Almeder V. Town of Kennebunkport
Annotate this Case
Download PDF
SUPERIOR COURT
CIVIL ACTION
DOCKET NO: ~G-09-111
STATE OF MAINE
YORK, ss.
ROBERT F. ALMEDER and VIRGINIA
S. ALMEDER, et al.,
Plaintiffs
ORDER
v.
TOWN OF KENNEBUNKPORT and
ALL PERSONS WHO ARE
UNASCERTAINED,
Defendants
Approximately twenty-six owners of lots fronting Goose Rocks Beach in the
Town of Kennebunkport have brought this action seeking a declaration that they hold
fee title to the low-water mark and a judgment quieting that title. They do not dispute
any interests in the beach established by deed in the York County Registry. The named
defendants are the Town of Kennebunkport and "all persons who are unascertained,
not in being, unknown or out of the State, heirs or legal representative of such
unascertained persons, or such persons as shall become heirs, devisees or appointees of
such unascertained persons who claim the right to use or title in Plaintiffs' Property
other than persons claiming ownership or easement by, through, or under an
instrument recorded in the York County Registry of Deeds."
A variety of motions relating to service, intervention, joinder, and vanous
counterclaims and defenses are before the court.
£e-01,/ Ii
1.
Notice and Service
The plaintiffs filed their complaint on October 26, 2009, and on November 17,
2009 filed notice that they would provide the unascertained defendants with notice by
publication in the Journal Tribune, a newspaper published in York County. An
advertisement titled "Notice to Persons Who Are Unascertained and to the General
Public Pursuant to 14 M.R.S. § 6653" was published among the paper's legal notices on
November 20, 2009, November 27, 2009, and December 4, 2009. The plaintiffs did not
request the court's permission to serve process by publication or obtain an order
authorizing the action as Rule 4 requires. The defendant Town of Kennebunkport
objects to the plaintiffs' action on the grounds that they failed to personally serve
ascertainable potential claimants and failed to follow the appropriate procedure to
permit notice by publication.
"Service of process serves the dual purposes of giving adequate notice of the
pendency of an action, and providing the court with personal jurisdiction over the party
properly served.... 'Any judgment by a court lacking personal jurisdiction over a party
is void.'" Gaeth v. Deacon, 2009 ME 9, 120, 964 A.2d 621, 626 (quoting Brown v. Thaler,
2005 ME 75, P 10, 880 A.2d 1113, 1116). At hearing, the parties agreed through counsel
to collaborativel y effect personal service on the sixty-five owners of property on Goose
Rocks Beach who are not currently named in this litigation. These are necessary parties
subject to personal service of process who must be joined pursuant to Rule 19 if feasible.
See Eaton v. Town of Wells, 2000 ME 176, 147, 760 A.2d 232, 248.
The parties also agreed to work collaboratively to provide notice to
"unascertained" parties, by means of Rule 4(g) or other equally effective procedures.
The court approves of these actions and will reserve ruling on the Town's objection to
notice while they are underway. The parties will work together to create a new
2
tel --oq ---I II
scheduling order, and discovery shall proceed among those already named in this
litigation.
2.
The State of Maine's Motion to Intervene
The State seeks to intervene as a defendant pursuant to Rule 24, citing the public
interest in maintaining access to Maine's beaches and its past involvement in the cases
of Eaton v. Town of Wells, 2000 ME 176, 760 A.2d 232, Bell v. Town of Wells, 557 A.2d 168
(Me. 1989) ("Bell II"), Bell v. Town of Wells, 510 A.2d 509 (Me. 1986) ("Bell I"); Opinion of
the Justices, 437 A.2d 597 (Me. 1981), and more recently Flaherty v. MutJzer, Cumbo Cty.
Super. Ct. No. RE-08-098 (July 30, 2009) (Crowley, J.). In Bell v. Town of Wells, the Law
Court recognized "that the Attorney General, as the chief law officer of the State, has
the power and duty to institute, conduct and maintain such actions and proceedings as
he deems necessary for the protection of public rights and to defend against any action
that might invidiously interfere with the same." Bell I, 510 A.2d at 519 (quoting In re
Estate of Thompson, 414 A.2d 881, 890 (Me. 1980)) (quotations omitted).
Like Bell, the resolution of this case "will affect the rights of the public at [this]
beach and may through the persuasive authority of that decision affect public rights at
other Maine beaches." Id. This broad public interest in Maine's coast is distinct from the
Town's particular interest in Goose Rocks Beach, and cannot adequately be defended by
unascertained members of the public at large. The State's motion to intervene is
granted. As both the State and the Town will be representing the pUblic's interest in the
beach, the court declines the Town's suggestion to appoint a guardian ad litem to
represent unascertained parties at this time.
3.
The TMF Interveners; Richard & Mary Steiger's Motion to Intervene;
Christopher & Janice Tyrrell's Motion to Intervene; Robert & Leslie Sullivan's
Motion to Intervene; and Defendant Mark Smith's Motion to Substitute Counsel
3
,eC-01- 1I1
The so-called TMF interveners are some 171 parties being represented by the law
firm of Taylor, McCormack, & Frame, LLC. The original group consisted of 167 parties,
but has grown to include Robert and Leslie Sullivan, Richard and Mary Steiger,
Christopher and Janice Christo Tyrrell, and Mark W. Smith. l Also, three additional
parties submi tted responsive filings after the deadline to respond or intervene. These
are Roger C. and Nancy H. Allen; Kendall and Linda Burford; and David Green and
Jean French. Their answers and counterclaims are essentially identical to those of the
TMF interveners, and they will be treated in kind.
All of the TMF parties appear to have some connection to the Goose Rocks Beach
area of Kennebunkport, Maine, but none claim any deeded title to the beach itself.
Instead, their proposed counterclaims assert that the fee title in the beach resides in the
Town of Kennebunkport, and in the alternative that they the beach-going public have
obtained easement rights under various theories. They seek to intervene as defendants
and counterclaimants pursuant to Rule 24, asserting that they are the "unascertained
persons ... who claim the right to use or title in Plaintiffs' Property" and that while
their interests overlap with the Town's, they are not currently being adequately
represented.
The plaintiffs oppose the TMF interveners' motion on the grounds that they lack
standing to assert a claim and have not met the requirements of Rule 24. The TMF
interveners' alleged interest is essentially the public interest, which the plaintiffs argue
is already being fully represented by the Town and the State. The plaintiffs also fear that
allowing the TMF parties to intervene in the litigation would add significant
Mr. Smith had been in the case as a pro se litigant, but now seeks to join the TMF group
through his motion for substitution of counsel. His claims appear to overlap with those of the
TMF group and his motion is granted. The plaintiffs' motion to strike his responsive documents
is moot and denied. The Sullivans', Steigers', and Tyrrells' motions to intervene are identical to
that of the original TMF group and they will be treated together.
4
e~ -oq -Ill
complication and delay without any commensurate benefit to either the current parties
or the interveners. The plaintiffs note that they would not object to granting the TMF
interveners amiclls curine status, nor would they object to a group of interveners able to
assert personal, rather than public, claims.
The TMF interveners have not cited any statutory right to participate in this
litigation, so they may only enter the case if they satisfy Rule 24(a)(2) or receive
permission under Rule 24(b). Rule 24(a)(2) requires the interveners to demonstrate an
interest in the subject property, a likelihood that the resolution of this case will impair
their ability to protect their interest, and that their interest is not already being
adequately represented. Rule 24(b) allows the court to permit intervention if the would
be interveners show that they have a claim or defense that shares a common question of
law or fact with the main action, and that their intervention will not unduly delay or
prejudice the rights of the existing parties. These rules presuppose that the intervener
has standing to bring an independent claim.
"Standing of a party to maintain a legal action is a 'threshold issue'" and a
prerequisite to judicial relief. Ricci v. Superintendent, Bureau of Banking, 485 A.2d 645, 647
(Me. 1984). While the concept of standing may be somewhat amorphous, it generally
requires that a party have an interest in a controversy "that is 'in fact distinct from the
interest of the public at large.'" Nergnard v. Town of Westport Island, 2009 ME 56, <[ 18, 973
A.2d 735, 740 (quoting Ricci, 485 A.2d at 647); see Nichols v. Town of Rockland, 324 A.2d
295, 296 (Me. 1974) (standing is an amorphous concept relating to presence of a
justiciable controversy capable of specific, conclusive relief). The 171 TMF interveners
have not attempted to assert any individualized interests in the beach area subject to
this litigation. Rather, they claim that the Town owns the beach or alternatively that
they have collectively acquired a public easement. These claims merely assert the public
5
f(e ;'0-( I it
I
interest in the beach, which is already being adequately represented by the Town of
Kennebunkport and the State of Maine. See Bell 1,510 A.2d at 518 n.18, 519 (Town may
assert rights of public to beach, and the Attorney General has the power and duty to
protect public rights). The TMF interveners' pleadings fall short of showing the
particularized injury or claim required to obtain standing.
The court grants the law firm of Taylor, McCormack, & Frame, LLC, permission
to participate in discovery de bene esse. However, before any of the firm's clients is
granted intervener status, that intervener must provide a factual basis showing an
individualized claim and must satisfy the requirements of Rule 24. See e.g. Bell v. Town of
Wells, YORSC-CY-84-125 (Me. Super. Ct., Yor. Cty., Sept 14, 1987 (Brodrick, J.)
(allowing participation by group of forty parties claiming private and personal
easements by prescription based on their unique personal history of use).
Roger C. and Nancy H. Allen; Kendall and Linda Burford; and David Green and
Jean French do not appear to have joined the TMF parties or sought representation from
Taylor, McCormack, & Frame, LLC. Like the TMF interveners, however, they have
failed to show any individualized interest in the beach necessary to acquire standing.
The plaintiffs' motion to strike or dismiss these pleadings is granted.
4.
Agnes McNamee and John and Sonia Dalton's Motions to Withdraw
Agnes McNamee and John Y. and Sonia M. Dalton request to withdraw their
filings. Both Ms. McNamee and Mr. and Mrs. Dalton appear to have joined the TMF
interveners since filing their original answers, defenses, and counterclaims. As their
original pleadings do not assert any individualized claims and are identical in
substance to the claims of the TMF group, the requests are granted. The plaintiffs'
motion to strike their pleadings is thus moot and denied.
6
((e-vq -If I
5.
Plaintiffs' Motion to Dismiss the Defendant Town of Kennebunkport's
Counterclaim Counts VI (Custom) and IX (Offset Taxes) Pursuant to Rule 12(b)(6);
Motion to Strike Affirmative Defenses 9 (Custom), 12 (Abandonment), and 16
(Property Taxes), and a portion of the Town's prayer for relief pursuant to Rule 12(0;
and Request for Rule 11 Sanctions
Among the Town's counterclaims are its Count VI asserting that the Town or the
public has acquired rights in the plaintiffs' property through the doctrine of custom,
and its Count IX requesting that the court assess the plaintiffs for back-taxes in the
event they arc adjudged to hold title to the beach. The plaintiffs argue that the doctrine
of easement by custom does not exist in Maine, and that the Superior Court has no
authority to assess and impose property taxes. The plaintiffs object to the Town's
affirmative defenses numbered 9 and 16 insofar as they rest on the same theories of
custom and tax, respectively. The plaintiffs also object to the Town's affirmative defense
number 12 on the grounds that the law of abandonment does not apply to fee
ownership. Regarding the Town's requested relief, the plaintiffs contend that the Town
has not properly pleaded the elements required for an action to quiet title and should
thus receive no relief pursuant to 14 M.R.S. § 6651, and that the Town has likewise
failed to establish any basis to request attorney's fees. Finally, the plaintiffs request that
the Town be compelled to pay the legal fees and costs incurred in opposing its Count
IX.
"A motion to dismiss tests the legal sufficiency of the complaint." Heber v.
Luceme-ill-Maille Village Corp., 2000 ME 137, <[ 7, 755 A.2d 1064, 1066 (quoting McAfee v.
