The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. CV-02-340
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ERIC BROWN, et al.,
Plaintiffs
V. ORDER
TOWN OF OLD ORCHARD BEACH,
VAN 30° 3404
Defendant
The six plaintiffs are among the residents of Arnold Road in Old Orchard Beach.
Arnold Road is approximately 0.17 miles long and has a gravel surface. The plaintiffs
have filed a two count complaint seeking a declaratory judgment in Count I and
injunctive relief in Count II declaring that Arnold Road is a public way based on long
term prescriptive use. The Town filed an answer with a counterclaim alleging that the
septic system of the plaintiffs Eric Brown and Wendy Brown was located within the
right of way of Arnold Road. The parties entered into a consent order where they
agreed that the Town would provide plowing and other agreed to services while the
case was pending.
The plaintiffs have moved for summary judgment on the complaint and
counterclaim. The Town agrees that summary judgment should be entered against it on
the counterclaim as the facts of the case are now clearer. The Town and the plaintiffs
disagree as to whether Arnold Road is a public way or not. A town way may be created
by the statutory method of laying out and accepting the way, by dedication and
acceptance or by prescriptive use. Town of Kittery v. MacKenzie, 2001 ME 170, (9, 785
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A.2d 1251, 4. Only the third method is claimed in this case. The applicable legal
principles are set out in detail in Stickney v. City of Saco, 2001 ME 69, (915-23, 770 A.2d
592, 601-2 (Me. 2001). The key issue is not whether the Town has plowed or graded the
road or otherwise acted like it was a town way but rather whether the public has used
the road as if it was a public rather than a private way. See Stickney, at (18, where the
Law Court stated, “Rather, the test of a public use is the use of the road by people who
are inseparable from the public generally.” The opinion also noted ”...evidence of the
use of the road by the abutting landowners to access their own land is insufficient to
establish the existence of a public prescriptive easement.”
Based on the affidavits and statements of material facts that have been presented
there are disputed material facts regarding the use of Arnold Road by the general.
public. Summary judgment cannot be granted on the complaint.
The entry is:
Plaintiffs’ motion for summary judgment is granted in part. Judgment for
the plaintiffs on the counterclaim.
Dated: January 26, 2004
(Fal Aoi Ae
Paul A. Fritzsche
Justice, Superior Court
Sally A. Daggett, Esq. —- PLS
Christopher L. Vaniotis, Esq. - DEF