# Britton v. Maine Department of Conservation

> Superior Court of Maine · January 11, 2006

URL: https://www.frixlaw.com/law-library/cases/10808744

## Case

- **Court:** Superior Court of Maine
- **Decided:** January 11, 2006
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** G. Arthur Brennan
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10808744

## How later opinions describe it (automated extraction)

- stating that the Act only protects riparian owner's existing rights

## Opinion text

STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCI<ET NO. AP-05-041
I

ROBERT BRITTON, et al, ./

Appellant
J*pd * ORDER

,*
aj'
IMAINE DEPT. OF CONSERVATION

Appellcc

This case comes before the Court on the Maine Department of Conservation's

hqotion to Dismiss Robert and Eleanor Britton's 80C appeal, Appellant's Motion to

Determine Future Course of Proceedings, and Appellant's Motion for Enlargement of

Time to File 80C appeal. Following hearing, the Motion to Dismiss is Granted.

FACTUAL BACKGROUND

On January 31, 2005, and March 22, 2005, the Maine Department of Conservation

(NIDC) issued final findings and decisions approving two submerged land lease

applications for the Donnell Realty Trust. This administrative proceeding began on

November 19, 2003, when the Donnell Realty Trust applied for the leases in connection

with their long-existing wharfs in Yc;r!c Harbor. On December 19, 2003, an attorney

informed the MDC that he would be representing the Brittons, abutting property

owners, with regard to the lease applications. On April 15, 2004, the attorney prepared

and submitted comments opposing the lease on behalf of the Brittons. On August 5,

2004, the attorney subinitted additional information to the h D C on behalf of the

Brittons. On March 22, 2005, the MDC m a l e d c:)pies of both decisions to the attorney's
office with a notice setting forth the rights of appeal to the Superior Court and the

deadline for appeal pursuant to 5 M.R.S.A. § 11002(3). Although the Britton's attorney

retired in December 2004, h s office remained open and the decisions were received by

his staff in March 2005. However, it wasn't until early June 2005 that the attorney

learned about the decisions.' On June 16, 2005, the Brittons sent a letter, dated June 9,

2005, to the MDC ashng for an exteiision of the appeal process because they had not yet

received the decisioi~sfroin their attonicy. Mr. Britton did not personally receive notice

of the decisions until they arrived in a letter from Dan Pritchard, supervisor of the

submerged lands program at the MDC, on June 21, 2005. Mr. Britton filed an 80C

appeal on July 20, 2005.

The central issue in this case is whether the appeal should be dismissed as

untimely.

DISCUSSION

The Brittons assert that they did not have actual notice of the final decisions of

the MDC on and around March 2005, because, although the decisions were sent to the

office of their attorney, he had retired at that time and did not forward the decisions to

them. They contend that once they received notice of the decisions from Dan Pritchard

of the MDC, they filed an 80C appeal within 30 days pursuant to 5 M.R.S.A. 5 11002(3).

In response, the Stat? argues that thc .:ppcal is time barred bccause the MDC sent

copies of the decisions to counsel of record for the Brittons.

Under Maine's Administrative Procedure Act (APA), a petition for review of

final agency action "shall be fiied wlthi~l30 days after receipt of notice ii taken by a

1
According to the A f f ~ d a vof
~ t the attorney's secretary, the attorney requested that she contact h ~ m
when tlle decls~onsa r r ~ v e dfrom the MDC. Ilowever, when the dec~slonsarrlved, the secretary stated
that tlia t she d ~ not
d recognize the111 as such because the correspondence was addressed to the Donnells.
However, she acknowledges that she assisted tile attorney wlth the Bntton case and knew to put the
correspondence In the Br~ttonble.
party to the proceeding of which review is sought." 5 M.R.S.A. § 11002(3) (emphasis

added). To effectuate a proper receipt, the APA further requires that a copy of the

decision be delivered or promptly mailed to each party to the proceeding his

representative of record. 5 M.R.S.A. 5 9061 (emphasis added).

Unlike Rule 6(b) of the Maine Rules of Civil Procedure, which allows the court to

extend the time for talung action due to a party's excusable neglect, statutory periods of

appeal are not subject to a court-ordered enlargement of time. City ofLezoiston v. Maine

Stnte Enzployees Associntion, 638 A.2d 739, 741 (Me. 1994); Reed v. I-lalperin, 393 A.2d 160,

162 (Me. 1978) (specifically holding that 5 M.R.S.A. 11002 is not subject to enlargement

of time). Rather, "specific periods of appeal statutorily affixed to the several steps in the

chain of administrative review are jurisdictional and mandatory." McKurzie v. Mnine

Employment Seczlrity Conzrrlission, 453 A.2d 505, 509 (Me. 1982).

In McKenzie, the Law Court hinted at the possibility of applying the principles of

equitable estoppel to enlarge the time of a statutory appeal deadline. 453 A.2d at 513.2

Howevel-, the Court noted that this doctrine is limited to situations involving more than

"mere hardslup." Id.

Notwithstanding the foregoing authority, the Brittons argue that Landmark Realty

v. Lensifre, 2004 ME 85, 1
' 7, 853 A.2d 749, 750, provides this Court with the authority to
set aside tiine requirerilei-~ts for ;~ppzals because tliey are claim-prccossing

requirements, not "jurisdictional" requirements.

2
For an equitable estoppel claim to succeed, a party must establisli that (1) the statements or
conduct of the governmental representative induced hiin to act; ( 2 ) the reliance was detrimental; and (3)
his reliance was reasonable. Tr2rr2so1~ZJ. T o z u i ~of.?. lierzoick, 2005 M E 30, 15, 866 A.2d 230, 233 (Me. 2005).
Even if the Law Court were to formally recognize this doctrine i11 order to grant extensions to statutory
appeal periods, the Brittons did not rely to their detriment on the actions of representatives of the MDC.
The Lmdrnnrk decision sheds light on the confusion surrounding "jurisdictional"

issues3 The Court clarified that "claim-processing rules" are not jurisdictional, despite

past decisions using that language. I,lznd?~znrk,2004 ME 85, ¶ 7, 853 A.2d 749, 750.

Rather, claim-processing rules are the procedural inechanisms necessary to invoke

jurisdiction. Id. at n. 1 (citing Ctlrnclzo Dnjdoch- Co. v. T'he M / V Akritns, 710 F.2d 204, 206-

07 (5th Cir. 1983) (stating that "requirement of a timely notice of appeal does not govern

our subject matter jurisdiction . . . ~ L I L is d manclatory precondition to our exercise of

jurisdiction.")). It follows then that claim-processing rules d o not delineate what cases

Maine courts are competent to adjudicate. Only the Maine Legislature may determine

the subject-matter jurisdiction of the courts of Maine. See Lm~drnnrk,2004 ME 85, 8,
853 A.2d at 751 ('The Distnct Court has exclusive jurisdiction over disclosure

proceedings pursuant to 14 W1.R.S.A. 5 3121-A (2003));See Korltrick v. Ryan, 157 L. Ed. 2d

867, 540 U.S. 443, 124 S. Ct. 906, 915 (2004).