Cole, 637 A.2d 463, 465 (Me. 1994)). The Court examines "the complaint in the light most
favorable to the plaintiff to determine whether it sets forth elements of a cause of action
or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory."
ld. (quoting McAfee, 637 A.2d at 465). "For purposes of a 12(b)(6) motion, the material
allegations of the complaint must be taken as admitted." McAfee, 637 A.2d at 465.
7
f(£-c!i -'/I,
"Dismissal is warranted when it appears beyond a doubt that the plaintiff is entitled to
no relief under any set of facts that [s]he might prove in support of [her1 claim."
]oJwnson v. Dunningtoll, 2001 ME 169, en 5, 785 A.2d 1244, 1245-46.
Where Rule 12(b) tests the sufficiency of the complaint, Rule 12(£) provides the
1/
means for testing the legal sufficiency of a defense." 1 Field, McKusick & Wroth, Maine
Civil Practice 255 (2d ed. 1970). Under Rule 12(£) "the court may order stricken from any
pleading any insufficient defense or any redundant, immateriaL impertinent, or
scandalous matter." M.R. Civ. P. 12(f).
The Town of Kennebunkport has asserted that it holds an easement by custom in
Count VI of its complaint and as part of its affirmative defense number 9. The plaintiffs
contend that the doctrine does not exist in Maine. Old English common law allowed the
public to obtain an easement over private property where the public usage occurred "so
long as the memory of man runneth not to the contrary" without interruption; was
reasonable, "peaceable and free from dispute;" occurred within a bounded area; the
custom was obligatory; and it was not "repugnant to other customs or law./I Eaton v.
Town of Wells,
YOI~SC-RE-97-203
at 13-14 (Me. Super. Ct., Yor. Cty., Oct. 25, 1999)
(Kravchuk, CJ.) (quoting State ex. Re. Thornton v. Hay, 462 P.2d 677 (Ore. 1969)). A right
by custom,
unlike a prescriptive right, never was assumed to arise from a grant by
the land owner of an easement in it, but to have come, if at all, from
some governmental act of a public nature, the best evidence of which
had perished, or of which there never had been, as in the case of a
charter from some feudal lord or ecclesiastical corporation, a public
record. "Custom" was an invention to surmount the incapacity of a
fluctuating body, as the inhabitants of a manor or barony, to take by
grant.
Piper v. Voorhees, 130 Me. 305, 311, 155. A. 556,559 (1931).
In Bell v. Tmun of Vvells, the trial court accepted that the Town could establish a
public easement over the plaintiff beach-owners' land, but found that the Town had
8
fCtiq~/1/
failed to meet its burden of proof. Bell II, 557 A.2d at 179. On appeal, the Law Court
affirmed the judgment but explicitly reserved the question of whether the doctrine is
part of Maine's common law. [d. The Court noted that "[v]ery few American states
recognize the English doctrine of public easements by local custom," and that there was
"a serious question whether application of the local custom doctrine to conditions
prevailing in Maine near the end of the 20th century is necessarily consistent wi th the
desired stability and certainty of real estate titles." [d.
Both the Town and the plaintiffs cite Bell to support their positions on the
doctrine of custom. The Town claims that Bell implicitly supports the doctrine's
existence, while the plaintiffs argue that Bell implicitly bars the doctrine's application. In
fact, the state of the law is ambiguous because the Law Court has neither adopted nor
rejected the doctrine. [d.; Piper, 130 Me. at 311, 155. A. at 559. This court similarly
declines to rule on the doctrine's viability at this early stage of the proceedings. The
plaintiffs' motion to dismiss Count VI and strike defense 9 is denied, without prejudice
to reconsideration as the facts are developed.
The Town's Count IX alleges that the plaintiffs have never paid taxes on the land
in question, suggests this is a sign of their intent to abandon the property, and requests
that the court order the plaintiffs to pay back taxes if they are found to hold title in the
beach. The Town's affirmative defense 12 raises the issue of abandonment, and defense
16 states that the plaintiffs "have failed to pay property taxes on all or any portion of
Goose Rocks Beach." The plaintiffs attack these claims and defenses as legally deficient
and seek attorney's fees in connection with the tax question.
First, the plaintiffs correctly argue that the theory of abandonment is not relevant
to this li tigation. An easement may be extinguished through abandonment if a party
shows "a history of nonuse coupled with an act or omission evincing a clear intent to
9
((e-D1-1I1
abandon" the right of way. Canadian N. Ry. v. Sprague, 609 A.2d 1175, 1179 (Me. 1992).
However, '" a perfect legal title cannot be lost by abandonment.'" Town of Sedgwick v.
Butler, 1998 ME 280,
err
6, 722 A.2d 357, 358 (quoting Pickerl v. Richardson, 146 Me. 29, 36,
77 A.2d 191, 194 (1950)). The plaintiffs in this case claim to have perfect title in the
disputed beach and have not advanced any theory of easement. If they do in fact hold
the fee interest, they could not abandon it. Picken, 146 Me. at 36, 77 A.2d at 194. The
Town's affirmative defense number 12 is thus stricken as irrelevant, and Count IX
dismissed insofar as it relates to abandonment.
Second, the plaintiffs are also correct that the question of property taxes is not
properly before the court. To begin, the Town concedes that it has never assessed the
plaintiffs or their predecessors in title for property taxes on the beach. The assessment
and collection of property taxes is entrusted to the State Tax Assessor and the respective
municipalities by statute. 36 M.R.S. §§ 501--65; 701-66. The legislature has similarly
prescribed statutory processes for tax collection. 36 M.R.S. §§ 751-66, 891-1084. Even if
the Town had assessed the plaintiffs on their beach property and the plaintiffs were
delinquent, this in itself would have no bearing on their title to the property. The
procedure for imposing and foreclosing a tax lien is codified in sections 552 and 941
through 948. The court rejects the Town's attempt to analogize unassessed taxes to
damages and cannot impose extra-statutory taxation in the guise of damages.
Affirmative defense 16 is stricken and Count IX dismissed in its entirety. The plaintiffs'
request that Rule 11 sanctions be imposed on the Town for its taxation argument is
denied.
Finally, the plaintiffs' motion to strike portions of the Town's requested relief is
denied.
10
Ke,o~ -/11
In summary, the plaintiffs' motion to dismiss Count VI (custom); to strike
defense 9 (custom) and the requests for relief pursuant to 14 M.R.S. § 6651 and for
attorney's fees; and the plaintiffs' request for Rule 11 sanctions is denied. The plaintiffs'
motion to dismiss Count IX (property taxes) and to strike defenses 12 (abandonment)
and 16 (property taxes) is granted.
6.
Plaintiffs' Motion to Dismiss the Defendants Alexander M. and Judith A.
Lachiatto's Counterclaim Counts III (Acquiescence), V (Dedication and Acceptance),
VI (Custom), VII (Easement), and VIII (Implied/Quasi Easement) Pursuant to Rule
12(b)(6); Motion to Strike Affirmative Defenses 2 (Standing), 7 (Public Trust), 9
(Custom), 15 (Consideration), and 16 (Property Taxes), and a portion of the
Lachiattos' prayer for relief pursuant to Rule 12(f)
Defendants Alexander M. and Judith A. Lachiatto are interveners who own a
back-lot property near Goose Rocks Beach in Kennebunkport, Maine. They have agreed
to withdraw Counts III, V, and VI of their counterclaim, affirmative defenses 2, IS, and
16, and their request for relief pursuant to 14 M.R.S. § 6651. They maintain, however,
Counts VII for easement and VIII for implied easement, their defenses asserting the
public trust doctrine and easement by custom, and their right to seek attorney's fees
later in the proceedings.
The doctrine of easement by custom was addressed above. The Lachiattos'
defense number 9 is identical to the Town's, and the plaintiffs' motion to strike it is
denied. The same is true of their request for attorney's fees and costs. The Lachiattos'
Count VII merely recites the theories of easement by prescription, implication, and the
public trust doctrine, which are already raised by their Counts IV, VIII, and defense 7
respectively. Count VII is thus dismissed as being duplicative or unduly repetitive.
Count VIll asserts that an easement for local residents and/ or the public was
created through implication by a prior quasi-easement. An easement can be created in
this way if:
11
f(e -01-111
(1) the property when in single ownership [was] openly used in a
manner constituting a "quasi-easement," as existing conditions on the
retained land that are apparent and observable and the retention of
which would clearly benefit the land conveyed; (2) the common grantor,
who severed unity of title, . . . manifested an intent that the quasi
easement should continue as a true easement, to burden the retained
land and to benefit the conveyed land; and (3) the owners of the
conveyed land ... continued to use what had been a quasi-easement as a
true easement.
Northland Realty, LLC v. Crawford, 2008 ME 92,
CJI
13, 953 A.2d 359, 364 (quoting Robinson
v. Me. Cent. R.R. Co., 623 A.2d 626, 627 (Me. 1993)) (alterations and omissions in
original). The same test can be applied to determine if an easement burdening the
conveyed land was created. Connolly v. Me. Cent. R.R. Co., 2009 ME 43,
~[
8 n.1, 969 A.2d
919, 922 n.1.
The Lachiattos allege that the "[p]laintiffs' predecessors in title are the common
grantors of lots in the vicinity of Goose Rocks Beach and Goose Rocks Beach itself," and
that "[t]he circumstances at the time of conveyance of the lots located adjacent to, and in
the vicini ty of, Goose Rocks Beach imply the intent of the [p]1aintiffs' predecessors in
title to subject ... Goose Rocks Beach" to an easement favoring the Town, the public, or
the defendants." Under Maine's rules of notice pleading, the Lachiattos have broadly
alleged circumstances that, developed through discovery, could show that a common
grantor marketed and conveyed the plaintiffs' properties in a way that created a quasieasement in the Lachiattos' favor. The plaintiffs' motion to dismiss Count VIII is denied.
The Lachiattos' affirmative defense number 7 asserts that the public trust
doctrine bars the plaintiffs' claims to the extent that the doctrine includes the public
right to use the beach for general recreational purposes. The issues raised by this case
clearly implicate the public trust doctrine, and the court will not bar discussion of the
doctrine at this early phase of litigation. The plaintiffs' motion to strike affirmative
defense 7 is denied.
12
r-~
-
01-{/ /
To summarize, the Lachiattos have withdrawn Counts III (acquiescence), V
(dedication and acceptance), and VI (custom), affirmative defenses 2 (standing), 15
(consideration), and 16 (property taxes), and their request for relief pursuant to the
quiet title statute. The plaintiffs' motion to dismiss Count VIII (implied easement) and
strike defense 9 (custom), defense 7 (public mIst), and the request for attorney's fees is
denied. The motion to dismiss Count VII (easement) is granted.
7.
Plaintiffs' Motion to Dismiss Defendants Richard J. and Margarete K.M.
Driver's Counterclaim Count I (Fee Simple) Pursuant to Rule 12(b)(6); Motion to
Strike Affirmative Defenses 2 (Standing), 7 (Public Trust), 9 (Custom), 15
(Consideration), and 16 (Property Taxes), and a portion of the Drivers' prayer for
relief pursuant to Rule 12(f)
Defendants Richard J. and Margarete K.M. Driver are interveners who own backlot property in the Goose Rocks Beach area of Kennebunkport, Maine. Count I of their
counterclaim asserts that the "[f]ee simple title to Goose Rocks Beach has resided in
Defendants Town of Kennebunkport, and/or the public, continuously for over 100
years" and seeks a declaration affirming the Town's ownership. The plaintiffs correctly
argue that the Drivers do not have standing to assert the Town's interest.
As discussed above, a party may only litigate personal interests that are distinct
from the interest of the public at large. Ricci, 485 A.2d at 647. In Count I of their
counterclaim, the Drivers attempt to litigate the interests of the Town of Kennebunkport
and the general public. While they do allege that the "[d]efendants, and/ or the public,
have acquired fee simple title ... by prescription," the referenced" defendants" appear
to be the "Defendants Town of Kennebunkport, and/ or the public." The Drivers
themselves interpret their complaint this way and explain that "Count I is plead to
encompass our rights as members of the general public." The Town is already a party to
this litigation and will adequately represent its interest. Both the Town and the State
13
f(e ~D1-II(
will represent the public at large. The Drivers, as individuals, may not separately
litigate these broad civic interests and their Count I is dismissed.
