*1 Second, enabling State’s act majority’s reading of “up days” to 180 required that an election form given to places no limit on the public employer’s each member of the system retirement ability to arbitrarily designate an unac- entitled to make the election “no later than ceptably short period. election October 1992.” 5 M.R.S.A. deficiencies, Despite these I con- 17941(1)(C) § (Supp.1993) (repealed by cur with majority’s decision to affirm 16). P.L.1995, 643, § ch. undisputed It is because, the judgment Superior as the that the October notice did not contain an order, Court concluded in Lovely-Be- its election form. The fact election lyea has not shown that preju- she was form subsequently provided in March diced employer’s her strictly failure to does not negate this plain deficiency. comply with the require- OWBPA’s notice Third, requires OWBPA ments. “A technical violation of a statuto- employee “the given up days [be] to 180 rily prescribed give manner to notice is not after the offer which to make the elec- fatal when it prejudice party does not 101-433, tion.” Pub.L. No. notice, receiving the court dis- 105(c)(2)(A)(ii)(II), § at Stat. 982. In n regard nonprejudicial comply failure to case, present Lovely-Belyea given strictly with requirements.” notice Town until April 1993 to make her election— Ogunquit v. Dep’t Pub. Safety, 2001 days after the October notice and 30 ¶47, 11, 294. To show days after the March notice. Neither no- prejudice, such Lovely-Belyea pres- must gave tice her “up days” to 180 in which to desire, ent more than her with the benefit make her election. Contrary major- to the hindsight, to have made a different elec- ity’s opinion, plain language so, tion. attempted She has not to do provisions “safe harbor” of the OWBPA however, any stage present pro- give day the 180 period to employees to ceedings. Accordingly, agree that election, decide whether to make the not to judgment should be affirmed. employers arbitrarily create a shorter election period. Reading provisions
require that employers give employees no
less than days is consistent with the
legislative history of the act. See 136
CONG. REC. H8619 “an (discussing election period of at least Edwin LYONS et al.1 days”); S13594-01, 136 CONG. REC. (“[u]nder S13605 noting the transi- BAPTIST SCHOOL OF CHRISTIAN notice,
tion provision, with reasonable cur- rent TRAINING employees State will have days following the effective plan date of the new Supreme Judicial Court of Maine. to elect whether they want to be covered under plan”). the new Doing so is also Argued: April 2002. consistent with the underlying intent of Aug. Decided: 2002. the “safe provisions harbor” that employ- given ees be “reasonable notice.” See
OWBPA, 101-433, Pub.L. No. 105(c)(2)(A)®,
§ Stat. 981-82. The Weaver, Weaver, Nancy Other Lyons, Eugene this action include Lorraine *2 Kaiser, Kaiser, Larry Bree- den and Gardiner. Thomas Steven Edward *3 Harding, (orally),
Alan F. Hardings Law Offices, Isle, Presque plaintiffs. T. O’Boyle, (orally), Presque Kathleen Isle, for defendant. C.J., SAUFLEY,
Panel: and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, LEVY, and JJ. DANA, SAUFLEY, C.J.,
Majority: and ALEXANDER, LEVY, JJ. CLIFFORD, RUDMAN, Dissent: and CALKINS, JJ.
