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Cedar Beach/Cedar Island Supporters, Inc. v. Abrahamson

Superior Court of Maine, Cumberland

September 15, 2014

CEDAR BEACH/CEDAR ISLAND SUPPORTERS, INC., ROBERT JACKSON, JOHN FORRER, ROBERTA HELFGOTT, MARILEAN JOHNSON, JANET BARIBEAU, and PETER HILL, Plaintiffs
v.
CHARLES H. ABRAHAMSON, SALLY M. ABRAHAMSON, CHARLES H. ABRAHAMSON LIVING TRUST, SALLY M. ABRAHAMSON LIVING TRUST, and GABLES REAL ESTATE, LLC, Defendants and WELLS FARGO BANK, N.A., Party-in-Interest

JUDGMENT

Nancy Mills, Justice, Superior Court.

Jury-waived trial on plaintiffs' amended complaint, filed April 3, 2013, [1] was held on May 27-29, 2014. The transcript was filed on June 16, 2014, Written closing arguments were filed June 30, 2014.

Plaintiffs include Cedar Beach/Cedar Island Supporters, Inc., an entity of approximately 300 members from various states and countries. CBCTS was formed because the members were concerned about the blockade of Cedar Beach Road and the denial of the public's right to access the beach, Plaintiffs also include Robert Jackson, John Forrer, Roberta Helfgott, Pam Johnson, Janet Baribeau, and Peter Hill.[2]

Plaintiffs ask the court to declare the public has acquired a prescriptive easement over Cedar Beach Road on Bailey's Island in Harpswell, Maine. The court has considered the testimony, exhibits, and arguments of counsel. For the following reasons, the court declares the public has acquired a prescriptive easement over Cedar Beach Road.

FINDINGS

A. Property

Dr. Eugene McCarty owned Cedar Beach Road beginning in 1926. He died on May 3, 1957 and the property was transferred by his executrix in 1959."[3] (Pls.' Exs. 1; 4.) Before his death, Dr. McCarty allowed the public to travel down Cedar Beach[4] Road to use Cedar Beach' and the small beach[5] at the end of the road, Dr. McCarty's niece, Julia Sturtevant, [6] and her daughter, Meredith Starbranch[7] inherited property from Dr. McCarty, including a cottage, the Willows, and the property surrounding the Willows, the cottage lot. (Pls.' Ex. 3.) The Cedar Beach Road parcel first was purchased by Ms. Sturtevant and her husband, Roger Sturtevant in 1959. (Pls.' Ex. 4.) The Cedar Beach Road parcel was transferred to Ms. Sturtevant and Ms. Starbranch in 1961. (Pls.' Exs. 9; 10.) The Cedar Beach Road parcel was acquired by Richard and Phyllis Perry in 1982, and by Charles and Sally Abrahamson in 1998. (Pls.' Exs. 9; 19; 33.)

The Ridge property, which consisted of 2 ¾ acres[8] was part of the larger parcel inherited by Ms, Sturtevant and Ms. Starbranch. The Ridge property was reserved to them when they transferred other property in 1961. (Pls.' Exs. 3, 11, 13.)

The two parcels owned by Ms. Sturtevant and Ms. Starbranch were, therefore, acquired separately and were described separately, [9] (Pls.' Exs. 3; 4; 9; 10; 11; 12; 13; 19.) Parcel I is the ridge property, which includes the small beach; parcel II is Cedar Beach Road. (Pls.' Ex. 5.) By 1962, Ms. Sturtevant and Ms, Starbranch owned both parcels I and II.

A 1947 survey commissioned by Dr. McCarty depicts the road as "Beach Road." (Pls.' Ex. 2.) A 1960 survey commissioned by Ms. Sturtevant and Ms. Starbranch depicts the road as "Beach Road (Private)" and shows a gate on the road. (Pls.' Ex. 5.)

On December 12, 1987, in compliance with the statute, Cedar Beach Road was posted to prevent the acquisition of a right-of-way over land owned by the Perrys and Gerald and Polly Clements. 14 M.R.S. § 812 (2013); (Pls.' Ex. 63.) The certificate separately described Cedar Beach Road as one of three parcels. At the time, the Perrys owned the road and the adjacent parcel. (Pls.' Exs. 19, 21, 63.)

Six or nine months before trial, the Abrahamsons and Betsy Atkins of Gables Real Estate, LLC entered a purchase and sale agreement for the sale of Cedar Beach Road to Ms. Atkins. The agreement pertains only to the Cedar Beach Road parcel.