The plaintiffs also seek to strike a number of the Drivers' affirmative defenses.
/I
An affirmative defense is one 'raising new facts or arguments that, if true, will defeat
the plaintiff's or prosecution's claim, even if all allegations in the complaint are true."'
Estate of Cilley v. Lnne, 2009 ME 133, 9I 13, 985 A.2d 481, 486 (quoting Black's Law
Dictionary 430 (7th ed. 1999)). The Drivers have agreed to withdraw defense 15.
Defense number 2 asserts that the plaintiffs lack title to the beach and therefore lack
standing to assert their claims. This is a denial of the plaintiffs' claims rather than an
affirmative defense because its merit rests on disproving the allegations in the plaintiffs'
complaint. It effectively duplicates the Drivers' answer, and the plaintiffs' motion to
strike it is granted.
The Drivers' affirmative defense number 7 is identical to the Lachiattos' defense
number 7 and contends that the plaintiffs' claims are barred to the extent the public
trust doctrine reserves a public right to use the beach for general recreation. The
plaintiffs' motion to strike defense 7 is denied.
Affirmative defenses 9 and 16 concern the doctrine of custom and property taxes,
respectively. These issues have already been discussed. The motion to strike is denied
on defense 9, but granted on defense 16. Finally, the motion to strike the request for
attorney's fees is denied.
In summary, the Drivers' have withdrawn defense 15 (consideration). The
motion to strike defense 7 (public trust), defense 9 (custom), and the Drivers' request for
attorney's fees is denied. The motion to dismiss Count I (fee simple) and strike defenses
2 (standing) and 16 (property taxes) is granted.
14
l2e ;(/1-111
8.
Plaintiffs' Motion to Dismiss Defendants Sharon Ann Eon-Harris and John
Michie Harris's Counts III (Acquiescence), V (Dedication and Acceptance), VI
(Custom), VII (EasemenO, VIn (Implied Easement), X (Harassment), XI (Interference
with Economic Advantage), and XII (Loss of Property Value) Pursuant to Rule
12(b)(6); Motion to Strike Affirmative Defenses 2 (Standing), 7 (Public Trust), 9
(Custom), 15 (Consideration) and 16 (Property Taxes), and a Portion of the Harrises'
prayer for relief pursuant to Rule 12(f); and Request for Rule 11 Sanctions
Defendants Sharon Ann Eon-Harris and John Michie Harris are interveners who
own back-lot property in the Goose Rocks Beach area. Count III of their counterclaim
asserts an interest in the beach through the plaintiffs' acquiescence. Title can be
obtained through acquiescence if a party can show by clear and convincing evidence:
(1) possession up to a visible line marked clearly by monuments, fences
or the like; (2) actual or constructive notice of the possession to the
adjoining landowner; (3) conduct by the adjoining landowner from
which recognition and acquiescence, not induced by fraud or mistake,
may be fairly inferred; and (4) acquiescence for a long period of years,
such that the policy behind the doctrine of acquiescence-that a
boundary consented to and accepted by the parties for a long period of
years should become permanent-is well served by recognizing the
boundary.
Hamlin v. Niedner, 2008 ME 130,
CJ[
7, 955 A.2d 251, 254. The plaintiffs object that while
the Harrises have pleaded the general elements of acquiescence, they have not alleged
any specific facts entitling them to their requested relief.
Each claim in a pleading must set forth a short and plain statement of the claim
/I
showing that the pleader is entitled to relief ... . M.R. Civ. P. 8(a). "Where a Maine
/1
Rule of Civil Procedure is identical to the comparable federal rule, '[the courts] value
constructions and comments on the federal rule as aids in construing our parallel
provision."' Bean v. Cummings, 2008 ME 18,
CJ[
II, 939 A.2d 676, 680 (quoting Me. Cent.
R.R. Co. v. Bangor & Aroostook R.R. Co., 395 A.2d 1107, 1114 (Me. 1978)) (emphasis added
in Bean). Rule 8(a) is "practically identical to the comparable federal rule[]./1 Id.
Pleadings do not need to allege specific facts to survive a 12(b)(6) motion to
dismiss unless required to do so by Rule 9(b). However, the United States Supreme
15
1~8 ~--/"
Court recently instructed that /I a plaintiff's obligation to provide the' grounds' of his
'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do .... Factual allegations must
be enough to raise a right to relief above the speculative level .. ..
/1
Bell Atl. Corp. v.
Twombly, 550 U.s. 544, 555 (2007) (alteration in original) (citations omitted).
The Harrises' counterclaim recites the elements of a claim of title by
acquiescence, but does not allege any facts to satisfy those elements. At minimum, they
have failed to indicate what visible line delineates the area they have possessed or by
what conduct the plaintiffs indicated their acquiescence to the Harrises' occupation.
Without this information the plaintiffs do not have notice of the Harrises' grounds for
recovery and are hampered in their ability to prepare a defense. See Twombly, 550 U.S. at
555. The Harrises' Count III is dismissed.
Count V of the Harrises' counterclaim asserts that the plaintiffs have dedicated
their beach property to the public and that the dedication has been accepted. Dedication
and acceptance is one way for the public at large to acquire an easement or right of way
over private property. Manchester v. Augusta Country Club, 477 A.2d 1124, 1128-29 (Me.
1984). /ITo prove dedication, two conditions must be shown: that the land in question
was 'dedicated' by the grantor for a public purpose; and that the public' accepted' the
dedication by some affirmative act./I Id. at 1129. While the Town of Kennebunkport or
the State of Maine clearly have standing to raise this claim as the public's
representative, it is far less clear that the Harrises are similarly situated. They are
private citizens who lack standing to litigate claims on behalf of the general public. As
such, Count V is dismissed.
The Harrises' Counts VI for custom, vn for easement, and VIn for implied
easement are identical to those claims brought by the Town and the Lachiattos. These
16
f(1! ,oq-/II
are addressed above. The motion to dismiss Counts VI and VIII is denied, but the
motion to dismiss Count VII is granted. Counts X through XII are unique to the
Harrises. Count X asserts a claim for harassment stemming from an incident in which
one or morc of the plaintiffs allegedly reported the Harrises to the police for trespassing
over the beach area. The plaintiffs correctly point out that there is no general common
law cause of action for harassment in Maine. The Harrises have not pleaded any facts
showing entitlement to protection or recovery under Maine's Protection from
Harassment statute, and in any event such actions must be brought in District Court. 5
M.R.S. §§ 4651-52. Count X is dismissed.
Count XI alleges that the plaintiffs have tortiously interfered wi th an economic
advantage. The apparent basis for this is the harassment identified in Count X, which
has allegedly damaged the Harrises' relationship with their tenants and decreased the
value of their rental property. "Tortious interference with a prospective economic
advantage requires a plaintiff to prove: (1) that a valid contract or prospective economic
advantage existed; (2) that the defendant interfered with that contract or advantage
through fraud or intimidation; and (3) that such interference proximately caused
damages." Rutland v. Mullen, 2002 ME 98, 113, 798 A.2d 1104, 1110. The Harrises' have
not sufficiently pleaded fraud, so their case must rest on intimidation.
"Interference by intimidation involves unlawful coercion or extortion.... [A]
person who claims to have, or threatens to lawfully protect, a property right that the
person believes exists cannot be said to have intended to deceive or to have unlawfully
coerced or extorted another simply because that right is later proven invalid." Id. at
err 16, 798 A.2d at 1111. Read generously, the Harrises' complaint alleges that the
plaintiffs contacted the police and wrongfully accused the Harrises or their tenants of
trespassing. The Harrises do not allege that the plaintiffs did so in bad faith, only that it
17
~Ii /D1-/l1
was wrongful. If the allegations are true they still fall short of showing the fraud or
intimidation necessary to support a claim of tortious interference and the Harrises'
Count XI is dismissed.
The Harrises Count XII asserts a claim for the loss of property value allegedly
resulting from the plaintiffs' actions. While lost value may be an element of damages,
there is no independent tort claim for diminished property value caused by another's
lawful assertion of a property right. Count XII is dismissed. The plaintiffs' request for
Rule 11 attorney's fees and costs in relation to Counts XI and XII is denied.
The plaintiffs' motion to strike affirmative defenses 2 (standing), 7 (public trust),
9 (custom), and 16 (property taxes), has been discussed above and the same
considerations apply to the Harrises as to the other defendants. The mohon to strike is
denied on defenses 7 and 9, but granted on defenses 2 and 16. The same is true of their
requests for relief pursuant to the quiet title statute and for attorney's fees and costs,
and the motion to strike these requests is denied. Affirmative defense number 15 asserts
that the plaintiffs' claims are barred by lack of consideration. The only relevance this
theory could have to this litigation would be to show that the plaintiffs do not actually
hold title to the contested beach, and therefore it is not an affirmative defense. Estate of
. Cilley, 2009 ME 133, <[ 13, 985 A.2d at 486 (affirmative defense defeats claim even if
plaintiffs' allegations are true). The plaintiffs' motion to strike defense 15 is granted.
To summarize, the court denies the motion to dismiss Count VI (custom) and
Count VIII (implied easement); denies the motion to strike defense 7 (public trust),
defense 9 (custom), and the Harrises' requested relief; and denies the plaintiffs' request
for Rule 11 sanctions. The court grants the motion to dismiss the Harrises' Counts III
(acquiescence), V (dedication and acceptance), VII (easement), X (harassment), XI
18
fjj./D1-1U
(tortious interference), and XII (loss of property value); and grants the motion to strike
defenses 2 (standing), 15 (consideration), and 16 (property taxes).
The entries are:
• The court retains the Town of Kennebunkport's objection to notice and service
under advisement.
• The State of Maine's motion to intervene is granted.
• The TMF interveners' motion to intervene is denied. Their attorneys, Taylor,
McCormack, & Frame, LLC, are granted standing to participate in discovery de
bene esse. Individual interveners may request to join this litigation pursuant to
Rule 24 if they can show a factual basis for an individualized claim.
• The plaintiffs' motion to strike the responsive documents of Roger C. and Nancy
H. Allen; Kendall and Linda Burford; and David Green and Jean French is
granted.
• Mark W. Smith's motion to substitute counsel is granted.
• Agnes McNamee and John and Sonia Dalton's motions to withdraw their
individual court filings are granted.
• The plaintiffs' motion to strike the responsive documents of Mark W. Smith;
Agnes McNamee; and John and Sonia Dalton is denied.
• The plaintiffs' motion to dismiss the defendant Town of Kennebunkport's
Counterclaim Count IX and to strike affirmative defenses 12 and 16 is granted.
The motion is otherwise denied.
• Defendants Alexander M. and Judith A. Lachiatto voluntarily withdraw their
Counterclaim Counts III, V, and VI; and their affirmative defenses 2, 15, and 16;
and their request for relief pursuant to the quiet title statute. The plaintiffs'
\
motion to dismiss their Counterclaim Count VII is granted, and the motion is
19
f(1f -Dq --i I J
otherwise denied.
• Defendants Richard J. and Margarete K.M. Driver voluntarily withdraw their
affirmative defense 15. The plaintiffs' motion to dismiss their Counterclaim
Count I and to strike their defenses 2 and 16 is granted. The motion is otherwise
denied.
• The plaintiffs' motion to dismiss defendants Sharon Ann Eon-Harris and John
Michie Harris's Counterclaim Counts III, V, VII, X, XI, and XII; and to strike their
affirmative defenses 2, 15, and 16 is granted. The motion is otherwise denied.
DATE:
2A7~
PLEASE REFERENCE ATTACHED LIST OF ATTORNEYS FOR THIS CASE.
20
Attorneys for RE-09-111- as of 08/27110
Robert F. Almeder vs. Town of Kennebunkport
PLAINTIFFS ATTORNEYS
Sidney Thaxter, Esq.
