the Kitras/Decoulos plaintiffs are unable to establish the elements of an easement by prescription. Accordingly, for substantially the reasons set forth in pages eight through thirteen of the Memorandum of Law in Support of Motion for Summary Judgment of Defendant Vineyard Conservation Society, Inc. on Count II of the Complaint, summary judgment hereby is GRANTED in favor of Defendants on Count II of the Third Amended Verified Complaint.

Count III of the Third Amended Verified Complaint

The Third Amended Verified Complaint also contains Count III, which is a claim for nuisance stemming from the construction of the Moshup Trail. Although this count is not addressed by the motion for summary judgment, this court raises it sua sponte to address the issue of this court's jurisdiction. A claim for nuisance sounds in tort and is not included within either the exclusive or concurrent jurisdiction of this court as articulated by G. L. c. 185, § 1. Accordingly, Count III of the third Amended Verified Complaint hereby is DISMISSED, without prejudice.

So Ordered.

By the Court. (Trombly, J.)

Attest:

Deborah J. Patterson

Recorder

Dated: April 4, 2011