Almeder v. Town of Kennebunkport

STATE OF MAINE SUPERIOR COURT

YORK, SS. Civil Action

Docket No. RE-09-111

ROBERT F. ALMEDER et al.,

Plaintiffs,

ORDER ON DEFENDANT'S

v. MOTION IN LIMINE

TOWN OF KENNEBUNKPORT et al.,

Defendants.

Defendant Town of Kennebunkport filed a motion in limine to exclude the

testimony of J. Gordon Scannell, Jr., Esq., an attorney at law whom Plaintiffs

have designated as an expert to testify in the upcoming trial. Plaintiffs hold

Attorney Scannell out to be an expert in the area of real estate law, and offer his

prospective testimony to aid the court in its interpretation of deeds in issue.

The Town argues that Attorney Scannell does not have particular

expertise regarding disputed factual issues in the case in that he lacks specialized

knowledge of historical drafting language and historical monuments referenced

in the deeds, and because he lacks personal knowledge of the standards used in

Plaintiffs' title searches. It is the Town's contention that his testimony will only

address issues of law, and therefore should be excluded.

"The qualification of an expert witness and the scope of his opinion

testimony are matters within the discretion of the trial court." Tolliver v. DOT,

2008 ME 83, qJ_ 28, 948 A.2d 1223. It would appear that Attorney Scannell is

qualified as an expert generally in the area of real estate law. This is a bench

trial, and objections raised by the Town appear to go more toward weight than

1

admissibility. See State v. Tibbetts, 572 A.2d 142, 143; (Me. 1990); Warren v.

Waterville Urban Renewal Authority, 235 A.2d 295, 300-01 (Me. 1967).

The court is not inclined at this point to preclude altogether Plaintiffs'

expert from testifying. Any objections as to particular testimony at trial are

preserved.

Accordingly, the motion in limine to exclude testimony of J. Gordon

Scannell, Jr., Esq. is DENIED.

The clerk may incorporate this order upon the docket by reference

pursuant to Rule 79(a) of the Maine Rules of Civil Procedure.

SO ORDERED.

DATE: November 17, 2016

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A

Wayne R9Douglas I

Justice, faine Superioi;court

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STATE OF MAINE SUPERIOR COURT

YORK, SS.' Civil Action

Docket No. RE-09-111

ROBERT F. ALMEDER, et al.,

Plaintiffs

V. ORDER AFTER FINAL

PRETRIAL CONFERENCE

TOWN OF KENNEBUNKPORT et al.,

De£endai1ts

A final pretrial conference was held on November 16, 2016. In

attendance were: Christopher E. Pazar, Esq., and Benjamin M. Leoni, Esq.,

representing Plaintiffs; rvlelissa A Hewey, Esq., Amy K Chao, Esq., and David

M. Kallin, Esq., representing the Town of Kennebunkport.

1. Pending motions. The following motions are pending. Action

thereon is indicated.

a. The Town's 9 I 15 / 2016 Motion in Limine to Exclude Testimony of J.

Gordon Scannell, Jr., Esq., will be denied in a separately issued order.

b. Plaintiffs' 10/26/2016 Motion for Substih1tion is granted.

c. Plaintiffs' 10/26/2016 Motion for Joinder is granted.

d. Plaintiffs' 11 I 4/2016 Motion for Dismissal as to Plaintiff Janice

Fleming is granted with prejudice.

2. Clarification of Status of Parties. On November 9, 2016 Plaintiffs

filed a Notice of Present Plaintiffs and Parties Defending Counterclaims. The

notice lists 24 plaintiffs and an additional five parties-in-interest who are not

asserting claims but are defending against the Town's counterclaims. Four

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additiemal parties who were previously plaintiffs in this matter are not listed.

They had dismissed their appeal of the court's 2012 partial judgment but may not

have dismissed their claims. Their status in the case is unclear. In addition, as

noted above Plaintiff Janice Fleming is being dismissed from the action (with

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prejudice) because she has sold her property. The purchasers of her property,

however, are not currently parties to this action. Plaintiffs' counsel agreed to

follow up and file appropriate motions, if any, in order to clarify the status in this

action of the foregoing parties and/ or property ovvners.

3. Exchai:ige of Witness and Exhibit Lists. Counsel represented that

they have exchanged final exhibit and witness lists. A copy shall be filed with

the court.

4. Trial. Trial shall commence at 9:00 am on Wednesday November 30,

2016, and is anticipated to run through the morning of December 9, 2016.

5. !'rmr+rno7Y'. Although the court discussed with counsel the prospect

of conducting the trial in the second-floor library, upon further reflection, given

the requirements of this trial and the potential need to accommodate parties and

members of the public who may be planning to attend, the court is setting this

matter for trial in courtroom 2, which is the main courtroom on the second floor.

The court may reassess the need to continue in that courtroom as the trial

progresses.

6. Recording. It is the court's understanding at this time that counsel's

request for a court reporter is still pending in the Judicial Branch's Office of

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Linda Rice, Ann Clough, Joan Dwelley Testamentary Trust, and Susan Lewis.

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- According to Plaintiffs' November 3·· motion for dismissal as to Plaintiff Janice

, Fleming, her property was purchased by J. Rodney Walton,.Jr. and Shelley B. Walton.

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Transcript Opfrations (OTO). At the conference, counsel were amenable to

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usmg rne coun s mgua1 e1ecuoruc recormng sysrem rn recora me proceeamg lt a

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court reporter is not available, or if it would take substantially longer to obtain a

transcript of the trial. The clerk will continue to communicate with OTO to

determine whether a reporter will be available.