ALEXANDER, J. 1] The Baptist School Christian Training appeals judgment entered (Aroostook County, Superior Court J.) Hjelm, nonjury after a trial finding public, prescriptive easement exists the Baptist across locat- ed in the Town Chapman. Baptist argues Superior School Court in finding a public, erred ease- ment because there insufficient evidence and because the court did not apply permissive Maine’s regarding recreational uses of Superior lands. We vacate the Court’s judgment sup- because the record fails to port adversity necessary establish easement. I. HISTORY CASE years, For past fifty Baptist consisting ap- School has owned a lot proximately mostly 150 acres of wooded Chapman land in the Town of (Chapman lot). adjoins Chapman lot another however, has School years, Baptist in al Baptist lot School large owned course, wall, lot). climbing archery (Mapleton added Mapleton the Town of Un- cross-country skiing and 1940s, trails there on the til the residence Chapman lot. biking that lot, mountain to six acres of the Chapman four cross-country skiing permission, With Chapman immediately abutting lot Ma- extend onto biking trails mountain for potatoes lot were cultivated pleton neighboring property. Only remains other uses. a foundation today, formerly cultivated areas increasing concern after overgrown. Begin- now significantly all- of their property about abusive uses 1950s, devel- ning School large-tire, four-wheel terrain vehicles expanded camp a summer oped and vehicles, placed drive *4 lot, constructing the Mapleton children on Ini- Baptist across the Park Road. barrier and areas for buildings a number of the tially, placed this barrier was across camp activities recreation. Later, Mapleton road on the lot. because is a Mapleton the on the lot road Baptist properties 3] The School’s way, back to the the barrier moved Road, from the accessed Carvel plaintiffs, line. The all of whom Chapman way, Park Road. The Baptist onto Baptist of the vicinity own in property Road runs the Ma- Baptist through Park School, brought alleging suit then pleton Chapman provided lots and has had been prescription properties access to other of the south portion Baptist on the of the established Chapman Presque lot and to the Isle lot. Chapman on the Park Road located portion The Park Baptist Stream. testified, Road Mapleton trial, within Town At twelve witnesses [¶ 6] Town public way maintained plaintiffs: six of Thomas Kai- including Mapleton. Weaver, has Chapman ser, Kaiser, Town of Ed- Eugene Steven maintaining in portion Breeden, Larry been involved Lyons, Edwin ward Baptist Park Town Road within the testifying Also Gardiner. that, residents,
Chapman. There is no Edgeeomb, were five area John Chapman, Baptist Garland, Carney, within the Town of Keith Fernald Ronald addition, anything Park Road exists as other than a In Condon, and Thomas. Shane way Baptist President, private across the Raymond the Baptist School Todd, other within the Todd, School and owners Town had been associated testified. Chapman. he with the School since in the camper 1950s. programs on the [¶ 4] All of testified expanded consider- the witnesses property have they other mem- ably years years, from approximately through recent Bap- frequently used the nearly bers of the campers the mid-1950s fishing, snow- hunting, tist year in the In addi- Park Road campers tion, and other recreational activities mobiling, nature of the has ex- programs Presque Isle as as to access the weekly camp summer offer- well panded properties south of larger weekly Stream and other ings camp for children to uses, Eugene Among lot. other Chapman the summers. There are also sessions in bull- he owned a testified that had children and adults Weaver weekend sessions for “take it a walk” on would year. times of the Most dozer and at other road, or ob- clearing any blow downs have conduct- out camp-related activities been so. as he did past sever- structions Mapleton ed on the lot. plaintiffs’ All witnesses feel that had you testi- to be on they
fied that had currently previously their land? used the road within the Town of Chap- just I Well ... didn’t believe that and, frequency they man with some when they minded if really people went on it, they requested permission used neither years, Through there. all of the people nor they per- believed to receive needed going on piece ground. have been mission the road. too, people own go That’s—I [my just land].... Witnesses Garland Thomas and live in [I]t’s —-we plaintiff County, Thomas way Kaiser testified that Aroostook and that’s the it thought they had a to use the is in I’ve right County, road. Aroostook but never— example, response question, For to the I’ve ... hunted fished and traveled you you “Did use it though yet had a and I never have told to leave a testified, “Yuh, to?” piece Fernald Garland ... have I property, nor asked way mean, I permission.... just that’s the think that it is. I the way [I]ts we are, thought that’s the I and I always guess, great way was.” think its Garland and Thomas testified that if to be. also Trespassing” signs posted, “No had been then, understand, Q. that you [S]o *5 they have respected signs, would not you trespasser did not were feel road, stayed used the and off the property. their property? Carney plaintiffs
