2003) (;l:,hfication of the rej,t-esent:lLive v, hc: appcared :,n bc!~a!f nf a part;. in an
dcimi nistrative yrc)ceeding is suificienl L O initiate a period of limitations for furti~er
action). The bIDC did not I)ecome a\,\ia;.
n , Colirt cannot impute f , ~ t r l l lo tlw J~lllC.01 rellevc t h e Rritton's of tht.~r s i h ~ a t ~ o the
obligation to fiIe a timely appeal.
The entry will be as f o l l c ~ ~ ~ s :
The MDC's Motion to Dis~niss1s C I - ~ ~ I I ~ C ~ .
The Britton's Motions to BnlrrrgL: 'I'ilne and 17ctermine 1;uture Course of Proceedi rigs are dis~nissedas moo1 .
Dated: Jan~rary11, 2006
JLIStic4 Superior Court Gerald F. Petrucelli, Esq. PLS - 1 Mark Furey, Esq. - D E F S DONNELL & MARY DONNELL C O I T E Margaret A. Bensinger, AAG - DEF. MAINE DEPT. OF CONSERVATION STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. AP-05-041 (. 'rj r..-. - \ l',- ( . i '
ROBERT W. BRITTON, et al.,
Plaintiffs
v. ORDER
DANIEL P. DONNELL, Trustee of the Donnell Realty Trust, et al.,
Defendants
In this case the Brittons seek injunctive relief and monetary damages, claiming
that the Donnells have infringed on their riparian rights and are in violation of the
Wharves and Fish Weirs Act. 38 M.R.S.A. §1026. 1 Following trial, judgment will be
entered in favor of the Donnells.
FACTS AND PROCEDURAL BACKGROUND The dispute in this case arises from Defendants Daniel P. Donnell and Trustees of
the Donnell Realty Trust's (Donnells) maintenance and use of wharfs, located on the
York River, York Harbor Maine. Plaintiffs Robert W. Britton and Eleanor F. Britton
(Brittons) own property located at 15 Simpson's Lane, York Harbor Maine. The Brittons
purchased the property in 1975, and occupy the property seasonally. The breadth of the
Brittons waterfront boundary is approximately 105 feet. The land abutting the river is
a mud flat that limits the size of boats that can be brought close to shore.
The complaint also contains a Rule 80C count challenging the procedure whereby the Donnells were awarded a submerged land lease. That count has been dismissed by the court. The Donnells own and operate two wharves extending perpendicularly just
beyond the boundary of the Brittons' property. The first wharf, Varrell Wharf, lies
northwesterly of the Brittons' property and has been maintained and operated in its
current configuration since 1955. Varrell Wharf contains two primary sections, one
running perpendicular to the Brittons' property, and a forty-eight foot section running
parallel to the Brittons' York River boundary (Varrell Extension)? The second wharf is
called Simpson's Wharf and was purchased by the Donnells in 1962 from Edward
Kennedy. There is a forty-one foot gap between the Varrell Extension and Simpson's
Wharf. The deed to Simpson's Wharf included the right to dock boats on the
northwesterly side of the Wharf near the Brittons' property. When boats are so docked,
the gap between the Varrell Extension and Simpson's Wharf is reduced.
From 1975 through the mid-1980's, the Brittons docked two boats at Varrell
Wharf. The parties had a disagreement and the Brittons made other docking
arrangements. They also sought permission from the Town of York to build a pier
from their property. Permission was denied because the current Town of York zoning
ordinance forbids the construction of a wharf at the Britton property. However, since
1987, the Brittons have objected to the presence of the forty-eight foot section of wharf
running parallel to their property line. They assert that the presence of the forty-eight
foot section interferes with their riparian rights of ingress and egress. They claim an
absolute right of access across the entire riverfront boundary of their property.
The instant suit was commenced in 2005. At that time the Donnells entered into
a Submerged Land Lease (Lease) with the State of Maine, Bureau of Parks and Lands
2 This forty-eight foot Varrell Extension was added in 1955. Edward Kennedy was then the owner of the Brittons' property and neither objected to nor expressly consented to the installation. Defendant Daniel Donnell believed that he had the absolute right to expand the wharf without permission.
2 (Bureau) entitling them to occupy the submerged lands under Varrell Wharf. The Lease
contains a condition that, should the Brittons obtain permission to build a pier from the
appropriate authorities, the location and/or docking arrangements on Varrell Wharf
may be altered at the discretion of the Bureau.
An order denying summary judgment to both the Donnells and the Brittons was
issued on September 4, 2007. In June 2008 a bench trial was held.