7. Tri::11 Rrip·fs. Counsel shall file by 4:00 pm on Monday November 28,

2016 at trial brief not exceeding 20 pages as discussed at the conference. The

format of trial briefs shall comply with M.R. Civ. P. 7(f). Counsel also have the

option of also filing proposed findings of fact prior to trial. The court will be

. .

requesting proposed findings of fact and conclusions of law as well as post-trial

briefs following the conclusion of trial.

The clerk may incorporate this order upon the docket by reference

pursuant to Rule 79(a) of the Maine Rules of Civil Procedure.

SO ORDERED.

DATE: Nover.nber 17, 2016

WayneRJDoug1~ 1 .{

. e11 . superio.~

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Justice, Ivlame

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STATE OF MAINE SUPERIOR COURT

YORK, SS. CIVIL ACTION

DOCKET NO. RE-09-111

ROBERT F. ALMEDER et al., )

)

)

Plaintiffs, )

) ORDER

v. )

)

TOWN OF KENNEBUNKPORT and )

ALL PERSONS WHO ARE )

UNASCERTAINED, )

) (Title to Real Estate Involved)

Defendants. )

UPON CONSIDERATION OF the Motion of Plaintiffs Vlilliam D. Fonest and Nancie

M. Julian to join SIP SIP North. Condominium Association, a Maine nonprofit corporation, as a

pa1iy plaintiff and counterclaim defendant in this action, with/without objection, with/without

hearing, the motion is GRANTED.

IT IS SO ORDERED that SIP SIP North Condominium Association, a Maine nonprofit

,,.

corporation, is joined as a pa1iy plaintiff and counterclaim defendant in the above-enyt(ect matter.

The clerk is directed to incorporate this Order into the docket by reference. M .R/c:{ p: 79(a).

vLdL

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Superior

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STATE OF MAINE SUPERIOR COURT

YORK, SS. CIVIL ACTION

DOCKET NO. RE-09-111

ROBERT F. ALMEDER et al., )

)

)

Plaintiffs, )

) ORDER

v. )

)

TOWN OF KENNEBUNKPORT and )

ALL PERSONS \VHO ARE )

UNASCERTAINED, )

) (Title to Real Estate Involved)

Defendants. )

UPON CONSIDERATION OF the Motion of Plaintiffs and heirs of Deborah Kinney,

Jonathan Sherman and Jeffrey Sherman, to substitute Shennan/Kinney Prope1iies II, LLC, a

Maine limited liability company, as a party in this matter, With/without objection, with/without

hearing, the motion is GRANTED.

IT IS SO ORDERED that Sherman/Kinney Properties II, LLC, a Maine limited liability

company, is substituted in the place of Deborah Kim1ey, deceased, as a paiiy plaintiff and

counterclaim defendant in the above-entitled matter. The clerk is directed to incorporate this

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Order into the docket by reference. M.R. Civ. P. 79(a). ,//

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Dated: IA /,,v...,1- (VJ.~,.~ l,, -=

[ t Superior tJurt Justic\O

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STATE OF MAINE SUPERIOR COURT

YORK, SS. Civil Action

Docket No. RE-09-111

ROBERT F. ALMEDER, et al.,

Plaintiffs

v. SCHEDULING ORDER

TOWN OF KENNEBUNKPORT et al.,

Defendan.ts

1. Trial. This case has been set for a non-jury trial commencing on

lovember 30, 2016 and running through December 9, 2016.

2. Final Pretrial Conference. The court shall conduct a final pretri.:il

conference on November 16, 2016 at 1:00 pm.

3. Exchange of Witness and Exhibit Lists. Parties shall exchange trial

exhibit and trial witness lists not later than . ovember 14, 2016. Witness lists

shall include the name and place of residence or business address of all witnesses

with a notation as to any witness to be called as an expert. All eX11-1ibits and visual

aids must be marked with corresponding numbers before commencement of the

trial session. Witnesses or exhibits not listed may be excluded upon objection or

upon the court's own motion. At the request of a party, an opposing party shall

display all exhibits and visual aids not later than 7 days prior to the beginning of

the trial.

4. Motions. Any additional motions in limine shall be supported as

required by M.R. Civ. P. 7 and shall be filed not later than October 24, 2016.

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5. Stipulations. Parties are encouraged to stipulate to matters that will

expedite the trial, to the admissibility of uncontested exhibits and to offer

duplicate exhibits as joint exhibits. Stipulations shall be filed in writing with the

court by November 14, 2016.

6. Trial Briefs. Any party may file a trial brief addressing the legal and

factual issues to be presented at trial. The format of trial briefs shall comply with

M.R. Civ. P. 7(f). The court will determine the page limit for trial briefs at the

final pretrial conference.

The clerk may incorporate this order upon the docket by reference

pursuant to Rule 79(a) of the Maine Rules of Civil Procedure.

SO ORDERED.

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DATE: September 29, 2016 I

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STATE OF MAINE SUPERIOR COURT

YORK, SS. Civil Action

Docket No. RE-09-111

ROBERT F. ALMEDER et al.,

Plaintiffs,

ORDER ON

v. PENDING MOTIONS J

TOWN OF KENNEBUNKPORT et al.,

Defendants.

This order addresses the following motions: Plaintiffs' request under M.R. Civ. P

55(a) for entry of default against "all persons unascertained;" the State of Maine's

motion for an order to amend and conform the pleadings; and Plaintiffs' two motions

that seek rulings in limine on anticipated evidentiary and procedural issues at trial.