Although Landrnnrk has provided much needed guidance in this area, it is not

applicable to this case. The Brittons have framed the issue as being equivalent to failing

to file a notice of appeal pursuant to court-made claim processing rules. However, the

issue before the Court does not involve only a claim-processing rule. Rather, this case

involves the timeliness of an administrative appeal, a time limit set by the Legislature.

5 h3.R.S.A. § 11002(3).5

3
This jurisdictional confusion was by no means exclusive to Maine. See Koizfrick v. Ryan, 157 L.
Ed. 2d 867,540 U.S. 443,124 S. Ct. 906,915 (2003).
4
Clairn processing rules, i.e., the Maine Rules of Civil Procedure, govern prnceedings over which
Maine courts have subject-matter jurisdiction.
5
In Lnndrnnrk's parent case, I<orztrick v. R ! j n t ~ , the Supreme Court explained that the time
prescriptions contained in the Federal Rules clf Uankruptcy Procedure 4004(a) and (b) and 9006(b)(3),
were claim processing rules, to which Congress llad not enacted specific time lin~its.Korztrick v , r\!jizil, 540
U.S. 443, 448 (2004).
111 this case, i t is clear that 011 h/larcl~22, 2005, the Brittoil's attorney .c\ias [lie

appropriate represe~itativeto ai.ccl.71 I - c Y ~ L oi ~ ~ final agwiry drrlsions of the MDC.
~ I ~!lie

See nergeron ( I . Bnuls~ilirkSrlinnl I ~ ) P ~ I ~ Y (2003
I I ~ ~ U.S.
J I ~ IIlist.
', T.I<XlS6124 (1).
Me. hlfar. 24,

2003) (;l:,hfication of the rej,t-esent:lLive v, hc: appcared :,n bc!~a!f nf a part;. in an

dcimi nistrative yrc)ceeding is suificienl L O initiate a period of limitations for furti~er

action). The bIDC did not I)ecome a\,\ia;.<!i i f i-he ai-i~r;icjr'~
retirement until sorrletime j1;

n , Colirt cannot impute f , ~ t r l l lo tlw J~lllC.01 rellevc t h e Rritton's of tht.~r
s i h ~ a t ~ o the

obligation to fiIe a timely appeal.

The entry will be as f o l l c ~ ~ ~ s :

The MDC's Motion to Dis~niss1s C I - ~ ~ I I ~ C ~ .

The Britton's Motions to BnlrrrgL: 'I'ilne and 17ctermine 1;uture Course of
Proceedi rigs are dis~nissedas moo1 .

Dated: Jan~rary11, 2006

JLIStic4 Superior Court
Gerald F. Petrucelli, Esq. PLS - 1
Mark Furey, Esq. - D E F S DONNELL &
MARY DONNELL C O I T E
Margaret A. Bensinger, AAG - DEF. MAINE DEPT. OF CONSERVATION
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. AP-05-041
(. 'rj r..-. - \
l',- ( .
i '

ROBERT W. BRITTON, et al.,

Plaintiffs

v. ORDER

DANIEL P. DONNELL, Trustee of
the Donnell Realty Trust, et al.,

Defendants

In this case the Brittons seek injunctive relief and monetary damages, claiming

that the Donnells have infringed on their riparian rights and are in violation of the

Wharves and Fish Weirs Act. 38 M.R.S.A. §1026. 1 Following trial, judgment will be

entered in favor of the Donnells.

FACTS AND PROCEDURAL BACKGROUND
The dispute in this case arises from Defendants Daniel P. Donnell and Trustees of

the Donnell Realty Trust's (Donnells) maintenance and use of wharfs, located on the

York River, York Harbor Maine. Plaintiffs Robert W. Britton and Eleanor F. Britton

(Brittons) own property located at 15 Simpson's Lane, York Harbor Maine. The Brittons

purchased the property in 1975, and occupy the property seasonally. The breadth of the

Brittons waterfront boundary is approximately 105 feet. The land abutting the river is

a mud flat that limits the size of boats that can be brought close to shore.

The complaint also contains a Rule 80C count challenging the procedure whereby the Donnells
were awarded a submerged land lease. That count has been dismissed by the court.
The Donnells own and operate two wharves extending perpendicularly just

beyond the boundary of the Brittons' property. The first wharf, Varrell Wharf, lies

northwesterly of the Brittons' property and has been maintained and operated in its

current configuration since 1955. Varrell Wharf contains two primary sections, one

running perpendicular to the Brittons' property, and a forty-eight foot section running

parallel to the Brittons' York River boundary (Varrell Extension)? The second wharf is

called Simpson's Wharf and was purchased by the Donnells in 1962 from Edward

Kennedy. There is a forty-one foot gap between the Varrell Extension and Simpson's

Wharf. The deed to Simpson's Wharf included the right to dock boats on the

northwesterly side of the Wharf near the Brittons' property. When boats are so docked,

the gap between the Varrell Extension and Simpson's Wharf is reduced.

From 1975 through the mid-1980's, the Brittons docked two boats at Varrell

Wharf. The parties had a disagreement and the Brittons made other docking

arrangements. They also sought permission from the Town of York to build a pier

from their property. Permission was denied because the current Town of York zoning

ordinance forbids the construction of a wharf at the Britton property. However, since

1987, the Brittons have objected to the presence of the forty-eight foot section of wharf

running parallel to their property line. They assert that the presence of the forty-eight

foot section interferes with their riparian rights of ingress and egress. They claim an

absolute right of access across the entire riverfront boundary of their property.

The instant suit was commenced in 2005. At that time the Donnells entered into

a Submerged Land Lease (Lease) with the State of Maine, Bureau of Parks and Lands

2 This forty-eight foot Varrell Extension was added in 1955. Edward Kennedy was then
the owner of the Brittons' property and neither objected to nor expressly consented to the
installation. Defendant Daniel Donnell believed that he had the absolute right to expand the
wharf without permission.

2
(Bureau) entitling them to occupy the submerged lands under Varrell Wharf. The Lease

contains a condition that, should the Brittons obtain permission to build a pier from the

appropriate authorities, the location and/or docking arrangements on Varrell Wharf

may be altered at the discretion of the Bureau.

