ROBERT F. ALMEDER et al.
TOWN OF KENNEBUNKPORT et al.
Argued: May 15, 2019
St. F. Thaxter, Esq., David P. Silk, Esq., and Benjamin M.
Leoni, Esq. (orally), Curtis Thaxter LLC, Portland, for
appellants Robert F. Almeder et al.
R. Smith, Esq. (orally), and Keith E. Glidden, Esq., Verrill
Dana, LLP, Portland, and Christopher E. Pazar, Esq., Drummond
& Drummond, Portland, for appellants Terrence
O'Connor and Joan Leahey
M. Kallin, Esq. (orally), Melissa A. Hewey, Esq., and Amy K.
Tchao, Esq., Drummond Woodsum, Portland, for appellee Town of
M. Frey, Attorney General, and Lauren E. Parker, Asst. Atty.
Gen. (orally), Office of the Attorney General, Augusta, for
appellee State of Maine
F. Petruccelli, Esq., Petruccelli, Martin & Haddow, LLP,
Portland, for appellee neighboring landowners
Steinman, Esq., Cape Elizabeth, for appellee Surfrider
L. Guay, Esq., Woodman Edmands Danylik Austin Smith &
Jacques, P.A., Biddeford, for amicus curiae North American
A. Soley, Esq., Glenn Israel, Esq., and James G. Monteleone,
Esq., Bernstein Shur, Portland, for amici curiae Susan D.
Howe and John D. Howe
Orlando E. Delogu, amicus curiae pro se
SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, and HUMPHREY, JJ.
Goose Rocks Beach is a coastal section of Kennebunkport
stretching approximately two miles along the Atlantic Ocean
and consisting of the beachand upland areas. Robert F.
Almeder and twenty-two other owners of property in this
appeal from a judgment entered by the Superior Court (York
County, Douglas, J.) after a bench trial determining
that the seaward boundary of each of their respective
properties does not reach the beach, sometimes referred to as
the wet sand, in front of their property, or the dry sand
seaward of the "seawall." In this appeal, which is
complicated by a voluminous historical record, we consider
whether the Beachfront Owners or the Town of Kennebunkport
holds title to the disputed portions of the Beach.
The ownership of property at Goose Rocks Beach has long been
in dispute. See Almeder v. Town of Kennebunkport,
2014 ME 139, 106 A.3d 1099 [Almeder I). In October
2009, the Beachfront Owners filed a complaint against the
Town of Kennebunkport and anyone else who claimed any title
or right to use the area of the Beach in front of their
properties. The Beachfront Owners sought a declaratory
judgment that each of their parcels includes land to the mean
low water mark-subject to the rights of the public to fish,
fowl, and navigate in the intertidal zone-and to quiet
title to their claimed beach property. The Town answered and
pleaded nine counterclaims, asserting its title to the beach
and the dry sand above it, and that it and the public at
large have the right to use those areas.
From there, the case burgeoned. The State was permitted to
intervene as a defendant; in its answer, the State asserted
the public's right to use the beach pursuant to the
public trust doctrine. Other parties who intervened or
attempted to intervene and counterclaim included a group of
roughly 200 owners of other property located in the
Town's Goose Rocks Beach Zone, not directly on the water
(the Backlot Owners); the Surfrider Foundation, a nonprofit
organization whose members use the beach; and several members
of the general public who claimed frequent use of the beach.
The parties then began a period of significant motion
practice consisting of dozens of competing motions to dismiss
and for summary judgment, culminating in several partial
dismissals and summary judgments. By agreement, the court
scheduled a bifurcated trial on the remaining claims in which
the court would first address only the use-related claims,
and then any claims related to deeds or title.
In August and September 2012, the court (York County,
Brennan, J.) conducted a twelve-day bench trial on
the use claims-i.e., prescription, custom, and the public
trust doctrine-and determined that (1) "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 dry sand
portions of the entire Beach," and (2) "the State
had established, pursuant to the public trust doctrine, that
the public's right to fish, fowl, and navigate included
the right to cross the intertidal zone of the Beach to engage
in ocean-based activities." Almederl, 2014 ME
139, ¶ 12, 106 A.3d 1099 (quotation marks omitted). The
Beachfront Owners timely appealed.
