COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

No. 2004-P-472.

Dukes County Division.

Maria A. Kitras, as Trustee of Bear Realty Trust, Bear II Realty Trust and Gorda Realty Trust, James J. Decoulos, as Trustee of Bear II Realty Trust and Gorda Realty Trust, Victoria Brown and Gardner Brown, Mark D. Harding and Eleanor P. Harding, as Trustee of the Eleanor P. Harding Trust, Plaintiffs-Appellants,

v.

Town of Aquinnah et al., Defendants-Appellees,

and

Benjamin L. Hall, Jr., as Trustee of Gossamer Wing Realty Trust, Defendant-Appellee and Cross-Appellant.

ON APPEAL FROM A JUDGMENT OF THE LAND COURT DEPARTMENT.

Brief for the Defendant-Appellee and Cross- Appellant Benjamin L. Hall, Jr., as Trustee of Gossamer Wing Realty Trust.

i.

TABLE OF CONTENTS

Statement of the Issues Presented for Review.............................................................................1

Statement of the Case........................................................................................................................4

Statement of the Facts..................................................................................................................28

Argument

1. Judge Green Erred As A Matter of Law In Dismissing Kitras' Complaint...........................28

2. Judge Lombardi Erred As A Matter of Law Or Abused His Discretion In Denying The Post-Dismissal Motions of GWRT and Baron.....................................................................................44

Conclusion......................................................................................................................................50

Statutory and Rule Addendum.................................. Post

ii.

TABLE OF AUTHORITIES .

Cases.

Abington Ltd. Partnership v. Heublein , 717 A.2d 1232, 1239-1240 & n. 23(Conn. 1998)..............................................................................................................................................36

Bay Colony Constr. Co. v. Norwell , 5 Mass. App. Ct. 801, 801(1977).....................................42

Black v. Cape Cod Company , Land Court No. 69813 (July 14,1975)..................34-35;36;38;39

Boudreau v. Coleman , 29 Mass. App. Ct. 621, 634 (1990).................................................36-37

Building Inspector of Mansfield v. Curvin, 22 Mass. App. Ct. 401, 402(1986)..................36-37

Burgh v. Hines , 44 Mass. App. Ct. 590, 592(1998)...................................................................35

Canali v. Satre , 688 N.E.2d 351,354(Ill. App. 1997).................................................................41

Cohen v. Murphy , 368 Mass. 144, 147(1975)............................................................................28

Commonwealth v. One 1987 Mercury Cougar Auto. , 413 Mass. 534, 536(1992)...................28

Cosby v. Department of Social Services , 32 Mass. App. Ct. 392(1992)...................................49

Davis v. Sykes , 254 Mass. 540, 546 (1926)...........................................................................34;44

Dolan v. Board of Appeals of Chatham , 359 Mass. 699(1971)................................................36

J.P. Eustis Manufacturing v. Saco Brick Co. , 198 Mass. 212, 220(1908)...............................42

Krokyn v. Krokyn , 378 Mass. 206, 208(1979)...........................................................................28

Massachusetts Federation of Teachers, AFT, AFL-CIO. v. School Committee of Chelsea , 409 Mass. 203, 204-207(1991)...........................................................................................................49

Mayflower Development Corp. v. Dennis, 11 Mass. App. Ct. 630,635-638(1981)....................49

M.P.M. Builders, LLC v. Dwyer , 442 Mass. 87, 89(2004)...................................................28;44

Patel v. Planning Board of North Andover, 27 Mass. App. Ct. 477, 481(1989)......................36

Route One Liquors, Inc. v. Secretary of Admin. & Fin. , 439 Mass. 111, 115(2003)......................................................................................................................................28

Sheftel v. Lebel , 44 Mass. App. Ct. 175, 179(1998)..................................................................35

Simon v. Weymouth Agricultural & Industrial Soc. , 389 Mass. 146, 148-149(1983)............28

United States v. 176.10 Acres of Land, 558 F. Supp. 1379(D. Mass. 1983)..............................41

Other Authorities.

J.W. Bruce & J.W. Ely, Jr., The Law of Easements and Licenses in Land (West 2001)...................................................................................................................................35;38;41

Restatement of Judgments(Second) (1979).................................................................................48

Restatement (Third) of the Law of Property (Servitudes) (2001)....................................35;38;41

St. 1870, c. 213, Sections 5 & 6..............................................................................................32-33

25 U.S.C. Section 1771 et seq. ......................................................................................................6

Mass. R. Civ. P. 19(b)..................................................................................................................20

Mass. R. Civ. P. 24(a)..................................................................................................................49

Mass. R. Civ. P. 54(b)........................................................................................................23;25;26

Mass. R. Civ. P. 60.......................................................................................................................61

Statement of the Issues Presented For Review.

1. Whether Judge Green erred in ruling that the Commonwealth's set off of common lands in Gay Head in 1871 and 1878 were disconnected, separate acts for the purpose of determining the creation of easements by necessity for access to these set-off lots, rejecting the claim of the plaintiffs and GWRT that instead these set offs by the Commonwealth during this time were the same parts of a unified, common scheme which contemplated a coordinated series of easements by necessity which would allow reasonable access to each and every one of these set-off lots regardless of when they were created?

2. Whether Judge Green erred in confusing ease-ments by necessity with easements by implication in assessing the nature of the plaintiffs' rights as well as the rights of Gossamer Wing Realty Trust(“GWRT”) as asserted in its counterclaims and cross claims?

3. Whether the Land Court Judge erred in ruling that the easements by necessity claimed by the plaintiffs and by GWRT could only run directly north to State Road thereby implicating lands held by the United States in trust for the Wampanoag Tribe and that the United States was thus an indispensable party in whose absence the plaintiff's amended complaint should be dismissed?

4. Whether Judge Green erred by ignoring the fact that GWRT had reserved for itself express appurtenant easements of access for its lots 707 and 710 over lands acquired by the United States and now held in trust for the Wampanoag Tribe of Aquinnah?

5. Whether Judge Green erred in refusing to rule that the easements by necessity claimed by the plaintiffs and by GWRT were ones which could not be extinguished by the passage of time and that, like any other appurtenant easement intended for the enjoyment of a landlocked dom-inant estate, the easement encompassed the right to in-stall utilities along its course so that the set-off lots could be used as a residence?

6. Whether the Land Court Judge erred in refusing to acknowledge on this record that GWRT's lot 302 has an easement right, either express or by necessity, for ac-cess to Moshup Trail and then to State Road, an easement right which has nothing to do with the lands acquired by the United States by eminent domain and held in trust for the Wampanoag Tribe of Aquinnah?

