# Brooks v. Carson > Superior Court of Maine · August 23, 2011 URL: https://www.frixlaw.com/law-library/cases/10809769 ## Case - **Court:** Superior Court of Maine - **Decided:** August 23, 2011 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Andrew M. Horton - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment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/10809769 ## Opinion text STATE OF MAINE SUPERIOR COURT of access, and the court agrees. It would be unreasonable to deprive Plaintiffs of their established rights in the disputed portion of Gosnold Street in favor of what is now permissive, revocable access over private property, even with the possibility of obtaining prescriptive rights. 15. The Plaintiffs' three established legal means of access to the Atlantic are, first, going east on Gosnold Street to Sea Street• and thence south down Sea Street to the ocean; second, going directly south down Seguin Street to the ocean, and third, going west on Gosnold Street to Surf Street, and thence south on Surf Street to the ocean. 46. For access to the ocean by means of a paper street to be entirely legal and within Plaintiffs' rights, Plaintiffs have to be able to get to the ocean without going outside the bounds of the paper street.' 47. Some of the Plaintiffs have used Sea Street to reach the Atlantic Ocean. Sea Street is the only paper street that has a historically used travel way entirely within • Plaintiffs can also gain access to Sea Street by backtracking up Seguin Street, away from the ocean, to where it meets Sea Street, but this is not a reasonable alternative means of access-at least on foot-to using Gosnold Street to get to Sea Street. If Plaintiffs wished to take a vehicle down to the ocean via Sea Street, it might be reasonable to expect them to drive back up Seguin Street and then down Sea Street to the ocean. Access on foot appears to be the focus of the Plaintiffs' claims to the disputed portion of Gosnold Street, at least in this case. 7 Given the parties' agreement that all three paper streets-Sea, Seguin and Surf Streets-afford the Plaintiffs legal rights of access to the ocean, it is unnecessary to determine in this case whether the Plaintiffs and other subdivision lot owners have rights beyond the limited rights of the public in the areas of beach-which may or may not be subdivision common areas or facilities for the benefit of lot owners-depicted separately from the lots and streets on the 1922 plan. 16 the paper street boundaries. Unlike Seguin and Surf Street, Sea Street allows subdivision owners legal access to the ocean on a gravel roadway. Sea Street reaches the beach in an open area and then bends right toward Popham Beach State Park. Because the travel way is wide, flat and located entirely within the paper street, and because Sea Street opens directly onto the beach, it is the paper street that affords the best legal access to the ocean, which is probably why the evidence indicated that the Plaintiffs have used it more often than the other paper streets, Seguin Street and Surf Street. ' 48. For some years-even decades-some Plaintiffs reached Sea Street by crossing property of the Defendant's sister, Nancy Stimson, lying south of the Defendant's lots, but were told more recently, when she built a house, not to cross her property. Since then, they have either cut through the yard of other neighbors, the Hatches for instance, or in the case of Conrad and Kathleen Brooks, used Gosnold Street a few times to get to Sea Street. 49. T'o get to the ocean via Gosnold and Sea Streets, the Plaintiffs would have to travel 200 feet or less over the disputed portion of Gosnold and then would have an easy passage down the gravel roadway of Sea Street to the ocean. On the view, it was evident that the disputed portion of Gosnold Street was overgrown and a fence blocked easy access. However, with clearing of brambles and other obstacles to passage and perhaps some landscaping for steps as needed, Gosnold Street would be a good means of gaining access to Sea Street and down Sea Street to the ocean." ' The Defendant argues that Gosnold Street has lillle value to Plaintiffs as access because it has steep slopes and is overgrown with brambles and other vegetation; because Plaintiffs would have to 17 50. The PlaintiJTs' second means of legal access to the ocean is via Seguin Street. Although Seguin Street is Plaintiffs' most direct route to the Atlantic Ocean, Seguin Street is not a real street for nearly all of its length-it is hilly and wooded. Until recently, one could not reach the Atlantic via Sq,'llin Street at all without staying almost entirely out~ide the bounds of the paper street. One explanation for why the traveled roadway winds back and forth across Seguin Street is that the topography of the area within the paper street is challenging. 51. Within the past year, in an effort to prove that the Seguin Street paper street can be made somewhat passable, the Defendant's daughter and niece have made a trail that affords passage single-file over rough and uneven terrain. Even with the trail, it would still be easier for the Plaintiffs to pass 200 feet over the disputed portion of Gosnold (once a passage over it is cleared) and then about 800 feet down the gravel roadway of Sea Street than to go along the approximately 800-foot length of Seguin Street to the ocean. 