B. Witnesses

1. Martin Eisenstein

Martin Eisenstein has lived in Auburn for 30 years. He graduated from the University of Illinois in 1972 and the University of Illinois School of Law in 1975. He received a Masters in Law in 1976 in Stockholm, Sweden.

In 1987 or 1988, he did not live on Bailey's Island and was not a property owner but was told about Cedar Beach. He first visited Bailey's Island in 1987 or 1988 to use Cedar Beach and the small beach with 25 or 30 parents, school staff, and students from Auburn, None of them was a resident of or owned property in Harpswell. They parked on Robinhood Road and walked down Cedar Beach Road to the beach. At the time, Mr. Eisenstein did not know who owned the property and no one told him he was trespassing on anyone's property.

Mr. Eisenstein did not go to Cedar Beach between 1988 and 2004. In April or May 2004 he purchased property on Cedar Beach Road. Prior to 2004, Mr. Eisenstein was not told not to use Cedar Beach Road or either of the beaches. He never saw signs directing him not to use the road or the beaches, After his purchase, he used Cedar Beach four or five times per year, usually with several other people from all over the world. Mr. Eisenstein did not recall seeing the Abrahamsons on the beach. There were always a number of people on the beach when he was there, speaking various languages, including French, German, Swedish, Norwegian, and the Bosnians' language.

On Labor Day 2011, Mr. Eisenstein noticed a net fence blockade that blocked access to the beach, There was no way to get around, over, or under the fence. After that date, Mr. Eisenstein used the Lester property to get to Cedar Beach. Previously, he may have seen a chain and two posts, three or four feet high at the other end of Cedar Beach Road near Robinhood Road. (Pls.' Ex. 71, 17.) The chain was always on the ground. Prior to Labor Day 2011, Mr. Eisenstein never saw a sign or notice with instructions not to use Cedar Beach Road or the beaches. No one ever told him or anyone in his presence not to use Cedar Beach Road or the beaches, Mr. Eisenstein is a member, the secretary, the clerk, and the registered agent for plaintiff Cedar Beach/Cedar Island Supporters, Inc. (CBCIS). There were approximately ten incorporators of CBCIS in the summer of 2012. CBCIS has more than 300 members from many places, including 17 states, the District of Columbia, and a few foreign countries. Members must apply to the Board of Directors of CBCIS for membership. CBCIS does not represent the Town of Harpswell or the State of Maine. Mr. Eisenstein agreed that CBCIS and its members are not authorized to speak on behalf of the Town of Harpswell. One member of CBCIS, Kevin Johnson, is a selectman and initially was a plaintiff in the lawsuit but was dismissed.

CBCIS was formed because the members were concerned about the blockade and the denial of the public's right to access the beach. Mr. Eisenstein believed the public had a prescriptive easement. He determined CBCIS should speak to the Abrahamsons about the blockade. He understood that the Abrahamsons put up the blockade and they subsequently confirmed that belief.

In 2104, CBCIS settled a related lawsuit with the Aspatores, who own Cedar Beach.[10] (Pls.' Ex. 82.) CBCIS prosecuted this current lawsuit against the Abrahamsons, who own Cedar Beach Road, to protect and preserve continued access by the public to Cedar Beach.

CBCIS first approached the Town of Harpswell about initiating the lawsuit. The selectmen refused to bring the case for a number of reasons, including expense. Mr. Eisenstein did not recall that it was the Town's position that there was no public easement, but the selectmen determined the lawsuit would be too expensive. The Town was concerned about that expense and was risk-averse.

In 2011, the Town of Harpswell sent out questionnaires regarding the use of Cedar Beach Road to determine how to proceed and discussed public access over Cedar Beach Road to the beach. (Pls.' Ex. 81.) In 2013, after the lawsuit against the Abrahamsons was initiated but before the lawsuit against the Aspatores was initiated, the Town of Harpswell put on a warrant a bond in the amount of $220, 000.00 to obtain easement rights over the Aspatore and Abrahamson properties either through negotiation and a transfer by deed or through a lawsuit and court order. The article passed overwhelmingly. (Pls.' Ex, 87.) The Board of Selectmen was unwilling to file a lawsuit and the article did not authorize the selectmen or the Town of Harpswell to join the lawsuit. This arrangement lapses in December 31, 2014 unless the Town of Harpswell renews the expiration date, which is permitted.