An order denying summary judgment to both the Donnells and the Brittons was

issued on September 4, 2007. In June 2008 a bench trial was held.

The specific issue before this Court is whether the presence of the forty-eight foot

section of Varrell Wharf infringes on the Brittons' common-law riparian rights and/ or

is in violation of 38 M.R.S.A. §1026, the Wharves and Fish Weirs Act. 3 The Brittons seek

both injunctive and declaratory relief, as well as damages under the Wharves and Fish

Weirs Act and pursuant to a nuisance claim. The Donnells assert that the Brittons'

riparian rights have been abandoned and/ or that they have obtained the Brittons' rights

by adverse possession or prescription. They also assert that the Brittons are not entitled

to injunctive relief.

3 The Wharves and Fish Weirs Act, initially enacted in 1876 stated in pertinent part:

Any person intending to build and maintain any wharf or fish weir in tide
waters, within the limits of any city or town in this state, may make application
in writing to the municipal officers thereof, stating the location, limits and
boundaries .... and asking for license for same.... If upon such examination
and haring of all parties interest, said municipal officer shall decide that such
erection or extension would not be an obstruction to navigation, or an injury to
the rights of others,... they shall issue a license....

RS. ch. 78 § 1 (1876). The Act was revised in 1911 to add:

No fish weir, trap or wharf shall be extended, erected, or maintained except in
accordance with this chapter; and no fish weir, trap or wharf shall be erected or
maintained in tide waters below low watermark in front of the shore or flats of
another without the owner's consent, under a penalty of fifty dollars for each
offence, ...

RS. ch. 110 § 99 (1911). The current statute remains largely unchanged. See 38 MRS. § 1026
(2008).

3
I. Factual Dispute

With one exception, the parties essentially agree on the material facts. The

parties dispute whether the Britton property extends to low-water mark It is well

settled that an upland property owner whose deed includes "adjacent beach or flats,

{and] designates a boundary as 'the sea' or 'the ocean' or an equivalent, and conveys 'to'

or 'by' that boundary, nothing to the contrary appearing in the deed, the grant extends

to low-water mark" Ogunquit Beach Dist. v. Perkins, 138 Me. 54, 60, 21 A.2d 660 (1941).

In this case the Britton Deed clearly states that the lower boundary of their property

runs to the York River. 4 Accordingly, this Court finds and concludes that the Brittons'

property extends to the low-water mark

II. Scope of Riparian Rights

As discussed at summary judgment, the Court's analysis of the scope of the

Brittons' riparian rights will focus on the degree to which the Donnells' use of the Lease

granted by the State unreasonably interferes with The Brittons' common-law riparian

rights.

At common-law littoral owners enjoyed certain riparian rights specific to their

ownership. Great Cove Boat Club v. Bureau of Public Lands, 672 A.2d 91, 95 (Me. 1996).

Among those rights, and the right specifically at issue in this case, was "the

presumption that the owner of sea frontage has, in virtue of his ownership, the right of

4 The 1975 Deed states in pertinent part:

... thence running southwesterly by last named land to the York River; thence
running southeasterly by said York River and dock one hundred five (105) feet,
more or, to the road ...

PI. Ex. 10.

4
ocean access for the whole width of the frontage." Robinson v. Higgins Co., 126 ME 55,

57, 135 A. 901 (1927).

These common-law rights have always been "subject to reasonable regulation by

the State in the exercise of its public trust rights." Great Cove Boat Club, 672 A.2d at 95

(citing Whitmore v. Brown, 102 Me. 47, 56, 65 A. 516 (1906)). The parties in this case do

not dispute that the State has such regulatory rights.

The Brittons assert, however, that the State's power to regulate the exercise of

riparian rights does not confer on the Donnells the right to block the Britton's access to

navigable waters anywhere across their entire river frontage. Thus, the Donnells are

liable for damages and subject to injunctive and declaratory relief. Put simply, the

Brittons assert that any interference with their right of ingress and egress to open water

by a lessee under the State's Submerged and Intertidal Land Act (SILA), is an actionable

violation of the Britton's riparian rights.

The Law Court has not had the opportunity to consider this issue. However,

"[t]he nature and extent of the rights of the state and of riparian owners in navigable

waters within the state and to the soil beneath are matters of state law to be determined

by the statutes and judicial decisions of the state." Fox River Paper Co., v. KK

Commission of Wisconsin, 274 U.S. 651, 671 (1927); see also Capune v. Robbins, 160 S.E. 2d

881,886 (N.C. 1968). The Capune Court noted:

In the absence of any special legislation on the subject, a littoral proprietor and
a riparian owner, as is universally conceded, have a qualified property in
the water frontage belonging, by nature, to their land, the chief advantage
growing out of the appurtenant estate in the submerged land being the
right of access over an extension of their water fronts .... (emphasis added,
emphasis in the original).

5
Capune, 160 W.E.2d at 886 (citations and quotations omitted). 5

The SILA was revised in 1989 to specifically incorporate language requiring

consideration of the rights of riparian owners in the State's leasing process in relation to

other considerations. See L.D. 910, (114th Legis.. 1989).6 That portion of the SILA has

remained unchanged. See 12 M.R.S. § 1862(6)(d). Accordingly, a plain reading of the

statute requires the Court to apply the standard of "reasonable use" to balance riparian

rights, which are not absolute, versus the State's rights and interests under the SILA.

This reasonable use test has traditionally been applied in other situations

involving "the reciprocal rights of riparian owners to stream flowage." Poire v.

Manchester, 506 A.2d 1160, 1163 (Me. 1985)(citing David v. Getchell, 50 Me. 602, 604-605,

(1862)). "Riparian proprietors have an equal right to use of water, and the right of each

5 The Law Court relied upon the Capul1e reasoning in Great Cove Boat Club. 672
A.2d at 95.
6
The 1989 Amendment reads in pertinent part (additions underlined):

(6) The director may grant the proposed lease if the director finds that, in addition to any
other findings that the director may require, the proposed lease:
a. Will not unreasonably interfere with navigation;
b. Will not unreasonably interfere with fishing or other existing marine uses of the
area; and
c. Will not unreasonably diminish the availability of services and facilities
necessary for commercial marine activates; and
d. Will not unreasonably interfere with ingress and egress of riparian owners.
rd. Testimony from the Director of the Bureau of Public Lands stated:

[T]he proposed legislation will .. .2) yield a fair return to the State; 3) enhance
public access; 4) protect the commercial marine industry infrastructure.

The bill will require individuals who wish to use the publicly owned submerged
lands for private purposes to compensate the people of the State, not only with
rental fees to support a management program, but by providing other,
appropriate means of access and public compensation. In this way the use and
enjoyment of the submerged lands will not be denied to anyone, but will in fact
be made more widely available to Maine's citizens and visitors alike.