1. Plaintiffs' Request for Default against "AH Persons Unascertained"

Pursuant to court order of August 30, 2010, as amended by an order of

September 10, 2010, Plaintiffs served notice by publication to "Persons who are

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Unascertained and to the General Public." The notice was published in the Portland

Press Herald on three days over three consecutive weeks-on September 16'", September

23·•, and September 30•, 2010. (Notice of Filing Aff. of Publication: Portland Press

Herald (Oct. 5, 2010).) The notice specifically identified the date, location and nature

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On September 19, 2016 the Town of Kennebunkport filed a motion in limine seeking to

exclude the testimony of Plaintiffs' designated expert, Gordon Scannell, Esq., at trial. Since the

21-day response period under the rules has yet to run, this order does not address the Town's

motion.

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Plaintiffs initially published a notice of this action in the York County Journal Tribune

over three consecutive week in late 2009, attempting service by publication to "persons who

are unascertained and the general public" of this action . Because there had not been prior

court authorization under Rule 4, notice was published again in 2010.

of the pending action, the names and addresses of the Plaintiffs, as well as the present

Defendants in the lawsuit.3 Plaintiffs have filed a request for an entry of default

against "all persons unascertained" pursuant to M.R. Civ. P. 55(a).

Rule 55(a) provides that the clerk "shall enter" a default with respect to "a party

against whom judgment for affirmative relief is sought" when that party "fails to plead

or otherwise defend as provided by these rules and the fact is made to appear by

affidavit or otherwise." Id. There being no objection, Plaintiffs' request for entry of

default is granted. Pursuant to Rule 55(a); the clerk, shall enter a default against:

"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."

2. State of Maine's Motion to Amend and Conform Pleadings

The State filed a motion to amend its pleading to conform to the ev1dence and

proceedings in this action in order to "reflect that the State has litigated the claim that

extensive public trust rights exist in the intertidal zone so that the State may further

participate in and, as needed, appeal this Court's decision of the public trust 'claim."'

(State's Mot for Order to Am. and Conform Pleadings 1.)4 The motion comes in the

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The notice identified "present defendants" named in the lawsuit as "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 all

persons who are unascertained, not in being, unkown 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.".

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Specifically, the motion seeks to add a one-paragraph counterclaim to the State's initial

pleading, entitled, "Answer, Defenses and Counterclaims of State of Maine." The

counterclaim would assert: "The public and individual members of the public have public

2

wake of the Law Court's 2014 decision vacating this court's 2012 partial judgment,

noting that "no claims implicating the public trust doctrine are properly before us for

review" because "the only claim to implicate the public trust" in the case was plaintiffs'

title claim, which had yet to be addressed, and because the State had not filed a separate

claim raising the public trust doctrine. Almeder et al. v. Town of Kennebunkport et al.,

2014 ME 139, 'JI 37, 106 A.3d 1099.

Plaintiffs oppose the State's motion. They contend that the motion is untimely,

and that the Law Court has already dismissed the public trust claim as untimely.

Further, they contend that the State's claim of public trust rights is not justiciable and

amounts to a request for an advisory opinion because there has been no infringement of

the pnblic:'s use rights, and that the public trust use rights in the intertidal zone are

coextensive with common law rights of fishing, fowling and navigation, and subsumed

by the public's rights to use the beach for recreational activities pursuant to the

presumption of permissive use in the intertidal zone.

M.R. Civ. P. 15(b) provides that "[s]uch amendment of the pleadings as may be

necessary to cause them to conform to the evidence and to raise these issues may be

made upon motion of any party at any time, even after judgment." Moreover, leave to

amend a pleading "shall be freely given when justice so requires." M.R. Civ. P. 15(a).

"[I]f the moving party is not acting in bad faith or for delay, the motion will be granted

in the absence of undue prejudice." Chrysler Credit Corp. v. Bert Cote's L/A Auto Sales,

1998 ME 53, 'JI 15, 707 A.2d 1311. Undue prejudice may result when a proposed

amended claim introduces an entirely new issue that has not been previously raised or

litigated. Bangor Motor Co. v. Chapman, 452 A.2d 389, 393 (Me. 1982). Whether to

trust rights which include the rights to use the intertidal zone of Goose Rocks Beach for

recreational purposes related and unrelated to fishing, fowling and navigation." (Proposed Am.

Answ ., 8 )(Emphasis added).

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allow a motion to amend "is left to the discretion of the trial court." Bernier v. Merrill Air

Eng'rs, 2001 ME 17, <JI 22, 770 A.2d 97.

The State of Maine sought to intervene as a defendant in this case, "citing the

public interest in maintaining access to Maine's beaches." Order, Aug. 17, 2010, at 3.

The court granted its motion, noting that "[t]his broad public interest in Maine's coast is

distinct from the Town's particular interest in Goose Rocks Beach." Id. The State

participated fully in the 2012 trial in this matter that focused directly upon the nature

and extent of the public's rights in and use of Goose Rocks Beach. The State presented

and queried witnesses at trial; submitted proposed findings of fact, conclusions of law

and legal memoranda; and participated in the subsequent appeal to the Law Court.

Plaintiffs' complaint seeks (i) a declaration that they are "vested with title ...

free and clear of all claims ... subject only to the public rights of usage in the Intertidal

Property established by the Colonial Ordinance of 1647" (Count I for declaratory relief)

and (ii) a judgment barring all claims of right in their property "subject to the limited

public right in the Intertidal Property to fish, fowl and navigate as defined in the

Colonial Ordinance of 1647" (Count II to quiet title). The scope of the public's use

rights in the intertidal zone that are acknowledged by Plaintiffs is narrower than the

scope of the public trust rights for which the State advocates. The extent of the general

public's recreational rights in the intertidal zone encompassed by the presumption of

permission would also appear to be narrower than the public trust rights claimed by the

State because the former are merely permissive.

Accordingly, the States' motion to amend is granted solely to align the State's

pleading with the reality of what has already transpired in this case, notably a full trial

on the public prescriptive easement and public trust issues. The court reserves

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judgment as to any other issues that may arise depending on the outcome of the title

5

trial, including the issue of whether the State's claim is justiciable at that point.