2. Harry Starbranch, Jr.

Harry Starbranch, Jr. is an attorney who practices criminal law in New Hampshire, He was born in 1962 in Fort Worth, Texas. He lived in Alaska for two years, moved to Cape Neddick, Maine, and then to Cider Hill, The family of his mother, Ms. Starbranch, has lived in the York area since he could remember. His parents, Harry Starbranch, Sr. and Ms. Starbranch, divorced at some point.

His entire family visited Bailey Island with friends. They stayed in tents because there were no structures. Although he agreed there are two beaches, he confuses them. There was a beach on the property owned by his mother and grandmother, Ms. Sturtevant, which was the beach they always used and always talked about. He recalled three visits, from 1964 to 1970; if there were more visits, they were few in number. He has not returned to Bailey Island since 1970, He would not now be able to find Bailey Island on his own.

He recalled a chain three or four feet high across the road. The chain would have precluded a vehicle from proceeding down the road but a person could walk around the chain. He could not recall whether the chain was near the beach or the entry point to the road. The last thing his family did when leaving the property was to put the chain back up. When they returned, the chain was down. Mr. Starbranch, Jr. also recalled some sort of sign to deter trespassing but did not recall what the sign said. There were no other efforts he could recall to keep people off of the road.

Mr, Starbranch, Jr. recalled a stonewall that ran the length of Cedar Beach Road and a heavy forest behind the wall. On one occasion when he was six, seven, or eight years old, he sat on the wall with his brother and admonished people not to use the road. He did not know if he sat near the word "gate" on the property survey. (Pls.' Ex. 5.) He did not know if he sat in the area depicted in photograph five in exhibit 89. (Pls.' Ex, 89, 5.) He did not know the people who approached, One person obeyed; two disregarded his instructions, took the chain down, and drove over the chain and down the road. He did not know where they went. The adults told his brother and him not to do that again because they would get hurt.

His mother deferred to his grandmother with regard to decisions about the property. His grandmother became very upset when people used the little beach. The maddest he ever saw his grandmother was when she spoke about Bailey Island, Mr. Starbranch, Jr. never spoke to his grandmother about a 1962 posting of the property. He became aware of his mother's affidavit and Ms. Sturtevant's letter in the months prior to trial when the documents were provided by one of the attorneys. (Pls.' Ex. 55, 78, 79.) He did not recall seeing signs like those depicted in the photographs attached to his mother's affidavit, The 1962 posting was consistent with his belief about his mother and grandmother's general view with regard to people using the property. For the entire time they owned the property, neither his mother nor his grandmother gave any permission to use the road to get to the little beach or to use the little beach; there was no permission for the public to come and go. His mother and grandmother selectively gave permission to friends to go camping with the family.

He did not recall a ridge on his grandmother's property. He did not recall hearing people discuss the ridge property, A fieldstone fireplace designed for a campsite was located near the small beach. People trespassed and used the property for parties, which involved alcohol use and littering. The family was concerned about responsibility and was concerned that law enforcement was unresponsive to their concerns. Each time his family visited the property, the family was required to clean the property; they were never sure what they would find upon arrival.

In 1982, Mr. Starbranch, Jr. was willing to gather his college friends and close the road by parking pick-up trucks across the road. His grandmother was concerned for his safety and he never followed through with the plan.

His mother and grandmother eventually sold the property because of problems regarding use and concerns about liability. It was a rough crowd using the property and they had concerns about using the property themselves. His grandmother was also concerned about what would happen with the Bailey Island property if they lost the road; the concern was whether the property would be worth anything in that event. As long as they owned the property there was always the concern that they had lost control of the property and they realized they would not be able to return much longer. There was no discussion within his family, however, about filing a lawsuit to quiet title.

3. Harry Starbranch, Sr.

Harry Starbranch, Sr. has been an attorney for 51 or 52 years, In June 1957, he married Ms. Starbranch, He was in the Air Force and she was a student at Mt. Holyoke.

He believed his wife and mother-in-law inherited the property on Bailey Island in 1957. Ms. Sturtevant had very strong feelings about people not trespassing on the property and did not think the public had a right to cross the property. Mr. Starbranch, Sr. did not know why she felt that way. He recalled two beaches, one small and one larger. The large beach was not owned by his wife and mother-in-law and they never went there, They were concerned about the public's use of the road. They did not give permission to the public to use the road to the beach based on that concern.