We vacated the judgment and remanded the matter for the
Superior Court to "conduct proceedings and issue a
decision on the remaining pending causes of action that were
the subject of the second portion of the bifurcated
trial," and, if the Town so elects, to "determine
the boundaries of each specific Beachfront Owner's parcel
[and] reanalyze the evidence already in the record on a
parcel-by-parcel basis to determine if the Town met its
burden of establishing the elements of a public prescriptive
easement as to each particular parcel." Id.
In November and December 2016, the Superior Court held an
eleven-day bench trial on the parties' title claims at
which experts for both the Beachfront Owners and the Town
testified and the parties presented nearly 700
exhibits. By judgment dated April 6, 2018, the court
(York County, Douglas, J.) determined that only one
Beachfront Owner (Temerlin) established title to a portion of
the beach, and concluded that the Town holds title-derived
from the original Town proprietors' ownership of common
land-to the dry sand and beach in front of the
remaining twenty-two properties in dispute. The Beachfront
Owners timely appealed.
The court made the following findings, which are supported by
competent record evidence.
Physical Features of the Disputed Area of the Beach
The disputed area in this case consists of the intertidal
zone and upland areas on the seaward side of the Beachfront
Owners' properties. Before unpeeling the complex layers
of this appeal any further, an understanding of the following
features of the Beach may provide some clarity to the
• "beach" and "shore." These terms
are treated synonymously and refer to the "land lying
between the lines of the high water and low water over which
the tide ebbs and flows." Hodge v. Boothby, 48 Me.
68, 71 (1861) (defining beach); see also Hodgdon v.
Campbell, 411 A.2d 667, 672 (Me. 1980) (defining shore
as "the ground between the ordinary high and low water
mark") (quotation marks omitted). The "beach,"
"shore," and "intertidal zone," defined
below, all have their landward boundary at the high water
line. However, unlike the "intertidal zone," the
most seaward boundary of the beach is the mean low watermark;
it does not include the alternative "100 rods"
measurement element of the intertidal zone.
• "intertidal zone," also known as "wet
sand." As the name suggests, the intertidal zone
consists of the shore and flats affected by tides, and thus
includes all of the area "between the mean high
watermark and either 100 rods seaward from the high watermark
or the mean low watermark, whichever is closer to the mean
high watermark." Flaherty v. Muther, 2011 ME
32, ¶ 1 n.2, 17 A.3d 640 (quotation marks omitted);
see also McGarvey v. Whittredge, 2011 ME 97, ¶
13, 28 A.3d 620; Littlefield v. Maxwell, 31 Me. 134,
• "upland," which may include areas of dry
sand, is the land "above the mean high
watermark"-that is, landward of the beach.
Flaherty, 2011 ME 32, ¶ 2 n.3, 17 A.3d 640.
• "submerged land." This is land located
"below the mean low-water mark." McGarvey,
2011 ME 97, ¶ 13, 28 A.3d 620. The dispute in this case
does not include submerged land; it is defined here merely to
make that fact clear.
An additional feature is also important to this discussion.
In the Goose Rocks Beach area, landward of the mean high
water mark, the land rises in elevation, and then descends to
a lower elevation where the Beachfront Owners' residences
stand. This feature is a natural seawall that runs along a
course that is generally in line with that of the manmade
seawalls in many sections of the Beach. The Beach has 110
waterfront lots, twenty-three of which are owned by the
History of Land Transactions in the Kennebunkport Area
Original ownership of land in New England derived from royal
charters issued by the Crown between 1620 and 1639. In 1639,
Charles I issued the Charter of the Province of Maine, which
granted to Sir Ferdinando Gorges territory including land
from the Piscataqua River "along the sea coast" to
the Kennebec river, and inland to a depth of 120 miles (the
Gorges Patent). During this period, parcels of land in the
Province of Maine were transferred in the form of leases or
outright grants to individuals who settled the land. These
settlements were organized slowly into individual
townships-including the Town of Cape Porpus, which was
incorporated in 1653 under Massachusetts
authority. See 3 Mass. Col. Rec. 333-39.