3. Plaintiffs' July 8, 2016 Joint Motion in Limine

Plaintiffs request in their July 2016 motion that the court issue an order (a)

declaring that Justice Brennan's interpretation of the Danforth Deed in his 2011

summary judgment ruling is "law of the case" and not subject to re-litigation in this

matter; and (b) requiring a party to make a threshold showing of title in order to

"remain as a party in the title portion of this case," i.e. have standing to challenge the

opposing party's title. With regard to the latter issue, Plaintiffs also request that the

court articulate the applicable burden of proof and the order of proof at trial.

a. Law of the Case and the Danforth Deed. The law of the case doctrine

reflects the "wise policy that a judge should not in the same case overrule or reconsider

the decision of another judge of coordinate jurisdiction." Blance v. Alley, 404 A.2d 587,

589 (Me. 1979) The doctrine serves a "practical judicial policy" that rulings on

questions of law that are "clearly decided in the same action" should not be reopened

by another judge in the same case except for "the most compelling reasons." Spragu~

v. Washburn, 447 A.2d 784, 787 (Me. 1982)

The law of the case doctrine resembles but does not operate as res judicata; nor

does it deprive a judge of jurisdiction or power to rule differently on a question of law

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City of Saco, 436 A.2d 403, 405 (Me. 1981); Sprague v. Washburn, 447 A.2d 784, 787 (Me.

1982). See also Messenger v. Anderson, 225 U.S. 436, 444 (1912) (Holmes, J.) The doctrine

5

I( for example, the Town were to prevail on its counterclaim for title, there may be a question

as to whether any further relief sought by the State of Maine would raise a justiciable claim in

this case.

5

does not bar revisiting a prior ruling on a legal issue when there is a lack of clarity, the

availability of new evidence, or a need to correct error or prevent manifest injustice.

Lord v. Murphy, 561 A.2d 1013, 1017 (Me. 1989). The Law Court has held that if a prior

legal ruling in a case is erroneous it may be an abuse of discretion to invoke the law of

the case doctrine as a reason for not revisiting it. Id.

The interpretation of a deed's language is a question of law. Eaton v. Town of

Wells, 2000 ME 176, en 19, 760 A.2d 232; Bennett v. Tracy, 1999 ME 165, en 7, 740 A.2d 751.

In interpreting the Danforth Deed, Justice Brennan applied the conventional canons of

6

legal construction and concluded: "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 granted

to the Town's earliest settlers;" and thus "i:he 1684 document does not convey any grant

of new title, specifically the common and undivided lands within the Town's

boundaries, to the Town." Order on Mot. for Summ. J. Dec. 22, 2011, at 6, 8. This

ruling was based on a careful review of the deed's language, an extensive summary

judgment record including an analysis of the surrounding circumstances and historical

context, and citation to supportive legal precedent.

Justice Brennan's interpretation of the Danforth Deed appears sound, and

worthy of deference. However, his ruling was made at the summary judgment phase

of this proceeding and, more precisely, in the context of denying both the Town's

motion for summary judgment and the Plaintiffs' cross-motion for summary judgment

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Construe a deed to give effect, if possible, to the intention of the parties; consider all words

of a grant in light of the circumstances and conditions attending the transaction; look first

within the "four corners" of the document; give words in the deed their" general and ordinary"

meaning to determine any ambiguity; and do not consider extrinsic evidence of intent if the

deed's language is unambiguous. Surrounding circumstance attendant to the execution of the

deed, including the historical context in \·vhich it was executed, may be considered even if the

plain language of the deed is unambiguous. Order on Mot. for Summ. J. Dec. 22, 2011, at 5 - 6.

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on count I of the Town's counterclaim. Justice Brennan concluded that based on the

summary judgment record before the court that the Town "had Jailed to prove as a

matter of law" that the Danforth Deed was the document that conveyed title to the

common and undivided lands to the Town. Order Mot. for Reconsid. Jan. 18, 2012, at

2 (Emphasis added). Even if the court concurs with Justice Brennan's conclusion that

the deed's language is unambiguous, relevant evidence concerning attendant

circumstances or historical context in addition to that contained in the summary

judgment record, for example, may be offered at trial. The law of the case doctrine

should not operate in these circumstances to limit consideration of potentially relevant

evidence at trial. The court will make its final determination as to the meaning and

effect of t..l-ie Danforth Deed after considering all relevant evidence.

Moreover, based on the summary judgment record, the court further concluded

that there remained material factual disputes concerning both Plaintiffs' and the Town's

title claims. Plaintiffs had failed to prove that "title [to J the flats was vested in private

hands" at the time the Town claims to have gained title to the intertidal zone. And,

although the Town "still has a viable claim" of title that could overcome Plaintiffs' prima

Jacie claim of title, "the implication that title to the common and undivided lands was

vested in the Town raises a genuine issue of material fact to be resolved at trial."

Order Mot. for Reconsid. Jan. 18, 2012, at 2, 4. Even if the Danforth Deed is not the

source deed of the Town's title, it could still have relevance to its title claims by

implication or otherwise. To the extent the motion seeks its exclusion in limine, the

motion is denied and the court reserves judgment as to the admissibility and ultimate

significance of the document until a more complete record is established at trial.

b. Town's Standing. Plaintiffs challenge the Town's standing to contest their

?"'rn prima Jacie title claims unless the Town first can demonstrate "color of title." They

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maintain that the Danforth Deed cannot satisfy that showing because the court has

already that ruled the deed "does not convey any grant of new title ... to the Town."

Order on Mot. for Summ. J. Dec. 22, 2011, at 8.