He did not know if there were other traveled ways to the beach. He stated they went down the drive, now called the "road/' to the cottage and down to the small beach. They went down the road only and he did not know about any way other than the road.

He recalled a chain across the road but did not remember the height of the chain. He recalled also a couple of posts in 1960 at the entrance to the road where he marked "gate" on the map. (Pls.' Ex. 5.) Except for the chain, there was nothing restricting access to the road or the beach when he visited. There were no signs. He did not recall seeing anyone tell people to leave the road or the beaches. He did not recall seeing anyone use the large beach but he could not see the large beach from his mother-in-law and wife's property. His two boys used the small beach. He did not remember a fireplace on the beach, did not remember his son telling people not to use the road, and did not remember doing significant cleanup when they arrived at the property, During the 1960 visit with his wife and in-laws, he put a padlock on the chain that was there because his wife, her mother, and her stepfather wanted to restrict access. The purpose of the chain was to keep people out. They also discussed that they wanted to post the road, although he could not recall who initially raised the issue of posting the road. They discussed posting the road at the beginning of the road, marked "gate" on the map, (Pls.' Ex. 5.) Ms, Sturtevant had researched the issue and discussed the legal requirements of posting the road. She was a trained physicist, very precise, a brilliant and very capable woman, according to Mr. Starbranch, Sr. He described her as the nicest women he had ever met.

Mr. Starbranch, Sr. and his wife were in Maine before they moved to Fort Worth, Texas in June 1961. He was in the Air Force in Fort Worth and remained in Texas with his wife for the entirety of 1962. He prepared an affidavit for his wife's signature at her instruction. (Pls.' Ex. 78.) His wife, his wife's mother, and his wife's stepfather spoke to Mr. Starbranch, Sr. about the issue. The information in the affidavit for Ms. Starbranch's signature was transmitted to him by his wife from Ms. Sturtevant. Ms. Sturtevant did not ask Mr. Starbranch, Sr. to prepare an affidavit for her signature. The information included the two photographs; he did not know who took the photographs or whether he had the original photographs. The photographs were taken at the road. As far as he could tell, his wife and her mother were concerned about losing the right to have a private road.

Mr. Starbranch, Sr. added the "information and belief" language to the affidavit because the information had come from his mother-in-law. His wife had no personal knowledge of the contents of the affidavit. Mr. Starbranch, Sr. did not see the postings in 1962 because he was in Texas with his ex-wife. He was not aware that she posted anything.[11] He never saw any signs posted on the property.

Mr. Starbranch, Sr. recalled he probably transferred the affidavit after his wife signed it but he could not remember how. Until this litigation, he last saw the affidavit when his wife signed it.

He was not aware of a ridge lot. A 1961 deed contains Mr. Starbranch, Sr.'s signature. He did not recall what the document was intended to do, did not recall who drafted the document did not recall who directed him to sign it, and did not recall anything about it. (Pls.' Ex. 11.) He has no idea if he read the document before he signed it. Reading the document did not refresh his recollection regarding the ridge lot. Although there is a reference to the ridge property in his wife's affidavit, he did not know what that meant when he wrote the affidavit because the term ridge property does not mean anything to him. His wife and mother-in-law did not treat the property as two separate parcels.

He inserted the language about the ridge lot based on the instructions he received from Ms. Sturtevant and the metes and bounds language came from her as well. He had no memory of taking information from exhibit 78 and putting the information in exhibit 11.

He returned to the property in 1967 with Ms wife and two children. He never saw Bailey Island again after the 1967 trip. Bailey Island is not his favorite place in the world. He was divorced in the early 1970s. His ex-wife called him after their divorce with regard to the sale of the Bailey Island property.

4. Janet Baribeau

Janet Baribeau has lived in Brunswick, Maine since 1970, She grew up on Bailey Island and was familiar with Cedar Beach. Her family's history on Bailey Island has been continuous since her great-great grandparents. They used Cedar Beach every summer for swimming, for digging clams, and for family picnics.

She learned to swim at a young age at Cedar Beach. Her first memory was from age two in 1940 looking at crabs at low tide and playing with neighborhood children, Her family continued to use the beach every sunny day when she was a child and a teenager. They did not visit the beach often during winter but they did visit from spring to fall.