7. Whether Judge Lombardi of the Land Court Depart-ment, after acknowledging that GWRT should have been a defendant in this action instead of a plaintiff as Judge Green had determined, erred in then failing to recognize the easement rights by necessity of GWRT's lots, espec-ially lot 302, in the wake of the dismissal of the plain-tiffs' complaint and in failing to give GWRT the oppor-tunity to file for the first time an amended answer to the Kitras' amended complaint, one which inter alia would have named the Wampanoag Tribe of Aquinnah as a defendant in its counterclaims?

8. Whether Judge Lombardi erred as a matter of law or abused his discretion in refusing to allow a motion by GWRT and Baron Land Realty Trust (“Baron”) to have Baron intervene and answer late Kitras' amended complaint concerning lots 177 and 242, the so-called Howwasswee parcels, and then sever these claims for resolution?

Statement of the Case.

In a verified complaint of May 20, 1997, the plain-tiffs-appellants Maria A. Kitras, as Trustee of Bear Realty Trust, Bear II Realty Trust and Gorda Realty Trust, together with James J. Decoulos, as Trustee of Bear II Realty Trust and Gorda Realty Trust, and other owners of certain landlocked parcels of land in Gay Head, Massachusetts(“Kitras”), brought this civil action in the Dukes County Division of the Land Court Department against the defendants-appellees Town of Gay Head, the Vineyard Conservation Society, Inc.(“VCS”), and others including the defendant-appellee and cross-appellant Ben-jamin L. Hall, Jr., as Trustee of Gossamer Wing Realty Trust(“GWRT”), seeking to establish access to their lots (A.1-12;25-38).

Kitras alleged that when the Massachusetts Legis-lature made Gay Head a body politic in 1862 and there-after recognized all Indians living there as citizens of the Commonwealth, it commissioned the partitioning into separate lots of the common lands formerly held for the benefit of all the Indians residing there(A.27). These partitioned lots each became the property of the Indian living on that particular parcel(A.27). The division of these common lands of Gay Head took place from 1870 through 1879 and each of these lots created during this time is the subject matter of this suit(A.27).

However, when these lots were divided by the Common-wealth's Commissioners between 1870 and 1878, Old South Road was the only public way in the Town of Gay Head; and each of the parcels involved in this suit lies to the south of Old South Road(A.27-28;36-37). Kitras alleged that after the partition of lots in Gay Head in 1870-1878, “[s]everal ways extended south of Old South Road and were used by the public to access the southern portions of Gay Head” because they were the only means of accessing the landlocked parcels in this area(A.28). The most heavily traveled of these ways was known as Zack's Cliffs Road and it “was the primary means of accessing the Zack's Cliffs region of Gay Head,” the most southerly part of Gay Head(A.28;36).

In addition, a way known as Moshup Trail in the Town of Gay Head was opened for use by the public on or about 1964(A.28;37). It now services among other areas the southern portion of Gay Head(A.28;37-38). Prior to the opening of Moshup Trail, the only means of access to the southern part of Gay Head was through Zack's Cliffs Road or other connecting ways(A.28-29). Kitras own the lots numbered 178, 711 and 713 as shown on the plan attached to their complaint, each one located between the so-called Moshup Trail and Old South Road in Gay Head; and none of these lots abuts any portion of either of these ways and each is therefore landlocked(A.27-28;36-37). However, Zack's Cliffs Road runs through a portion of Kitras' lots and “still constitute[s] the sole means of access [Kitras] have to their property”(A.29;37).

Finally, Kitras alleged that in 1987, the United States recognized the Wampanoag Tribe of Aquinnah as a Native American Tribe and pursuant to 25 U.S.C. Section 1771, took by eminent domain three lots in Gay Head and purchased many others there to be held in trust for the benefit of the Tribe, an area represented by the darkened portion of the map attached to their complaint(A.29;36). Kitras further alleged that pursuant to 25 U.S.C. Section 1771d(e)(2), all adverse interests in those 450 acres, including any easements of record or implied, were con-demned and now prevent Kitras from accessing their properties from the north(A.29).

Upon these allegations, Kitras claimed in the first count of their complaint that when the Commonwealth's Commissioners divided and conveyed the common lands of Gay Head to individual Indians in the 1870's, they knew about these ancient and historic ways such as Zack's Cliffs Road and that these ways were necessary in order to access otherwise landlocked parcels of land in the southerly portion of Gay Head(A.29-30). In addition, these same Commissioners knew that the residents of Gay Head traveled over the lands of others in order to access their otherwise landlocked parcels of land; and they intended that these ancient and historic ways would continue to serve as access to these parcels(A.30).

Kitras therefore sought a declaration in the first count of their complaint that they have the benefit of certain easements by necessity or by implication over the land of the defendants, other landowners in Gay Head, “including the right to travel over said land by vehicle or other means and to install and maintain above and below ground public utility systems thereon as are commonly used in the Town of Gay Head”(A.30). In three subsequent counts, Kitras founded their claims of access to their respective landlocked parcels upon the theory of an easement by prescription over Zack's Cliffs Road in this part of Gay Head(A.30-33;37).

A number of responsive pleadings followed including GWRT's amended answer, counterclaims and cross claims, filed on June 22, 1998(A.12-13;67-68;144-150). GWRT, the owner of landlocked parcels (lots num. 707, 710 and 302) in Gay Head, admitted in its answer most of the material allegations of Kitras' complaint and, in Count One of its counterclaims against Kitras as well as its cross claims against the other defendants, sought a judgment declaring an easement by necessity or implication from its lots across the lands of Kitras and the other defendants “in-cluding the right to travel over said land by vehicle or other means and to install and maintain above and below ground public utility systems thereon as are commonly used in the Town of Gay Head”(A.145-146).

In support of this relief, GWRT, like Kitras, claimed that when the Commonwealth's Commissioners di-vided up and conveyed the common lands of Gay Head to individual Indians in the 1870's, they knew about these ancient and historic ways such as Zack's Cliffs Road and that these ways were necessary in order to access other-wise landlocked parcels of land in the southerly portion of Gay Head; that the residents of Gay Head routinely traveled over the lands of others in order to access their otherwise landlocked parcels; and that the Commis-sioners intended that these ancient and historic ways would continue to serve as access to these parcels (A.145;613;651).

In Count Two of its counterclaims and cross claims, GWRT sought a judgment in its favor establishing an ease-ment by prescription along a pathway from its lot 710 southwesterly over lots 709, 708, 548, 543 and 544 where a driveway now provides egress to Moshup Trail(A.37;146-147;651). GWRT alleged that it had used this access to its lot openly, notoriously and adversely to these lot owners for a period of more than twenty years(A.146).

GWRT alleged in Count Three that its adverse use of this driveway described in Count Two for access to its lot 710 created a private way by prescription over the defendants' property for its benefit(A.147-148). GWRT therefore sought a judgment declaring that a private way by prescription exists for its benefit over this driveway to travel over by vehicle or other means, to improve this way for travel by vehicles and to install utilities above and below ground(A.147-148).