Witness and Steven Kai- A. No sir. ser, Breeden, Lyons and also testified that Q. And, did you you you not feel were— they respected Trespass- would have “No against were on their their ing” signs, had been posted. Plaintiff wishes? Gardiner testified that he believed he true. That’s could the property hunting for because trespass” Maine did have a “reverse Discussing Baptist 11] law requiring affirmative from position regarding roadway, uses of its prior hunting. landowners Raymond acknowledged many Todd that witnesses, Garland, [¶ 10] Con- Several years people used road over the and don, Thomas, and and Thomas that generally use of the road was allowed Weaver, Kaiser, Kaiser, Steven and Bree- receiving requesting explicit without or den, acknowledged the existence of a tradi- permission'. testified, always Todd ‘We let tion that that people embodies the belief people go. good neigh- [want to] We be implicit permission have to traverse and testify bors.” did on a Todd few persons’ use other fields and wood- occasions, people making excessive noise seeking express permission. lands without using during or alcohol when camp times implicit permission That requested was in had been session until explicitly continues withdrawn property. did leave the Todd and several act, placement affirmative such as that, other also at witnesses testified one signs, barrier “No Trespassing” which 1978, a point in cable was across the placed respected. following would be The collo- This roadway. present cable was brief quy between counsel for the School time, most, period days a few and Fernald Garland reflects tradition that, then there was removed. Other than implicit permissive use: the roadway had been no barrier to use of
Q. you working Trespassing” place- weren’t and no “No until signs [W]hen you you on defendant’s did ment of the barriers were prescrip- trial, governing public, Maine law with Superior After Court tive easements. necessary that all of elements found had public, prescriptive asserting a party The and, proven accordingly, entered (1) prove: con easement must The plaintiffs. for the court’s judgment (2) use; who are people tinuous brief, fairly stating judgment general- was (3) public generally; from the separable necessary pub- ly elements (4) years; under twenty for at least lic, easement and (5) owner; adverse to claim The proven. had been those elements knowledge acquies the owner’s with appeal.. then this Baptist School filed notorious, cence; open, a use so
visible, knowledge uninterrupted Id. presumed. will acquiescence II. DISCUSSION Vernon, 32; accord Warren Co. S.D. [¶ Where a trial court enters 13] ¶¶ 5, 16, fact, and judgment findings based on Augusta Manchester v. Town of findings requested additional of fact are no (Me. Club, 477 Country A.2d 52(a), to M.R. Civ. P. we will pursuant 1984). necessary
infer the court made all case, there is serious if findings support judgment, of fact to crossing Chap- that the road dispute findings supported those subject lot to continuous man Belden, A.2d the record. Glidden v. years twenty least' recreational use (Me.1996); Blackmer and allowed and that this use known (Me.1981). Williams, until 2000. by the trial find- explicit court’s and inferred us is before whether question *6 ings of fact error will reviewed for clear to right a claim of adverse use was under if competent and will be affirmed there is School. support the record to the find- An element of essential easement, ing public, prescriptive even claim is easement “a dem any prescriptive might support if the evidence alternative by adverse user onstrated intention Wells, findings fact. Eaton v. Town of property.” title to use claim ¶ 176, 33, 232, A.2d 2000 760 Shea, 36, 30, 791 v. 2002 ME Jordan Plaintiffs that an contend owner Belden, 116, 124; v. also A.2d see Glidden who, fields over a twen- open or woodlands (Me.1996). Thus, 1306, A.2d 1317-18 684 ty-year period, knows of and not ob- does creation of a purposes ject crossings to recreational uses easement, and/or use is adverse to the owner “ forfeits easement per party ... has received ‘when object to a rights soil, forfeits owner’s from the owner of mission expansion it, even continuation and an owner would uses public. public, uses by entirely, using those Maine’s it as his claims disregarding quick law is not him so he though owned 161, Co., rights to control deprive landowners of ...’” Warren self. S.D. ¶ 11, ac- access to their land. The tradition of 1283 Blanchard (quoting 697 A.2d at (1873)). Moulton, 434, Ac nonposted Me. 437 quiescence in access 63 69, Saco, woodlands, acknowledged