Reply Brief of Appellants dated October 30, 2015
Brief for Amicus Curiae Michael Pill dated November 9, 2015
Brief for Amicus Curiae Wampanoag Tribe of Gay Head (Aquinnah) dated November 23, 2015 [for the first time in over 18 years, the Tribe now seeks to exert jurisdiction over non-tribal members, contrary to 25 USC § 1771e (a). Plaintiffs Maria A. Kitras and James J. Decoulos are a non-Wampanoag married couple and Mark Harding, Sheila Besse and Charles Harding are members of the Mashpee Wampanoag Tribe. See also Building Inspector and Zoning Officer of Aquinnah et al. v. Wampanoag Aquinnah Shellfish Hatchery Corporation et al., 443 Mass. 1 (2004) ]
PRIOR PUBLISHED DECISIONS AND LAND COURT RECORD
Kitras et al. v. Town of Aquinnah et al., 87 Mass. App. Ct. 10 (2015)
Kitras et al. v. Town of Aquinnah et al., 64 Mass. App. Ct. 285 (2005)
Initiation of Controversy and Land Court record (1996-2012)
TREATISES, LAW REVIEWS AND OPINIONS ON EASEMENTS BY NECESSITY
Restatement (Third) of Property (Servitudes) § 2.15 (2000) [full version - not excerpt provided in Land Bank and Town brief]
Utilitarian Approach to Easements by Necessity, 66 Md L Rev 1281 (2007)
Level of Necessity Required, 19 Am J Trial Advoc 475 (1996)
Rights of Way Across National Forests, 43 Opinion of US Attorney General 243 (1980)
Easements by Necessity over Federal Lands, 35 Wash L Rev & St BJ 105 (1960)
Easements by Necessity Against State, 49 Harv L Rev 1374 (1936)
Simonton, James W., Ways by Necessity, 25 Col L Rev 571 (1925)
Evidence Rebutting Ways of Necessity, 29 Yale LJ 654 (1920) [critical review of Orpin v. Morrison]
Easements by Necessity for Dummies
AFFECT OF EASEMENTS BY NECESSITY ON SURROUNDING TITLES AND TITLE INSURANCE COMPANIES
Easements by Necessity, Implication and Prescription, by Gerald Beatty, Chicago Title Insurance Company (1997)
Chicago Title Insurance test on easements in Massachusetts (2005) [see Question 9]
Title Insurance: A Comprehensive Overview, Third Edition, by James L. Gosdin, American Bar Association (2007) [standard ALTA residential title insurance policies insure access for vehicular and pedestrian use based upon a fundamental legal right]
Carstensen v. Chrisland Corp., 247 Va. 433, 442 (1994) [If the title insurance companies are worried about implied easements in the tiny community of Aquinnah, they can write exclusions in their policies. Virginia Supreme Court suggested that the exclusion of "easements not of record" excluded easements by necessity and adding that "this exclusion renforces the nature of the title insurance company's business, which is to provide insurance coverage for the validity of title to the extent diligent examination could or should have discovered defects at the the time of policy issuance. Title insurance indemnifies the policyholder for those discoverable, but undiscovered, defects in the title, not for every claim which ultimately might affect the title."]
Affidavit of Land Court examiner Philip J. Norton, Jr. dated October 28, 1998 regarding preservation of easements by necessity for land registration cases in Aquinnah [Exhibit 52 from the Land Court record]