On November 30, 1998, Kitras amended their verified complaint to rename two of the defendants (not GWRT) as plaintiffs, to update the trustee status of some of the plaintiffs in the named realty trusts and to add parties-defendants as landowners in Gay Head, including the sub-stitution of the Town of Aquinnah(“Aquinnah”) for the Town of Gay Head(A.156-172;182-183;245-246;755). Kitras also added as a defendant the United States of America as Trustee for the Wampanoag Tribe of Aquinnah(“the United States”)(A.156-172). Subsequently, Kitras waived without prejudice their right to relief under any of the counts of their amended complaint except the first count which sought relief on the basis of claimed easements to their lots by necessity or by implication(A.603-604;721).

On January 19, 1999, without having served or other-wise given notice to GWRT, the United States removed the case to the United States District Court for the District of Massachusetts where it immediately moved to dismiss the action on the grounds of sovereign immunity(A.192; 202-205;208). The United States District Judge (Stearns, J.) then dismissed Kitras' claims against the United States and remanded the matter to the Land Court Depart-ment(A.214-215).

Following responsive pleadings by some of the defen-dants to Kitras' amended verified complaint, the Land Court ruled that the so-called Noman's Watch Lane defen-dants could be dismissed as it did not appear that their interests would be affected by a determination of Kitras' rights(A.225). It also determined that the lots owned by Stutz, Craig, Greenburg, Evans and Seeman were ancillary to Kitras' claims and these defendants could also be dismissed(A.596 & n. 4).

On October 6, 2000, VCS and other defendants moved for summary judgment in their favor or to dismiss Kitras' complaint(A.255-317;318-323;482-590). The gist of their motion was that Kitras could not meet their burden of proving an easement by necessity over the defendants' land; that even if such an easement exists, it was ex-tinguished by the United States' eminent domain proceeding; and that even if these easement rights were not extinguished, Kitras could not proceed in the absence of an indispensable party, the United States(A.255-256).

In response, Kitras filed a cross motion for summary judgment in their favor(A.330-478). They supported with documentation their allegations that the Commonwealth's Commissioners when dividing up and conveying the common lands of Gay Head to individual Indians in the 1870's, knew about these ancient and historic ways such as Zack's Cliffs Road and that these ways were necessary in order to access otherwise landlocked parcels of land in the southerly portion of Gay Head(A.332-337). These same Commissioners also knew that the residents of Gay Head traveled over the lands of others in order to access their otherwise landlocked parcels of land; and the Commissioners intended that these ancient and historic ways would continue to serve as access to these parcels (A.332-337).

Moreover, Kitras' documentary presentation in sup-port of their cross motion for summary judgment buttres-sed the claim in their complaint that the Commissioners' actions in setting off these lots in two stages (in 1871 and 1878) were not separate, disconnected events for purposes of defining the easement rights created thereby but rather constituted one common, unified scheme by the same Commissioners(Richard L. Pease and Joseph L. Pease), authorized by the same act of the Commonwealth's Legisla-ture (St. 1870, c. 213, Section 6), and was pursued with the same obvious legislative purpose, i.e, to partition the common lands of Gay Head in such a manner that those living on these partitioned lots after its accomplishment would own habitable and accessible parcels(A.332-337;351-380). In furtherance of this purpose, the Legislature in the same enactment (St. 1870, c. 213, Section 5) also di-rected the Dukes County Commissioners to build a road from Chilmark to the Gay Head lighthouse, the so-called State Road, running generally in an east-west direction north of Kitras' lots(A.333-334;378;601).

Kitras' summary judgment materials also showed that despite the existence of State Road running from Chilmark to the Gay Head lighthouse, there developed on the ground over time “a network of roads and paths leading from State Road through the area” of the set-off lots to the south, one of which was Zack's Cliffs Road which tra-versed Kitras' lots(A.334;410-415;601). By 1955, the County Commissioners realized the need for more formal access to these set-off lots and declared that a new road called “the Moshope Trail” was to be laid out around Gay Head in response to the “public necessity or common con-venience or necessity ...”(A.335;416-430).

Kitras' materials also made reference to an express grant of easements between GWRT and Moshup Trail Limited Partnership in 1987, easements which gave only these two parties the right to pass over 36 separate set-off lots (most of which Moshup Trail LP owned) in order to access their respective parcels(A.335-336;441-463).

With the parties' submissions in this posture and after hearing oral argument, the Land Court Department, Green, J., issued its Decision on these cross motions for summary judgment and motion to dismiss on June 4, 2001 (A.19;595-613). The motion judge first denominated GWRT as a plaintiff in this action even though it was a named defendant in Kitras' original and amended verified com-plaints(A.598). He also referenced the exchange of ex-press easements between GWRT and Moshup Trail LP in 1987 and 1988(A.602). In those conveyances, GWRT gave Moshup Trail LP express easements over eight (8) of GWRT's lots, some of which led to State Road, for the benefit of some of Moshup Trail LP's lots (two of which Kitras now owns) (A.602-603;613;651). In return, Moshup Trail LP granted GWRT easements over thirty five (35) lots it then owned in Aquinnah for the benefit of GWRT's lots 302, 707 and 710(A.602;613;651).

Most of these easements given GWRT by Moshup Trail LP lead to State Road or Moshup Trail(A.602;613;651). However, as Judge Green found, “[c]ombined,...,the [GWRT] easement...and the Moshup Trail LP easement do not extend from [Kitras'] property to State Road, as other land not owned by any party to either easement intervenes between State Road and the lots benefitted by the easements [i.e., set-off lots 88 and 244 together with an unnumber-ed tract of land described on the sketch plan as owned by “Tacknash R.T.”](A.602-603;613;651). Moreover, it was found that both easements “do not appear to coincide with the historic traveled way of Zack's Cliffs Road” (A.603)(emphasis supplied).

After reciting the history of the setting off of the common lands of Gay Head in 1871 and 1878 under the direction of the Legislature and the laying out of State Road from Chilmark to the Gay Head lighthouse by the County Commissioners in 1870, Judge Green found from the summary judgment materials that at the time of the creation of these set-off lots in the 1870's, there were no other public roads besides State Road in the vicinity of the set-off lots(A.601).

In addition, even though the Land Court elsewhere in its Decision had described Zack's Cliffs Road as an “ historic traveled way” leading to the southerly part of Gay Head(A.603), it found that it was not until 1939 that this unpaved way leading from State Road to and across the Kitras lots to the south had developed on the ground and that the summary judgment record “does not reveal when Zack's Cliffs Road first came into use, if at any time before 1939 " (A.601). In addition, it found that Moshup Trail was laid out in 1954 by the County Commissioners and from its intersection with State Road east of Kitras' lots, it branches to the south and passes in a generally east-west direction south of Kitras' lots (A.37;170;601-602;651).