Leg. Rec. Senate Joint Stand Committee on Energy and Natural Resources, Hearing Date: April
10, 1989.

6
qualifies that of all the others; the question as between them is whether the use made by

one is reasonable and consistent with the corresponding use by the rest." Id.

In this case it is uncontested that the State has a right to lease its submerged

lands to both public and private interests with the directive to not unreasonably

interfere with 1) navigation; 2) fishing or other existing marine uses of the area; 3) the

availability of services and facilities necessary for commercial marine activates; and 4)

the ingress and egress of riparian owners. 12 M.R.S. §1862(6). Thus, under the express

statutory authority of SILA, riparian rights are limited or qualified to the extent

necessary to effectuate the purposes identified by the statute, provided however that

such limitations do not unreasonably infringe on riparian rights. See Becker v. Bureau of

Parks and Land, 2005 ME 120 '1I4, 886 A.2d 1280, 1281.7

There is explicit statutory authority for the State to lease the submerged land in

front of the Brittons' property for commercial purposes consistent with the criteria set

forth in SILA. See 12 M.R.S. §1862(6). The question presented is whether the Brittons

have proven that the limitations on their riparian rights created by the Donnells' wharfs

are unreasonable under all the facts shown by the evidence.

In this case, the Donnells use the Lease to maintain a commercial marine facility.

The facility supports fishing or other existing marine uses of the area and commercial

marine activities. When the Brittons acquired their property, the Varrell Extension was

in place. The Brittons' property is located on mud flats that limit the size and manner

by which boats can access the property above the low-water line. The allotted space

between the Varrell Extension and Simpson's Wharf is forty-one feet, sufficient to

permit the Brittons to land a small boat. At present, under local ordinance, the Brittons

7
If, as the Brittons assert, littoral owners have an absolute right to access across their
entire frontage, then such owners can frustrate the purposes articulated by the Legislature in
SILA.

7
are unable to build a pier to their property. The Donnell permits and lease are subject

to modification if the Brittons obtain a permit for a wharf. The Court finds that the use

made by the Donnells as lessees of the State is reasonable and consistent with SILA and

that the Brittons have failed to prove unreasonable interference with their riparian

rights.

III. Other Claims

Because the Court finds and concludes that the Brittons have failed to prove that

their reparian rights have been unreasonably infringed upon, likewise they have failed

to prove a violation of the '~harves and Weirs Act. 39 M.R.S.A. §l026.

Notwithstanding the language in the act requiring consent from an upland owner

before a wharf can be erected in front of his shoreland, the Law Court has held that the

act is subject to an "unreasonable infringement" analysis Sawyer v. Beal, 97 Me. 356, 54

A. 848 (1903). This is essentially the same analysis required under SILA. Given Sawyer,

there is no conflict between the '~harves and Weirs Act and SILA. They both require

that to support a claim for interference with riparian rights the upland owner must

prove unreasonable infringement.

The entry will be as follows:

Judgment entered for the Defendants on Counts III, IV and V of the
amended complaint.

Dated: August 27, 2008

PLAINTIFFS:
GERALD F. PETRUCCELLI, ESQ.
PETRUCCELLI MARTIN & HADDOW
PO BOX 17555
PORTLAND ME 04112-8555
DEFENDANT:
MAINE DEPARTMENT OF CONSERVATION
MARGARET A. BENSINGER, AAG
6 STATE HOUSE STATION
AUGUSTA ME 04333-0006
8
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. A~-95-0~1 .
G t18 --Yo~- IjI'5jJ OI O

ROBERT W. BRITTON, et al.,

Plaintiffs

v. ORDER

MAINE DEPARTNIENT OF
CONSERVATION, et al.,

Defendants

This case comes to this Court on remand from the Supreme Judicial Court of

Maine, which partially vacated this Court's prior judgment. On remand this Court must

determine whether the defendants' wharf constitutes a nuisance or violates the

Wharves and Weirs Act, 38 M.R.S.A. §1026(2008). The remand order also directs this

Court to consider certain affirmative defenses raised by the Donnells.

BACKGROUND
Plaintiffs Robert W. and Eleanor F. Britton own property at 15 Simpson's Lane in

York Harbor, Maine. The Brittons purchased the property from Edward Kennedy in

1975 and occupy it seasonally. The property is adjacent to the York River and has

approximately 105 feet of river frontage at the low-water mark. The land abutting the

river is a mud flat that significantly limits the size of boats that can be brought close to

shore.

The defendants Daniel P. Donnell and the Trustees of the Donnell Realty Trust

(the Donnells) own and operate two wharves extending parallel along the Brittons'
property boundary. The first wharf, Varrell Wharf, lies northwesterly of the Brittons'

property and consists of two primary sections. One section runs parallel to the Brittons'

property from the shore into the deep water. The second section is located in the

navigable portion of the river just past the low-water line, and runs along the Brittons'

frontage for forty-eight feet. Varrell Wharf has been maintained and operated in this

configuration since 1955. When Daniel P. Donnell installed the second section of Varrell

Wharf in 1955 he believed he had the absolute right to do so and did not need anyone's

consent. (Oct. 15, 2008 Order at err 3). Donnell never did obtain the consent of Edward

Kennedy or his successors, the Brittons, for this second section.

The Donnells' second wharf is Simpson's Wharf, which parallels the Brittons'

southwestern boundary as it runs into the river. The Donnell's purchased Simpson's

Wharf from Edward Kennedy in 1962, and the deed included the right to dock boats on

the wharf's northwesterly side. There is a forty-one foot gap along the Britton's river

frontage between Varrell Wharf and Simpson's Wharf. This gap is reduced when boats

dock along the northwest side of Simpson's Wharf.

From 1975 through the mid-1980's the Brittons docked two boats at Varrell

Wharf. The parties had a disagreement that resulted in the Brittons making other

docking arrangements. The Brittons also sought permission from the Town of York to

build a pier from their property. The Town denied their application because the current

zoning ordinance forbids the construction of a wharf from the Brittons' property.

Nonetheless, the Brittons' have objected to the forty-eight foot section of Varrell Wharf

running along their frontage since 1987.

The Brittons commenced this suit in 2005. At that time the Donnells entered into

a Submerged Land Lease with the State of Maine pursuant to the Submerged and

Intertidal Lands Act (SILA), 12 M.R.S.A. § 1862(2). When the Legislature enacted SILA

2
in 1975, the State gave pre-existing structures such as Varrell Wharf thirty-year

constructive easements to continue operating. Britton v. Dept. of Conservation, 2009 ME

60, <JI 7 n.4, 974 A.2d 303, 306 n.4. In 2005 the Donnells' constructive easement on the

lands under Varrell Wharf expired, prompting the Donnells to obtain a lease from the

State under SILA. 1 Id. The State granted them a lease over the Brittons' objection,

"finding specifically that Varrell Wharf did not unreasonably interfere with the Brittons'

riparian rights." Id. at <JI 7, 974 A.2d at 306.