The Town has established sufficient color of title to remain as a party in this case,

both to assert its own affirmative claim of title as well as to defend against or challenge

plaintiffs' prima Jacie title claims. Color of title may be demonstrated by "[a] written

instrument or other evidence that appears to establish title but does not in fact do so."

Blacks Law Dictionary, 9°· ed., at 302. Even if the Danforth Deed is not conclusive as to

the Town's title claim, it would appear to satisfy this minimum threshold requirement.

Moreover, apart from the Town's claim of title based on the Danforth Deed, there

remain genuine issues of ·material fact concerning its potential claim 9f title by

implication. See Order Mot. for Reconsid. Jan. 18, 2012, at 2. Even without its own

affirmative title claim, the Town, which was named as a party defendant in this case,

may have standing to contest claims of title in the intertidal zone of Goose Rocks Beach.

See Eaton, 2000 ME 176, <JI 19, 760 A.2d 232 (Town of Wells permitted to defend against

claims of title to intertidal zone of Wells Beach even though it had no valid claim to

title).

c. Burden of Proof. A party affirmatively asserting a claim of title in a quiet

title I declaratory judgment action bears the risk of non-persuasion. Hodgdon v.

Campbell, 411 A2d 667, 669 (Me. 1980) Plaintiffs assert claims of title in and to their

properties on Goose Rocks Beach, including the intertidal zone seaward of their upland

properties. They bear the risk of non-persuasion under Hodgdon, and thus the burden

of proof. See also Marshall v. Walker, 93 Me. 532, 535, 45 A. 497 (1900) (In quiet title

action involving tidal flats, "[h]e who begins the litigation must and ought to carry the

burden of proving title.") Conversely, since the Town has also asserted title to the

8

same tidal flats on the beach through its counterclaim, it too bears the burden of proof

with respect to its claim. Hodgdon, 411 A.2d at 670-71. (Party asserting title, whether or

not the nominal plaintiff in the action, bears risk of non-persuasion.)

A party claiming title has the initial burden of corning forward to present prima

Jacie evidence of title. Prima facie evidence of title may be shown "by producing a

warranty deed or quitclaim deed from a predecessor in the quitclaim deed who

obtained title by a warranty deed or was in actual possession. A deed that only

conveys the grantor's 'right, title and interest' is not a grant of a land or of a particular

estate and is not prima facie evidence of title." Order Mot. for Reconsid. Jan. 18, 2012,

cifing Sargent v. Coolidge, 399 A.2d 1333, 1343 (Me. 1979). Where no such deed is

provided, "prima Jacie evidence in legal intendment means evidence which if unrebutted

or unexplained is sufficient to maintain the proposition, and warrant the conclusion to

support which it [has been] introduced." Hann v. Merrill, 305 A.2d 545. 550 (Me. 1972t

citing Carroll v. Boston Elevated Railway Co., 200 Mass. 527, 86 N.E. 793, 797 (1909).

Plaintiffs contend that if they make a prima facie showing of title based on a deed,

and if that showing is "unrebutted by similar record or instrument," then they are

entitled to judgment as a matter of law. However, prima Jacie evidence of title alone

may or may not entitle a Plaintiff to a judgment; the court must consider other relevant

evidence to determine whether, in the end, each party has satisfied his or her burden of

proving title by a preponderance of the evidence. See Order :tvfot. fo~ Reconsid. Jan. 18,

2012; See also Eaton, 2000 ME 176, <[ 27, 760 A.2d 232. Evidence rebutting a party's

prima facie showing may be relevant to the question of whether a that party has carried

the burden of proving title by a preponderance of the evidence. See Hodgdon v.

Campbell, 411 A.2d 667, 670 (Me. 1980); Blance, 330 A.2d at 798 (A party "may, however,

always show that the [party asserting title] obtained nothing by his deed."); Hann, 305

9

A.2d at 550-51; Ripley v. Trask, 106 Me. 547, 76 A. 951, 952 (1910). See Eaton, 2000 ME

176, CJ[ 27, 760 A.2d 232.

Ultimately, a party claiming title must present positive, affirmative proof of

"better title," and may not rely merely on the weakness of the opposing party's title.

Sargent v. Coolidge, 399 A.2d at 1342; Blance, 330 A.2d at 798; Chaplin v. Barker, 53 ME. 275

7

(1865). In order to prevail, therefore, each individual Plaintiff bears the burden of

proving by a preponderance of the evidence in light of all the evidence "better title than

0

that of the [Town]" to the inter~idal zone seaward of his or her upland beachfront

property; and the Town, to prevail on its title claim, must prove the converse by a

preponderance of the evidence. See Hodgdon, 411 A.2d at 671.

d. Order of Proof. Plaintiffs will proceed first to present evidence of prima

Jacie title. Evidence will be presented on a parcel-by-parcel basis. Absent an

agreement on the order or grouping of parcels, Plaintiffs may present their case in the

order and manner they choose. Each Plai..'1.tiff bears the initial burden of establishing

prima facie title with respect to his or her individual claim. 8

7

Cases articulating the standard of proof in title dispute cases have arisen in a variety of

types of actions, including, for example, real actions (writs of entry); quiet title actions at law;

quiet title actions at equity; and actions in trespass quare clausum Jregit. Ultimately, as noted

above, the party asserting an affirmative claim of title in a quiet title action bears the burden of

proving by a preponderance of the evidence "better title" in the property than the opposing

party. See Hodgdon, 411 A.2d at 670-71.

8

The court's January 18, 2012 order denying plaintiffs' motion for reconsideration observed

that the documents comprising the summary judgment record "do not show prima facie

evidence of title for most of the Plaintiffs;" and suggested but withheld judgment that "a few of

the Plaintiffs' current deeds appear to actually provide prima facie evidence of title (including

Asplundh, Flynn, Gerrish, O'Connor/Leahy, Sandifer, Scribner, and Paley)." Order Mot. for

Reconsid. Jan. 18, 2012, at 4.