In 1988, the United States as trustee for the Wampa-noag Tribe of Aquinnah purchased from Moshup Trail LP eighteen (18) of its lots by deeds which took title sub-ject to the GWRT easements of record(A.603). In 1989, the United States as trustee took by eminent domain three other lots (lots 78,79 and 87) owned by Moshup Trail LP (A.603). As Judge Green found, Zack's Cliffs Road tra-verses lot 87, one of the lots taken by eminent domain by the United States, as well as lot 319, acquired by deed by the United States from Moshup Trail LP(A.170;603;613; 651).

With these facts as a backdrop, the Land Court Judge first determined that for purposes of determining Kitras' right to easements by necessity for access to their land-locked lots, the Commissioner's set off of common lands in Gay Head in 1871 should be viewed as distinct and unconnected from the Commissioners' subsequent set off of lots from the remaining common lands in 1878(A.604-605; 609). That is, the lower court found that the Commis-sioner's initial 1871 set off of common lands involved lots numbered 1-173 and since State Road was then the only public way providing access to these lots, this 1871 set off “did not sever the set-off lots from access to the public way, since the owners of such lots held rights in the common lands”(A.604-605).

However, it reasoned that by further partitioning the common lands and assigning the resulting set-off lots (numbered 174 and higher) to individual owners in 1878, the Commissioners severed from the public way: (1) each of the formerly set-off lots (nos. 1-173) determined under the 1871 report which did not have frontage on the public way; and (2) each of the set-off lots (nos. 174 and higher) partitioned under the 1878 report which did not have frontage on the public way, with Kitras' lot falling into this latter group of lots(A.605).

The result was that even though the record esta-blishes that landowners in the area such as Kitras may have adopted Zack's Cliffs Road, a way traversing Kitras' lots, as a means of access from State Road to their landlocked parcels, it could not serve as the location of an easement by necessity sought by Kitras since

Zack's Cliffs Road traverses, among other land, lots 87 and 88. Because set-off lots 87 and 88 were among the lots determined in severalty under the commissioner's 1871 report, they were not part of the common lands at the time the commissioners' 1878 report severed [Kitras'] lots from their access to State Road. Accordly, a way by necessity arising from the commissioners' 1878 report cannot be imposed on lot 87 or 88. In other words, to the extent Zack's Cliffs Road might serve to locate a way by necessity resulting from the partition under the commissioners' 1878 report, it may do so only over the lots it traverses which were partitioned into separate ownership under the commissioners' 1878 report, and not over the lots determined in severalty under the commissioner's 1871 report.

(A.609-610)(emphasis supplied)(footnotes omitted).

In addition, Judge Green ruled that even if an ease-ment arose by necessity in 1878 as a result of the Com-missioners' partitioning of the several lots in Gay Head, such an easement did not include the right to install utilities in the way(A.608 n.23).

Regardless of his difficulty in locating an easement by necessity for the benefit of Kitras' lots on this record, the Land Court Judge ruled that because any such easement must extend northerly from Kitras' lots to State Road and in no other direction(A.609), Kitras' claim of an easement by necessity necessarily implicates the land currently held by the United States in trust for the Wam-panoag Tribe of Aquinnah(A.611). Since any easement by necessity arising from the Commissioners' 1878 report was located by common use across a number of lots now held by the United States, the lower court ruled that without the United States as a party, there was “a substantial like-lihood of prejudice to the remaining defendants, who face the threat that an easement by necessity might now be located over their property simply because the easement cannot be placed on the land of the United States” (A.611).

Accordingly, because the present action by Kitras could not be resolved in the absence of the United States without substantial and unavoidable prejudice to the remaining parties, the lower court concluded that Count One of Kitras' amended verified complaint must be dismis-sed pursuant to Mass. R. Civ. P. 19(b)(A.611-612).

Judge Green therefore allowed the defendants' motion to dismiss Count One of Kitras' amended verified com-plaint and denied the parties' cross motions for summary judgment(A.612). GWRT's prescriptive claims over the lands of certain defendants contained in its counter-claims and cross claims remained for determination (A.612).

In the wake of this ruling, notices of appeal were filed by Kitras and GWRT(A.19-20). Kitras moved to amend their complaint to add the Wampanoag Tribe of Aquinnah and GWRT moved pursuant to Mass. R. Civ. P. 60(a)or (b), to correct, amend or modify Judge Green's Decision (A.20; 620-621). GWRT asserted that it was not a party-plaintiff as described in the Decision; that the Land Court Judge misstated the law of easements by necessity; and that without reason he determined that any easement by neces-sity must inevitably run directly north to a “block” of land held by the United States over whom the court had no jurisdiction(A.620-621). GWRT sought an order amending Judge Green's Decision to reinstate GWRT as a defendant instead of a plaintiff; to apply the correct law of easements by necessity; and to eliminate from the Decision the determination that any such easement by necessity must inevitably run directly north to State Road(A.621).

In a memorandum, GWRT expanded on these arguments by contending that its ownership of lot 302, a parcel lying east of the land held by the United States in trust for the Wampanoag Tribe of Aquinnah, does not depend for its access upon an easement running over the land held by the United States and should not be unfairly implicated by the Decision(A.695;700;704). GWRT also argued that it and Kitras should have been given the benefit of express easement rights to State Road over a portion of the lands now held by the United States in trust for the Wampanoag Tribe of Aquinnah which were not taken by eminent domain; and that the United States should have been given the right to locate this undefined easement right on these tribal lands or, failing that, GWRT and Kitras could have fixed the location of the easement themselves(A.702-704).

Finally, GWRT contended that a correct application of the law of easement by necessity on this record would have required the motion judge to find a reasonable spot along Moshup Trail and then to State Road for access to each of Kitras' and GWRT's parcels(A.707). Alternatively, the lower court could have justifiably found an easement by necessity running northeasterly over land of the parties already joined in this action and before the court to a point near the intersection of State Road and Moshup Trail(A.707-708).

On September 17, 2002, the Land Court Department, Lombardi, J., allowed GWRT's request to be redesignated as a party defendant in this action(A.712). It denied the rest of GWRT's Rule 60(b) motion(A.712). The lower court also denied Kitras' motion to amend their verified com-plaint to name the Wampanoag Tribe of Aquinnah as a party-defendant in this action(A.712-717).

On May 6, 2003, Kitras moved for the entry of final judgment under Mass. R. Civ. P. 54(b)(A.21;718-720). GWRT opposed the motion and filed a combined motion to clari-fy, correct, amend or modify Judge Lombardi's prior order of September, 2002(A.21;722-733). The thrust of GWRT's motion, joined in by Kitras, was that contrary to Judge Lombardi's earlier ruling, the Land Court Department had jurisdiction over the Wampanoag Tribe of Aquinnah and adding it as a defendant would not be futile and could resolve the location of the express easements or the easements by necessity traversing the tribal lands not taken by eminent domain by the United States(A.723-725).