Regan Haines, Esq.
David Silk, Esq.
CURTIS THAXTER STEVENS BRODER & MICOLEAU
One Canal Plaza
PO Box 7320
Portland, ME 04112
Christopher Pazar, Esq.
DRUMMOND & DRUMMOND
One Monument Way
Portland, ME 04101
DEFENDANTS ATTORNEYS
Brian D. Willing, Esq.
Amy Tchao, Esq.
Melissa Hewey, Esq.
DRUMMOND WOODSUM & MACMAHON
84 Marginal Way, Suite 600
Portland, ME 04101
Neal Weinstein, Esq.
LAW OFFICES OF NEAL WEINSTEIN
32 Saco Ave.
PO Box 660
Old Orchard Beach, ME 04064
Thomas R. McNaboe, Esq.
LAW OFFICE OF THOMAS R MCNABOE
13 Sea Cove Road
Cumberland, ME 04110
Gregg R. Frame, Esq.
Andre Duchette, Esq.
TAYLOR MCCORMACK & FRAME LLC
4 Milk St., Suite 103
Portland, ME 04101
SUPERIOR COURT
CIVIL ACTION
DOCKET NO: RE-09-111
STATE OF MAINE
YORK, ss.
ROBERT F. ALMEDER and VIRGINIA
S. ALMEDER, et al.,
Plaintiffs,
v.
TOWN OF KENNEBUNKPORT,
ALL PERSONS WHO ARE
UNASCERTAINED, not in being,
unknown or out of the State, heirs or
legal representatives of such
unascertained persons, or such persons
as shall become heirs, devisees or
appointees of such unascertained
persons who claim the right to use or
title in Plaintiffs' Property other than
persons claiming ownership or
easement by, through, or under an
instrument recorded in the York
County Registry of Deeds, et al.
ORDER FOR SERVICE
OF PROCESS AND SERVICE
BY PUBLICATION
(Title to Real Estate Involved)
Defendants
The plaintiffs own beachfront properties on Goose Rocks Beach in
the Town of Kennebunkport. They have brought this action to obtain a
declaration that they own fee titles in the beach to the low-water mark and
may exclude the public from their land, and to obtain judgment quieting
their titles. The Town of Kennebunkport, on behalf of the general public,
opposes the plaintiffs and is asserting counterclaims to establish the
general public's right to use Goose Rocks Beach for recreational purposes.
The State of Maine has joined the Town of Kennebunkport on behalf of the
1
public, and the following parties have intervened to claim private rights to
the beach: Sharon & John Michie Harris; Alexander & Judith Lachiatto;
and Richard & Margarete K.M. Driver. Many other individuals,
corporations, and trusts are also seeking to intervene in the proceeding.
On July 21,2010, the court heard argument on the defendant Town
of Kennebunkport's objection to the method and adequacy of the
plaintiffs' service of process. "Service of process serves the dual purposes
of giving adequate notice of the pendency of an action, and providing the
court with personal jurisdiction over the party properly served.... 'Any
judgment by a court lacking personal jurisdiction over a party is void.'11
Gaeth v. Deacoll, 2009 ME 9, err 20,964 A.2d 621, 626 (quoting Brown v.
Thaler, 2005 ME 75, P 10, 880 A.2d 1113, 1116). After due consideration the
court orders:
1.
Service by Publication
The court finds that service in person or by mail cannot practicably be
made upon all persons who are unascertained, not in being, unknown or out of
the State, heirs or legal representatives of such unascertained persons, or such
persons as shall become heirs, devisees or appointees of such unascertained
persons who claim the right to use or title in Plaintiffs' Property other than
persons claiming ownership or easement by, through, or under an instrument
recorded in the York County Registry of Deeds. To serve, notify, and bind these
persons, including persons owning non-beachfront property in the so-called
"Goose Rocks Zone" of the Town of Kennebunkport, the court orders service to
be made by publication as prescribed by Maine Rule of Civil Procedure 4(g). The
plaintiffs shall publish in the Portland Press Herald the legal notice attached to
2
and incorporated into this order as Exhibit A. This notice shall be published once
a week for three consecutive weeks, with the first publication occurring within
twenty days after the date of this order. Service by publication shall be complete
on the twenty-first day after the first publication. The plaintiffs shall file with the
court an affidavit that publication has been made. This publication shall be the
responsibility of and at the expense of the plaintiffs.
2.
Personal Service
The law requires that any person subject to service of process be joined as
a party to an action if that person claims an interest relating to the subject matter
of the action and if their absence may leave any existing parties subject to a
substantial risk of incurring inconsistent obligations. Property rights pertaining
to Goose Rocks Beach's intertidal zone are in dispute. Approximately sixty-five
owners of beachfront properties on Goose Rocks Beach are not parties to this
litigation and will not necessarily be bound by its outcome. If the plaintiffs
succeed in quieting their titles in the beach, the non-party owners' titles will
remain open to challenge. Conversely, if the Town of Kennebunkport succeeds in
establishing the public's right to use the intertidal zone of the plaintiffs' property
for recreational purposes, the non-party owners' could attempt to exclude the
public from their own land in the future. Either result creates a checkerboard of
uncertainty regarding the public and the Town of Kennebunkport's rights to use
Goose Rocks Beach.
To ensure that complete relief may be accorded to all the named parties in
this case and to avoid the risk of duplicative future litigation, the court orders the
plaintiffs and the Town of Kennebunkport to jointly serve process on each owner
of beachfront property on Goose Rocks Beach not already named as a party in
3
conformity with Maine Rule of Civil Procedure 4(c)(1). Per the rule and within
twenty days after the date of this order, the plaintiffs and the Town of
Kennebunkport shall jointly mail a copy of the summons, the complaint, and the
Town of Kennebunkport's counterclaim (by first-class mail, postage prepaid) to
each person to be served, together with two copies of a notice and
acknowledgment form and a return envelope, postage prepaid, addressed to the
sender. If no acknowledgement of service is received within twenty days after
the date of mailing, personal service shall be made in accordance with the Rule.
Any owner of beachfront property on Goose Rocks Beach who does not wish to
join as a plaintiff shall be joined as a defendant. The plaintiffs and the Town of
Kennebunkport shall each bear one-half the cost of service.
Nothing in this order should be read to prohibit any party from taking
additional, independent measures to notify potential litigants of these
proceedings.
DATE:
d2o)ID
4
EXHIBIT A
NOTICE TO PERSONS WHO ARE UNASCERTAINED
AND TO THE GENERAL PUBLIC
14 M.R.S. § 6653
PURSUANT to 14 M.R.S. §§ 6653-6654, and by order of the York County
Superior Court, PLEASE TAKE NOTE that on October 26, 2009, a complaint was
filed in the Office of the Clerk of the York County Superior Court, Alfred, Maine,
Docket No. ALFSC-RE-2009-00111, titled: Robert F. Almeder et {ll. v. Town of
Kennebunkport.
The plaintiffs in this lawsuit are as follows: Robert F. Almeder and
Virginia S. Almeder, Trustees of the Almeder Living Trust, 113 Kings Highway,
York County Registry of deeds ("YCROD") Book 15659, Page 864; Christopher
Asplundh, 17 Sandpoint Road, YCROD Book 1979, Page 551; John T. Coughlin
and Priscilla M. Coughlin, Trustees of P.M.C. Realty Trust, 115 Kings Highway,
YCROD Book 3085, Page 5; Louise S. De Mallie, as Trustee of the Louise S. De
Mallie Revocable Trust ul a dated November 12,2002,287 Kings Highway,
YCROD book 12173, Page 221 and Book 14675, Page 862; Willard Parker
Dwelley, Jr. and W. Parker Dwelley, III and John H. Dwelley, Co-Trustees of the
Joan H. Dwelley Testamentary Trust, 23 Sandpoint Road, YCROD Book 12248,
Page 9 and Book 15577, Page 679; Janice M. Fleming, 227 Kings Highway,
YCROD Book 13696, Page 59; John O. Gallant and Sharon A. Gallant, 219 Kings
Highway, YCROD Book 8413, Page 198; Jule C. Gerrish, 173 Kings Highway,
YCROD Book 1819, Page 32; Eugene R. Gray, Trustee of the Qualified Personal
Residence Trust, 183 Kings Highway, YCROD Book 14656, Page 916; Edwina D.
Hastings, Trustee of the Edwina D. Hastings Revocable Trust, 221 Kings
Highway, YCROD Book 14999, Page 766; Leslie A Josselyn-Rose, Trustee of the
LAJR Trust, 251 Kings Highway, YCROD Book 15587, Page 491; Deborah J.
Kinney, 223 Kings Highway, YCROD Book 9721, Page 278; Terrence G.
O'Connor and Joan M. Leahey, 195 Kings Highway, YCROD Book 13253, Page
87; Kristen B. Raines, 249 Kings Highway, YCROD Book 14147, Page 614; Linda
M. Rice, 193 Kings Highway, YCROD Book 7955, Page 127; Michael J. Sandifer
and Alice B. Sandifer, Co-Trustees of the Alice B. Sandifer Trust, 253 Kings
Highway, YCROD Book 14627, Page 144; Eleanor A. Scribner and Robert H.
Scribner, Trustees of the Eleanor A. Scribner Qualified Personal Residence Trust,
291 Kings Highway, YCROD Book 14225, Page 139; Carolyn K. Sherman, 109
Kings Highway, YCROD Book 9721, Page 281; Steven H. Wilson and Shawn B.
McCarthy, Trustees of the Twombly Family Trust ul dl t dated January 24, 2002,
as amended, 165 Kings Highway, YCROD Book 15516, Page 1121; Richard M.
Vandervoorn, Lawrence W. Vandervoorn and Robert O. Clemens, Trustees of
The Cornelius J. Vandervoorn Qualified Personal Residence Trust, 177 Kings
Highway, YCROD Book 15718, Page 584; and Beth G. Zagoren, 215 Kings
Highway, YCROD Book 5931, Pages 340.
The present defendants in this lawsuit are: the Town of Kennebunkport;
the State of Maine; Alexander M. Lachiatto and Judith A. Lachiatto; John Michie
Harris and Sharon Eon-Harris; Richard J. Driver and Margarete K.M. Driver; and
5
all persons who are unascertained, not in being, unknown or out of the State,
heirs or legal representatives of such unascertained persons, or such persons as
shall become heirs, devisees or appointees of such unascertained persons who
claim the right to use or title in the plaintiffs' property other than persons
claiming ownership or easement by, through, or under an instrument recorded
in the York County Registry of Deeds.
The Town of Kennebunkport, the Lachiattos, the Drivers, and the Harrises
have asserted counterclaims claiming ownership of Goose Rocks Beach, the
general public's right to the use of Goose Rocks Beach for any general recreation
purpose, and individual private rights to the use of Goose Rocks Beach.
The plaintiffs complaint seeks a declaratory judgment under 14 M.R.S.
§§ 5951-5963 and to quiet title pursuant to 14 M.R.S. §§ 6651-6653 in order to
remove any cloud of apprehension over plaintiffs' title to their respective
properties, including intertidal and upland property situated at Goose Rocks
Beach, Town of Kennebunkport, York County, State of Maine.
IMPORTANT WARNING
IF YOU WISH TO OPPOSE the claims of the plaintiffs, you or your
attorney MUST PREPARE AND DELIVER A WRITTEN ANSWER to the
complaint or counterclaim WITHIN 41 DAYS from the date of first publication.
An answer must be delivered in person or by mail to Diane Hill, Clerk of Courts,
York County Superior Court, 45 Kennebunk Road, P.O. Box 160, Alfred, Maine
04002-0160. On or before the day the answer is delivered to the Clerk of Courts, a
copy of your answer must be mailed to the plaintiffs' attorney, Sidney St. F.
Thaxter, Esq., Curtis Thaxter, LLC, One Canal Plaza, Suite 1000, P.O. Box 7320,
Portland, Maine, 04112-7320. IF YOU INTEND TO OPPOSE THIS LAWSUIT,
YOU MUST ANSWER WITHIN THE REQUIRED TIME. FAILURE TO DO SO
WILL RESULT IN THE FORFEITURE OF YOUR CLAIMS. Failure to answer will
not affect the public'S rights.