The Brittons filed a Rule 80C appeal from the State's decision, and also brought

independent claims against the Donnells alleging nuisance and violations of the

Wharves and Weirs Act, 38 M.R.S.A. § 1026. This Court dismissed the Rule 80C appeal

as time-barred, and on motion for summary judgment determined that the State's lease

did not preclude the Brittons' attempt to enforce their private rights. Id. at <JI 10, 974

A.2d at 307. The Court also determined "that any claims alleging a continued

interference with the Brittons' riparian rights, [including] the Wharves and Weirs Act,

were not time-barred." Id. at <JI 20,974 A.2d at 309.

After a bench trial this Court issued judgment for the Donnells. Id. at <JI 11, 974

A.2d at 307. The Court examined the facts under "SILA's unreasonable interference

standard and found that ... the interference with the Brittons' riparian rights was not

unreasonable." Id. Absent unreasonable interference, the Court held that the Brittons

had failed to show a violation of the Wharves and Weirs Act. Id. The Court did not

address the Donnells' affirmative defenses. Id.

On appeal, the Law Court affirmed the dismissal of the Rule 80C action, but

vacated the remainder of the judgment. The Law Court agreed that the statute of

The lease contains a provision entitling the State to alter the loca tion and / or docking
arrangements on Varrell Wharf if the Brittons obtain permission to build a pier from the appropriate
authorities.

3
limitations did not bar the Brittons' claims under the Wharves and Weirs Act, but it

held that SILA's unreasonable interference standard did not provide the correct legal

standard for deciding such actions. Rather, the Law Court held that the Wharves and

Weirs Act is violated when a riparian structure is "so situated or [is] so near the shore of

another as to injure or injuriously affect the latter in the enjoyment of his rights as such

owner ....// Id. 9I 23, 974 A.2d at 310 (internal quotations omitted) (quoting Sawyer v.

Beal, 97 Me. 356, 358, 54 A. 848, 848--49 (Me. 1903». On remand the Law Court

instructed this Court to analyze the Brittons' Wharves and Weirs Act claims under the

Sawyer standard, and to address the Brittons' nuisance claim and the Donnells'

affirmative and equitable defenses. Id. 9I9I 25-27,974 A.2d at 310-11.

DISCUSSION

The Brittons claim that Varrell Wharf injures their enjoyment of their riparian

rights as a matter of law. They also attack the relevancy or applicability of the Donnells'

affirmative defenses. The Donnells argue in turn that the Brittons have lost the ability to

enforce their riparian rights through prescription, estoppel, abandonment, laches, or by

coming to the nuisance. They alternatively argue that Varrell Wharf does not injure the

Brittons'rights.

1. The Wharves and Weirs Act

Under common law, the owners of property adjacent to navigable bodies of

water hold special riparian property rights appurtenant to their estate in the land. Great

Cove Boat Club v. Bureau of Pub. Lands, 672 A.2d 91, 95 (Me. 1996) (citing Capune v.

Robbins, 160 S.E.2d 881, 886 (N.C. 1968»). These riparian rights traditionally included:

(1) [T]he right to have the water remain in place and retain, as nearly as
possible, its natural character, (2) the right of access to the water, (3) subject to
reasonable restrictions, the right to wharf out to the navigable portion of the
body of water, and (4) the right of free use of the water immediately adjoining
the property for the transaction of business associated with wharves.

4
Id. (citing Kalo, Coastal and Ocean Law 119-20 (1991)).

The Wharves and Weirs Act protects these common law rights by providing

waterfront owners with a statutory cause of action against anyone who erects or

maintains a wharf or weir in front of another's property without permission. 38

M.R.S.A. § 1026; Britton, 2009 1vIE 60, <IT 22, 974 A.2d at 309. However, this protection is

not absolute. The Law Court in Sawyer v. Beal explained that the Act only protected a

waterfront owner's existing riparian rights and did not create new ones. 97 Me. 356, 358,

54 A. 848, 848 (1903). Accordingly, a riparian owner can only maintain an action under

the Act if "he is able to show that in some way he has been injured in the use and

enjoyment of his land and shore by the construction of a [wharf] in front of his shore."

Sawyer, 97 Me. at 358,54 A. at 849. Quoting Sawyer, the Law Court stated that the

proper test in this case is whether, considering all relevant facts, Varrell Wharf "is 'so

situated or so near the shore' of the Brittons' property as to injure or injuriously affect

the Brittons in the enjoyment of their riparian rights." Britton, 2009 ME 60, <IT 25, 974

A.2d at 310 (quoting Sawyer, 97 Me. at 358, 54 A. at 848). The Brittons contend that

Proprietors of Maine Wharf v. Proprietors of Custom House Wharf resolves this question in

their favor. 85 Me. 175, 27 A. 93 (1892). In Proprietors, the Law Court upheld the equity

court's determination that a wharf encroaching two feet into the plaintiff's riparian

frontage was a nuisance. The Law Court stated that the injuries caused by the wharf

would "be small, but would be many," and that the plaintiff was entitled to have its

premises be clear of obstructions. Id. at 179, 27 A. at 94. The Brittons point to Proprietors

and argue that if a two-foot encroachment merited an injunction in that case, than

Varrell Wharf's forty-eight foot incursion along their riparian frontage must be a

nuisance as a matter of law.

5
The Donnells correctly point out, however, that Proprietors presented factual and

procedural circumstances that distinguish it from this case. In Proprietors both parties

maintained active wharves on their adjacent properties. Id. at 177, 27 A. at 93. That case

originated as an action in trespass after the defendant built a second wharf that

encroached two feet along the plaintiffs entire property boundary and beyond into the

navigable water. Id. After litigation the defendant removed the portion of the wharf

covering land actually owned by the plaintiff to the low-water mark, but not the portion

of the wharf built over riparian lands in front of the plaintiff's lot. Id. The plaintiff

brought additional legal action to the Law Court to compel the defendant to remove the

remainder of the wharf. Id.