In addition, GWRT argued that the result of Judge Green's Decision which treated it as a plaintiff and Judge Lombardi's ruling reinstating it as a defendant, has left unresolved the status of GWRT's lots nos. 707, 710 and 302(A.726). Since GWRT is the beneficiary of ex-press easements from Moshup Trail LP for travel over tribal lands not taken by eminent domain by the United States, GWRT stood in a different position than all the other parties; and the location of that easement needed only to be located on the ground and connected to either State Road or Moshup Trail(A.726). Moreover, GWRT's lot 302 did not implicate any land held by the United States in trust for the Wampanoag Tribe, taken by eminent domain or otherwise; and GWRT's status as a defendant in this action should mean that Judge Green's Decision dismissing Kitras' complaint has no effect whatsoever on the place-ment of an easement by necessity benefitting lot 302 or, for that matter, GWRT's other lots, nos. 710 and 707 (A.726-727). To the extent that this result was not made clear by Judge Lombardi in his prior ruling reinstating GWRT as a defendant in this action, GWRT asked that it be done so(A.726-727).

Finally, GWRT asserted that it now owns lots 177 and 242, lots alleged to be owned by the heirs of one Esther Howwasswee who have never appeared in this action; and it wishes to intervene in substitution for Howwasswee's heirs in this matter(A.651;727;730). GWRT therefore sought leave to file for the first time a responsive pleading in the form of an amended answer, counterclaims and cross claims to Kitras' amended complaint in order to preserve all of these claims for purposes of this action and any eventual appeal(A.727-731).

In a Decision dated August 21, 2003, Judge Lombardi denied the motion to add the Tribe as a defendant; denied GWRT's motion to clarify or for leave to file an amended answer, counterclaims and cross claims; and allowed Kitras' request for certification of their appeal under Rule 54(b)(A.22;755- 763). According to the Land Court Judge, his ruling allowing Kitras' appeal under Rule 54(b), left for resolution at trial only the outstanding claims of GWRT on its second and third counterclaims and cross claims which assert two theories of prescription over a nearby driveway, claims which did not detract from Kitras' claims for the present entry of judgment(A.760). A judgment pursuant to Rule 54(b) thereupon entered (A.22;762-763).

Notices of appeal by all parties followed and on November 5, 2003, GWRT moved to sever its lot 302 and the former Howwasswee lot 242 from the entry of separate judgment under Rule 54(b)(A.776-777). Specifically, it sought to: (1) modify the prior orders and decisions in this case to make clear that whether lot 302 had the benefit of an easement by prescription or by implication remains an unresolved fact issue to be tried along with GWRT's other claims of prescriptive rights contained in its counterclaims and cross claims; and (2) allow GWRT to intervene or be substituted on lot 242 in place of the heirs of Esther Howwasswee who were incorrectly de-scribed in this case as owners of this lot(A.776-777).

As GWRT argued, lot 302 is factually distinguishable from those lots which were the subject of the dismissal; and lot 302 has an easement by necessity to State Road, Old South Road or Moshup Trail(A.785-788). As for lot 242,the new claims regarding access asserted by GWRT have never been addressed by the Court, were not subject to the original motions for summary judgment or for dismis-sal and no form of judgment has ever been rendered against lot 242(A.791-792).

An entity known as Baron's Land Trust (“Baron”), the asserted owner of lot 177, the other lot incorrectly at-tributed to the heirs of Esther Howwasswee, also sought to intervene and be substituted for Howwasswee's heirs in this action(A.778-783). It also moved to sever its claims concerning access to lot 177 from the rest of this action and requested leave to file an answer on its behalf to Kitras' amended verified complaint(A.779-783). As it contended, the new claims regarding lot 177 asserted by Baron have not been addressed by the Court, were not subject to the original motions for summary judgment or for dismissal and no form of judgment has ever been rendered upon lot 177(A.782-783).

On December 22, 2003, Judge Lombardi denied these motions(A.23;817-821). GWRT and Baron then noticed their appeal from these rulings(A.23;822-823).

Statement of the Facts.

GWRT hereby adopts the Statement of Facts recited at pages 6 through 13 of Kitras' Brief as the Plaintiffs-Appellants.

Argument.

1. Judge Green Erred As A Matter of Law In Dismissing Kitras ' Complaint.

Where the evidence presented by the parties below incident to their cross motions for summary judgment and the motion to dismiss is reduced to an agreed statement of facts and exhibits, this Court possesses the power to review and decide every question of law, fact and discre-tion. Krokyn v. Krokyn , 378 Mass. 206, 208(1979) citing Cohen v. Murphy , 368 Mass. 144, 147(1975). Building In-spector of Mansfield v. Curvin , 22 Mass. App. Ct. 401, 402(1986). This Court will reach its own conclusions of law on this record about the legal propriety of Judge Green's rulings. See Simon v. Weymouth Agricultural & Industrial Soc. , 389 Mass. 146, 148-149(1983). Accord-ingly, it will review the record de novo , vacating or reversing the judgment below if any of the motion judge's rulings is tainted by error of law. M.P.M. Builders, LLC v. Dwyer , 442 Mass. 87, 89(2004) citing Route One Liquors, Inc. v. Secretary of Admin. & Fin. , 439 Mass. 111, 115(2003), quoting Commonwealth v. One 1987 Mercury Cougar Auto. , 413 Mass. 534, 536(1992).

Applying this standard of review, GWRT submits that Judge Green erred as matter of law in dismissing Count One of Kitras' amended verified complaint. First, the Land Court Judge wrongly ruled that the Commissioners' actions in setting off the common lands of Gay Head in 1870-1878 were discrete, separate events for purposes of applying easement principles for access to these set-off lots. Second, the lower court confused the law of ease-ment by necessity with easements by implication in ana-lyzing the rights of the parties in the circumstances. It also was wrong to conclude that the easements by neces-sity claimed by Kitras and GWRT could only run directly north to State Road thereby implicating lands held by the United States in trust for the Wampanoag Tribe and that the United States was thus an indispensable party in whose absence the plaintiff's amended complaint should be dismissed.

Fourth, the lower court was wrong to rule that any easements by necessity claimed by Kitras and by GWRT could be extinguished by the passage of time and that any such easements did not encompassed the right to install utilities along its course so that the set-off lots could be used as residences for the persons who lived there. Finally, the Land Court Judge erred in refusing to acknowledge on this record that GWRT's lot 302 has an easement right, either express or by necessity, for ac-cess to Moshup Trail and then to State Road, an easement right which has nothing to do with the lands acquired by the United States by eminent domain and held in trust for the Wampanoag Tribe of Aquinnah.