6
Attorneys for RE-09-111- as of 08/27/10
Robert F. Almeder vs. Town of Kennebunkport
PLAINTIFFS ATTORNEYS
Sidney Thaxter, Esq.
Regan Haines, Esq.
David Silk, Esq.
CURTIS THAXTER STEVENS BRODER & MICOLEAU
One Canal Plaza
PO Box 7320
Portland, ME 04112
Christopher Pazar, Esq.
DRUMMOND & DRUMMOND
One Monument Way
Portland, ME 04101
DEFENDANTS ATTORNEYS
Brian D. Willing, Esq.
Amy Tchao, Esq.
Melissa Hewey, Esq.
DRUMMOND WOODSUM & MACMAHON
84 Marginal Way, Suite 600
Portland, ME 04101
Neal Weinstein, Esq.
LAW OFFICES OF NEAL WEINSTEIN
32 Saco Ave.
PO Box 660
Old Orchard Beach, ME 04064
Thomas R. McNaboe, Esq.
LAW OFFICE OF THOMAS R MCNABOE
13 Sea Cove Road
Cumberland, ME 04110
Gregg R. Frame, Esq.
Andre Duchette, Esq.
TAYLOR MCCORMACK & FRAME LLC
4 Milk St., Suite 103
Portland, ME 04101
STATE OF MAINE
SUPERIOR COURT
CIVIL ACTION
DOCKET NO. RE-09-lll
G/ /}3 -YDR-
YORK, ss.
IJ-j2~.Jo;1
ROBERT F. ALMEDER, et al.,
Plaintiffs
ORDER
v.
TOWN OF KENNEBUNKPORT and
ALL PERSONS WHO ARE
UNASCERTAINED,
Defendants
DECISION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Pending are seven motions for summary judgment. Oral argument was held on
November 18, 2011. The Town of Kennebunkport, the plaintiffs, the State, and the TMF
Group were all represented by counsel.
represented themselves.
The Lachiatto and Driver defendants
Also, there are two outstanding motions regarding the
summary judgment filings.
BACKGROUND
On October 26, 2009, the plaintiffs, a group of beach-front land owners in
Kennebunkport ("Plaintiffs"), brought a quiet title and declaratory judgment action
against the Town of Kennebunkport and all persons unascertained who may have a
claim to the high dry sand and intertidal zone of Goose Rocks Beach that is claimed by
the Plaintiffs.
The procedural history of this case is extensive and complicated. Therefore, only
a brief outline of that history related to the motions for summary judgment is provided
here.
Turning first to the motions for summary judgment seeking judgment for fee title
to the beach, the procedural history is as follows.
The Defendant Town of
Kennebunkport ("Town") filed its Motion for Summary Judgment ("Town MSJ") along
with supporting documents on March 21, 2011. This motion seeks summary judgment
against the relief requested in Counts I and II of the Plaintiffs' Complaint (declaratory
judgment and quiet title to Goose Rocks Beach) and granting the relief requested in
Count I of the Town's Counterclaim (fee simple ownership of Goose Rocks Beach).
On April 6, 2011, Paul and Sharon Hayes filed a memorandum opposing the
Town's motion and joining the Plaintiffs reasoning. 1 On April 29, 2011, the Plaintiffs
filed a "Joint Memorandum of Law in Opposition to Defendant Town of
Kennebunkport's Motion for Summary Judgment" ("Joint Opp.") and a "Joint
Opposition to Defendant Town of Kennebunkport's Statement of Undisputed Material
Facts" ("Joint OSMF"). In support of this Joint Opposition, the Plaintiffs also submitted
"Plaintiffs' Joint Statement of Material Facts" with exhibits tabbed as 1-6 ("Joint SMF").
The Plaintiffs also filed the "Plaintiffs' Motion for Partial Summary Judgment" ("Pls.
MPSJ") seeking the relief requested in Counts I and II of their Complaint (only as to fee
simple title) against the Town and any other defendant to be ascertained and "Plaintiffs'
Motion for
Summary Judgment"
("O'Connor /Leahey /Fleming
MSJ")
seeking
judgment in their favor on Count I of the Town's Counterclaim. These motions are also
Paul and Sharon Hayes refer to themselves as third party defendants. However, the
Town has treated them as plaintiffs because they have adopted the allegations of the Plaintiffs'
complaint. See Town MSJ 2, n.l.
2
supported by the "Plaintiffs' Joint Statement of Material Facts" with exhibits tabbed as
1-6.
On June 10, 2011, the group of intervenors de benne esse, known as the TMF
Group, filed a "Reply to Plaintiffs' Motion for Partial Summary Judgment with
Incorporated Memorandum of Law" ("TMF Group MSJ") and "TMF Defendant's
Opposition to Plaintiffs' Statements of Material Fact" ("TMF SMF").
The Plaintiffs
subsequently filed a Motion to Strike the TMF Group's Reply ("Pls. Mot. Strike") and
also filed a response to the TMF Group's "Statements of Additional Fact" ("Pls. TMF
OSMF"). The TMF Group then filed a reply to the motion to strike ("TMF Group
Reply").
On June 14, 2011, the Town filed a "Consolidated Memorandum of Law"
("Consol. Mem.") in opposition to the Plaintiffs' motions for summary judgment and in
reply to the Plaintiffs' Opposition to the Town's Motion for Summary Judgment,
accompanied by a reply to the Plaintiffs' Joint Statement of Undisputed Material Fact
("Town OSMF"). On June 14, 2011, the State of Maine opposed the Plaintiffs' Motion
for Partial Summary Judgment by adopting the position of the Town. The Plaintiffs
filed a reply to the Town's opposition on June 30, 2011 ("Pls. Reply").
Turning next to the claims of the TMF Group and other individual back-lot
owners, the procedural history is as follows.
On June 10, 2011, the Plaintiffs filed
"Plaintiffs' Motion for Partial Summary Judgment Against Lachiatto, Driver, Harris,
and TMF Group" on all remaining counts in each of these parties' counterclaims. The
Plaintiffs also filed Statements of Material Fact ("Pls. TMF SMF") and a Memorandum
of Law ("Pls. TMF MSJ"). The TMF Group responded with an Opposing Statement of
Material Facts on July 11, 2011 ("TMF Group SMF") and a Memorandum of law ("TMF
Group Mem.") on July 18, 2011.
Also, on July 11, 2011, the Lachiatto and Driver
3
Defendants filed a Response and Cross-Motion for Summary Judgment and
Memorandum of Law in support ("L/D MSJ"), and Statement of Material Facts. The
Plaintiffs filed an opposition to the Lachiatto /Driver Statement of Material Facts and
Memorandum in Opposition on July 19, 2011. On July 29, 2011, the Plaintiffs responded
to the TMF Group's opposition ("Pls. TMF Reply"). And finally, on August 9, 2011, the
Lachiatto/Driver Defendants submitted a Supplemental Statement of Material Facts
with record citations ("L/D Supp. SMF") along with a Motion for Enlargement of Time
for filing these statements of fact.
The State of Maine, as intervenor, filed a Motion for Summary Judgment and
Memorandum of Law on May 4, 2011, requesting a ruling that general recreational
activity in the intertidal zone, not incidental or related to fishing, fowling, or navigation,
is permitted under the Maine public trust doctrine, the decision in Bell v. Town of Wells,
557 A.2d 168 (Me. 1989), notwithstanding.
The Plaintiffs filed an opposing
Memorandum of Law on May 13, 2011. On May 16, 2011, the Surfrider Foundation
filed a Motion for Summary Judgment joining the arguments of the State of Maine
which was opposed by the Plaintiffs on May 19, 2011. The State filed a Reply on May
25, 2011. The State has since filed a supplement to its Memorandum and the Plaintiffs
have replied.
DISCUSSION
I.
Summary Judgment Standard
Granting summary judgment is proper if there is no genuine issue of material
fact in dispute and the moving party is entitled to judgment as a matter of law. M.R.
Civ. P. 56(c). "A material fact is one that could potentially affect the outcome of the
suit." Farrington's Owners' Ass'n v. Conway Lake Resorts, Inc., 2005 ME 93, 'li 9, 878 A.2d
504. "A genuine issue exists when sufficient evidence supports a factual contest to
4
require a factfinder to choose between competing versions of the truth at trial."
Baillargeon v. Estate of Dolores A. Daigle, 2010 ME 127, '1[ 12, 8 A.3d 709. The court should
consider the facts in the light most favorable to the non-moving party and the court is
required to consider only the portions of the record referred to and the material facts set
forth in the parties' Rule 56(h) statements. See e.g., Johnson v. McNeil, 2002 ME 99, '1[ 8,
800 A.2d 702.
II.
Town of Kennebunkport's Motion for Summary Judgment on Count I of its
Counterclaim.
The Town's Motion for Summary Judgment seeks judgment that the Town is the
fee simple owner of the high dry sand and intertidal zone of Goose Rocks Beach. The
argument is based on the legal significance of a document executed in 1684 by Thomas
Danforth, then governor of the Province of Maine. (Town SMF '1[ 2.) The Town argues
that this document conveyed from Massachusetts to the Town all of the common and
undivided land within the boundaries of the Town. This land had been acquired by
Massachusetts through its purchase of the previously un-granted lands within Maine
from Ferdinando Gorges, and included the claimed areas of Goose Rocks Beach. (Town
SMF '1[ 2.)
The Town argues that after acquiring Goose Rocks Beach through this
conveyance, it never subsequently conveyed any part of the beach into private hands.
(Town SMF '1['1[ 36-98.)
The interpretation of a deed is a question of law. Bennett v. Tracy, 1999 ME 165, '1[
7, 740 A.2d 571. When construing a deed the courts "are to give effect, if possible, to the
intention of the parties, so far as it can be ascertained in accordance with legal canons of
interpretation ... [and] are to consider all the words of the grant in the light of the
circumstances and conditions attending the transaction." McLellan v. McFadden, 95 A.
1025, 1028 (Me. 1915). The court must first attempt to construe the language of the deed
by looking only within the "four corners" of the document and give the words in a deed
5
their "general and ordinary" meaning to determine if they create any ambiguity. Pettee
v. Young, 2001 ME 156, <[ 8, 783 A.2d 637. An ambiguity exists if the language in the
deed is reasonably susceptible to different interpretations. Labonte v. Thurlow, 2008 ME
60, <[ 9, 945 A.2d 1237. "If the language of the deed is unambiguous, then the court
must construe the deed without considering extrinsic evidence of the intent of the
parties." Id. However, the deed may be read in light of the surrounding circumstances
in order to better understand the intent of the parties. Emery v. Webster, 42 Me. 204, 206
(1856).
Because the court may consider the circumstances attendant to the execution of a
deed in order to provide context for the plain language without having to make a
finding of ambiguity, the court may consider the historical context as explained by the
parties. In short, by 1684, the year in which this document was executed, the land
within what is now the State of Maine had been under the control of several different
and competing political entities. (Joint SMF <[ 10; Town OSMF <[ 10.) The status of
private titles in this area was in doubt because of the nullification of the grants of some
proprietors and the continual need for each successive political entity to confirm any
prior grants of title. (Town SMF <[ 113; Joint SMF <[<[ 10, 47-51; Town OSMF <[ 49.) The
Town of Cape Porpoise was incorporated as a political entity in 1653 under the
Massachusetts Bay Colony Charter.
(Joint SMF <[ 8.)
In 1678, Massachusetts Bay
Colony purchased all of the previously ungranted land within the Province of Maine.
from the successors to the Gorges Patent, originally granted by King James I in 1622 and
confirmed by successive monarchs. (Joint SMF <[<[50-51.)
On its face, this document has the appearance of a deed, but it is a deed that only
acted to confirm legal title to lands previously conveyed to the Town's earliest settlers.