From her house, which was not far from Robinhood Road, she walked on the path, then Robinhood Road, and then Cedar Beach Road to the small and large beaches, which were considered one beach. Occasionally, she went to Fresh Water Cove and swam off the dock. She walked over the ridge property, which included a high physical ridge that ran along the side of Fresh Water Cove between the cove and Cedar Beach Road, referred to as the "ridge property." She followed the same path after joining Cedar Beach Road, a dirt road with mud puddles. (Pls.' Ex. 5.)

There were years in which cars were driven down Cedar Beach Road and parked in a field where the Aspatores' home is now located. At some point, cars were no longer driven down the road. There also was a chain just as one entered Cedar Beach Road from Robinhood Road. The chain was about three feet high and could be stepped over. People usually walked around the chain on a well-worn path. The chain was taken down at different times, put to one side, and put back. She recalled the chain was down more often than it was up. There were also two cedar posts, one on each side of the road.

Ms. Baribeau moved from Bailey Island to Brunswick but continued to use the beach. From 1959 through 1987 she used the beach as often as she could, probably six times during the summer. She was a busy mother of six children. She drove down the road and parked beyond where cars are allowed to park now, just past the Robinhood Inn. The road was wider but granite slabs were put in on the side so parking is not possible now. She and others then walked to Cedar Beach with strollers and babies.

Ms, Baribeau recalled twenty-five people on Cedar Beach and twelve to fifteen people on the little beach on a nice day. Everyone made friends with everyone from the cottages; this was a favorite place to get together. There were people on the beaches from outside Harpswell as well, including motel guests using the beach; use of the beach was not limited to Harpswell residents, Ms. Baribeau never asked permission to use either the beach or the road. No one ever told her she was not supposed to be there except during the past five or ten years. She was never asked to leave the beach or the road. She did not see a sign warning she could not use the beach or the road. In the 1960s,, there might have been a sign on the fence stating "pedestrians only beyond this point, " but she was not sure. She interpreted that sign to mean pedestrians were welcome. In 1962, Ms. Baribeau did not see any "no trespassing" posting on the road or near the beach.

Her previous use of the beach and the road changed just before or during Labor Day weekend 2011, when she was visiting Cedar Beach with her family. As they left the beach, she saw a barrier or blockade Mr. Abrahamson had built to stop people from going down the path that always had been used to access the beach. The Abrahamsons' lawn abuts the edge of the walkway. Mr. Abrahamson also put up a sign that stated Cedar Beach is a private beach.

Ms. Baribeau was upset he had put up a barrier because people had walked through the area for decades. She stated, "no one will ever stop me from using this beach." Mr. Abrahamson responded, "If you plan to come down here, you'd better have hiking boots on." Although they could have walked around the barrier, they would not have done that.

Ms. Baribeau had never seen the Town of Harpswell or any public entity plow the road, regrade the road, put gravel on the road, trim the bushes, or maintain the road in any way. The Town of Harpswell police did not patrol Cedar Beach Road, 5. John Goodwin

John Goodwin was born in 1954. His family acquired property on Bailey Island in 1961, which included Cedar Beach, His family sold the property to the Aspatores. (Pls.' Ex. 71, 5/17.) His family rented in the area previously. They built a house at 48 Cedar Beach Road but never built on the property at the beach, now the Aspatore property, Mr. Goodwin visited Cedar Beach as a child, His family built a camp in 1962 and they spent summers on the property until he was in high school, from which he graduated in 1972. In the 1960s during the summer, he was either at the beach, usually Cedar Beach but sometimes the small beach, or boating almost every nice day. During those years, the beach was not crowded and people on the beach were from the area or people renting in the area. On weekends, cars were parked along the road. He had summer jobs when he was old enough to work and went to the beach occasionally but not as often as when he was a child.

In the 1960s, he walked over the meandering path to Fresh Water Cove where his family kept an outhaul. Mr. Goodwin's father said he wrote to get permission from Ms. Sturtevant to use the path. They walked over the ledge to the hill and down to the cove.

There was a chain and two posts by Cedar Beach Road and Robinhood Road. There were metal posts on the edge of the road with metal rings for the chain. Mr. Goodwin's dad probably had a key because he owned property at the end of the road. It was common simply to step over the chain to walk down the road because the chain bowed down and was low enough to step over. There also were paths around each post to step around. His family was able to drive to their lot and other property owners drove down the road. People from the area walked down the road.

He had never seen anyone plow the road. Mr. Goodwin did not see any "no trespassing" signs and there was no limit on the public use of the road. Cars were parked from 1958 through 1987 on Cedar Beach Road. There is no room to park there now.