by City six Stickney fields cord can, charac witnesses, 770 602. We have as a matter plaintiffs’ adverse law, comity type of acts alive well in terized remain possessor must demonstrate as acts suffi- by and used the public for nearly fifty give cient to notice to the owner of the years to access a beach maintained adverse claimants’ “antagonistic purpose” country club. We affirmed a trial court or “hostile intent.” Emerson v. Maine finding that a public prescriptive easement Ass'n, Inc., Rural Missions 560 A.2d 2- was not proven because the evidence was (Me.1989); see also Webber v. Barker insufficient to “rebut the Co., 259, 264, Lumber Me. 116 A. such use was permissive.” Id. at 1130. (1922) (hostile intent); Stewart v. We also noted that our rule Small, 269, 271, 119 Me. 110 A. 684 recreational presumed uses are per- to be (1920) (antagonistic purpose). missive predicated “is on the notion that such use general public is consis- involving cases claims of with, diminishes, tent and in no way private, prescriptive easements, we have rights of the owner in his land.” Id. This stated that where there has been unmo observation is consistent with the testimo- lested, open and continuous use of a way ny about traditions underlying recreational more, for twenty years or with the knowl uses of land that was offered by several of edge acquiescence of the owner of the the plaintiffs’ witnesses this case. estate, servient use will be past [¶ 20] Some of our decisions to have been adverse and under a claim of not have been entirely clear as to whether Blackmer, right. (citing the presumption permissive gen use is Boomer, (Me. Jacobs erated recreational use it 1970)); Burnham, Burnham v. 130 Me. self, byor the nature of the land on which (1931). However, 156 A. occurs, the use which we have sometimes application of such a presumption to a characterized as “wild and uncultivated.” public, prescriptive easement claim for re Thus, in Town Kennebunkport v. For creational uses is inappropriate when that rester, (Me.1978), applies claim fields woodlands stated that: ways traversing them. In a consistent line of cases this court precedents, [¶ 19] Under our has declined to hold that the mere use *7 recreational unposted open uses of fields by general public of wild and uncul- or woodlands and the ways through them tivated land as a route for hauling seaw- Thus, are permissive. in S.D. eed, for hunting, or for mere pleasure or ¶¶ Vernon, 161, Warren v. 15-17, recreation, is sufficient to show the ad- 1280, 1283-84, we affirmed a verse essential to pres- [use] create a finding private easement, criptive easement. but we vacated a of a public pres In support statement, 21] we criptive easement based on evidence of use Voorhees, cited Piper 130 Me. of way recreation, for hunting or woods (1931), 155 A. 560 work Hub by and access abutting landowners. Littlefield bard, 299, 304, 124 Me. We 128 A. held that “use of the 288 public road (1925), Mayberry hunting or recreation Inhabitants presumed per is Standish, (1868). missive.” Id. 17. In 56 Me. Town In Manches these Club, cases, ter v. Augusta Country earlier the issue of use was ad (Me.1984), we way addressed a main dressed in the context of land that was tained the town through golf variously “unenclosed, course described as unim- but be- undeveloped land was “open and fail when proved unoccupied”2 or developed. land was come viable as Mayberry unenclosed.”3 Littlefield “trifling of the land.4 also noted value” focus on The distinction between However, the characterizations of some of in Town on use is evident land focus past land in these re- precedents Club, 477 Augusta Country Manchester v. from tendency phrases flective of cite principle A.2d at where old where the issue addressed is not cases is use of land recreational itself, really land the use but applied was sumptively permissive Forrester, example, land. In is through a land—a maintained town issue, wild, abutting certainly doubtful that the land at course—that golf unimproved. Even be uncultivated or Kennebunkport, Ocean Avenue could case, permis- the presumptively certainly applying as “wild.” It would characterized very type different principle use sive “trifling not be of value.” These terms land, precedents cites the old from precedents maintained because derived and their principle which significance precedents of the is not what “wild land references to and uncultivated” land, they say principles about the but the A.2d at “trifling land of value.” 477 regarding establish recreation- 1130.5 otherwise, land. al uses of Were the law
with the
use
permissive
termi-
The “wild and uncultivated”
Warren,
generated by the
character
nology was resurrected
S.D.
rather
involving
recreational
case
main-
perverse
roadway crossing
the law
defendant’s house
would invite
tained
lot,
private, prescriptive
result that a
easement claim could
where we found a
curiae,
Forrester,
Attorney
amicus
who we
2.
