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Almeder v. Kennebunkport

Supreme Court of Maine

October 3, 2019

ROBERT F. ALMEDER et al.
v.
TOWN OF KENNEBUNKPORT et al.

          Argued: May 15, 2019

          Sidney 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.

          Gordon 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

          David M. Kallin, Esq. (orally), Melissa A. Hewey, Esq., and Amy K. Tchao, Esq., Drummond Woodsum, Portland, for appellee Town of Kennebunkport

          Aaron M. Frey, Attorney General, and Lauren E. Parker, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine

          Gerald F. Petruccelli, Esq., Petruccelli, Martin & Haddow, LLP, Portland, for appellee neighboring landowners

          Adam Steinman, Esq., Cape Elizabeth, for appellee Surfrider Foundation

          Sandra L. Guay, Esq., Woodman Edmands Danylik Austin Smith & Jacques, P.A., Biddeford, for amicus curiae North American Kelp

          David 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

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, and HUMPHREY, JJ.

          HUMPHREY, J.

         [¶1] Goose Rocks Beach is a coastal section of Kennebunkport stretching approximately two miles along the Atlantic Ocean and consisting of the beach[1]and upland areas. Robert F. Almeder and twenty-two other owners of property in this area[2] 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.

         I. BACKGROUND

         A. Procedural History

         [¶2] 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[3]-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.

         [¶3] 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.

         [¶4] 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.

         [¶5] 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. ¶ 37.

         [¶6] 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.[4] 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[5]-to the dry sand and beach in front of the remaining twenty-two properties in dispute. The Beachfront Owners timely appealed.[6]

         B. Factual Findings

         [¶7] The court made the following findings, which are supported by competent record evidence.

         1. Physical Features of the Disputed Area of the Beach

         [¶8] 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 discussion:

• "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."[7] 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, 139(1850).
• "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.

         [¶9] 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 Beachfront Owners.

         2. History of Land Transactions in the Kennebunkport Area

         [¶10] 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.[8] See 3 Mass. Col. Rec. 333-39.

         [¶11] 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.

         [¶12] 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.

         [¶13] In 1684, Danforth issued indentures pertaining to land in five towns in the Province of Maine-Cape Porpus, North Yarmouth, Scarborough, Falmouth, and York.[9] 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.

         (Emphasis 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.

         [¶14] 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[10] as the entity responsible for granting and confirming tracts of land.

         [¶15] 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.[11] 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.

         [¶16] 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 ...


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