10

Upon the conclusion of Plaintiffs' presentation of their prima Jacie cases, the Town

may present its rebuttal evidence, if any, to Plaintiffs' prima facie title claims as well as

9

evidence in support of its own prima facie claim of title.

Plaintiffs will have an opportunity to rebut the Town's evidence as to both

Plaintiffs' title claims and the Town's own prima facie title claim.

4. Plaintiffs' March 5, 2015 Motion in Limine

Plaintiffs' March 2015 motion requests that the court bar admission of testimony

of the Town's designated experts, Robert A. Yarumian, It and Knud E. Hermansen, as

10

defined by their designations, and further that any evidence or testimony concerning

"modern" or "ancient" title "which claims as its genesis the Danforth Document" be

excluded. Plaintiffs contend such testimony and evidence is irrelevant in light of the

court's interpretation of the Danforth Deed in its order denying the Town's motion for

summary judgment.

In light of the court's ruling above in section 3(at the testimony of the designated

experts may have relevance. There remain disputed material factual issues with

respect to the title claims of both Plaintiffs and the Town. See Order on Mot. for

Summ. J. Dec. 22, 2011, at 12-14; Order Mot. for Reconsid. Jan. 18, 2012, at 2 (Summary

9

The ruling above that the Town has shown sufficient color of title to defend against

Plaintiffs' title claims does not per se, establish its own prima Jacie title claim. Nor had the

Town established prima Jacie title based on the summary judgment record. The Town's n,vo

other grounds for claimfog title (court II, adverse possession, and count III, acquiesence) are not

before the court in this phase of the proceeding.

10

According to his designation, Robert A. Yarumian, It is expected to offer testimony as to,

among other things, the modern and ancient title history of Goose Rocks Beach as well as the

historical location of Plaintiffs' property and the property of their predecessors in title; and offer

an opinion that title to the beach rests in the Town. Knud E. Hermansen's designation states

that he will offer opinion testimony regarding, among other things, the history of Plaintiffs'

properties and title theJeto, including legal analysis of and opinion testimony concerning

documents within the chain of title and the impact of those documents on interpreting property

boundaries and ownership of the relevant portions of Goo e Rocks Beach.

11

judgment record implies title to common and undivided lands vested in Town, and

raises genuine issue of material fact to be resolved at trial). The proposed testimony of

these experts may have relevance to all parties' affirmative title claims, whether or not

those claims depend upon or involve the Danforth Deed. The additional objections to

Mr. Hermansen's proposed opinion testimony on ground that it is cumulative of, and

lacks an independent source of knowledge from, Mr. Yarumian's opinions are denied.

5. Summary of Order

II

a. Plaintiffs' Request for Entry of Default against all persons who are

unascertained as more fully set forth above is GRANTED.

II

b. The State of Maine's Motion to Amend and Conform Pleadings is

GRANTED.

c. Plaintiffs' July 8 2016 Joint Motion In Limine Regarding Law of the Case,

Order of Proof and Burden of Proof is GRANTED IN PART with respect to the request

to set out burden and order of proof, and DENIED in all other respects, as set forth

above.

d. Plaintiffs' Motion In Limine Regarding Defendant's Expert Witness

Testimony of Robert A Yarumian, II, and Knud E. Hermansen is DENIED.

The clerk may incorporate this order upon the docket by reference pursuant to

Rule 79(a) of the Maine Rules of Civil Procedure.

SO ORDERED.

DATE: September 29, 2016

12

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

YORK, SS. DOCKET NO: iG-09-111

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.

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 collaboratively 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

scheduling order, and discovery shall proceed among those already named m 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 Enton 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. Muther, Cumb. 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

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. 1 Also, three additional

parties submitted 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

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 amirns curiae 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."' Ncrgnard v. Town of Westport Island, 2009 ME 56, 9I 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 IMF 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

interest in the beach, which is already being adequately represented by the Town of

Kennebunkport and the State of Maine. See Bell I, 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-CV-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 McNamce and John V. 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

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.

Lucerne-in-Maine 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

11

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."

Id. (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

U-c!i _,II/

"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 [her] claim."

JoJwnson v. Dunnington, 2001 ME 169, 'II 5, 785 A.2d 1244, 1245-46.

Where Rule 12(b) tests the sufficiency of the complaint, Rule 12(£) provides "the

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(£).

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 docs 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." Eaton v.

Town of Wells, YORSC-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. Voorl1ees, 130 Me. 305, 311, 155. A 556, 559 (1931).

In Bell v. Toum 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

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. Id. 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 with the

desired stability and certainty of real estate titles." Id.

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. Id.; 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 litigation. 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-01-111

abandon" the right of way. Ca11adian 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, <[ 6, 722 A.2d 357, 358 (quoting Picken v. Richardso11, 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

In summary, the plaintiffs' motion to dismiss Count VI (custom); to strike

defense 9 (custom) and the requests for relief pursuant to 14 !vi.RS. § 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(£)

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, 15, 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 Vlll 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

KC-df-t II

(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, '[ 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.l, 969 A.2d

919, 922 n. l.

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 vicinity of, Goose Rocks Beach imply the intent of the [p ]lain tiffs' 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 quasi-

easement 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

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 tn1st), 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(£)

Defendants Richard J. and Margarete K.M. Driver are interveners who own back-

lot 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

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.