The Law Court treated the riparian intrusion as an extension of the dry-land

trespass. Id., 27 A. at 94. In the Court's view, the action settling the trespass extended

beyond the low-water mark to prevent the defendant from circumventing the practical

effects of the injunction. Id. On these "and other facts stated in the bill" the Court

granted judgment for the plaintiff. Id., 27 A. at 93. The Law Court's extension of the

right to exclude into the riparian zone was consistent with Proprietors's assertion of a

trespass action, and subsequent case law indicates that physical trespass on a riparian

owner's upland property will render related occupancy of the riparian zone

presumptively illegal. See Perry v. Dodge, 144 Me. 219, 67 A.2d 425 (1949) (plaintiff

obtained injunction against operation of fish weir located below low-water mark in

front of plaintiff's property with a leader extending onto plaintiff's shore). Absent

upland trespass, this analysis is inconsistent with both the Wharves and Weirs Act and

the Law Court's treatment of riparian rights as "a qualified property" or "appurtenant

estate" subject to other competing rights. See Great Cove Boat Club, 672 A.2d at 95

(quoting Capune v. Robbins, 160 S.E.2d 881, 886 (N.C. 1968)).

6
Unlike Proprietors, this case does not present any allegations of physical trespass.

This Court is instead presented with claims under the Wharves and Weirs Act, which

require a different analysis, i.e. whether Varrell Wharf is injuring the Brittons' enjoyment

of their riparian rights. Under this test, the first important distinction between

Proprietors and the present action is that in Proprietors both parties had active, existing

wharves. See Proprietors, 85 Me. at 93, 27 A. at 178. A review of other cases in which the

Law Court has found riparian obstructions to be objectionable reveals that in almost all

instances the riparian owner had or could build a wharf to access deep water. Compare

Robinson v. Fred B. Higgins Co., 126 Me. 55, 135 A. 901 (1927) (plaintiff cottagers' shore

was rockbound and wharf was only safe way to reach navigable water), and Coffin v.

Town of Freeport, 1989 Me. Super. LEXIS 61 (Mar. 29, 1989) (expansion of town wharf

unreasonably interfered with plaintiff's twenty-six year old commercial wharf,

restaurant, and lobster pound) with Sawyer v. Beal, 97 Me. 356, 54 A. 848 (1903) (fish weir

did not interfere with navigation to riparian plaintiff's land), and Whitmore v. Brown, 102

Me. 47, 65 A. 516 (1906) (plaintiff gave no evidence that proposed expansion of

defendant's wharf would impede access to plaintiff's land).

The second key distinction between Proprietors and the case at hand is the age of

the challenged structure. The action in Proprietors was occasioned by the construction of

a new wharf that encroached on the plaintiff's upland property. Proprietors, 85 Me. at

178,27 A. at 93. This facet of Proprietors is consistent with later case law. In almost every

action where an upland owner's riparian rights were violated, the offending structure

was either newly proposed or newly built? See Robinson, 126 Me. at 57, 135 A. at 902

2
The lone exception is Pern) v. Dodge, in which U[t]he defendant had maintained and operated a
fish weir for several seasons" before the weir was challenged. 144 Me. at 219,67 A.2d at 425. Prior to 1948
the upland owners had not objected to the defendant's weir. Id., 67 A.2d at 426. In 1948 new owners
acquired the property and immediately took action to eject the defendant's operation. rd. at 220,67 A.2d

7
(plaintiff sued because defendant sought to extend the end of its wharf by thirty feet);

Coffin, 1989 Me. Super. LEXIS 61 at ** 5-7 (Mar. 29, 1989) (town recently extended wharf

by eight feet and reconfigured attendant floats); cf Whitmore 102 Me. at 54-55, 65 A. at

519 (proposed expansion of defendant's wharf would not injure plaintiff's riparian

rights).

Furthermore, in two of these cases the Law Court strongly implied that it would

be difficult for plaintiffs to challenge long-established structures. While the plaintiffs in

Robinson could challenge the expansion of the defendant's wharf, the Court also found

that through inaction they had waived their right to challenge the existing wharf in

front of their property. 126 Me. at 57, 135 A. at 902. The Law Court was even more

explicit in Whitmore when it stated that the plaintiff could not bring equitable claims

against twelve-year-old buildings and wharves. 102 Me. at 54-55, 65 A. at 519. Unlike

Proprietors and other prior cases, in this case this Court is being asked to rule on a wharf

that has existed in its current configuration for now almost fifty-five years, fifty of

which were without legal challenge.

The facts before this Court are distinct and are not clearly controlled by prior

case law. Furthermore, the test enunciated by the Law Court requires consideration of

all the facts relevant to this case. In this case, the Brittons as riparian owners cannot

legally construct their own wharf under the existing regulatory regime in York Harbor.

Absent their own pier, the tidal flats in front of the Brittons' property restrict the types

and drafts of watercraft the Brittons can use to access their land. This in itself may

severely limit the enjoyment of their riparian rights, but such injury is caused by the

town ordinances and the nature of their lot rather than the Donnells' wharf.

at 426. As discussed above, Perry also involved a physical trespass to the plaintiff's upland in addition to
the claim under the Wharves and Weirs Act.

8
Absent a pier, the Brittons can realistically use only small, easily maneuverable

watercraft to reach navigable water from their flats. Given the forty-one foot gap

available to them, Varrell Wharf is not "so situated or so near the shore of the Brittons'

property as to injure or injuriously affect the Brittons in the enjoyment of their riparian

rights." Britton, 2009 ML. 60, <IT25. Absent such injury, Varrell Wharf does not violate

the Wharves and Weirs Act.

2. Nuisance

The Brittons also claim that Varrell Wharf constitutes a nuisance, though they

acknowledge that the nuisance cause of action overlaps and is largely subsumed by

their claim under the Wharves and Weirs Act. "The essence of private nuisance is an

interference with the use and enjoyment of land." Town of Stonington v. Galilean Gospel

Temple, 1999 ME 2, <IT 15, 722 A.2d 1269, 1272 (quotations omitted) (quoting W. Page

Keeton et al., Prosser and Keeton on the Law of Torts § 87, at 619 (5th ed. 1984)). The

Brittons contend that Varrell Wharf unreasonably interferes with their enjoyment of

their riparian property rights. This Court disagrees and holds that Varrell Wharf is not a

nuisance for the same reasons that it does not injure the Brittons' enjoyment of their

riparian rights under the Wharves and Weirs Act.

3. Prescription

Though the Donnells have not violated the Wharves and Weirs Act, in response

to the Law Court's mandate on remand, this Court will address their affirmative

defenses. The Donnells' first defense is prescription, namely that they have obtained the

right to maintain Varrell Wharf in its current location through long and unchallenged

use. The Brittons argue that riparian rights cannot be acquired or extinguished through

adverse use or possession, and challenge the premise that the Donnells have been in

"possession" of their property rights.