tion with some uses. acts dominion will [¶ 31] What ¶¶ 35-38, A.2d at 245-46. This evi- posses in title adverse creating result give dence was sufficient in Eaton by prescription sion or easement that a was owners notice easement Loavenbruck Rohr question law. being rights and that their were acquired ¶ 11, 90, 93; bach, ME ¶¶ 34-39, 760 A.2d at jeopardy. in Id. P'ship, Charles-Keyt-Leaman Striefel in this lacking 244-46. evidence is Similar ¶ 7, at 989. Be A.2d record. hostility there was no evidence cause public, Likewise, adversity sufficient to establish Stickney, city in easement, adver and because party asserting easement. more than Stickney, sity cannot forty-year twenty years knowledge There was more than use, made of the history city that were maintenance recreational uses ¶ 3, and, lot, no importantly, id. most the court there is evidence Chapman actual, explicit finding finding made an support court’s record sumed, error, adversity disregard of the own- clear adversity. That —a ¶22. Co., entirely. Stickney Id. er’s claims did S.D. Warren requiring, claims. support provides remand for an judgment we vacate at oral repeatedly asked [¶ 30] When for the defendant entry judgment identify argument to claim for a plaintiffs’ record, point plaintiffs’ counsel could
in the proven. has not only areas testimo- two inconclusive First, identified the plaintiffs’ counsel ny. entry is: four about which witnesses event entry Remanded Judgment vacated. testified, placed across where cable was the defendant. judgment then removed days for a few but the road *10 374 J.,
CALKINS, with whom a plaintiffs proved right CLIFFORD claim of adverse to RUDMAN, JJ., join, dissenting. and School. I I respectfully dissent. do so I. OF PRESUMPTION ADVERSITY give because the has failed to Court AND PRESUMPTION OF proper to trial court’s factual deference PERMISSION findings and because the Court has creat- prove of 35] order to the element ed a new unwarranted owner,” of right “claim adverse to the prescriptive law easements. asserting claimant a easement with that agree the Court way permission to a must lack prove a required prove public pres- elements way use by from owner and of the criptive are continuous though claimant as the claimant owned use a twenty years under claim Ver property himself. S.D. Warren Co. v. owner, adverse with the owner’s non, 11, 1280, 161, 1997 ME 697 A.2d knowledge acquiescence, or or use so 1283; Moulton, 434, Blanchard v. 63 Me. visible, open, notorious, uninterrupted (1873). Proof use facili 437 of adverse knowledge acquiescence pre- are tated Shea, 36, sumed. Jordan v. when the other of a pres arises elements ¶¶ 22, 122, 7, 116, 28 n. 791 A.2d 124. criptive easement met: required These are the same elements that, ordinary rule is where there [T]he prove private prescriptive easement with unmolested, has been an con- open, and
the addition of use. Id. proving twenty years tinuous use ¶ 22, 122. Public use is shown more with the knowledge acquies- people of the road who are es- cence owner the servient inseparable public generally. from the Id. tate, the use will be to have 7,791 at 124. 28 n. A.2d right, been adverse and under a claim of title by and sufficient to create a trial court found scription, ex- unless contradicted or plaintiffs had all established the elements plained. by “overwhelming evidence.” Because Burnham, findings Me. request there was no of fact Burnham v. we (citing Thompson must assume that the court made all 156 decision, Bowes, 6, 9-10, (1916)); Me. findings necessary support its 97 A. accord, Williams, e.g., will not Blackmer v. we set them aside unless (Me.1981). Belden, pre clearly erroneous. Glidden When the (Me.1996). Our review is sumption applies, the burden shifts to deferential, by a only preponderance if the evidence re- landowner to or if quired result there are no the evidence adverse. different 301(a). support facts in the the trial M.R. Evid. This means that record only permission judgment will vacate. The most cases becomes the de court’s to a prescriptive at trial was whether the fense easement claim.7 contested issue permission granting be defense must distin- from license guished acquiescence, given with that the licensee’s use which an ele- the intention (albeit only long continue as as the owner con- ment must shown sometimes Stickney City by presumption) to consent to it.” to establish tinues Saco, ¶69, "Acquiescence passive implies as- easement. use, omitted). (internal distinguished quotation "Acqui- marks sent or submission to the *11 wooded, Glidden, the land is portion is but a of A.2d at 1318 n. 21. The man living within mem- the cleared and was farmed sumption adversity applies of whether importantly, Baptist the sought ory. easement is favor of More prescriptive the of Town Ma- general public. property individuals or the School’s within private 69, Saco, cleared and has been Stickney City pleton extensively 2001 ME is See of ¶¶ 21-22, 592, and up buildings with numerous 770 A.2d built camp pro- serve the summer structures to presumption adversity, of the that have been held there since grams however, the applicable is not to use of the Although Baptist the section of 1950s. land,” under “wild and uncultivated which Mapleton Park Road in is not issue existing permis- our law to be is action, it that because is uncontested Wells, sive. Eaton Town of easement on the has 232, 244; 760 A.2d Warren S.D. section,8 