A Victory for Moshup

The most important, longest running, and most costly campaign in the Vineyard Conservation Society’s 45-year history involves environmental legal defense at Moshup Trail. The lawsuit isn’t over, but we have registered a significant win, described in this issue of the Almanac.

This IS NOT the end of the need for funding for VCS land protection generally or for our work at Moshup Trail specifically. In fact, this should be the stimulus for giving more, and we encourage you to do so!

On August 12, 2010, Judge Charles Trombley, Jr. of the Land Court Department of the Trial Court ruled in favor of VCS and co-defendants in a long-running case involving developers’ efforts to force access through conservation holdings at Moshup Trail, Aquinnah.

VCS argued that the developers had no right of access over our conservation property and that they cannot meet their burden of proof in establishing the existence of an easement by necessity.

The court confirmed that, “necessity alone does not an easement create.” Judge Trombley pointed out that most of the lots along Moshup Trail had no frontage when set-off as part of the division of tribal land by court-appointed commissioners in the 19th century, concluding:

The failure to provide any easements for access appears intentional and serves to negate any presumed intent to create an easement…The prevailing custom among the tribe at the time of the division allowed for access for each member of the tribe as necessary over lands held in common and in severalty. The commissioners were familiar with this system and likely assumed easements for access were unnecessary given the tribal culture at the time. This fact negates any presumed intent to create an easement…since the necessity must have existed at the time of division. If an easement was not necessary at the time of division it cannot be manufactured at a later point. Plaintiffs have failed to introduce evidence sufficient to carry their substantial burden of proving easements by necessity.

VCS has always taken the long view of land protection in this area.
For more, click HERE

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