9
Riparian rights are a species of property right appurtenant to ownership of

waterfront land, and they generally possess the usual attributes and incidents of

property in land. Great Cove Boat Club, 627 A.2d at 95 (citing Capune, 160 S.E.2d at 886);

see Yates v. Milwaukee, 77 US 497, 504 (1871) (stating that the "riparian right is property

... though it must be enjoyed in due subjection to the rights of the public ..."); 78 Am.

Jur. 2d Waters § 32 (2002) ("While the exact nature of such [riparian] rights has been

variously described, it is generally agreed that they constitute property rights,

possessing the usual attributes and incidents of property ...."). They are analogous to

appurtenant easements in that they are non-possessory interests vested in the riparian

owner to use the public waters for specific purposes not allowed to the general

populace. See Great Cove Boat Club, 627 A.2d at 94 (describing easements appurtenant).

For example, landowners adjacent to a natural stream have the right to use and enjoy

the water subject to the interests of their fellow riparian owners. Lockwood Co. v.

Lawrence, 77 Me. 297, 316 (1885). Similarly, owners of shorefront property have rights to

access the water in front of their property and wharf out to navigable water, subject to

the public interest. Great Cove Boat Club, 672 A.2d at 95. Other courts have analogized

these latter rights to a landlocked owner's right to access a highway. Home for Aged

Women v. Commonwealth, 89 N.E. 124, 126 (Mass. 1909); 78 Am. Jur. 2d Waters § 153

(2002).

While no reported case in Maine has directly addressed the question of whether

the riparian right to access deep water can be gained or lost through prescription, the

Law Court has examined other types of riparian rights as affected by prescriptions. In

Lockwood Company v. Lawrence the defendant sawmills claimed a "prescriptive right to

the use of a stream beyond the general right of reasonable use" in common with the

other riparian owners. 77 Me. at 319-20. Though the defendant in that case was

10
unsuccessful on the facts, the Law Court stated that a prescriptive right to use lithe

waters of another personl/ could be established through the same principles as a

prescriptive easement in land. Id.

This principle was applied to the precise question currently before this Court in

the Connecticut case of McGibney v. The Waucoma Yacht Club, Inc., 182 A.2d 622 (Conn.

1962). In McGibney the Supreme Court of Connecticut was asked whether the defendant

yacht club "had, by prescription, acquired enough of the plaintiff's private [riparian]

rights of wharfing out and access to entitle it to maintainl/ certain floating docks that

obstructed access to plaintiff's wharf. Id. at 565. The court answered in the negative

because the defendant in that case failed to establish that it had maintained the floats

continuously for the statutory period.

Together, Lockwood Company and McGibney stand for the proposition that

riparian rights, including the right of access, may be acquired or limited through

prescriptive use. See also 78 Am. Jur. 2d Waters § 363 (2002) (I/A water right or priority

acquired by appropriation may be lost by abandonment laches, adverse use, or

estoppet but not by mere usurpation."). These authorities indicate that the Donnells'

could legally acquire superior rights in the Brittons' riparian frontage through

prescription. Prescriptive rights are acquired through 1/(1) continuous use (2) for at least

20 years (3) under a claim of right adverse to the owner, (4) with his knowledge and

acquiescence, or (5) a use so open, notorious, visible, and uninterrupted that knowledge

and acquiescence will be presumed." Sandmaier v. Tahoe Dev. Group, Inc., 2005 ME 126,

9I 5, 887 A.2d 517, 518 (quoting Eaton v. Town of Wells, 2000 ME 176, 9I 32, 760 A.2d 232,
244).

This Court has already found that Varrell Wharf does not infringe on the

Brittons' riparian rights. However, in the alternative, if Varrell Wharf did injure the

11
Brittons' enjoyment of their rights, there is no question that this injury has been

maintained for over fifty years. The record shows that Varrell Wharf has operated year-

round in its current configuration since it was constructed in 1955. The Brittons'

predecessor, Edward Kennedy, knew of the wharf's presence and neither expressly

approved or objected to it. From their purchase of the property in 1975 until

approximately 1987, the Brittons did not object to the wharf. The only question, then, is

whether the Donnells' use of the Kennedy /Britton frontage was done under a claim of

right adverse to the riparian owners.

Maine's common law of adverse possession and prescription traditionally hewed

to the minority rule of examining the "subjective intentions of the person claiming

adverse possession." Dombkowski v. Ferland, 2006 ME 24, <j[ 13, 893 A.2d 599, 603

(collecting cases). Under this approach an adverse claimant's mistaken belief that it had

the right to use or occupy the property in question would defeat the claim. [d. In

Dombkowski the Law Court discussed 14 M.R.S.A. § 810-A (1993) and determined that

the Legislature intended to abandon the common law's inquiry into the adverse

claimant's subjective intent. Dombkowski, 2006 ME 24, <j[ 24, 893 A.2d at 605-06. 3

Accordingly, '''[h]ostile' simply means that the possessor does not have the true

owner's permission," and '''[u]nder a claim of right' means that the claimant is in

possession as owner, with intent to claim the land as [its] own, and not in recognition of

or subordination to [the] record title owner." Id. at <j[ 12, 893 A.2d at 602 (quoting Striefel

3
While 14 M.R.S.A. § 81O-A and Dombkowski are both directed at claims for adverse possession
rather than prescriptive easements, it would be anomalous to alter the elements of the former without
changing the latter. Adverse possession and prescription share common policy concerns, with their
primary distinction being the exclusivity and extent of the property rights gained or lost. See Restatement
(Third) of Prop.: Servitudes § 2.17 (2000) (cited in Sandmaier, 2005 ME 126, CJ[ 8, 887 A.2d at 519.
Additionally, the Law Court did not differentiate between the two claims when it defined the elements of
"hostility" and "claim of right" in Dombkowski. 2006 ME 24, CJ[ 12,893 A.2d at 602.

12
v. Charles-Keyt-Leaman P'ship, 1999 ME 111, <JI<JI 13-14, 733 A.2d 984, 991) (quotations

omitted).

Here the Donnells do not claim that they possess the land under Varrell Wharf

because that title is held by the State. The Donnells inability to possess against the State,

however, does not preclude them from occupying and claiming against the Brittons'

private, non-possessory riparian rights over that public land. The record shows that the

Donnells have not occupied the Brittons' frontage with any subjective hostility to the

Brittons' riparian rights, but this subjective lack of hostility is not determinitive. This

Court found that Daniel P. Donnell never sought or received Mr. Kennedy's or the

Brittons' permission to maintain Varrell Wharf in front of their riparian land, making

the Donnells' use of that area objectively hostile to the riparian owners. See Dombkowski,

2006 ME 24, <JI 12, 893 A.2d at 602.

Similarly, in 1955 Daniel P. Donnell believed he had an absolute right to situate

Varrell Wharf in its current location without anyone's consent. While the Donnells have

since acknowledged the State's superior right to the lands under the wharf, they have

never recognized that Mr. Kennedy or the Brittons might have superior private riparian

rights to cross those lands and access the deeper water. This failure to acknowledge the

riparian owners' rights satisfies the "claim of right" element. See id. The facts thus

establish that the Donnells have continuously used or occupied the Kennedy /Brittons'

riparian frontage for more than twice the statutory period with the riparian owners'

knowledge, and have done so under an objectively hostile claim of right.