The beach was blocked off a few years ago on Labor Day, Mr. Goodwin thought Mr, Abrahamson blocked the beach but Mr. Goodwin did not see it being done.

6. Nancy Orr Johnson Jensen

Ms. Jenson was born in 1938 and grew up on Bailey Island. Her family owned a beach, which does not appear on the survey. They went to Cedar Beach most often but occasionally to the small beach. Her first memory is as a child going to the beach with friends. They had Sunday school picnics prior to the late 1950s. She did not know who owned the beach or the road. She never inquired about the owner and she never asked permission from anyone to use the beach or the road. She walked down the road to the beach and did not drive a car.

In the 1940s and 50s, people drove cars on Cedar Beach Road and parked in an open field, now the Aspatore property. From 1957 through 1987 the use of cars stopped and Ms. Jensen did not see cars parked in the area during that time.

A chain was put up on Cedar Beach Road, possibly in the 1960s. The chain was a heavier type of chain but low enough to allow people to step over it or walk around it. It was always the same chain, a heavier chain that sagged, attached to two posts. She was unable identify the post when shown a photograph. (Pls.' Ex. 69, 0022.) The chain was mostly up; she did not recall seeing it down. She remembered noticing that the chain was gone. She interpreted the chain as designed to keep cars off the road. During the period from 1957 through 1987, there was a sign on the right-hand side of the chain. She could not remember exactly what the sign said.

Ms. Jensen visited the beach one or two times per week before she moved to Brunswick in 1960 and less frequently after she moved. There were approximately twenty people on the beach during these visits. People from outside Bailey Island, people from Brunswick, and people who did not own property in Harpswell used the beach.

Beginning in 1960, Ms. Jensen taught second and fourth grade in Brunswick for two years. In 1962, she taught in Germany in the military and next moved to Illinois. She returned to Maine for two to four weeks in the summer and went to the beach during those visits one or two times per week. The number of people on the beaches during those summer visits remained consistent, She sometimes visited the beach at night because there were no crowds. That frequency of visits to the beach continues to this day.

Through 1987, Ms. Jensen was never told not to use the road and never asked permission to use the road. During the past two or three years, Mr, Abrahamson erected a substantial blockade to the beaches. He said he was blocking the beach. Ms. Jensen and her friend said they would continue to use the beach and pass the blockade, Mr. Abrahamson replied that he didn't think they would because the blockade would be substantial and they would have to have big boots on to go around it. She returned to the beach later and the blockade had been taken down but she did not recall when. That was the first and only time she had been told she could not use the road or the beach.

She never saw the Town of Harpswell work on the road, grade the road, maintain the road, plow the road, or post a speed limit on the road.

7. Marilean Johnson

Marilean (Pam) Johnson is 82 years old and has lived on Bailey Island for 80 years. She lived in Florida from 1953 to 1955.

Her first memory is going to Cedar Beach at age three or four years. She has seen pictures of herself and her mother at the beach. They always went to the big beach and not to the little beach unless to chase a child who ran away, At the beginning of her use, Dr. McCarty owned the road and the beach. She knew him very well and he supported people using the beach. He closed the beach one day and charged one dollar as a fundraiser for the Boy Scouts.

When she was much younger, people drove to the beach and parked on the Goodwin property. There was always a chain on the road, even when Dr. McCarty owned the property. Because there had been a fire, which may have been caused by a car, Dr. McCarty did not want cars on the road but he welcomed people using the road. She could step over the chain, but normally, she went around the chain on a path to the left. The chain was always tip during Dr. McCarty's ownership to deter cars.

From the late 1950s to 1987 she did not remember a change in the use of the chain. Signs began to go up three or four years ago.

She has visited the beach continuously every year beginning in the spring, throughout the summer, definitely in the fall, and once or twice during the winter. From her house, she walked to the beach on Robinhood Road and Cedar Beach Road, She raised four children on the big beach, from 9:00 a.m. to 4:00 p.m., at least five days per week all summer when her children were growing up. The first was born in 1955 and the last was born in 1969. She stopped going to the beach two years ago.

