A Cape Cod family's fight for 5.7 acres in Aquinnah continues in state Appeals Court

A 5.7-acre land parcel in Aquinnah continues to hang in the balance as oral arguments begin in the Massachusetts Appeals Court.

For Hillary Swindel, one of 19 defendants in the Vineyard Conservation Society vs. Tanya Devine case, the continued fight against Vineyard Conservation for Lot 240, isn't just about the land. It's also about her family's cultural ties to the area as Wampanoag tribal members.

"We have been fighting to strengthen our ancestral bounds from generation to generation," said Swindel. "Much of our land has been taken, lost — and in our case — misconstrued." The court case involves a dispute between members of the Devine family and the Vineyard Conservation Society over land in Aquinnah (formerly Gay Head), also known as Lot 240. Both parties claim the land belongs to them and deeds remain at the center of the dispute. Court deliberations stretch back to May 2017 when a complaint was filed by Vineyard Conservation to decipher who Lot 240 was deeded to in 1870.

Tanisha Gomes, a defendant in the case, told the Times on Thursday that the deed that includes Lot 240 was fraudulent and was legally passed to the defendants through their ancestor Louisa Pocknett Devine. The land in question, she said, is currently listed on the town of Aquinnah's Board of Assessor's website under Louisa Devine. Vineyard Conservation bases its claim of ownership on 1944 and 1945 deeds, which they say assert that Horace Devine, Louisa Pocknett Devine's grandson, gave Henry Cronig, a real estate mogul in the mid-1900s, the entirety of his family's land, including Lot 240.

Cronig died in 1970.

On Oct. 24, 2022, Superior Court Judge Janet Sanders ruled the land belongs to the Vineyard Conservation Society, after five years of litigation. The Devine family appealed the ruling.

Appellate judges question language in Aquinnah deed

During a Dec. 5 hearing before the state Appeals Court, Associate Justice Kenneth V. Desmond Jr., peppered Jonathan Polloni, an attorney for the defendants, with questions about the language of the deed. According to Vineyard Conservation, Horace states that he's giving "all my land in Gay Head (now Aquinnah)," including Lot 240, to Cronig.

"Even if they had not known they owned it, they can still give it away if they owned it?" Desmond asked. "Doesn't 'any and all' mean 'any and all?'"

Lot 240 isn't specifically named on any of the deeds associated with the transaction between Horace and Cronig, Polloni told the court. Which is why it's unclear that Horace gave Lot 240 away.

"And that's what's unique about the case," he said. Appellate Judge Sookyoung Shin also questioned the language of the deed and asked why it wasn't plausible that Horace decided that he didn't want to own any land.

"Horace could have said, 'I don't want it. Therefore, I convey every and all pieces of land that I own," she said.

For Polloni, it's difficult to get around the deed interpretation, which requires the grantor of the deed's intent beyond the plain language of what the grantor said on the deed.

"The intended circumstances apply," said Polloni, who based his argument on a handful of land cases pinned on language interpretation and the circumstances of particular times in history. During his argument, Polloni said there's evidence Horace thought someone else owned Lot 240 at the time he transferred his property rights and interest to Cronig.

"It (Lot 240) was in a deed to somebody else," said Polloni. "In 1945, the Cape Cod Company had a deed from a Ralph Hornblower that contained Lot 240 in a specific description."Attorney John Willis, representing Vineyard Conservation, said Horace's statement "all my land in Gay Head" is clear.

"There is clear control and precedent," said Willis. "Every time this language comes up, the court has enforced it and said that it means what it says. It means 'all my land' in the geographic district."

Gomes, who was present in court during both arguments, said that Horace's language wasn't only ambiguous, the deed which was transferred to Cronig, also didn't contain Horace's signature.

"The deed is in fact ambiguous when it is written in a deed which is a binding document," said Gomes. "That, by nature, should explicitly disclose the property description — which in this case it does not."Troy Small, a defendant in the case thinks the town of Aquinnah is also somewhat complicit in taking land from Indigenous people.

"This stems from the corruption of the town of Aquinnah, the government and the disenfranchisement of the Native American people," Small said. "This case needs to be reviewed on a much deeper level."Vineyard Conservation didn't return calls from the Times for comment.

What happens next?

It could be months before the Appeals Court hands down a decision, said Polloni. "If they don't go with the defendants, then they are ultimately saying that the evidence that wasn't included in the general deed doesn't matter," he said.

If the judges side with the plaintiff, said Polloni, the case could be presented to the Supreme Judicial Court.

"We can file a request up to the highest court and say we think this is an important issue but there's no guarantee of a further hearing," he said during a phone interview Thursday.

Ultimately, said Polloni, the case presents interesting questions surrounding property titles and how the titles involved in the case can be recognized. If the appellate court sides with the defendants, there will be an opportunity to resolve who the actual heirs are to Lot 240.

"There are many people that could claim an interest in this piece of land," he said.

Defendant reactions

Marlene Devine, another defendant in the case, said the appellate court judges didn't seem to grasp the fact that deeds have standards. The deed in question, she said, does not meet Massachusetts standards to properly transfer land to another party. The Cronig family, over time, she said, has already been involved in numerous land court cases."We hope that the Appeals Court judges will ask for assistance from Land Court before they make their decision," she said.

Rachael Devaney writes about community and culture. Reach her at rdevaney@capecodonline.com. Follow her on Twitter: @RachaelDevaney.

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This article originally appeared on Cape Cod Times: Vineyard Conservation Society, Wampanoag in court over Aquinnah land