ROBERT F. ALMEDER et al. v. TOWN OF KENNEBUNKPORT et al.
Docket: Yor-12-599
MAINE SUPREME JUDICIAL COURT
February 4, 2014
2014 ME 12
Reporter of Decisions; Argued: November 19, 2013; Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
[¶1] Robert F. Almeder and twenty-eight other owners of property fronting Goose Rocks Beach in Kennebunkport (the Beachfront Owners) appeal from a decision of the Superior Court (York County, Brennan, J.) awarding the public a recreational easement over both the intertidal and dry sand portions of the Beach. The Beachfront Owners argue that the court erred in (1) permitting the State and neighboring landowners to intervene, (2) awarding a prescriptive easement and an easement by custom to the public users of the beach, and (3) determining that the public had rights concerning the intertidal zone of the Beach pursuant to the public trust doctrine. The State cross-appeals,1 arguing that the court erred in limiting the
I. BACKGROUND
[¶2] Goose Rocks Beach is a two-mile stretch of beach located in Kennebunkport.2 There are 110 parcels of property directly abutting the beach owned by ninety-five separate owners. Nine of the lots are owned by either the Town or the Kennebunkport Conservation Trust. The Beach has five public access points and 173 public parking spaces on two abutting roads.
[¶3] In October of 2009, the Beachfront Owners3 initiated proceedings in the Superior Court against the Town and all others who claimed any title or right to use the Beach. Each Beachfront Owner sought (1) a declaratory judgment affirming his or her ownership and exclusive right to use that portion of the Beach abutting his or her parcel down to the mean low-water mark, “subject only to the public rights of usage in the Intertidal Property established by the Colonial Ordinance of 1647,” and (2) to quiet title to his or her claimed Beach property.
[¶5] With the agreement of the parties, the court scheduled a bifurcated trial to first address the use-related claims that were still pending, and saved for the second portion of trial those claims related to title. In August and September of 2012, the court heard the first portion of the matter in a two-week trial during which sixty-six witnesses testified. The causes of action before the court in that first portion of the bifurcated trial were (1) the Town‘s and the Backlot Owners’ claims alleging prescriptive easements over the entirety of the Beach, and (2) the
[¶6] By partial judgment dated October 16, 2012, the court made the following findings of fact.7 In colonial times, the Beach was used as a public highway as well as for harvesting seaweed, clamming, driving livestock, and providing access to marshland for cutting hay. Starting in the 1800s, the Beach became a popular tourist destination, resulting in the construction of hotels and guesthouses, a bowling alley, a casino, shops, restaurants, and “auto-trailer” camps on the land abutting the Beach. The court found that from the late 1800s through the 1940s, the Beach was used “for a full range of recreational activities, including walking, swimming, sun bathing and a variety of beach related games.” After a fire swept through the area in 1947, the rebuilt properties around the Beach had a more residential and less commercial character, but the Beach was still used for recreational activities.
[¶7] The Town began imposing regulations on the use of the Beach in the 1700s, including some regarding livestock, clamming, and seaweed harvesting.
[¶8] The court found that “while people tended to use the area in front of their own properties or near a public access point most frequently, nearly all used the Beach ‘from river to river’ frequently depending on what activity was being undertaken at the time.” Although the use of the Beach is most intense in the areas of the Beach owned by the Town, people regularly use the full length of the Beach year-round to walk, play in tidal pools, collect sand dollars, play softball, ride horses, and cross-country ski, and to access the water for boating, water-skiing, windsurfing, kayaking, snorkeling, rafting, paddleboarding, and tubing.
[¶9] Beachgoers have not asked the Beachfront Owners for permission to use the Beach for these general recreational purposes because they felt they had a
[¶10] The Beachfront Owners have requested that beachgoers leave the property when beachgoers were drinking alcohol or engaging in loud, disruptive, or potentially dangerous activities. Rarely has a Beachfront Owner otherwise ever requested that a beachgoer “move along.” Testimony indicated that it would be impractical to ask beachgoers engaged in ordinary recreational activity to leave.
[¶11] Although several Beachfront Owners have, in recent years, posted ‘no trespassing’ signs around their properties, the signs were intended to keep people off of the Beachfront Owners’ landscaped property and private access ways rather than any portion of the sand itself. As to the wet or dry sand portions of the Beach, the court found that beachgoers would have ignored the signs and continued to use the Beach as they always had. Many of the Beachfront Owners also have offered their homes for rent, and have not given their tenants any instructions that limit their use of the Beach.