the trial court was free to that Co., 16, 161, 697 A.2d the nature of ad- developed consider the Augusta Country Town Manchester joining deciding Chap- land in whether Club, (Me.1984). through was portion man road wild presumption effect of the is The trial court and uncultivated land. was negate presumption adversity, to so required Chapman proper- not view that a prescriptive the claimant of ease- isolation, by considering and both the ty prove ment the burden to that the has portions of the Mapleton Chapman and was Bap- adverse the landowner. The previous Chap- property and use of argument tist entire on appeal have that the uncultivated, portion, its man could found that land is wild and that If it land is not wild and uncultivated. prove adversity the burden to was finding, and made such a which the evidence plaintiffs, that as matter of law not permis- did meet that then the supports, presumption burden. arise, did not of ad- sion THE
II. TRIAL COURT’S versity applicable, was and the burden was OF THE APPLICATION prove that Baptist on the School PRESUMPTIONS permissive. of the road public’s use was request findings In the [¶ 37] In this case the trial court could absence fact, have found that that the trial court were entitled must assume findings necessary support to the all its adversity because all made Glidden, decision, A.2d at and I other elements that court that the easement were met and because the evi- would assume found wild uncultivated and compel finding dence did not that land was not There failed to meet its Baptist was wild and uncultivated. School that most of the burden neither clear- Chap- permissive. within Town Since county permis- ... does mean records do not show escence license town passive accepted, sion in the active sense. It means it must that the road was ever have assent, consent or submission.... It is way by prescription. town See become a Bidwell, Dartnell v. 115 Me. MacKenzie, silence.” Kittery v. Town of (1916). 98 A. ¶ (stating town by laying accep- created out Mapleton 8. The has maintained the Town tance, acceptance, prescrip- dedication many years road within the Town for use). tive dispute that it is School does manager way. town testified town Since the erroneous, ly judgment given permission would affirm the were others did *12 on that not basis. ask. This evidence trial supports the result, I reach [¶ 38] would the same finding public’s court’s that the of the however, presumption even if the adver- adverse, road permissive. Giving was not sity apply. does not If the trial had court due deference to the superior fact-finder’s found that the land is wild and uncultivat- ability judge credibility, the weight, ed, the rebuttable presumption permis- evidence, significance Eaton, of the 2000 arise, Eaton, 176, sion would 2000 ME ¶ 176, 29, 243, ME A.2d I not 760 do ¶ 32, 244, A.2d at 760 and the burden understand how the can conclude Court would plaintiffs prove the that the is there no evidence adverse use. public use of road the was adverse. Ad- statement, my witness’s “I used it like versity finding a is fact that we review backyard,” satisfies the definition of classic Nutter, only for clear error. Taylor 687 “using adverse use: though as he owned (Me.1996). 632, my
A.2d
634
In
view the
”
the property himself ....
S.D. Warren
amply supports
evidence
the
finding that
¶
Co.,
161, 11,
ME
1997
plaintiffs met
their burden to
ad-
The testimony of eleven different wit-
verse use.
nesses that
the road
used without
was
permission amply supports
[¶ 39] Numerous witnesses testified that
¶
Eaton,
176, 34,
adversity. See
friends,
they
their
neighbors,
and rela-
760
at 244.
A.2d
tives had used
road regularly through-
the
out
prescriptive period
asking
without
The Court’s view that
there
permission
Baptist
School. Several
appears
adverse use
to stem
they
they
witnesses stated that
believed
from overly
an
restrictive definition of ad-
had a
right
use the road and one testi-
versity. The
require
Court seems to
fied,
just
“I
always used it.
it like
used
showing
“open and
demonstrated hostile
my backyard.”
Testimony
some
intent”
in order to meet
the users would have respected hypotheti-
adversity
law,
element. Our case
how-
cal
Trespassing” signs
“No
had
ever,
require
showing.
does not
As
posted
necessarily
does not
show that them
above, adversity
proven by
stated
adverse. The court could showing
of no
to use the
testimony
have construed this
to mean
way by
and that use of the
the claimant
simply that the witnesses would have com-
though
he owned the
him-
signs
possibility
with
to avoid
of a
plied
¶
Co.,
ME
self. S.D. Warren
1997
prosecution,
criminal
17-A
trespass
see
Glidden,
697
see
A.2d
also
684
402(1)(C)
§
(Supp.2001),
M.R.S.A.
n.
at 1318
19. The
also over-
Court
that they
Baptist
believed the
School had
important
looks an
distinction:
the claim
event,
In
right
to exclude them.
any
right required
to establish
signs
posted,
no such
were
easement is not the same as the claim of
School made no effort
from abor-
(apart
right required
posses-
to establish adverse
attempt
tive
through
40,
block the road
Eaton,
sion. See
760
1978)
Mapleton
prevent
lot
A.2d at 246. The
element
using
Pres-
road.
requires
easement claim
dis-
Raymond
regard
ident
Todd testified that
owner’s
to exclude the
user,
with
organization’s
use was
but not an intent to oust the owner
Bidwell,
knowledge,
people
possession.
that some
asked and from
Dartnell
Bowes,
6, 9-10, A.