While at the beach, she relaxed while the children swam. She taught the children to swim at the beach. She had many friends there, who met at the beach to socialize, On a nice day there would be thirty-five people at the big beach and perhaps ten or twelve at the little beach, There were people there she did not recognize, although not many. She worked at the Bailey Island Motel, which sent people to the beach, No one gave her express permission to use the road and she never asked permission to use the beach or the road because she never thought she needed to, She never saw a "no trespassing" sign or a sign stating passage was strictly forbidden. Because there were no signs that said, "don't come, " she went. Except during the past five years, no one ever told her she could not use the beach or the road and no one ever said to leave the beach or the road, There was a short cut from Fresh Water Cove to the Cedar Beach Road across the ridge. She and others used the short cut. The ridge was opposite Judge Haines's house. (Pls.' Ex. 71, 17.)

8. Robert Tacks on

Mr, Jackson was born June 13, 1939. His parents first purchased a cottage on Bailey Island on Oceanside Road in 1947, which was when he first visited Bailey Island. Cedar Beach Road begins at Oceanside Road. (Pls.' Ex. 71, 17.) He followed Cedar Beach Road to get to Cedar Beach; that was the only way to get to Cedar Beach by land. His family still owns a cottage and abutting property.

In 1947, he went to both beaches with members of his family. In 1948, he pulled his younger brother in a wagon to the beach. They continued to go to the beach frequently into the 1960s. Although it varied due to weather, there would be twenty-five or thirty people on the beaches in August.

When his family purchased the cottage in 1947, his family lived in Massachusetts. The family lived in Massachusetts for approximately four years before moving to Cape Elizabeth, Maine. He returned to the beaches each summer after 1947 with family, friends, and relatives. He brought friends from Newton, Massachusetts and Winchester, Massachusetts to use the beach. They used the beach very often, although perhaps not daily, but it was "the place to be." There was a mix of people using the beach, including people renting cottages, people who lived on the island, and others he did not know. He made friends with people there, especially those with children.

Mr. Jackson used the beach consistently with his family and friends until he left for college. The number of people using the beach remained consistent but on good days and holidays, attendance was higher than usual. He very, very rarely saw cars traveling down Cedar Beach Road.

During summers, he worked as a sternman on a lobster boat, mossed, and worked at a fish laboratory. He became familiar with people from the Bailey Island community and their children. He attended Dartmouth College from 1957 to 1961. During college, he spent summers on Bailey Island. Except for two six-week military summer camps, he was on Bailey Island at the beach. He noticed no significant change in the number and mix of people on the beach.

After college, he went to officer's basic training at Fort Sill in Oklahoma. He then went to Bailey Island for a short period of time, then to Fort Dix, and then to Germany until June 1963. He immediately left for graduate school at Rutgers in New Jersey until the summer of 1964, when he received a M.B.A. He returned to Bailey Island or Cape Elizabeth depending on the time of year.

He was married in 1959 and the first of his three children was born in 1960. In 1960 his family stayed at Bailey Island while he was at summer camp and in the military. When he was in college, his wife and children spent a significant part of the summer on Bailey Island. In 1961 they joined him in Germany until 1962. When they were in New Jersey, his wife and daughter went to Bailey Island independently of him; he was at the beach less frequently than his family. Over the years, there was no difference with regard to the number and mix of people at the beach.

He spent one and one-half years in New York City at Haskins & Sells, a CPA firm, and then moved to Hopkinton, Massachusetts, where he and his family remained until 1969. He and his family consistently made return trips to Bailey Island each year and used the beach on each trip.

He purchased a cottage on Bailey Island in 1960 abutting the property of his parents. He and his family continued to use the beach frequently to swim, skip rocks, clam, and fish. The number of people using the beach remained consistent and included people from the area and from away.

His family next moved to Amsterdam, New York, where he worked for a different company for three years, The family continued to go to Bailey Island for the summer. Although his family went to the beach more often than he did, he continued to go down Cedar Beach Road to the beach. He and his family then lived in Granby, Connecticut for three years while he worked for Connecticut General, They continued the same pattern of traveling to Bailey Island and the beaches. Nothing changed with regard to the number or mix of people at the beach. The only change concerned houses that were being built on the road from Robinhood Inn to the beach. A log cabin had been constructed on the Haines property in the 1940s. (Pls.' Ex. 71, 5.)

He and his family moved next to Liverpool, New York for one year and continued to visit Bailey Island in the summer with the same frequency. The family then lived in Monmouth, Maine for nine years and Mr. Jackson worked for a textile business. He left in 1983 and eventually opened his own accounting practice. Visits to Cedar Beach increased during their residence in Monmouth. They were there every week or every other week; his family ...


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