"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. Lane, 2009 ME 133, 'JI 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

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 (Easement), VIII (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, 'i[ 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

showing that the pleader is entitled to relief ...." M.R. Civ. P. 8(a). "Where a Maine

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."' Benn v. Cummings, 2008 ME 18, 'i[ 11, 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[]." 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

Court recently instructed that "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 ...." 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). "To 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." 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 Vis dismissed.

The Harrises' Counts VI for custom, VII for easement, and VIII for implied

easement are identical to those claims brought by the Town and the Lachiattos. These

16

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 more 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 tortiousl y interfered with 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, <[ 13, 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

<[ 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

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 motion 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

(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

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.

\___ ...

ur Brennan

Justi e, Superior Court

PLEASE REFERENCE ATTACHED LIST OF ATTORNEYS FOR THIS CASE.

20

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

YORK, SS. CIVIL ACTION

DOCKET NO: RE-09-111

ROBERT F. ALMEDER and VIRGINIA

S. ALMEDER, et al.,

Plaintiffs,

v.

TOWN OF KENNEBUNKPORT,

ALL PERSONS WHO ARE

UNASCERT AINED, not in being, ORDER FOR SERVICE

unknown or out of the State, heirs or OF PROCESS AND SERVICE

legal representatives of such BY PUBLICATION

unascertained persons, or such persons

as shall become heirs, devisees or

appointees of such unascertained

persons who claim the right to use or (Title to Real Estate Involved)

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.

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."'

Gaeth v. Deacon, 2009 ME 9, er[ 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)(l). 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: l?f~/D

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 nl. 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 u/ 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 0. 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 u/ d/ t dated January 24, 2002,

as amended, 165 Kings Highway, YCROD Book 15516, Page 1121; Richard M.

Vandervoorn, Lawrence W. Vandervoorn and Robert 0. 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 PREP ARE 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. FAIL URE 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. Aimed er 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

YORK, SS. DOCKET NO. RE-09-l ll

67 jJB, -'/OR- 1~;22/..;>011

ROBERT F. ALMEDER, et al.,

Plaintiffs

v. ORDER

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. The Lachiatto and Driver defendants

represented themselves. 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 I 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.1.

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, '[ 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.

IL 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, 1 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, 1 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. Qoint SMF 110; Town OSMF 110.) 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 1113; Joint SMF 1110, 47-51; Town OSMF 1 49.) The

Town of Cape Porpoise was incorporated as a political entity in 1653 under the

Massachusetts Bay Colony Charter. Qoint SMF 1 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 1150-51.)

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 srr Ferdinando 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

Ferdinando 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

Ferdinando 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. Goint

SMF <JI<JI 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 <[ 40; Ross Aff.<[ 53, Ex. 13.) The Bush

deed is recorded at Book I, Folio 36 I 37, York County Registry of Deeds. (Joint SMF 'IT

40, Ross. Aff. <[ 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 <[ 40;

Ross Aff. <[ 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 April 17, 1648 and is recorded at Book I, Folio 136/137 in

the York County Registry of Deeds. Goint SMF <J[ 16; Ross Aff. <j[ 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 <j[ 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 112.) 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 describmg the property. The plamtiff claimed title by virtue of an 1829

grant from Massachusetts and Mame. The defendant claimed title by virtue of deeds

from family members who had been m possession of the island smce 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 agamst mdividuals and

agamst the State, although a longer period of time may be required to use the doctrme

agamst the State. Id. at 341-42. It stated that the purpose of the doctrme is similar to

that of a statute of limitations and is designed to provide repose and quiet ancient

possessions. Id. at 342. This doctrme, therefore, is analogous to the doctrme of adverse

possession, except it may be used agamst the sovereign. Note: The Doctrine of the

Presumption ofa Lost Grant as Applied Against the State, 29 Harv. L. Rev. 88, 89-90 (1915).

In order to rely on the doctrme of presumptive grant, the Plaintiffs must, first,

show that their current deeds actually describe the high dry sand and the mtertidal

zone and, second, show that their cham of title describmg 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

Plamtiffs whose current deeds do describe the beach, the Plamtiffs have not put before

the court the precedmg cham of title to prove that those Plamtiffs 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/Harris/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. (Pls. 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, 18, 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, 1 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, 118, 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 I 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, <[<[ 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, 1 32, 760 A.2d 232. This is a mixed question of law and fact. Striefel v. Charles-Keyt­

Leaman P'shp, 1999 ME 111, 17, 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, 118, 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, <[ 16, 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, <[ 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 <[ 1.)

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 183. 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 1 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 ']['][ 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 'I[<]I 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 ']['][ 3a, 3b, 5; Driver Aff. 'I[<]I

4,7; Lachiatto Aff. <]I'I[ 4, 6) for activities such as walking, jogging, sunbathing, and

21

swimming (Id.), (2) for 40 years (L/D Supp. SMF <[ 4), (3) that the Plaintiffs have

admitted in their Complaint that this was under a claim of right (Pls. Compl. <[<[ 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 <[ 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 <_[ 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.

Id.

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 Aff. <_[ 9; Town

SMF CJ[<_[ 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, quasi-

easement 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, 18, 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: .I~~/

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 KENNEBUNK.PORT'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

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

YORK, SS. DOC:f(ET NO: RE 709-111

- r , 'le'!," :''.• :' ·

ROBERT F. ALMEDER, et al.,

, ' · Plaintiffs

v.