(1916);
Me.
Thompson v.
Me.
cf.
(1916).
early
our
cases did
Charles-Keyt-Leaman P'ship,
none of
Striefel
any-
had
991-92 we
indicate
possession requires
use rather than
(stating
thing
adverse
to do with the
“disseisin;
is,
possession
subsequently
exclusive
We
character of
land.
title”).
intent to claim
another’s
with
to land with
applied
Utilizing
uses,
the correct definition of adversi
and non-
variety of
both recreational
*13
Hubbard,
ty,
the trial court had sufficient
E.g.,
recreational.
Littlefield
(1925)
use.
299, 304,
of adverse
A.
124
128
288
Me.
to use
permission
of
(applying presumption
III. THE
NEW
COURT’S
uncultivated,
prop-
of
unenclosed seashore
PRESUMPTION
fishermen,
hunters,
erty
commercial
others).
today
The
a new
seaweed,
42]
Court
creates
harvesting
[¶
people
of
presumption
negate
presumption
discussing
cases
more recent
[¶ 44] Our
cases,
in
adversity
prescriptive easement
have in-
presumption
permission
of
pri-
of
holding
that
recreational use
use, e.g., Augusta
volved recreational
presumed
is
permissive.
vate land
Club,
1130,9
this
but
Country
this
is based on
presumption
Because
new
changing
land use
is more a reflection
the use of the land instead of the character
in the
Be-
change
law.
patterns than
land,
departs significantly
of the
from
never held that
today
fore
we have
law.
our established case
by the use of
presumption
triggered
justifies
pre-
new
43]
Court
its
wild and unculti-
the land rather than the
new,
by claiming that it is not
sumption
contrary,
vated
of the land. On the
nature
but rooted
This is in-
precedents.
our
in the
recent
case we stated:
most
such
year
From Maine’s first
as a
correct.
uncultivated,
land is wild and
‘When the
state,
law
recognized
we
that the
have
con-
Maine
the rule that
applies
developed
easements
of time
requisite length
tinuous use for
agricultural
England
terrain of
improved,
that
presumption
raises a rebuttable
applied
change
could not be
without
Eaton,
2000
permissive.”
use was
Turner,
lands of
1
wild
Maine. Bethum v.
A.2d at 244.
760
(1820).
held
Me.
115-16
We first
over
a pre-
Further
that
indication
thirty years
hundred
that
ago
one
based on the use
sumption
and unenclosed”
“open
land
innovation
an unprecedented
the land is
permissive.
Mayberry
Inhabitants of
Standish,
(1868)
authorities from
looking
comes from
at
(citing
56 Me.
353
Met.)
Maine,
Smith,
(11
strongly support
outside
which
52
241
Hewins
Mass.
(1846)).
the character of the
century
based on
Early
presumption
in the last
we ex
(THIRD) OF
plained
permis
that
land. RESTATEMENT
presumption
§ 2.16 cmt.
SERVITUDES
exception
generally
PROPERTY:
sion was
(2000) (“Evidence that the claimed ser-
adversity.
g
presumption
applicable
view,
not
Contrary
clear
tion based on
character
to the Court’s
it is
from
presumption
on the
inventing
new
based
Augusta Country
opinion Club
use,
on our
reliance there
wild
as is shown
our
right of
there was located on
(citing Piper v. Voo
country
at
older cases.
Id.
land owned
club
uncultivated
rhees,
near,
on,
155 A.
golf
Me.
not
course.
and located
but
its
(1931);
Littlefield,
Me. at
opinion
we
See
By replacing the traditional with that only applies one use, gives recreational the Court
those who wild and uncultivated land uses private nonrecreational adversity.
benefit change law is effect
shift the burden to landowners
that, example, use for commer- private harvesting
cial timber use for
transportation purposes permissive.