[¶12] On these facts, the court determined that the Town, the Backlot Owners, and the public enjoy a public prescriptive easement as well as an easement by custom to engage in general recreational activities on both the wet and
[¶13] Although the second portion of the bifurcated procedure remained for trial and decision, the court granted the Town‘s, the TMF Defendants‘, and the State‘s motions for entry of a final judgment pursuant to
II. DISCUSSION
[¶14] The Beachfront Owners challenge the Superior Court‘s award to the Town, the public, and the Backlot Owners of an easement over both the wet and dry sand portions of the entirety of Goose Rocks Beach pursuant to theories of prescription and custom, and its articulation of the extent of the public trust rights in the intertidal zone. In its cross-appeal, the State contends that the court erred in limiting the scope of the activities allowed in the intertidal zone. We first address two threshold issues—the finality of the judgment and standing.
A. Threshold Issues
1. Entry of a Final Judgment
[¶15] The first preliminary issue is whether the court erred in entering a final judgment pursuant to
- The relationship of the adjudicated and unadjudicated claims;
- The possibility that the need for review may be mooted by future developments in the trial court;
- The chance that the same issues will be presented to us more than once;
- The extent to which an immediate appeal might expedite or delay the trial court‘s work;
- The nature of the legal questions presented as close or clear;
- The economic effects of both the appeal and any delays on all of the parties, including the parties to the appeal and other parties awaiting adjudication of unresolved claims; and
- Miscellaneous factors such as solvency considerations, the res judicata or collateral estoppel effect of a final judgment and the like.
Marquis v. Town of Kennebunk, 2011 ME 128, ¶ 13, 36 A.3d 861 (alteration omitted) (quotation marks omitted). With particular emphasis on the first, fourth, and sixth factors listed above, we note the extraordinary circumstances of this case, which already has cost the parties and the taxpayers substantial time and resources. We discern no abuse of discretion in the court‘s entry of a final judgment as to the parties’ use claims pursuant to Rule 54(b). See Marquis, 2011 ME 128, ¶¶ 12-13, 36 A.3d 861. Therefore, we address the court‘s decision on its merits.
2. Intervention of the Backlot Owners
[¶16] The second threshold issue is the standing of the Backlot Owners, whom the Beachfront Owners contend were not proper parties to the litigation. The Backlot Owners moved to intervene pursuant to
their location [in relation] to the beach, their treatment of the beach as if it were their own, their ability to access the beach without permits (parking), their ability to rent their homes based on their proximity to the beach, their inflated tax assessed values based on their location and their ability to access the beach through various public and private rights of way.
(Alterations omitted) (quotation marks omitted). We review the court‘s decision to allow the Backlot Owners to intervene for errors of law or an abuse of discretion. State v. MaineHealth, 2011 ME 115, ¶ 7, 31 A.3d 911.
[¶17] Our review of the record indicates that, ultimately, the Backlot Owners’ motion to intervene was erroneously analyzed as a matter of general standing rather than as a matter of standing to intervene pursuant to Rule 24. When their motion is properly considered through the lens of Rule 24, the Backlot Owners did not, as a matter of law, meet the requirements of Rule 24, either by right or by permission. To the extent any Backlot Owner sought a private
B. Public Easements
[¶18] The viability of a type of easement and the evidence required to establish that easement are matters of law we review de novo. See Androkites v. White, 2010 ME 133, ¶ 12, 10 A.3d 677. We review the facts supporting the court‘s conclusions for clear error, and will uphold the court‘s findings unless
1. Easement by Prescription
[¶19] “An easement is a right of use over the property of another” that may be created by any one of several means. Stickney v. City of Saco, 2001 ME 69, ¶ 31, 770 A.2d 592. Among them,
[¶20] First, the claimant‘s use must be “under a claim of right adverse to the owner.” Id. ¶ 14. Adversity is established by evidence that the claimant has used the property (1) in the absence of the owner‘s express or implied permission, and (2) “as the owner would use it, disregarding [the owner‘s] claims entirely, using it
[¶21] Second, the claimant‘s use must be with the owner‘s knowledge and acquiescence. Androkites, 2010 ME 133, ¶ 14, 10 A.3d 677. Acquiescence is “consent by silence.” Dartnell v. Bidwell, 115 Me. 227, 230, 98 A. 743 (1916); see Stickney, 2001 ME 69, ¶ 23, 770 A.2d 592 (holding that acquiescence refers to “passive assent or submission to the use, as distinguished from the granting of a license or permission given with the intention that the licensee‘s use may continue only as long as the owner continues to consent to it” (quotation marks omitted)). Knowledge and acquiescence may be established either by proof of actual knowledge and acquiescence, or by proof of a use “so open, notorious, visible, and uninterrupted that knowledge and acquiescence will be presumed.”13 Androkites, 2010 ME 133, ¶ 14, 10 A.3d 677; see Taylor v. Nutter, 687 A.2d 632, 635
[¶22] Third, a claimant must establish his continuous use of the property for at least twenty years.