First, the deed sets out the parties and the date on which it was executed. Next, it sets
6
out the authority under which Danforth could convey property. The Massachusetts
Colony, the then "proprietor" of Maine, in May 1681 granted to Danforth the power to
"make legal confirmation" to the inhabitants of the Province of Maine "all their Lands
or proprieties to them justly appertaining or belonging within the Limitts or Bounds of
the said Province." This language gives Danforth authority to confirm the titles that
had been previously granted ("all their lands to them justly appertaining"). Following
the authority clause, the deed recites the granting clause through which Danforth does
"clearly and absolutely give, grant, and confirm" the property described in the deed.
The granting clause must be interpreted in the context of the document itself.
The deed also clearly describes the property conveyed. It states:
All that Tract or parcell of Land within the Township of Cape Porpus in
said Province according to the Bounds & Limitts of the sd Township to
them formerly granted by Sir Ferdinanda Gorges Knight or by any of his
Agents or by the General assembly of the Massachusetts with all
Priviledges and Appurces to the same appertaining or in any Wise
Belonging ...
This description first limits the grant to only that land within the boundaries of Cape
Porpoise. It then limits the grant to that land that had been previously granted by Sir
Ferdinanda Gorges, by his agents, or by the General Assembly of Massachusetts to any
of the inhabitants of the Town.
Despite the use of the terms "give" and "grant" in the granting clause, the
property description in this document clearly limits the "grant" to those lands that had
been previously granted. The Law Court, in Banton v. Crosby, 50 A. 86 (Me. 1901), held
that when a deed, by its own terms suggests a prior grant of title, the granting clause
"give, grant, convey and confirm" does nothing more than evidence the grant or act as
an identification or confirmation of title. Id. at 86-87. The property description in this
deed clearly and unambiguously references the prior grants of title made by Gorges, his
agents, or the General Assembly of Massachusetts. Furthermore, under the terms of the
7
grant from Gorges to the Massachusetts Bay Colony, Massachusetts only acquired those
lands that had not yet been previously granted into private hands. Using the parties'
oft-quoted axiom that you can only convey that which you own, Massachusetts could
not have "conveyed" to the Trustees the lands described. At the same time, given the
lack of land records and the confused state of title, Massachusetts could not be sure
exactly what lands were acquired through its purchase. Hence, there was a need for
Massachusetts to acknowledge these previous titles and promise to not interfere with
those interests.
Because the court concludes that the 1684 document does not convey any grant
of new title, specifically the common and undivided lands within the Town boundaries,
to the Town, the court does not need to address remainder of the Town's argument as
to why fee simple title remains vested in the Town.
III.
Plaintiffs' Motion for Summary Judgment on Count I of Town's Counterclaim
While the Plaintiffs have successfully opposed the Town's motion for a ruling
that the fee simple title to the beach is vested in the Town, nevertheless the Plaintiffs'
own motion on the same issue must be considered independently to determine if the
Plaintiffs are entitled to judgment. The Plaintiffs base their argument on conveyances
made in the 1640s and 1650s to the Plaintiffs' predecessors in title by Alexander Rigby,
through his agent George Cleeves. They argue that the 1684 deed did not convey new
title in undivided lands to the Town but, to the extent that it did, the Beach was not part
of the undivided lands. (O'Connor/Leahey /Fleming MSJ 4-6.) If, instead, the 1684
deed only confirmed prior title, the Town would have to prove a grant of the beach
existing prior to the 1640s and 1650s, in order to obtain title via the 1684 deed. (Id.)
The Colonial Ordinance of 1641-47 declared that the owner of land adjoining
places "about and upon salt water where the sea ebbs and flows" shall also own the
8
property to the low-water mark. Snow v. Mt. Desert Island Real Estate Co., 24 A. 429, 430
(Me. 1891).
After the enactment of the ordinance, conveyance of the upland
presumably also conveyed the flats. Id. However, the intertidal zone can always be
conveyed separately from the upland so there must be a call to the tidal water in order
for the presumption to apply. Storer v. Freeman, 6 Mass. 435, 439 (1810). The terms
"ocean, " "sea," "cove," or "river" (when referring to a river affected by the tides) are
treated as calls to the tidal water raising the presumption of the Colonial Ordinance.
Ogunquit Beach Dist. v. Perkins, 21 A.2d 660 (Me. 1941); Britton v. Dept. of Conservation,
2009 ME 60, <JI 6, 974 A.2d 303. The terms "beach," "shore," and "sea-shore" refer to the
intertidal zone bordered on one side by the high-water mark and on the other by the
low-water mark.
Storer, 6 Mass. at 439.
The context of the description must be
evaluated in order to determine which side of the "shore" was intended to be the
boundary. Dunton v. Parker, 54 A. 1115, 1118 (Me. 1903). In addition to the terms used
in the description, the court must also look for any evidence within the deed suggesting
that there was a motive or reason for separation, such as a natural separation, value of
the beach apart from the upland, separate occupation, or quasi-cultivation. Snow, 24 A.
at 430.
The Plaintiffs claim title through Alexander Rigby who obtained title to Goose
Rocks Beach through his 1643 purchase of the "Lygonia Patent," a subdivision of
Ferdinanda Gorges' grant received from the Plymouth Council of New England in 1622.
Goint SMF <JI 10.) The Plaintiffs offer evidence of deeds from George Cleeves, acting as
agent for Alexander Rigby, to original settlers Howell, Jeffrey, Bush, and Moore. Qoint
SMF <Jl<Jl 15-46.) They argue that these deeds exemplify an intention by Rigby to convey
the whole of Goose Rocks Beach. (O'Connor /Leahey /Fleming MSJ 17-24.) Based on
later deeds that reference other conveyances, the Plaintiffs argue that additional deeds
9
to John Bush, Roger Willine, and Joseph Bowles can be presumed to have been made by
Rigby and to exemplify that same intent. (O'Connor /Leahey /Fleming MSJ 9-10.)
Cleeves made a deed to Richard Moore and to John Bush, both on December 19,
1648 and both describing the same parcel. The Moore deed is recorded at Book I Folio
41, York County Registry of Deeds. (Joint SMF en 40; Ross Aff.en 53, Ex. 13.) The Bush
deed is recorded at Book I, Folio 36/37, York County Registry of Deeds. (Joint SMF en
40, Ross. Aff. en 52, Ex. 14.) These deeds describe 400 acres of land "to begine at the
south west side of the little River betwixt Cape Porpus & Saco ... at the point of the grove
of pine trees neare unto ye sea & adjoining unto the said River, & from thence to runne
upon a straight line to the sea banke southwest .... " The Plaintiffs argue that the pine
trees are used, not as a boundary, but as a physical monument to fix a direction and
bring you to the "sea banke." See Erskine v. Moulton, 66 Me. 276 (1877) (when a deed
uses a monument on the bank of a stream and then describes the seaward boundary as
"thence by the stream" the monument is meant to give the direction of the line from the
upland but not meant to restrict the boundary to the upland). The grove of pine trees in
this description is not located at the sea bank.
The grove marks the marsh side
boundary and, therefore, cannot serve as a directional marker as contemplated in
Erskine. Furthermore, the use of "to the sea banke" means that the sea bank is excluded
from the conveyance. See Snyder v. Haagen, 679 A.2d 510, 514 (1996). However, nothing
within the deed description gives the court context for determining the meaning of "sea
bank" other than the fact that the deed also separately uses the word "sea," suggesting
that the terms have different meanings.
The deed to Gregory Jeffrey was made by George Cleeves on November 1, 1651
and is recorded at Book I Folio 36, York County Registry of Deeds. (Joint SMF en 40;
Ross Aff. en 52, Ex. 11.) That deed describes 200 acres by first describing the marsh-side
10
boundary and then the sea-side boundary as follows: "beginning at the south west side
of the Lott of land granted to Joseph Bush ... to run four score poole bredth
Southwesterly towards Cape Porpus, & from the sea banke is to run Northwesterly four
hundred pooles .... " The remainder of the description states: "all the marsh ground in
the said four hundred pooles in breadth between the sea and the wood side, to be
contained in this grant .... " The Plaintiffs argue that the use of the word "sea" in this
last phrase suggests that the terms "sea" and "sea banke" are equivalent.
This
interpretation would trigger the presumption of the Colonial Ordinance to the effect
that the deed conveyed the intertidal zone.
The parallel structure of the sentence
suggests that this phrase could be read "between the sea side and the wood side," thus
excluding the flats by establishing the boundary on the natural separation that is the
"sea bank."
The court finds that the use of the term "sea bank" in these two deeds creates an
ambiguity.
In other cases, the term "bank" has been interpreted as "not the sea" and
"not the shore" but the "land adjacent to the shore": that is, extending "to the margin of
the shore, as in case of a fresh water river the bank extends to the margin of the water."
Proctor v. Me. Central Railroad Co., 52 A. 933, 937 (Me. 1902). Although the term "shore"
can mean either the water-side or upland-side, the phrase "to the margin of the shore"
suggests that the upland-side was the intended boundary. Given this case law, the fact
that each deed used both the terms "sea" and "sea bank" suggesting that each carries a
different meaning, and the implication of the plain language (that a "sea bank" is an
embankment of land by the sea and not the sea itself) the court cannot conclude as a
matter of law that the deeds convey the flats.
11
The only other existing recorded conveyance from this period was made by
Cleeves to Morgan Howell on April17, 1648 and is recorded at Book I, Folio 136 I 137 in
the York County Registry of Deeds. Qoint SMF
CJ[
16; Ross Aff.
CJ[
14, Ex. 3.) This deed
describes 100 acres, 10 of which are marsh, 30 acres are upland, and the remaining 60
acres appear not to be adjacent to these other parts. As this deed, along with the other
deeds, was copied and put into typeface, there are words missing from the description
making it difficult to determine the actual description. The only reference to the "sea
side" appears to be describing the 60 acres which are not located at Goose Rocks Beach
("and soe to take the other sixty Acres vp the Easter River, next to Cape Porpus on the
East side along by the River to runne Thyrty poole East by the sea side ... "). Regardless,
none of the Plaintiffs claim that this grant is within their chain of title. The Plaintiffs
only include it to suggest that Rigby had a common plan of conveying all of the land up
to the sea. However, the ambiguity in the language of the above noted deeds belies this
argument.
The Plaintiffs have not conclusively proven that Goose Rocks Beach was
conveyed into private hands before the Town was incorporated or before the 1684 deed
was executed. Although the court finds that the Town has not proven that the 1684
deed granted title to the undivided lands to the Town, the Plaintiffs have not proven
that the Beach was not part of this common and undivided land. Evidence presented to
the court, suggesting that the Town of Cape Porpoise made conveyances of common
lands within the boundaries of the Town, implies that title to the common and
undivided lands was vested in the Town at some point. (Town OSMF
CJ[
56.)2 Thus, the
Plaintiffs have not conclusively proven that they are entitled to judgment as a matter of
2
The Town also stated at oral argument that the Plaintiffs have not shown Massachusetts
to have made any subsequent grants of the common and undivided land after the 1684 deed
and that the records show that only the Town made such grants.
12
law on the question of whether the Town has a claim for fee simple title to Goose Rocks
Beach.
IV.
Plaintiffs' Motion for Summary Judgment on Counts I and II of their Complaint
The Plaintiffs rest their motion for summary judgment on their declaratory
judgment and quiet title actions on the argument that ancient conveyances dated in the
1640s and 1650s acted to convey into private hands all of the land area of Goose Rocks
Beach down to the low-water mark and that their current deeds also include the beach.
(Pls. MPSJ 'I[ 12.) The Plaintiffs also argue that, whatever title the Town may have had
in the beach, a grant into the Plaintiffs' chain of title can be presumed based upon
possession of the beach for a prolonged period of time. (Id. 7-9.)
To the extent that the Plaintiffs rely on three recorded conveyances from George
Cleeves as agent for Alexander Rigby to their predecessors in title of some of the area of
Goose Rocks Beach to prove that they currently have title to the high dry sand and the
intertidal zone, the court finds that these conveyances are not conclusive. The parties
agree that the chain of title for each of the Plaintiffs cannot be completely traced back to
the 1640s and 1650s. Therefore, even if these ancient grants did convey the high dry
sand and intertidal zone, the Plaintiffs have not proven that the beach was not severed
from the upland at some later point.
