Becker v. Bureau of Parks & Lands

Maine Superior

Becker v. Bureau of Parks & Lands

DecidedMarch 9, 2005

DocketKENap-02-19

StatusUnpublished

This text of Becker v. Bureau of Parks & Lands (Becker v. Bureau of Parks & Lands) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Becker v. Bureau of Parks & Lands, (Me. Super. Ct. 2005).

Pincite

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION KENNEBEC, ss. DOCKET NO. AP-02;"19 '~', . /; ,'j' :'

MICHAEL F. BECKER and BEVERLY J. BECKER, TRUSTEE,

Plaintiffs

v. JUDGMENT

OWEN and BARBARA CRAIGHEAD, d/b / a MOUNT DESERT CAMPGROUND, INC.,

Defendants

This matter comes before the court again for trial and disposition of the final

remaining issue. 1 Earlier, the independent claim for private nuisance survived a motion

for summary judgment since there remain contested relevant material facts. Trial of the

facts then proceeded.2 The court has considered all of the testimonial and other

evidence presented, and makes the following findings of fact and conclusions.

Facts

Mount Desert Campground ("MOC") is located on property adjacent to a tidal

cove at the head Somes Sound. A considerable part of the appeal of MOC to campers is

access to the protected waters of the cove for swimming, fishing and boating. Since the

cove is tidal, ever since 1950's or 1960's there has been an extensive float system to

1 This action began as a petition under M.R. Civ. P. 80C, with independent claims for declaratory judgment that the defendants' acts constitute a trespass and / or nuisance. By order dated August 29, 2002, this court granted the defendants' motion to dismiss with regard to the independent claim for trespass. By order dated March 7, 2005, the Rule 80C appeal was denied, affirming the decision of the Bureau of Parks and Lands, The only remaining issue is the independent action for nuisance. 2 The plaintiffs initially sought monetary damages for reduction in the value of their property as the result of a nuisance. Trial on the damage issue initially was to be a jury trial, but was changed to a bench trial when the plaintiffs withdrew their damage claim and sought only equitable action for abatement of the claimed nuisance. 2

allow campers access to the water at all tides. The floats are also where the campground

owners have historically kept rental watercraft for the enjoyment of the campers.

Defendant Owen Craighead, Sr. began camping at MDC in 1964. In 1984, Mr.

Craighead purchased the campground and during the period 1985 to 1986 he replaced

the previous floats. The landward end of the 300+ foot float system has moved back

and forth on the MDC property, but the seaward end has remained in place just off a

rock formation known as The Lamb.

The floats have continued to be used by campers for swimming at high tide;

rarely in June, some in July and more in August. The swim~ers will occasionally use

inner tubes or rafts. MDC has three canoes and 14 kayaks for rent and they are stored

at the furthest water end floats. Campers also are allowed to use the more landward

floats for tying up their own personal small watercraft. Boats are not to be tied off the

end of the last float, which is at the side of the channel between The Lamb and the

opposite mainland shore. Campers violating this rule will have their watercraft moved.

The float system is as long as it is and is located where it is in order to reach some

amount of water regardless of the tide. The tidal range can be as much as 9-10 feet.

Wading in the mud at low tide could be dangerous to campers returning from boating

activities, so the ability to return to the seaward float at any tide is an important safety

factor.

In 1997, the Beckers purchased the property adjacent to MDC. The Beckers

visited the property three times before their purchase, but at the first visit a tree blocked

the drive, at the second visit hard rain prevented them from exploring the grounds, and

the third visit occurred in October after the float system had been taken in for the

winter. As a result, although the Beckers could have investigated further, it is possible

that they were unaware of the float system extending into the cove until after the 3

property was purchased. In February of 2000, Mr. Becker wrote to the Craigheads

expressing his concern about the floats and how they affected his view.

The Beckers had their own float installed in 1998 and used it to keep their kayaks

and canoe. The Beckers had no problem with the MDC floats until 2002, when they

purchased a 29-foot Hinckley jetboat with an ll-foot beam and 18 inch draft. The

primary operator of this boat has been Mrs. Becker, who had little previous boating

experience, at least on tidal waters. Although large, the boat is quite maneuverable,

having the ability to tum around within its own length. Since the lack of water in the

cove prevents the Beckers from taking the boat to their own float except during a four to

five hour period around high tide, the boat is kept at a mooring in Somes Sound, where

it can accessed by a five-minute dingy ride. It apparently is the practice of the Beckers

to take the dingy from their dock to the jetboat and then return in the much bigger boat

to their float to pick up friends and guests for boating activities. Mrs. Becker testified

that during July and August the MDC floats become congested with boaters and

swimmers, causing her concern going to and from the family's float. The testimony was

that the activities on the float have impeded bringing the jetboat into the dock, more

frequently in the late afternoon and in August.

On the other hand, testimony by William Boddy, a 20-year Coast Guard veteran

and former harbormaster at Mount Desert Island, contradicts that of Mrs. Becker. In

Mr. Boddy's opinion, the campground floats pose no hazard to navigation, so long as

proper caution is taken. Mr. Boddy noted that the seaward end of the floats was

approximately 20 feet from The Lamb and 55 feet from the other side of the neck of the

cove at mean low water. However, it is a reasonable inference from the shape of the

bottom of the cove, as shown in Plaintiff's Exhibit 8, that as the tide rises to that point

that a boat the size of the Becker's can be brought to their float, the width of the neck 4

would widen considerably. The witness testified to seeing swimmers and kayakers

swimming in the area around The Lamb during the summer, that this activity would

not be a hindrance to a "prudent mariner," and that it would not create undue hardship

for access to the Beckers' dock assuming there was enough water to get there. It would

be "prudent" to stop and wait for the way to be cleared before entering and proceeding

slowly through the area to avoid swimmers and snorkelers, but this would only slow

boat access, not prevent it entirely. A videotape of the plaintiffs' boat moving slowly

through the area in question while the MDC floats were in use by campers

demonstrates the feasibility of this approach.

Discussion

Generally speaking, in order to prove a common law private nuisance, the

plaintiff would have to prove, among other things, that the defendant's actions have

substantially and unreasonably interfered with the plaintiff's use and enjoyment of his

property. Charleton v. Town of Oxford, 2001 ME 104, 'i 36, n.10, 774 A.2d 366, 377; citing

W. Page Keeton, et al., PROSSER & KEETON ON THE LAW OF TORTS, § 87 at 622-23 (5 th ed.

1984). As noted in a previous decision in this case, our Supreme Judicial Court has

already recognized the availability of such common law private nuisance claims in a

maritime situation involving the use of a wharf. Gillson v.

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