# Almeder v. Town of Kennebunkport > Superior Court of Maine · August 17, 2010 URL: https://www.frixlaw.com/law-library/cases/10809558 ## Case - **Court:** Superior Court of Maine - **Decided:** August 17, 2010 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** G. Arthur Brennan - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10809558 ## Opinion text 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 / . i / / , A Wayne R9Douglas I Justice, faine Superioi;court [ 2 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 1 1 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 2 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 1 Linda Rice, Ann Clough, Joan Dwelley Testamentary Trust, and Susan Lewis. ? - 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. 2 Transcript Opfrations (OTO). At the conference, counsel were amenable to • ,l ,/ . 1· ·, l 1 , • ,. , , usmg rne coun s mgua1 e1ecuoruc recormng sysrem rn recora me proceeamg lt a 1 ,1 . ,. •(' 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.~ . . le ourt Justice, Ivlame I/ . 3 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 tf Superior L mt J~ti!~ I/ 1 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 / Order into the docket by reference. M.R. Civ. P. 79(a). ,// / . / / 'j /. I / /f J' . I // j/ Dated: IA /,,v...,1- (VJ.~,.~ l,, -= [ t Superior tJurt Justic\O 1 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. 1 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. /' DATE: September 29, 2016 I 2 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 2 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 1 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. 2 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 3 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.". 4 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). 3 allow a motion to amend "is left to the discretion of the trial court." Bernier v. Merrill Air Eng'rs, 2001 ME 17, 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, , 2012 21 Lead Attorney for Plaintiffs: Pro se Litigants: Sidney St. Thaxter, Esq. Alexander Lachiatto Curtis Thaxter, LLC Judith Lachiatto One Canal Plaza, Suite 1000 12 Belair A venue PO Box 7320 Kennebunkport, ME 04046 Portland, ME 04112-7320 Richard Driver Lead Attorney for the Town of Kennebunkport: Margarete Driver 6 Marshview Circle Brian Willing, Esq. Kennebunkport, ME 04046 Drummond Woodsum 84 Marginal Way, Suite 600 Portland, ME 04101-2480 Lead Attorney for TMF Group Andre Duchette, Esq. Taylor McCormack & Frame, LLC 30 Milk Street 5th Floor Portland, ME 04101 For the State of Maine: Paul Stem, A.A.G. Office of the Attorney General 6 State House Station Augusta, ME 04333-0006 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10809558. Public record. Not legal advice.