PLAINTIFFS AND DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Nancy Mills, Justice, Superior Court.
Before the court is plaintiffs' motion for partial summary judgment. Plaintiffs argue defendants cannot raise a genuine issue of material fact regarding whether a notice posted in 1962 on property now owned by the Abrahamson defendants prevented the public from acquiring an easement by prescription over a portion of Cedar Beach Road on Bailey Island in Harpswell, Maine. Plaintiffs ask for a ruling that the 1962 notice does not apply to the Cedar Beach Road. Defendants ask for a ruling that the notice does apply to Cedar Beach Road. For the following reasons, the motions are denied.
In their amended complaint, plaintiffs seek a declaratory judgment that the public has acquired a right to use Cedar Beach Road on Bailey Island by prescription, count I, or custom, count II. In defendants' answers, the 1962 notice is raised as an affirmative defense to the acquisition of a prescriptive easement.
In 1957, Julia Sturtevant and Meredith Starbranch acquired a cottage and all the land surrounding the cottage and adjoining Cedar Beach Road on Bailey Island. (Supp. S.M.F. ¶ ¶ 1-2.) In 1961, Ms. Sturtevant and Ms. Starbranch acquired Cedar Beach Road; the deeds contain the language, " subject to the rights of others in common to use said Beach Road as a right of way." (Supp. S.M.F. ¶ ¶ 8-11.) On December 27, 1961, Ms. Sturtevant and Ms. Starbranch conveyed a portion of their land and a right of way over Cedar Beach Road to Margaret E. Seamans. (Supp. S.M.F. ¶ ¶ 12-13.) Ms. Sturtevant and Ms. Starbranch retained a 2.71 acre parcel, referred to as the " Ridge Lot" in the Seamans deed. (Supp. S.M.F. ¶ 14.) The deed to Ms. Seamans contained language that the grantors reserved rights to connect utilities, " to two houses on the Ridge Lot, the area retained by the Grantors, and buy water service ... if at any time in the future houses are built on said retained area which consists of 2 3/4 acres on the eastern shore of Fresh Water Cove." (Supp. S.M.F. ¶ 15.) The deed also contained language that referred to Cedar Beach Road as a parcel separate from the Ridge Lot. (Supp. S.M.F. ¶ 16.)
In September 1962, Ms. Starbranch posted a " Notice to Prevent Acquisition of Right of Way or Easement" on her property and filed the notice in the Cumberland County Registry of Deeds.  (Supp. S.M.F. ¶ 19.) In her affidavit, Ms. Starbranch states she posted notices, " to prevent acquisition of a right-of-way or other easement in or over her land in conspicuous places upon her land commonly known as the 'Ridge' property, that being the lot of approximately 2 3/4 acres on the shore of Fresh Water Cove." (Supp. S.M.F. ¶ 20; Abrahamson Opp. S.M.F. ¶ 20; Gables Opp. S.M.F. ¶ 20.) She also refers in her affidavit to two photographs. (Abrahamson & Gables Add. S.M.F. ¶ 34; Pls.' S.M.F. ¶ 19, Eisenstein Aff. Ex. G.) There was a chain across Cedar beach Road connecting two posts during the 1962 notice period. (Abrahamsons & Gables's Add. S.M.F ¶ ¶ 35, 38.)
On October 24, 2012, plaintiffs filed their complaint, which they amended on April 3, 2013. Defendant Gables, LLC filed a motion to intervene, which was granted on April 8, 2013. Plaintiffs filed their motion for partial summary judgment on December 5, 2013. Defendant Gables and defendants Abrahamsons filed separate oppositions to plaintiffs' motion for summary judgment. On April 11, 2014, the Court granted defendant Gables's motion to supplement the summary judgment record with the affidavit of Harry Starbranch, the son of Meredith Starbranch.
1. Standard of Review
Under Rule 56, a party may move for summary judgment on a claim " or any part thereof." M.R. Civ. P. 56(a). " Summary judgment is appropriate when there is no genuine issue of material fact that is in dispute and, at trial, the parties would be entitled to judgment as a matter of law." Fitzgerald v. Hutchins, 2009 ME 115, ¶ 9, 983 A.2d 382 (citing Dyer v. Dep't of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821). " An issue is genuine if there is sufficient evidence supporting the claimed factual dispute to require a choice between the differing versions; an issue is material if it could potentially affect the outcome of the matter." Brown Dev. Corp. v. Hemond, 2008 ME 146, ¶ 10, 956 A.2d 104 (citing Univ. of Me. Found, v. Fleet Bank of Me., 2003 ME 20, ¶ 20, 817 A.2d 871).
Defendants " bear the burden of making a prima facie showing of each element of" their defense. Rutland v. Mullen, 2002 ME 98, *1 8, 798 A.2d 1104; see also Martinez-Rodriguez v. Guevara, 597 F.3d 414, 419 (1st Cir. 2010) (" With respect to each issue on which the nonmoving party has the burden of proof at trial, that party must 'present definite, competent evidence to rebut the motion.'") To avoid summary judgment, the non-moving party cannot rely " merely upon conclusory allegations, improbable inferences, and unsupported speculation." Dyer, 2008 ME 106, ¶ 14, 951 A.2d 821 (quoting Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir. 2007)).
2. 1962 Notice
By statute, a landowner may prevent others from acquiring rights through adverse use by ...