The Plaintiffs' remaining argument is that, under the doctrine of "presumption of
a lost grant," the court should quiet title to the low-water line by virtue of their modern
title. This argument is based on the Maine Title Standard Number 201 and on Crooker v.
Pendleton, 23 Me. 339 (1843). (Pls. MPSJ 3.) Title Standard Number 201 states that a
party has good title if a title examiner can trace the chain of title back 40 years for a
warranty deed and 60 years for a quitclaim deed. In Crooker v. Pendleton, the Law Court
was asked to determine which party had title to an island in Penobscot Bay because
13
both had deeds describing the property. The plaintiff claimed title by virtue of an 1829
grant from Massachusetts and Maine. The defendant claimed title by virtue of deeds
from family members who had been in possession of the island since 1776, supposedly
under a grant from the colonial government of Massachusetts which had been lost over
time. The Law Court held that lost grants can be presumed against individuals and
against the State, although a longer period of time may be required to use the doctrine
against the State. Id. at 341-42. It stated that the purpose of the doctrine is similar to
that of a statute of limitations and is designed to provide repose and quiet ancient
possessions. Id. at 342. This doctrine, therefore, is analogous to the doctrine of adverse
possession, except it may be used against the sovereign.
Note: The Doctrine of the
Presumption of a Lost Grant as Applied Against the State, 29 Harv. L. Rev. 88, 89-90 (1915).
In order to rely on the doctrine of presumptive grant, the Plaintiffs must, first,
show that their current deeds actually describe the high dry sand and the intertidal
zone and, second, show that their chain of title describing that land and the actual
possession of the land goes back for a number of years. The Crooker case does not stand
for the proposition that the court may presume a lost grant from the Town when the
current owners do not have record title, even if they have been in possession for a long
period of time. 3
The court notes that some of the Plaintiffs' current deeds either do not
unambiguously describe the high dry sand and intertidal zone as part of the property,
or convey the property solely by reference to a recorded subdivision plan. 4 For those
Plaintiffs whose current deeds do describe the beach, the Plaintiffs have not put before
the court the preceding chain of title to prove that those Plaintiffs and their
3
That argument sounds in adverse possession and may not be raised against the Town.
Portland Water Dist. v. Town of Standish, 2006 ME 104, <JI 15, 905 A.2d 829.
4
See e.g. Sherman (Scannell Aff. Ex. B); Coughlin (Scannell Aff. Ex. D); Gray (Scannell Aff.
Ex. L) Hastings (Scannell Aff. Ex. Q). See also TMF Group MSJ 2-7, 7.
14
predecessors in interest have been in possession under the presumed lost grant for a
sufficient number of years.
The court is unaware of any established time frame that the Plaintiffs must use to
prove their title. The Plaintiffs suggest that the Maine Title Standard 201 provides a
guide. Although the Town is correct to note that the Maine Title Standards are not law,
the forty to sixty-year timeframe described by the title standards provides a reasonable
guide for the court to begin examination. As noted in Crooker, however, the time frame
for presuming a lost grant against a sovereign may be longer than against an individual.
Based on the Plaintiffs' motion for summary judgment on their quiet title and
declaratory judgment claims, the Plaintiffs have not conclusively proven that they are
entitled to judgment as a matter of law.
V.
Plaintiffs' Motion for Summary Judgment Against the TMF
Group I Harris I Driver I Lachiatto
This group of motions for summary judgment involves the claims of the
Lachiatto, Driver, and Harris defendants and the TMF Group ("Defendants") to certain
rights in the beach as asserted in the parties' various counterclaims. If the Plaintiffs are
successful in disposing of the remaining counterclaims to title in the beach through this
motion for summary judgment, the Lachiattos, Drivers, Harris, and TMF Group will no
longer have standing to challenge the Plaintiff's title in the beach. 5
5
The TMF Group sought to intervene in this case and was denied status as an intervenor
but was granted standing de bene esse during discovery in this court's August 17, 2010 order. In
this court's August 30, 2010 order, the court required the Plaintiffs make additional service by
publication on all those unascertained persons, including persons owning non-beachfront
property in the so-called Goose Rocks Zone. The TMF Group argues that this order eliminated
the need for them to file individual motions to intervene. (TMF Reply to Mot. Strike 2-3.) The
TMF Group filed an Answer and (Second) Counterclaim within the 41 days required by the
publication notice, to which the Plaintiffs responded by filing a Motion to Strike. The court held
argument on the Motion to Strike and declined to rule, instructing the Plaintiffs to file a Motion
for Summary Judgment on the Counterclaims. Because the court did not strike the Answer and
Counterclaims and ordered the Plaintiffs to file a Motion for Summary Judgment on the
Counterclaims, the court intended to entertain the arguments made by the TMF Group.
15
A.
Prescriptive Easement
The Lachiatto/Driver/Harris Defendants and the TMF Group all claim an
interest in the beach through prescriptive easement.
The Plaintiffs argue that no
prescriptive easement can be obtained because the defendants' use is not distinct from
that of the general public; because one cannot obtain a prescriptive easement when the
use has not been exclusive of the public; and because the individual defendants are
unable to prove each element of a prescriptive easement claim against every one of the
Plaintiffs. (Pis. TMF MSJ 12-24.)
1. Standing
As a threshold requirement to bringing any claim, a party must demonstrate that
it has standing to bring the claim.
In Maine, standing is prudential rather than
constitutional, meaning that the courts may limit access to those who are best suited to
bring a particular claim.
Lindermann v. Comm'n on Governmental Ethics & Election
Practices, 2008 ME 187, ']I 8, 961 A.2d 538. For a party to prove that they are best suited
to bring a claim, it must, at a minimum, at the commencement of litigation demonstrate
a sufficient personal stake in the controversy. Mortgage Electronic Registration Systems,
Inc. v. Saunders, 2010 ME 79, ']I 7, 2 A.3d 289. This requirement has also been articulated
as requiring a particularized injury, that being an effect on a party's property,
pecuniary, or personal rights. Nergarrd v. Town of Westport Island, 2009 ME 56, ']I 18, 973
A.2d 735. "A person suffers a particularized injury only when that person suffers injury
or harm that is 'in fact distinct from the harm experienced by the public at large."' Id.
(quoting Ricci v. Superintendent, Bureau of Banking, 485 A.2d 645,647 (Me. 1984)).
The Plaintiffs argue that the Defendants do not have standing because their
injury is the same as that of the general public and the Town is the better-suited party to
16
bring that claim. The TMF Group argues that it is both factually and legally6 distinct
from the public in a way that establishes their standing. The TMF Group asserts that as
property owners in the area of Kennebunkport known as the "Goose Rocks Zone" or
"Goose Rocks Area," they are distinguishable from the general public because of
their location 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 ....
(TMF Group Mem. 11.) The Defendants have submitted sufficient evidence to support
the claim that there is a distinct area called "Goose Rocks Beach." (See TMF Group SMF
<[<[ 22, 38, 40.)
The Defendants have demonstrated a particularized injury both individually and
as a class of people known as Goose Rocks Beach residents. If the claimants are not
permitted to bring this claim, they will be deprived of their individual and/ or collective
interest in the beach, which is distinct from the public's interest in the beach. Their
injury would be a loss of a property right, whereas the consequence to the public would
be a loss of use of the beach. Therefore, they have standing to assert these rights.
2. Use Along with the General Public
The Plaintiffs claim that Maine law prohibits "a private prescriptive easement
[from arising] where the use has been exercised with the public." (Pls. TMF MSJ 16-17
(citing Hermansen & Richards, Roads and Easements§ 4.5.2 (2003).) However, the case
law does not clearly support this conclusion. Rather, the cases simply state that when a
public prescriptive easement is established, no private easement in the same property
6
The TMF Group asserts that they are legally distinct from the public because of the
different elements required to prove a private and a public easement. (TMF Group Mem. 12.)
That difference being that there is no presumption of adversity when there has been continuous
use with knowledge and acquiescence when claiming a public prescriptive easement. Lyons v.
Baptist School of Christian Training, 2002 ME 137, 'li'li 18-19, 804 A.2d 364.
17
for the same purpose can be established. See Hill v. Lord, 48 Me. 83 (1861) (claimant was
claiming a prescriptive easement as a member of the public, not in his individual
capacity); Wadsworth Realty Co. v. Sundberg, 338 A.2d 470, 474 (Ct. 1973); Garmond v.
Kinney, 579 P.2d 178, 179 (N.M. 1956).
The holdings of these cases are essentially a re-articulation of the standing
requirement: the Defendants have to prove that they used the beach in a way that is
distinct from the public in order to obtain a private prescriptive easement.
The
Defendants are not precluded from establishing a private prescriptive easement simply
because the general public also used the location in question.
3. Elements of the Claim
To obtain a prescriptive easement, a claimant must prove (1) continuous use, (2)
for at least 20 years (3) under a claim of right adverse to the owner, (4) with the owner's
knowledge and acquiescence, or (5) a use so open, notorious, visible, and uninterrupted
that knowledge and acquiescence will be presumed. Eaton v. Town of Wells, 2000 ME
176, en: 32, 760 A.2d 232. This is a mixed question of law and fact. Striefel v. Charles-KeytLeaman P'shp, 1999 ME 111, <JI 7, 733 A.2d 984 (citations omitted).
In the abstract what acts of dominion will result in creating title by
adverse possession is a question of law. In this field the powers of the
court are primary and plenary. Whether those acts were really done, and
the circumstances under which they were done, raise questions of fact. In
this field the powers of the jury, in the first instance, are primary and
plenary.
Webber v. Barker Lumber Co., 116 A. 586, 587 (Me. 1922).
"Continuous use means occurring without interruption" and only requires the
kind and degree of possession that an average owner would make of the property.
Stickney v. City of Saco, 2001 ME 69, C][ 18, 770 A.2d 592.
The term "under claim of right" means that the claimant is in possession as an
owner intending to claim the land as their own and without recognition or
18
subordination to the true owner. Androkites v. White, 2010 ME 133, 116, 10 A.3d 677.
There is a presumption that use is under a claim of right when the claimant has proven
continuous possession for 20 years with the owner's knowledge and acquiescence. Id.
at 17.
This presumption does not arise when there is an explanation of the use that
contradicts the rationale of the presumption. Id.
"Acquiescence ... means passive assent such as consent by silence and does not
encompass acquiescence in the active sense such as when a use is acquiesced in by
means of the positive grant of a license or permission." Jacobs v. Boomer, 267 A.2d 376,
378 (Me. 1970).
"[T]he 'open, notorious, [and] visible' element of establishing a
prescriptive easement is required 'to give notice to the owner of the servient estate that
the user is asserting an easement."' Flaherty v. Muther, 2011 ME 32, 1 83, 17 A.3d 640
(citing Great N. Paper Co. v. Eldredge, 686 A.2d 1075, 1077 (Me. 1996).
a. Individualized Claims
The Plaintiffs argue that the Defendants' responses to interrogatories and
assertions in their counterclaims are insufficient to prove the elements of prescriptive
easement for the 205 individually claimed prescriptive easements against each of the
Plaintiffs. First, the Plaintiffs assert that proving an easement between each Defendant
and each Plaintiff is a monumental task and that the claimants' answers to
interrogatories, alleging generalized use of the entire length of the beach, are clearly
insufficient to meeting this burden.
(Pls. TMF MSJ 20.)
Second, the Plaintiffs
specifically claim that the Defendants have not used any specific portion of the beach in
a manner hostile and in such a way as to put the Plaintiffs on notice that there were 205
individual claims being made. (Pls. TMF MSJ 20.) And, third, the Plaintiffs argue that
the Defendants' responses to interrogatories are too broad to satisfy the requisite proof
of a prescriptive easement. (Pls. TMF MSJ 20-21; Pls. TMF SMF 11.)