For all of these reasons, this Court should reverse and vacate the rulings of the Land Court Judges below and enter a new judgment declaring that GWRT's lots numbered 302, 707 and 710, as well as the former Howwasswee lots 242 and Baron's lot 177 are impressed with easements by necessity/implication or by prescription to Moshup Trail and/or State Road; or remanding the matter to the Land Court Department for a trial of these issues; or provide GWRT and Baron with such other relief as is fair and just in the circumstances.

A. The Commonwealth's Unified, Common Scheme of Setting Off the Gay Head Parcels . The lower court erred when it concluded that the Commonwealth's Commissioners (Richard L. Pease and then he and his brother Joseph L. Pease) engaged in two separate acts for purposes of de-termining the creation of easements by necessity in setting off these landlocked parcels in Gay Head in 1871 and 1878.

Because of this fundamental error, the lower court erroneously viewed the 1871 easements as separate and disconnected from the easements created by the set off in 1878; and it concluded that by further partitioning the common lands and assigning the resulting set-off lots to individual owners in 1878, lots numbered 174 and higher (Kitras' lots among them), the Commissioners severed each of these lots from the public way(A.605).

The result is that even though the record es-tablishes that landowners in the area, such as Kitras' predecessors, had adopted Zack's Cliffs Road as a means of access from State Road to their otherwise landlocked parcels, it could not now serve as the location of an easement by necessity for these lots since this way traverses lots 87 and 88, lots already set off under the Commissioner's 1871 report, lots not part of the common lands at the time the Commissioners' 1878 set off(A.605).

The lower court therefore determined that to the extent Zack's Cliffs Road might serve to locate a way by necessity resulting from the partition under the Commis-sioners' 1878 report, it could do so only over the lots which were partitioned into separate ownership under that Commissioners' 1878 report, not over lots 87 or 88, ones set off by the Commissioner in his earlier 1871 report (A.608-609).

This reasoning by the lower court is wrong as a matter of law and wrong a matter of fact. It ignores the fact that the partitioning of the common lands in Gay Head in the 1870 ' s pursuant to St. 1870, c. 213, Section 6, constituted one common, unified scheme by the same Commissioners(Richard L. Pease alone and then together with his brother, Joseph L. Pease); was authorized by the same act of the Legislature; and was pursued with the same obvious legislative purpose, i.e, to partition the common lands of Gay Head in such a manner that those living on these set-off lots after its accomplishment would own equally habitable and accessible parcels.

In furtherance of this unified scheme by the Common-wealth to settle the Town of Gay Head at one time, the Legislature in the same enactment (St. 1870, c. 213, Sec-tion 5) also directed the Dukes County Commissioners to build a road from Chilmark to the Gay Head lighthouse, the so-called State Road, running generally in an east-west direction north of Kitras' lots(A.333-334;378;601).

None of these coordinated actions by the Legisla-ture, the Commissioners and the Dukes County Commission-ers bespeaks an intent to divide up the Town of Gay Head in discrete stages so that the trip-wire, common law requirements which surround the creation of easements by necessity would end up Balkanizing this settlement into those parts which have easement rights to State Road and those which do not. There is simply nothing in this record which justifies the Land Court Judge in presuming that the Legislature intended to create two separate classes of set-off lots for the Indians, those which have access to State Road, Moshup Trail or Old South Road and those which do not.

Indeed, such a result would destroy the very fabric of a cohesive island community which the Legislature in-tended to foster by its enactment, rendering worthless the landlocked, inaccessible parcels at the expense of those other lots which possess the geographic coincidence of State Road, Moshup Trail or Old South Road running through or along its borders.

As Judge Randall of the Land Court Department ob-served about Gay Head's partition during the 1870 ' s in Black v. Cape Cod Company , Land Court No. 69813 (July 14,1975),

[t]here is no evidence whatsoever that the Commonwealth intended in the partition of 1878 to provide parcels of land to individual Indians without allowing them any means of access. Rights of way by necessity are created by the presumption of law. Where a landowner conveys a portion of his land in such a manner that he is unable to reach the land retained without traveling over the land conveyed, the law presumes in the absence of contrary evidence that the intent of the parties to the conveyance was to provide access to the former by passage over the latter. Davis v. Sikes , 254 Mass. 540. The necessity of the right of access does not of itself create the right, but it is evidence that the right can be implied from the intent of the parties. Orbin v. Morrison , 230 Mass. 529; Gorton-Pew Fisheries Co. v. Tolman , 210 Mass. 402. This principle is not disrupted by the fact that these parcels were all created at one and the same time by the partition of the land and not as the result of a landowner conveying out or retaining an inaccessible part.

That the Commonwealth in 1878 did not provide for specific means of access to the parcels partitioned perhaps indicates its awareness of the Indians' customary traveling on horseback and on foot without regard to the boundaries of individual lots as a means of access. Use of such a means was, perhaps, an exercise of an easement which now may need only specific location because of the changes in the use and occupation of the land involved and because of changes in modes of transportation.

(A.805-806)(emphasis supplied).

The character of an easement is fixed at the time of its creation and is not altered by subsequent events. J.W. Bruce & J.W. Ely, Jr., The Law of Easements and Li-censes in Land , Section 2:4 and cases cited(West 2001).

In addition, the extent of an easement incident to the creation of lots depends inter alia on the then existing circumstances so far as they are illuminating. Burgh v. Hines , 44 Mass. App. Ct. 590, 592(1998). Sheftel v. Le-bel , 44 Mass. App. Ct. 175, 179(1998) and cases cited. Section 4.1(a) and (b) of the Restatement (Third) of the Law of Property (Servitudes) further makes the parties' intentions and their reasonable expectations about a con-veyance creating an easement the overarching consid-eration in assessing the actual obligations assumed with regard to land. Abington Ltd. Partnership v. Heublein , 717 A.2d 1232, 1239-1240 & n. 23(Conn. 1998).

Thus while a subdivision which includes a roadway ordinarily does not convey an easement in favor of those owning property abutting the subdivision or the public generally, such third persons being “strangers to the deed,” see Patel v. Planning Board of North Andover , 27 Mass. App. Ct. 477, 481(1989); see also Dolan v. Board of Appeals of Chatham , 359 Mass. 699, 701(1971), where an entire community of parcels is set off at one and the same time , as here, in order to compose a completely new settlement or community of lots and where all these parcels were created by a partition of land and not as the result of a landowner conveying out or retaining an inaccessible part, the easements by necessity created thereby binds each parcel equally so that every lot has access consistent not only with the then existing circum-stances of the land itself but also with the Legis-lature's intent that those living on these set-off lots after its partition would own equally habitable and ac-cessible parcels. See Black v. Cape Cod Company , Land Court No. 69813 (July 14,1975), supra . Contrast Boudreau v. Coleman, 29 Mass. App. Ct. 621, 634 (1990).