[¶23] We begin our analysis of whether the trial court erred in concluding that the public has a prescriptive easement concerning Goose Rocks Beach with the court‘s adversity determination, which we conclude is dispositive. Essential to our consideration of adversity in cases involving public recreational easements is the presumption of permission. We have long recognized that public recreational uses are presumed to be undertaken with the permission of the landowner, thereby defeating the adversity element of a prescription claim.15 Lyons, 2002 ME 137, ¶ 19, 804 A.2d 364; Eaton, 2000 ME 176, ¶ 32, 760 A.2d 232; S.D. Warren Co. v. Vernon, 1997 ME 161, ¶ 16, 697 A.2d 1280; Town of Manchester v. Augusta Country Club, 477 A.2d 1124, 1130 (Me. 1984); Inhabitants of the Town of Kennebunkport v. Forrester, 391 A.2d 831, 833 (Me. 1978); Piper v. Voorhees, 130 Me. 305, 312, 155 A. 556 (1931); Littlefield v. Hubbard, 124 Me. 299, 304, 128 A. 285 (1925); Mayberry v. Inhabitants of Standish, 56 Me. 342, 353 (1868).
[¶25] The presumption recognizes that public recreational use “is consistent with, and in no way diminishes, the rights of the owner in his land.” Lyons, 2002 ME 137, ¶ 19, 804 A.2d 364 (quotation marks omitted). Particularly for “land [that] is not being actively used by its owner, the claimant‘s use can be better regarded as permissive until affirmatively shown to be adverse.” 4 Richard R.
In a consistent line of cases this court has declined to hold that the mere use by the general public of wild and uncultivated land as a route for hauling seaweed, for hunting, or for mere pleasure or recreation, is sufficient to show the adverse [use] essential to create a prescriptive easement.
[¶26] Although we have sometimes referred to the presumption as applicable to “wild and uncultivated” land, id., the “wild and uncultivated” language has never been employed as a precise test. In 1868, for example, we held that “[t]he open and unenclosed condition of the land, a sandy, pitchpine, blueberry plain of trifling value, was a matter from which it might be presumed that the use
[¶27] To the extent the applicability of the presumption was uncertain, we clarified in Lyons that the presumption of permission is not dependent on the type of land at issue (wild and uncultivated, for example), but instead on how the public uses the land (for recreation). 2002 ME 137, ¶¶ 20-25, 804 A.2d 364. Indeed, we and other courts specifically have applied the presumption to cases involving public recreational use of private beaches.16 See, e.g., Augusta Country Club, 477 A.2d at 1126, 1130 (applying the presumption to an action regarding a sand beach next to a golf course); Littlefield, 124 Me. at 304, 128 A. 285 (presuming permission as to public use of “unenclosed seashore property“); Clickner, 35 A.3d at 467, 484-86 (presuming permission for public use of a beach on a privately-owned island). In Maryland, for example, the public‘s recreational use of
[¶28] In sum, the presumption of permission must be applied in any matter in which a claimant seeks a public recreational prescriptive easement. Lyons, 2002 ME 137, ¶ 24, 804 A.2d 364. When the presumption is applied, the burden of proof is on the claimant to rebut the presumption of permission in order to establish adversity. Id. ¶ 25.
[¶29] There can be no dispute that this matter involves a claimed public recreational prescriptive easement over the entirety of the Beach. The Town specifically alleged that “the public[] . . . has acquired prescriptive rights in Goose Rocks Beach,” and the court found as much in awarding a right to “general recreational activities on the entirety of Goose Rocks Beach, both wet and dry sand.” Thus, this is precisely the type of matter in which Lyons requires that the presumption of permission be applied.
[¶30] Although the court did note the existence of a presumption of permission, it evaluated adversity without affording the Beachfront Owners the
[¶31] Although the court did not distinguish its findings as to adversity and acquiescence, we discern only one finding relevant to its adversity determination, namely, that the Town has spent money on the Beach to provide public conveniences and increase tourism, and has established regulations for parking and other uses at the Beach. Similarly, in Augusta Country Club, the town had “spent both time and money to keep the right-of-way under repair and to assist with the maintenance and security of the beach,” which, given the presumption of permission, we held constituted “voluntary actions . . . taken subordinate to the right of ownership of the [owner] in its beach.” 477 A.2d at 1130.