TOWN OF KENNEBUNKPORT and

ALL PERSONS WHO ARE

UNASCERTAINED,

Defendants

DECISION AND ORDER ON PLAINTIFFS' MOTION FOR RECONSIDERATION

This court issued its Decision and Order on Motions for Summary Judgment on

December 22, 2011, in part denying the Plaintiffs' Motion for Summary Judgment on

Count I of the Town of Kennebunk.port's Counterclaim and Motion for Summary

Judgment on Counts I and II of the Complaint. The Plaintiffs moved for

reconsideration, under M.R. Civ. P. 7(b)(5), on January 3, 2012. The Town of

Kennebunkport filed an Opposition to the Plaintiffs' Motion for Reconsideration on

January 4, 2012. The Plaintiffs' motion argues that the court erroneously shifted the

burden of proof from the Defendant Town to the Plaintiffs with respect to the Town's

Counterclaim Count I and erroneously required the Plaintiffs to conclusively prove

their title before granting judgment on Count II (quiet title) of the Complaint. The

motion will be decided on the basis of the filings without hearing.

1. Denial of Plaintiffs' Motion for Summary Judgment on Count I of the Town's

Counterclaim

The court agrees that it would be an unfair burden to require the Plaintiffs to

disprove every possible argument that the Town could have asserted in its claim for fee

simple ownership of Goose Rocks Beach. That is not what the court required. The

essence of the Town's argument was that the high dry sand and intertidal zone of

Goose Rocks Beach were never conveyed into private hands and became part of the

common and undivided lands early in the Town's history. The summary judgment

record contains evidence that implies that title to the so-called common and undivided

lands was vested in the Town at some point after Massachusetts Bay Colony purchased

the remainder of the Gorges Patent. Even though the court found that the Town failed

to prove as a matter of law that the 1684 deed is the document that conveyed that

interest, the implication that title to the common and undivided lands was vested in the

Town raises a genuine issue of material fact to be resolved at trial.

Plaintiffs' argument was premised not only on the assertion that the 1684 deed did

not convey title to the Town, but also on the assertion that title the flats was vested in

private hands and, therefore, not a part of the common and undivided lands so that if

and when those lands were transferred to the Town, they did not include the high dry

sand or intertidal zone. The Plaintiffs failed to prove this part of their argument.

Therefore, the court concluded that the Town continues to have a cause of action to

prove fee title to the flats because it has asserted a genuine issue of material fact as to

title and that there remains a question as to whether the 1640s / 1650s deeds conveyed

the beach. Therefore, the Plaintiffs are not entitled to judgment as a matter of law and

the Motion to Reconsider the Plaintiff's Motion for Summary Judgment on Count I of

the Town's Counterclaim is Denied.

2

2. Denial of Plaintiffs' Motion for Summary Judgment on Count II of the Complaint

The Plaintiffs move for reconsideration on the court's denial of their motion for

summary judgment only with regard to Count It the action for quiet title under 14

M.R.S. §§ 6651-66631, and not the declaratory judgment count. The Law Court has

noted in several instances that the statutory scheme creating the cause of action for

quiet title does not eliminate any of the procedural complexity that existed under the

old common law writs. See e.g. Chickering v. Yates, 420 A.2d 1219, 1222 (Me. 1980);

Hodgdon v. Campbell, 411 A.2d 667, 669 (Me. 1980). The Law Court has also noted the

value of the Declaratory Judgment Act, 14 M.R.S. §§ 5951-5963, for bringing actions to

try title in the Maine courts. Hodgdon, 411 A.2d at 669. By proceeding under the

Declaratory Judgment Act, rather than under the quiet title statute, the plaintiff can

avoid the procedural complexities and pitfalls that are prevalent in a quiet title action.

The court has treated this action as one for declaratory judgment rather than one

exclusively under the quiet title statute. Hansen v. Weller, 2008 Me. Unpub. LEXIS 97, *2.

Accordingly, the court has not required the Plaintiffs to prove the jurisdictional

elements of the quiet title cause of action and the court is proceeding to ultimately

determine the rights of the parties rather than concluding, as the quiet title statute

would require, whether or not the defendant should be compelled to try title under one

of the other methods of trying title in Maine. Therefore, the court believes that it is

improper to move for reconsideration on the quiet title count alone.

Treating the motion as one for reconsideration on the declaratory judgment action,

the court also denies the motion. The parties agree that a plaintiff cannot prevail on the

The section range that the Plaintiffs designate actually describes several causes of action.

An action at law for quiet title is contained in sections 6651-6654. Sections 6655-6658 contain an

action for quiet title in equity. Sections 6659-6661 describe a cause of action by abutters to a

discontinued road or way and section 6663 has been repealed. It appears as though the

Plaintiffs have actually pursued an action for quiet title in equity because of the need to include

unascertained people as defendants.

3

weakness of the defendant's title but instead must rely on the strength of their own title.

See e.g. Sargent v. Coolidge, 399 A.2d 1333, 1342 (Me. 1979); Blance v. Alley, 330 A.2d 796,

798 (Me. 1975). A plaintiff may show prima fade evidence of title to the disputed

property by producing a warranty deed or a quitclaim deed from a predecessor of the

quitclaim deed who obtained title by a warranty deed or was in actual possession.

Sargent v. Coolidge, 399 A.2d 1333, 1343 (Me. 1979). A deed that only conveys the

grantor's "right, title and interest" in the land is not a grant of land or of a particular

estate and is not prima fade evidence of title. Id.

The Plaintiffs admit that Plaintiffs Sherman, Coughlin, and Celi have not produced

prirna fade evidence of title. (Mot. Reconsideration 5, n.4.) However, the Plaintiffs

submit that 23 of the Plaintiffs have "deeds [that] clearly reference that they extend to

the ocean." (Id.) The Plaintiffs also state that although the Gray and Hastings Plaintiffs

deeds only reference prior deeds, those prior deeds clearly reference to the ocean. (Id.)

Further, fl:le Plaintiffs state that the Town has not contested the claims of the Temerlin

and Dwelley Plaintiffs. (Id.)

First, the Town did properly dispute the claims of Temerlin and

This text is long and has been trimmed here. Open the source document for the complete record.