GWRT therefore submits that, consistent with Judge Randall's findings in Black , the then existing circum-stances in the 1870 ' s in Gay Head together with the ex-pectations of Indians living there as well as the inten-tion of the Legislature in authorizing the set off of lots, persuasively permits the inference that the Com-missioners' set off of the lots in 1871 and 1878 carried with it easements by necessity upon each of the lots for access to each of them.

This was not just a routine subdivision development invoking the application of traditional easement princi-ples. This was the creation of an entire community of parcels by the setting off of lots at one and the same time in order to compose a completely new community of lots for the benefit of the Indians living there. Judge Green's analysis fails to accommodate this crucial fact and his misapplication of easement law to these facts is error.

B. Confusion of the Law of Easements. The lower court's misapprehension about the nature of this settle-ment led it to confuse the law of easements by necessity with easements by implication in analyzing the parties' rights. As Kitras makes clear in their Brief (at pp. 17-19), the settlement of an entire community at one and the same time creates easements by necessity, not easements by implication. Id . Judge Randall's opinion in Black, supra, confirms this analysis.

The hallmark of an easement by necessity is the creation of landlocked parcels from a common grantor which have no discernible access while an easement by implication is characterized primarily by the prior use of an easement for access to a given lot. J.W. Bruce & J.W. Ely, Jr., supra, Sections 4:2; 4:7, and cases cited. Restatement (Third) of the Law of Property (Servitudes), Section 2:15, comment c . Lots which are landlocked at their creation, especially lots which are created at one and the same time, create easements by necessity and the lower court was wrong to rule otherwise.

C. The Location of the Easements By Necessity Judge.

Green wrongly concluded that the easements by necessity claimed by Kitras and GWRT could only run directly north to State Road thereby implicating lands held by the United States in trust for the Wampanoag Tribe and that the United States was thus an indispensable party in whose absence the plaintiff's amended complaint should be dismissed. In the first place, there was absolutely no record support for the lower court's finding that at the time of the Commissioners' set offs in the 1870's, State Road was in existence, that it was the only public way used by the public for travel around Gay Head and impliedly that there were no other public roads or “ways” (such as Old South Road) which the public used to access their lots.

Secondly, the overwhelming force of the summary judgment materials confirms instead a network of paths and roads throughout Gay Head at the time of the set offs which allowed the inhabitants to access their respective lots in a manner most convenient to them. Judge Randall's observations in Black , supra , are apt:

That the Commonwealth in 1878 did not provide for specific means of access to the parcels partitioned perhaps indicates its awareness of the Indians' customary traveling on horseback and on foot without regard to the boundaries of individual lots as a means of access. Use of such a means was, perhaps, an exercise of an easement which now may need only specific location because of the changes in the use and occupation of the land involved and because of changes in modes of transportation.

(A.806). After all, the Commonwealth made no specific provision for access to any of the lots which did not abut State Road; and the intent was to provide lot owners through multiple easements by necessity with the same access they had always enjoyed, i.e., access to and from all set-off lots to all parts of Gay Head.

Accordingly, Judge Green erred by ignoring this or-ganic network of paths and roads throughout Gay Head in locating the claimed easements instead ruling that any easement must proceed north to State Road. A correct application of the law of easement by necessity on this record would have required the motion judge to find a reasonable spot along Moshup Trail and then to State Road for access to each of Kitras' and GWRT's parcels. Alternatively, he could have justifiably found an ease-ment by necessity running northeasterly over land of the parties already joined in this action to a point near the intersection of State Road and Moshup Trail.

Compounding this error was his conclusion that any such easements were subject to the defense of laches for their enforcement and could not encompass the right to install utilities above and below ground in order to make the lots livable. Each of these rulings is wrong as a matter of law. Easements by necessity remain alive and enforceable as long as the necessity exists, regardless of the passage of time and laches is no defense. J.W. Bruce & J.W. Ely, Jr., supra, Section 4:12 and cases cited. Canali v. Satre , 688 N.E.2d 351,354(Ill. App. 1997). In addition, just as horse paths became wider in order to accommodate automobiles, the right to install utilities along an easement by necessity is well estab-lished in order to make the landlocked parcels reason-ably livable. Restatement, supra, Section 2:15, comment d . See United States v. 176.10 Acres of Land , 558 F. Supp. 1379, 1381-1382(D. Mass. 1983). The cases relied upon by the lower court to conclude otherwise are inapposite and do not call into question this principle.

D. The Indispensability of the United States. The lower court's mistaken belief that any easements must proceed north to State Road instead of northeasterly toward Chilmark and the rest of Martha's Vineyard led it to regard as necessary for resolution of this suit the tribal lands held by the United States in trust and then to regard the United States as an indispensable party for the purposes of any relief. This reasoning is wrong as a matter of fact.

The lower court without reason ignored the vast net-work of pathways, roads and ancient ways already on the ground which reflected easements by necessity created by the set offs of the 1870 ' s. Only some of these roads and ways traversed land now held by the United States; all of the necessary parties were before the lower court; and relief could have been shaped for those parties using Moshup Trail, among others, in order to access their par-cels without resort to lands held by the United States. See J.P. Eustis Manufacturing v. Saco Brick Co. , 198 Mass. 212, 220(1908). Contrast Bay Colony Constr. Co. v. Norwell , 5 Mass. App. Ct. 801, 801(1977). If it is argued that all necessary parties were not before the court, it was Judge Green who decided before summary judgment motions that several lot owners near GWRT's lot 302 were not needed for the resolution of this suit(A.596 & n.4).

There simply was no good reason for Judge Green to conclude on this record that he could not provide this relief without prejudicing some of the party-defendants; that he could not lessen any prejudice by a judicious resort to common roadways leading to Moshup Trail; that a judgment in the absence of the United States would not be adequate; and that dismissal of Kitras' action would not be a hardship.

E. The Particular Status of GWRT's Lot 302 Was Not Addressed. Despite the fact that GWRT's lot 302 does not depend for its access upon an easement by necessity running over the land held by the United States and that GWRT was not a plaintiff but rather a defendant in this action, lot 302 has been wrongly and unfairly implicated in Judge Green's Decision. GWRT's status as a defendant in this action should mean that the Decision dismissing Kitras' complaint has no effect on the placement of an easement by necessity benefitting lot 302 or, for that matter, GWRT's other lots, nos. 710 and 707, all claims raised in GWRT's still unresolved counterclaims and cross claims.

Moreover, since GWRT is the beneficiary of express easements from Moshup Trail LP for travel over tribal lands not taken by eminent domain by the United States, GWRT stood in a different position than all the other parties-defendants. It and Kitras were entitled to the benefit of an express easement right to State Road or Moshup Trail over a portion of the lands now held by the United States which were not taken by eminent domain; and the United States would have had the right to locate this undefined easement on these tribal lands or, failing that, GWRT could have fixed the location of the easement itself. Davis v. Sykes , 254 Mass. 540, 546 (1926). See M.P.M. Builders, LLC v. Dwyer , 442 Mass. at 90-92 & n.4.

