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

This action was filed by Plaintiffs in May 1997 seeking to determine their access rights in the portion of Aquinnah, Dukes County, known as the “Zack’s Cliffs” region. The question of access arose out of set-offs, completed in the middle to late nineteenth century, 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 parcels who claim rights of access, under various legal theories, over other of the set-off lots now owned by the 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, Betsy W. Wice, and the Town of Aquinnah have joined. The Commonwealth filed its own motion for summary judgment on Count II, while Plaintiffs and Defendants Gossamer Wing Realty Trust & Barons Land Trust filed written opposition thereto on March 21, 2011.

The Court has entered an order today entitled Order on Motion for Summary Judgment of Defendant Vineyard Conservation Society, Inc. On Count II of the Complaint. In that Order, after fully setting forth the reasons therefor, the Court GRANTED summary judgment in favor of the Defendants on Count II of the Third Amended Verified Complaint. The Court also dismissed Count III of the Third Amended Verified Complaint, finding and ruling that the issue raised in Count III, a claim for nuisance stemming from the construction of the Moshup Trail, is not within either the exclusive or concurrent jurisdiction of the Land Court as set forth in G. L. c. 185, § 1. In accordance with the above, it is

ORDERED and ADJUDGED, as set forth in the Judgment entered by this Court on August 12, 2010, 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. Mullen Civil Engineer,” are not benefitted by any easements by necessity for access over any of the lots owned by Defendants to this action; and it is further

ORDERED and ADJUDGED that summary judgment is hereby granted to the Defendants on Count II of the Third Amended Verified Complaint, Plaintiffs and Defendants Gossamer Wing Realty Trust and Barons Land Trust not having proven they have rights of access to and/or over Defendants’ property; and it is further

ORDERED and ADJUDGED that Count III of the Third Amended Verified Complaint is hereby dismissed without prejudice, the claim of nuisance raised therein not being within either the exclusive or concurrent jurisdiction of the Land Court.

By the Court. (Trombly, J.)

Attest:

Deborah J. Patterson

Recorder

Dated: April 4, 2011