In the mid-seventeenth century, the Massachusetts Bay Colony,
acting through the General Court, enacted a series of laws
affecting property grants in the colony-including the western
portion of Maine to which it had laid claim-and decreed that
the inhabitants of towns in this area were free to govern
their own affairs and dispose of "common lands"
within the towns. See, e.g., 1 Mass. Col. Rec. 172.
With this authority granted to them by Massachusetts, the
early settlers of Cape Porpus collectively governed the
settlement and oversaw the grant of unclaimed land within the
bounds of the township after its incorporation. During the
early years of the township, public grants of common lands
were made by vote at town meetings, which were recorded in
the Kennebunkport Clerks' Record.
In the 1670s and 1680s, towns throughout the colony-including
Cape Porpus-were abandoned and resettled following King
Philip's War. At the same time, the new monarchy in
England was preparing to reassert its claim to the colonial
territories. This led to uncertainty with regard to land
ownership and resulted in a 1677 decision in England, which
declared the Gorges Patent to be the sole, legitimate claim
to the Province of Maine and reaffirmed the claims of the
successors-in-interest to the Gorges Patent. In March 1678,
to reclaim the Province of Maine, Massachusetts orchestrated
the purchase of the Gorges Patent through its agent, John
Usher, who transferred those rights to the colony. In 1681,
to resolve any remaining uncertainty regarding ownership of
those lands, Massachusetts appointed Deputy Governor Thomas
Danforth, Esq., as President of the Province of Maine and,
among other things, authorized him to issue
"indentures" to confirm title to lands. 5 Mass.
Col. Rec. 309.
In 1684, Danforth issued indentures pertaining to land in
five towns in the Province of Maine-Cape Porpus, North
Yarmouth, Scarborough, Falmouth, and York. Relevant here,
the indenture pertaining to the Town of Cape Porpus (the
Danforth Deed) provided that Danforth did
clearly and absolutely give, grant, and confirm ...
All that Tract or parcell of Land within the Township of Cape
Porpus in said Province according to the Bounds & Limitts
of the said Township to them formerly granted by Sir
Ferdinando Gorges Knight or by any of his Agents or by the
General Assembly of the Massachusetts.
added.) The Danforth Deed named three grantees-John Barret
Sr, John Burrington, and John Badson-as "Trustees on the
behalf and for the sole use and benefit of the Inhabitants of
the Town of Cape Porpus," and included the beach in the
area now known as Goose Rocks Beach, which was not previously
granted out. There is no evidence that Massachusetts granted
out any land in Cape Porpus after the Danforth Deed.
Records of land transactions in the years immediately
following the Danforth Deed are scarce. To clarify ownership
throughout the colony, the General Court established the
Eastern Claims process by which inhabitants could register
their land claims and confirm their titles; those who failed
to do so within the stated time risked losing their claims.
In addition, by an Act of 1692-93, the General Court formally
granted to Town proprietors the authority to "manage,
improve, divide or dispose of" the "undivided and
common lands in each Town." Mass. St. 1692-93, c. 28.
This confirmed the formal role of the Town
proprietary as the entity responsible for granting
and confirming tracts of land.
In June 1719, Cape Porpus was renamed Arundel. Around this
time, the proprietors began to meet formally and conduct
business at town meetings. The Clerks' Record during this
period reflects two types of meetings: (1)
"general," or "legal," town meetings, and
(2) meetings of "proprietors, freeholders and
inhabitants." In these meetings, the proprietors made
grants of common and undivided land in the town and confirmed
prior land grants through layouts. The proprietors
officially separated their functions from the town in 1726
and began to conduct their own meetings and keep separate
records (Proprietors' Record); however, Town officials
continued to oversee activities on common lands such as
building and repairing public ways and surveying lots.
Around 1785, the proprietors still held some undivided common
lands in Arundel. Although there is no record reflecting the
formal dissolution of the Town proprietary or a final
accounting of the lands it granted out or confirmed, there is
evidence that the proprietors began to wrap up their affairs
around this time. The final entry made by Thomas Perkins, the
Clerk for the proprietors, was recorded on April 3, 1790. The
next entry in the record is dated six years later and is
signed by William Smith, the Clerk of the Town- the Town
conducted a meeting on April 4, 1796, to ...