The Land Court Judge therefore erred in refusing to acknowledge that GWRT's lot 302 has easement rights, either express or by necessity, for access to Moshup Trail and then to State Road and that those rights have nothing to do with the lands acquired by the United States by eminent domain.

2. Judge Lombardi Erred As A Matter of Law Or Abused His Discretion In Denying The Post - Dismissal Motions of GWRT and Baron.

A. The Order of September 17, 2002.

Post-dismissal, Kitras moved to amend their com-plaint to add as a defendant the Wampanoag Tribe of Aquinnah; and GWRT sought an order amending Judge Green's Decision to reinstate its status as a defendant instead of a plaintiff; to apply the correct law of easements by necessity; and to eliminate from the Decision any determination that such easements must inevitably run directly north to State Road.

GWRT further contended that its lot 302, a parcel lying well east of the land held by the United States and, as a result of the Land Court's serial dismissal of other lot owners in the vicinity, now isolated for the most part from any of the other lots affected by Judge Green's Decision, does not depend for its access upon an easement running over the land held by the United States which was taken by eminent domain. A correct application of the law of easement by necessity on this record should have led the motion judge to find a reasonable spot along Moshup Trail and then to State Road for access to each of GWRT's parcels. Or it could have located an easement by necessity running northeasterly over land of the parties already joined in this action to a point near the intersection of State Road and Moshup Trail toward Chil-mark and the rest of Martha's Vineyard.

It also argued that lot 302 should have been given the benefit of express easement rights to State Road over a portion of the lands now held by the United States in trust which were not taken by eminent domain; and that the United States should have been given the right to locate this undefined easement on these tribal lands or, failing that, GWRT could have fixed the location of the easement themselves.

With the exception of reinstating GWRT to its original status as a defendant, Judge Lombardi denied these motions. For the reasons exhaustively identified in Kitras' Brief at 35-49, the lower court erred in refusing to allow Kitras (or later GWRT) to name the Wampanoag Tribe of Aquinnah as a party-defendant. For the reasons already identified in this Brief, supra , the lower court's refusal to reexamine the methods of analysis employed by Judge Green was error.

B. The Order of August 21, 2003.

GWRT filed a motion to clarify, correct, amend or modify Judge Lombardi's prior order of September 17, 2002, by allowing the Wampanoag Tribe of Aquinnah to be added as a defendant if only to resolve the location of the express easements or the easements by necessity for the benefit of GWRT's lots which traverse tribal lands not taken by eminent domain by the United States; to clarify the status of GWRT's lots nos. 707, 710 and 302 in the wake Judge Lombardi's ruling reinstating GWRT as a defendant; and to intervene in substitution for Howwas-swee's heirs on lots 177 and 242, parties who have never answered. GWRT therefore sought leave to file for the first time a responsive pleading in the form of an amended answer, counterclaims and cross claims to Kitras' amended complaint in order to preserve all these claims for purposes of this action and any eventual appeal.

On August 21, 2003, Judge Lombardi denied the motion to add the Tribe as a defendant; denied GWRT's motion to clarify or for leave to file an amended answer, counter-claims and cross claims; denied GWRT's motion to intervene on behalf of lots 177 and 242; and allowed Kitras' request for certification of their appeal under Rule 54(b)(A.22;755-763). This ruling left for an even-tual trial only the outstanding claims of GWRT on its second and third counterclaims and cross claims which assert two theories of prescription for its lot 710 over a nearby driveway(A.760).

These rulings were wrong as a matter of law or an abuse of discretion. Initially, the Tribe should have been named a defendant for the reasons already identified herein and in Kitras' Brief. Secondly, GWRT's renewed status as a defendant should mean that Judge Green's Decision dismissing Kitras' complaint has no preclusive effect on the viability of GWRT's unruled upon counterclaims and cross claims asserting an easement by necessity benefitting lot 302 and, for that matter, GWRT's other lots, nos. 710 and 707. See Restatement of Judgments(Second) , Sections 17, comment c ; 19, comment b(c) . With these issues still open, Judge Lombardi was obligated to make this fact known for the record so that GWRT could raise these claims at an eventual trial.

Third, especially since GWRT had never responded as of right to Kitras' amended verified complaint and be-cause GWRT's counterclaims and cross claims still remain to be resolved after this Rule 54(b) appeal, GWRT should have been allowed to amend its answer, counterclaims and cross claims to clarify its claims on lots 707, 710 and 302 as well as to assert claims on lots 177 and 242, the Howwasswee parcels. Motions to amend under Rule 15(a) are freely given unless a good reason exists to deny them. Castellucci v. United States Fidelity & Guaranty Co. , 372 Mass. 288, 290(1977). Hobbs v. Carroll , 34 Mass. App. Ct. 951,952(1993). In view of the procedural posture of this case under Rule 54(b), i.e., that this was a pre-trial motion, not one made after trial, there was no good reason not to allow the amendment. The Land Court Judge erred in refusing to do so.

GWRT should also have been allowed to intervene on behalf of lots 177 and 242, the former Howwasswee lots, under Mass. R. Civ. P. 24(a). A judge should allow inter-vention as of right when (1)the applicant claims an in-terest in the action;(2)it is situated so that its abil-ity to protect this interest may be impaired as a prac-tical matter by the disposition of the action; and (3) its interest is not adequately represented by the existing parties. Massachusetts Federation of Teachers, AFT, AFL-CIO. v. School Committee of Chelsea , 409 Mass. 203, 204-207(1991). Cosby v. Department of Social Serv-ices , 32 Mass. App. Ct. 392, 395-396 & n.8(1992). May-flower Development Corp. v. Dennis , 11 Mass. App. Ct. 630,635-638(1981).

Here GWRT met every one of these criteria in the circumstances and intervention of GWRT on behalf of the Howwasswee lots was required as a matter of law under Rule 24(a).

C. The Order of December 22, 2003.

For the reasons already identified in Part B ., supra , it was error for Judge Lombardi to deny the motion by Baron and by GWRT to intervene and answer late for the Howwasswee lots 177 and 242, respectively, and then sever these claims from the main suit for resolution.

Conclusion.

For all of the reasons identified herein, this Honorable Court should reverse and vacate the rulings of the Land Court Judges below and enter a new judgment declaring that GWRT's lots numbered 302, 707 and 710, as well as the former Howwasswee lots 242 and Baron's lot 177 are impressed with easements by necessity/implication or by prescription to Moshup Trail and/or State Road; or remanding the matter to the Land Court Department for a trial of these issues; or provide GWRT and Baron with such other relief as is fair and just in the circum-stances.

Respectfully submitted,