19
The use that the TMF Group members allege to have made of the beach is not
sufficient to establish an individual prescriptive easement against all or any of the
individual Plaintiffs.
The generalized allegations of use that do not target each
Plaintiff's lot are insufficient to have put any one Plaintiff on notice of an individual
claim against their property such that the owner can be deemed to have had knowledge
and acquiesced to that use. See Bell v. Inhabitants of the Town of Wells, 1987 Me. Super.
LEXIS 256 * 63-64 (Sept. 14, 1987) (the back-lot owners made similarly general claim and
the court noted that even where some had claimed to use the same general area each
time, it was not fair to allow a person to establish a prescriptive easement on a
particular lot when they never have used that lot or at least not on a consistent basis).
b. Class Claim
The TMF Group claimants also claim a prescriptive easement as a class of
persons. The statute of limitations makes clear that a class of persons can obtain a
prescriptive easement. 14 M.R.S. § 812 (2010). The only Maine case to consider whether
a class of person acquired a prescriptive easement is Flaherty v. Muther, 2011 ME 32, 17
A.3d 640. In that case, the court considered whether use by three households was
sufficient to establish a prescriptive easement for a class of nineteen lot owners.
Quoting the Restatement (Third) of Property: Servitudes, section 4.1, the court states,
"The relevant inquiry is what a landowner in the position of the owner of the servient
estate should reasonably have expected to lose by failing to interrupt the adverse
use .... " Id. at<][ 83. The court found that the actual use of the claimed area was "quite
limited" and was insufficient to provide notice to the owner that the entire
neighborhood was asserting an easement because only a few people were using her
property. Id. at<][ 84.
20
As distinguished from Flaherty, this case requires the court to determine if the
beachfront owners should have been on notice of a class easement as opposed to a
public prescriptive easement. The evidence that the TMF Group has put forth suggests
that these residents of the Goose Rocks Beach Area can be distinguished from the
general public in that many used access-ways within the neighborhood to reach the
beach rather than coming from the public access; that the Plaintiffs acknowledged the
Goose Rocks Area as a specific area; and the presumably more intense use of the beach
by residents of the Goose Rocks Beach Area as compared to the general public. (TMF
Group SMF 'JI'JI 37-38.)
Acting as a class does not absolve the TMF Group from having to prove a claim
against each individual Plaintiff. Where the individual claims seem deficient on the
"continuous use" element, the class claim, at least potentially, could satisfy this element.
The TMF Group can rely on the whole class's use of each lot to establish "continuous
use." Also, the TMF Group has put forth evidence that their use of the beach was not
interrupted or objected to by the Plaintiffs. (TMF Group SMF 'JI'JI 21, 23, 25-27, 39.) A
fact finder could find that the Plaintiffs had notice of this class of people using the beach
and that they acquiesced to that use. The fact finder could also find that the Plaintiffs
should reasonably have expected to at least be subjecting their ownership to an
easement in favor of the back lot owners.
iii. Lachiatto/Driver
The Lachiattos and Drivers are not part of the TMF Group. They have asserted
claims to individual prescriptive easements. The Lachiatto/Driver claimants state that
they have proven the elements for obtaining a prescriptive easement because they have
(1) used the whole of Goose Rocks Beach (L/D Supp. SMF 'li'li 3a, 3b, 5; Driver Aff. 'li'li
4,7; Lachiatto Aff. 'JI'JI 4, 6) for activities such as walking, jogging, sunbathing, and
21
swimming (Id.), (2) for 40 years (L/D Supp. SMF <JI 4), (3) that the Plaintiffs have
admitted in their Complaint that this was under a claim of right (Pls. Compl. <JI<JI 29, 51),
(4 or 5) and that by the very nature of the beach, their use was open and notorious (L/D
Mem. 7). 7 This claim fails for the same reasons as stated above regarding the individual
claims of the TMF Group.
However, to the extent that the Lachiatto and Driver
defendants are part of the class defined as those owning property in the Goose Rocks
Zone, they may continue to pursue the claim of prescriptive easement as members of a
class of people.
B.
Estoppel
An easement by estoppel arises when (1) acts, words, or silence amounting to
fraud induces one party, (2) the reliance on the misleading action or statement was
reasonable and foreseeable, and (3) the inducement provides a benefit to the misled
party that is unfair to deny. Martin v. Me. C.R. Co., 21 A. 740, 742 (Me. 1890). This may
arise when a lot owner takes title by reference to a recorded plan that shows
subdivision amenities. See Arnold v. Boulay, 147 Me. 116, 121 (1951).
Herbert and Judith Cohen, who purchased their home from the Almeders, have
asserted that when they rented the same house from the Almeders nothing was said
about limited use of the beach. And later when they purchased the home, nothing was
said about limited use of the beach.
(TMF Group SMF <JI 23.)
This allegation
demonstrates silence that potentially induced the Cohen's into renting and
subsequently purchasing a house from the Almeders.
If they can prove that the
Almeders knew that the Cohens used the beach while they were renters, then sold
without indicating that there are no beach rights, estoppel may be appropriate. The
7
The Statements of Material Facts on which the Lachiatto and Driver defendants rely
were not timely and do not appear to have been served on the Plaintiffs. There is a pending
motion for extension of time to file statements of material fact. The court grants that motion
and the supplemental statements of material fact are considered by the court.
22
Plaintiffs deny the statements. (Pls. TMF Reply OSMF
<i[
23.) This is an issue of material
fact. However, the Cohens are the only members of the TMF Group that have alleged
such conduct.
An easement by estoppel can also arise when lots are conveyed by reference to a
subdivision plan that depicts some areas within the subdivision as common areas or
amenities for the use of those owning land within the subdivision. Arnold v. Boulay, 83
A.2d 574, 577 (Me. 1951). The Law Court has stated
From this doctrine it, of course, follows that such distinct and independent
private rights in other lands of the grantor than those granted may be
acquired, by implied covenant, as appurtenant to the premises granted,
although they are not of such a nature as to give rise to public rights by
dedication. The object of the principle is, not to create public rights, but to
secure to persons purchasing lots under such circumstances those benefits,
the promise of which, it is reasonable to infer, has induced them to buy
portions of a tract laid out on the plan indicated.
I d.
Several of the TMF Group defendants have asserted that they acquired title by
reference to a recorded subdivision plan.
There is a factual dispute about the
subdivision plan drafting conventions in the early 1900s. (See Buisman A££.
SMF
<i[<i[
<i[
9; Town
55-57, 61.) Although interpretation of a subdivision plan, like the interpretation
of a deed, is a question of law, the drafting conventions are questions of fact that must
be resolved before the court can interpret the plans.
C.
Other Claims
The counterclaims for fee simple ownership, adverse possession, custom,
nuisance, and quasi-easement all fail as a matter of law because the defendants who
assert them fail to establish at least one element of each claim. In fact, the Lachiatto and
Driver defendants do not even appear to pursue their claim to fee-simple ownership
and the Harris defendants do not appear to pursue their nuisance claim. No evidence
has been put before the court to support either claim. Adverse possession requires that
23
the claimant be in possession of the disputed property to the exclusion of the true
owner. Striefel v. Chaarles-Kent-Leaman P'ship, 1999 ME 11, '1[17, 773 A.2d 984. This
element is clearly not present in this case. Custom is not a recognized cause of action
for a private easement in Maine. Piper v. Voorhees, 155 A. 556 (Me. 1931). Lastly, quasieasement requires the claimant to provide evidence that the claimant's land was in
common ownership with the servient land and that before land was divided the owner
used the "servient" estate in the manner equating an easement. Connolly v. Me. Cent.
R.R. Co., 2009 ME 43, '1[8, 969 A.2d 919. The defendants have not properly controverted
the Plaintiffs' statements of material facts asserting that none of the properties were in
common ownership or asserting that there is no proof of conduct by former owners
suggesting an easement.
VI.
The Lachiatto/Driver Cross-Motion for Summary Judgment on their
Counterclaim for Prescriptive Easement
As noted above, the Plaintiffs brought a motion for summary judgment in their
favor on this claim and the Lachiatto and Driver defendants have cross-claimed on the
same issue. For the reasons stated above, the Lachiatto and Driver defendants have
failed to prove their claim for individual prescriptive easements against the Plaintiffs,
however, they may continue to present their case for a class prescriptive easement.
VII.
The State of Maine and Surfrider Foundation's Motion for Summary Judgment
The State of Maine answered the Plaintiffs' Complaint and asserts as a defense
that the public, as a whole and as individual members, has public trust rights over the
intertidal zone for general recreational purposes, thus barring the Plaintiffs' claims. The
Plaintiffs' Complaint recognizes that the title that it seeks to quiet in this action is
subject to the public rights to fishing, fowling, and navigating as limited by Colonial
Ordinance of 1647. The State's original motion seeks to preserve for future review the
argument that Bell v. Town of Wells, 557 A.2d 168 (Me. 1989), was wrongly decided. In
24
its supplemental motion, the State asks the court to hold that the public trust doctrine
includes "the rights to stroll, swim and surf in the intertidal zone, and when doing so to
engage in incidental activities such as sitting and standing." (State Supp. Mot. 14.)
The Plaintiffs have not disputed that their ownership of the beach is subject to
the rights of the public under the public trust doctrine as limited by the Colonial
Ordinance of 1641-1647.
The State is asking the court to expand the scope of the
public's use rights as described in Bell and most recently in McGarvey, Jr., et al. v.
Whittredge, 2011 ME 97. This issue cannot be resolved on summary judgment.
The entries are:
The Plaintiffs' Motion to Strike the TMF Group Reply to Plaintiffs' Motion for Summary
Judgment is DENIED. The members of the TMF Group are defendants in this case.
The Lachiatto/Driver Motion for Enlargement of Time to file its response to the
Plaintiffs' Statements of Material Fact is GRANTED.
The Town of Kennebunkport's Motion for Summary Judgment on Count I of its
Counterclaim and Counts I and II of the Complaint is DENIED.
The Plaintiffs' Motion for Summary Judgment on Count I of the Town of
Kennebunkport's Counterclaim is DENIED.
The Plaintiffs' Motion for Partial Summary Judgment on Counts I and II of its
Complaint is DENIED.
The Plaintiffs' Motion for Partial Summary Judgment Against Lachiatto, Driver, Harris
and TMF Group is GRANTED as for all counterclaims raised by these parties except
that of a prescriptive easement by a class and easement by estoppel which remain.
The Lachiatto/Driver Cross-motion for Summary Judgment on their claims is DENIED.
The State of Maine and Surfrider Foundation Motions for Summary Judgment are
DENIED.
DATE:
.1~~/
25
ALFSC-RE-09-111
ROBERT F. ALMEDER, ET AL
Plaintiffs
v.
TOWN OF KENNEBUNKPORT and
ALL PERSONS WHO ARE
UNASCERTAINED,
Defendants
PLAINTIFFS' (ALMEDER, ET AL) ATTORNEY:
SIDNEY S.F. THAXTER, ESQ.
CURTIS THAXTER, LLC
ONE CANAL PLAZA SUITE 1000
PORTLAND ME 04112
DEFENDANT TOWN OF KENNEBUNKPORT'S ATTORNEY:
AMY TCHAO, ESQ
DRUMMOND WOODSUM & MACMAHON
84 MARGINAL WAY, SUITE 600
PORTLAND, ME 04101
DEFENDANTS' TMF GROUP'S ATTORNEY:
ANDRE G. DUCHETTE, ESQ
TAYLOR MCCORMACK & FRAME, LLC
30 MILK STREET, 5TH FLOOR
PORTLAND, ME 04101
INTERVENOR STATE OF MAINE'S ATTORNEY:
PAUL STERN, AAG
OFFICE OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, ME 04333
DEFENDANT SURFRIDER FOUNDATION'S ATTORNEY:
NEAL WEINSTEIN, ESQ.
LAW OFFICE OF NEAL WEINSTEIN
32 SACO AVENUE
OLD ORCHARD BEACH, ME 04064
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.