[¶32] As a matter of law, this evidence, which was the only evidence on which the trial court relied in determining adversity, is not sufficient to overcome the presumption of permission that is applied to the public‘s recreational use of the entirety of Goose Rocks Beach, including both wet and dry sand. The lack of sufficient evidence supporting the element of adversity precludes the grant of a
[¶33] Furthermore, the lack of specific evidence or findings as to each of the Beachfront Owners’ parcels at issue would require us to vacate the judgment in any event.17 It is in the very nature of an equitable claim to property that persons may “only acquire that property which they actually possessed.” D‘Angelo, 2005 ME 31, ¶ 1, 868 A.2d 239; see McGeechan v. Sherwood, 2000 ME 188, ¶ 54, 760 A.2d 1068 (agreeing that the adverse use of some portion of property does not equate to adverse use of the entire property in the absence of evidence to that effect); see also Opinion of the Justices, 649 A.2d 604, 610 (N.H. 1994) (“[P]rescriptive easements, by their nature, can be utilized only on a tract-by-tract basis . . . .” (quotation marks omitted)); State ex rel. Thornton v. Hay, 462 P.2d 671, 676 (Or. 1969) (“Strictly construed, prescription applies only to the specific tract of land before the court, and doubtful prescription cases could fill the courts for years with tract-by-tract litigation.“); 4 Richard R. Powell, Powell on Real Property § 34.11[6], at 34-129. As a matter of law, generalized testimony regarding walks along the entire length of the Beach and findings about use of the Beach “from river to river” cannot establish the elements of a prescriptive
2. Easement by Custom
[¶34] We also vacate the court‘s award of an easement by custom over the Beach. Custom was developed in English common law to account for usage that “lasted from time immemorial, without interruption and as a right,” and that was “reasonable, certain, peaceably enjoyed and consistent with other customs and laws.” 4 Richard R. Powell, Powell on Real Property § 34.11[6], at 34-132 (quotation marks omitted). It is “largely a dead doctrine in the United States” because “[i]t has been argued that no American custom could have lasted long enough to be immemorial, and that we have established methods for claiming and recording rights in land” that no longer necessitate employment of the doctrine. 4 Richard R. Powell, Powell on Real Property § 34.11[6], at 34-132 (footnotes omitted). Although presented with several opportunities to do so through almost
C. Public Trust Doctrine
[¶35] Finally, notwithstanding the court‘s application of a public prescriptive easement to the intertidal zone (which we herein vacate) the court went on to declare separately the public‘s rights in the intertidal zone stemming from the public trust doctrine.19 That determination is premature. The court‘s determination of the scope of the public‘s right to use the intertidal zone pursuant to the public trust doctrine must be vacated because only the Beachfront Owners’ declaratory judgment claim even implicates the public trust, and the parties have not yet litigated that portion of the case. In addition, as noted earlier, the State did not file a claim for a declaratory judgment or any other cause of action raising the public trust doctrine. We note also that the presumption of permission applies to the intertidal zone as well as to the dry sand for all general recreational activities.20
D. Conclusion
[¶36] We therefore vacate the judgment awarding the Town and Backlot Owners a prescriptive easement over Goose Rocks Beach, and deciding that the public has a right to engage in ocean-based activities in the intertidal zone pursuant to the public trust doctrine. We remand the matter to the Superior Court for disposition of the remaining causes of action.
The entry is:
Order granting the Backlot Owners’ right to intervene vacated. Judgment vacated and remanded for further proceedings consistent with this opinion.
On the briefs:
Sidney St. F. Thaxter, Esq., David P. Silk, Esq., and Benjamin M. Leoni, Esq., Curtis Thaxter, LLC, Portland, for appellants Robert Almeder et al.
Christopher E. Pazar, Esq., Drummond & Drummond, Portland, for appellants Janice M. Fleming, Terrence G. O‘Connor, and Joan M. Leahy
Amy K. Tchao, Esq., Melissa A. Hewey, Esq., Brian D. Willing, Esq., and David M. Kallin, Esq., Drummond Woodsum, Portland, for appellee Town of Kennebunkport
André G. Duchette, Esq., and Gregg R. Frame, Esq., Taylor, McCormack & Frame, LLC, Portland, for appellees “TMF Defendants”
Adam Steinman, Esq., Cape Elizabeth, for appellee Surfrider Foundation
Janet T. Mills, Attorney General, and Paul Stern, Dep. Atty. Gen., Office of Attorney General, Augusta, for appellee State of Maine
John A. Cunningham, Esq., and Noreen A. Patient, Esq., Eaton Peabody, Brunswick, for amicus curiae Maine Forest Products Council
Brian P. Winchester, Esq., Augusta, for amicus curiae Maine Snowmobile Association
Ivy L. Frignoca, Esq., Portland, for amicus curiae Conservation Law Foundation
At oral argument:
Sydney St. F. Thaxter, Esq. for all appellants
Amy Tchao, Esq. for appellee Town of Kennebunkport
André G. Duchette, Esq. for appellee “TMF Defendants”
Paul Stern, Dep. Atty. Gen., for appellee State of Maine
York County Superior Court docket number RE-2009-111
FOR CLERK REFERENCE ONLY
Notes
Except as otherwise provided in paragraph (2) of this subdivision and in Rule 80(d), when more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.