52. The PlaintifTs' third means of access is via Surf Street, but it appeared during the view that it would be impossible to pass over Surf Street without leaving the paper street, and that it would be difficult to create a travel way along a portion of the walk across Defendant's driveway and pass near her Defendant's home, and also because access over Gosnold Street is largely blocked at the Thompson lot. It is true that parts of the portion of Gosnold Street are overgrown and sloping, but, as noted in the text, Gosnold Street can readily made comfortably passable by the Plaintiffs. As to the Defendant's driveway and home, the Defendant could have configured her improvements differently. As to the Thompson lot, it is true that the house and landscaping on the lot block all but a few feet of the width of Gosnold Street, but there is still room for pedestrians to pass. If the landscaping became a real impediment, its footprint could be reduced as needed to expand passage. 18 paper street. Access to the ocean via Surf Street, too, docs not compare to access via Sea Street. 53. Thus, if one eliminates pennissive means of access as not being reasonable substitutes for legal means, and then one compares the various legal means of access, access via Gosnold Street (if a walkway is constructed) ;md thence down Sea Street to the ocean is the best of the three legal means of access to the Atlantic Ocean for the Plaintiffs. Seguin Street is second best and Surf Street seems inaccessible at least for part of it'i length without major work. 54. At trial, after a few of the Plaintiffs conceded on cross-examination that they have "reasonable" means of access to the Atlantic Ocean other than access via Gosnold Street and Sea Street, Defendant moved for judgment on the spot on the ground that this concession meant that those Plaintiffs had not meet their burden of proof. However, the fact that Plaintiffs have other means of access-even other reasonable means of access-to the Atlantic Ocean does not in and of it'ielf mean that they lose their rights in the disputed portion of Gosnold Street. 55. The statutory definition of a claimant's burden of proof in section 3033(3) does not suggest that the Plaintiffs must prove that the deprivation of access over the disputed portion of Gosnold Street would eliminate any reasonable means of access to the ocean, only that the limitation on access resulting from the deprivation would be unreasonable. In fact, given the appeal and value of easy access to tl1e ocean to the lots in this subdivision, it might not be unreasonable for Plaintiffs' lots to retain 19 multiple means of legal access via all three paper streets. Ample means of convenient ocean access, after all, is a benefit inferentially implicit in the desit,'ll of the subdivision. 56. The evidence also showed that the Plaintiffs have not regularly used Gosnold Street to get to Sea Street-only a couple of the Plaintiffs have used it at all. Defendant argues that Plaintiffs' lack of use of the disputed portion of Gosnold Street means that it is not unreasonable to deprive them of that means of access to the ocean. 57. The reason why some Plaintiffs have not used the disputed portion of Gosnold Street to any real extent is because they have been mostly been gaining access to the ocean, mainly via Sea Street, by various pennissive means, which is not a reasonable substitute for legal access. Their recourse to permissive means does not mean that they must lose their only reasonable legal means of access to Sea Street. 58. In addition, as noted above, the standard is an objective one that does not vary according to the habits and preferences of the person who happens to own or occupy the subdivision lot at the time. Evidence that the Plaintiffs regularly used Gosnold Street to get to Sea Street would have augmented their proof, but the absence of such evidence is not fatal to their case. 59. The same principle means that, although Plaintiffs Robert and Charlene Tebbetts did not testify at trial, the fact that their lot is so similarly situated to those of the other Plaintiffs puts them in the same position as the Plaintiffs who did testify. Having established rights of access to the ocean is as beneficial and important to their lot as it is to the other Plaintiffs' lots. The deprivation of legal access over Gosnold Street to Sea Street will therefore have the same effect on the Tebbetts lot as on every 20 other lot of the PlaintifTs. The question whether the deprivation would unreasonably limit the Tebbetts lot's access to the ocean has the same answer. 60. The other factor in the analysis that meril<> discussion is the benefit to Defendant in tenns of privacy of extinguishing Plaintiffs' righl shown on the aforementioned "Plan Showing Property Popham Beach Estates, Inc., Popham Beach, Maine" retain and possess all appurtenant rights of access to, use of and travel over the portions of Gosnold Street abutting Lots 116 and 425, 426 and 427 as shown on the aforementioned Plan, granted by law to subdivision lot owners in proposed, unaccepted ways in the subdivision. 22 (3) Plaintiffs are awarded their costs as prevailing parties." (4) Plaintiffs may submit, at their option, a proposed abstract of judgment suitable for recording in the Sagadahoc County Registry of Deeds. Pursuant to M.R. Civ. P. 79(a), the clerk is hereby directed to incorporate this wd;~ Decision and 1udgment in the docket. Dated 23 August 2011 A.M. Horton Justice, Superior Court ' Plaintiffs' complaint also requests an award of attorney fees without identifying a statutory or other valid basis for such an award. Plaintiffs may request reconsideration under M.R. Civ. P. 59(e) if they have a valid basis on which to request attorney fees. 23 \ \ \ \ \ \ \ I I \ / / ATLANTIC OCEAN ....__ ----- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10809769. Public record. Not legal advice.