Assuming that Varrell Wharf injured the Brittons' riparian rights, the Donnells

have gained a superior riparian right to the portion of the Brittons' frontage occupied

by Varrell Wharf through prescriptive use. Without superior riparian rights, the

Brittons do not have any claim against the Donnells under the Wharves and Weirs Act.

13
See Sawyer, 97 Me. at 358, 54 A. at 848 (stating that the Act only protects riparian

owner's existing rights).

4. Abandonment

The Donnells' second affirmative defense is abandonment. The Donnells argue

that the Kennedy /Brittons' long acquiescence to Varrell Wharf's presence evinces their

intent to abandon their riparian rights over that portion of their frontage.

"A party alleging abandonment of a right-of-way has the burden of proving,
by clear and convincing evidence: (1) an act on the part of the owner of the
right-of-way evincing a clear intention to abandon, and (2) an act by the
owner of the servient tenement adverse to the owner's interest."

Stickney v. City of Saco, 2001NIE 69, <j[ 51, 770 A.2d 592, 609 (citing Canadian Nat'l Ry. v.

Sprague, 609 A.2d 1175, 1179 (Me. 1992)). Mere nonuse is insufficient evidence of an

intent to abandon, but "the acquiescence to the erection of a permanent barrier on a

right-of-way can satisfy the burden of both prongs ...." ld.

The Brittons contend that Varrell Wharf is not a permanent structure obstructing

their right to access the navigable waters, and therefore cannot establish their intent to

abandon their riparian rights over the area in question. In the past the courts have

found things like cottages and houses to be permanent obstructions, see Chase v.

Eastman, 563 A.2d 1099, 1102 (Me. 1989) (cottage), Fitzpatrick v. Boston & Maine R.R., 84

Me. 33, 24 A. 432 (1891) (houses), but have found driveways, weeds, or pastures

insufficient to establish the requisite intent. Stickney, 2001 ME 69, <j[ 52, 770 A.2d 592, 610

(driveway); Phillips v. Gregg, 628 A.2d 151, 152-53 (Me. 1993) (overgrowth); Bartlett v.

City of Bangor, 67 Me. 460,466 (1878) (pasture and associated fence).

Varrell Wharf consists of floats attached by metal brackets to a series of pilings

driven into the submerged riverbed. (R. vol. I at 47; R. vol. II at 20-21.) It has been in

place for almost fifty-five years, and is commercially operated year-round. Given the

14,
wharf's history, use, and substantial physical features, the wharf is a permanent

structure obstructing passage along its length. Its presence and operation constitutes a

permanent obstruction to the Kennedy /Brittons' water access, and its fifty years of

unchallenged existence constitutes clear evidence of an intent to abandon the riparian

rights to that portion of the frontage.

5. Laches & Estoppel

The Donnells also assert the doctrines of laches and estoppel.

Laches is negligence or omission seasonably to assert a right. It exists when
the omission to assert the right has continued for an unreasonable and
unexplained lapse of time, and under circumstances where the d~lay has been
prejudicial to an adverse party, and where it would be inequitable to enforce
the right.

Me. Sch. Admin. Dist. No. 27 v. Me. Pub. Emples. Ret. Sys., 2009 tv1E 108, <[ 16 (citing Fisco

v. Dep't of Human Servs., 659 A.2d 274, 275 (Me. 1995».

While the Brittons' thirty-year delay in bringing their claim is arguably'

unreasonable, they correctly argue that this lapse has not prejudiced the Donnells'

ability to defend the action. While the Donnells may have been prejudiced insofar as

they now rely on the income from the challenged portion of Varrell Wharf, they have

also benefited from that income. The facts do not support the Donnells' defense of

laches.

Another variation on the theme of delay, the doctrine of "[e]quitable estoppel

precludes an owner from asserting his legal title when, by his own action or inaction, he

has cause another to act or to alter her position to her detriment." Stickney, 2001 ME 69,

<[ 44, 770 A.2d at 608. The record does not show that the Donnells acted or otherwise

changed their position in reliance on the Brittons' long silence. In 1955 Daniel P.

Donnell constructed Varrell Wharf in the belief that he had an absolute right to do so,

15
and that structure has not been altered since. Absent reliance, the Donnells' defense of

equitable estoppel must fail.

6. Coming to the Nuisance

Finally, on remand this Court has been instructed to consider the applicability of

the doctrine of coming to the nuisance. Generally, the fact that a nuisance condition

existed when a plaintiff acquires its land does not prevent that plaintiff from bringing

suit. Eaton v. Cormier, 2000 ME 65, <JI 6, 748 A.2d 1006, 1008 (citing Jacques v. Pioneer

Plastics, Inc., 676 A.2d 504,508 (Me. 1996)); Restatement (Second) of Torts § 840D (1979).

Applied here, the Brittons are not barred from suing the Donnells for nuisance merely

because Varrell Wharf was in place when the Brittons purchased their riparian

property. Had the Court found that Varrell Wharf injured the Brittons, the fact that

Varrell Wharf predated their ownership might weigh on the equitable remedies

available. Eaton, 2000 ME 65, <JI 6, 748 A.2d at 1008. However, this Court has not found

that the Brittons are entitled to a remedy, and cannot address what effect the doctrine

might have.

The entry will be as follows:

On the Brittons' claims for nuisance and violation of the Wharves & Weirs
Act, judgment for the Donnells.

Further, the Donnells have established by the affirmative defenses of
prescription and abandonment, the right to maintain their existing wharf.4
The Donnells have failed to establish the affirmative defenses of latches,
equitable estoppel or coming to the nuisance.

~"A4~~
Justice, Superior Court

4
Nothing in this judgment is meant to affect the State's authority to order changes to the Donnells'
wharf under the S.T. L.A. lease.
PLAINTIFF: DEFENDANT:
GERALD F. PETRUCCELLI, ESQ. MARK FUREY, ESQ.
PETRUCCELLI MARTIN & HADDOW THOMPSON BULL FUREY BASS & MCCOLL
PO BOX 17555 16 PO BOX 447
PORTLAND ME 04112-8555 PORTLAND ME 04112-0447

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10808744. Public record. Not legal advice.