The specific issue before this Court is whether the presence of the forty-eight foot
section of Varrell Wharf infringes on the Brittons' common-law riparian rights and/ or
is in violation of 38 M.R.S.A. §1026, the Wharves and Fish Weirs Act. 3 The Brittons seek
both injunctive and declaratory relief, as well as damages under the Wharves and Fish
Weirs Act and pursuant to a nuisance claim. The Donnells assert that the Brittons'
riparian rights have been abandoned and/ or that they have obtained the Brittons' rights
by adverse possession or prescription. They also assert that the Brittons are not entitled
to injunctive relief.
3 The Wharves and Fish Weirs Act, initially enacted in 1876 stated in pertinent part:
Any person intending to build and maintain any wharf or fish weir in tide waters, within the limits of any city or town in this state, may make application in writing to the municipal officers thereof, stating the location, limits and boundaries .... and asking for license for same.... If upon such examination and haring of all parties interest, said municipal officer shall decide that such erection or extension would not be an obstruction to navigation, or an injury to the rights of others,... they shall issue a license....
RS. ch. 78 § 1 (1876). The Act was revised in 1911 to add:
No fish weir, trap or wharf shall be extended, erected, or maintained except in accordance with this chapter; and no fish weir, trap or wharf shall be erected or maintained in tide waters below low watermark in front of the shore or flats of another without the owner's consent, under a penalty of fifty dollars for each offence, ...
RS. ch. 110 § 99 (1911). The current statute remains largely unchanged. See 38 MRS. § 1026 (2008).
3 I. Factual Dispute
With one exception, the parties essentially agree on the material facts. The
parties dispute whether the Britton property extends to low-water mark It is well
settled that an upland property owner whose deed includes "adjacent beach or flats,
{and] designates a boundary as 'the sea' or 'the ocean' or an equivalent, and conveys 'to'
or 'by' that boundary, nothing to the contrary appearing in the deed, the grant extends
to low-water mark" Ogunquit Beach Dist. v. Perkins, 138 Me. 54, 60, 21 A.2d 660 (1941).
In this case the Britton Deed clearly states that the lower boundary of their property
runs to the York River. 4 Accordingly, this Court finds and concludes that the Brittons'
property extends to the low-water mark
II. Scope of Riparian Rights
As discussed at summary judgment, the Court's analysis of the scope of the
Brittons' riparian rights will focus on the degree to which the Donnells' use of the Lease
granted by the State unreasonably interferes with The Brittons' common-law riparian
rights.
At common-law littoral owners enjoyed certain riparian rights specific to their
ownership. Great Cove Boat Club v. Bureau of Public Lands, 672 A.2d 91, 95 (Me. 1996).
Among those rights, and the right specifically at issue in this case, was "the
presumption that the owner of sea frontage has, in virtue of his ownership, the right of
4 The 1975 Deed states in pertinent part:
... thence running southwesterly by last named land to the York River; thence running southeasterly by said York River and dock one hundred five (105) feet, more or, to the road ...
PI. Ex. 10.
4 ocean access for the whole width of the frontage." Robinson v. Higgins Co., 126 ME 55,
57, 135 A. 901 (1927).
These common-law rights have always been "subject to reasonable regulation by
the State in the exercise of its public trust rights." Great Cove Boat Club, 672 A.2d at 95
(citing Whitmore v. Brown, 102 Me. 47, 56, 65 A. 516 (1906)). The parties in this case do
not dispute that the State has such regulatory rights.
The Brittons assert, however, that the State's power to regulate the exercise of
riparian rights does not confer on the Donnells the right to block the Britton's access to
navigable waters anywhere across their entire river frontage. Thus, the Donnells are
liable for damages and subject to injunctive and declaratory relief. Put simply, the
Brittons assert that any interference with their right of ingress and egress to open water
by a lessee under the State's Submerged and Intertidal Land Act (SILA), is an actionable
violation of the Britton's riparian rights.
The Law Court has not had the opportunity to consider this issue. However,
"[t]he nature and extent of the rights of the state and of riparian owners in navigable
waters within the state and to the soil beneath are matters of state law to be determined
by the statutes and judicial decisions of the state." Fox River Paper Co., v. KK
Commission of Wisconsin, 274 U.S. 651, 671 (1927); see also Capune v. Robbins, 160 S.E. 2d
881,886 (N.C. 1968). The Capune Court noted:
In the absence of any special legislation on the subject, a littoral proprietor and a riparian owner, as is universally conceded, have a qualified property in the water frontage belonging, by nature, to their land, the chief advantage growing out of the appurtenant estate in the submerged land being the right of access over an extension of their water fronts .... (emphasis added, emphasis in the original).
5 Capune, 160 W.E.2d at 886 (citations and quotations omitted). 5
The SILA was revised in 1989 to specifically incorporate language requiring
consideration of the rights of riparian owners in the State's leasing process in relation to
other considerations. See L.D. 910, (114th Legis.. 1989).6 That portion of the SILA has
remained unchanged. See 12 M.R.S. § 1862(6)(d). Accordingly, a plain reading of the
statute requires the Court to apply the standard of "reasonable use" to balance riparian
rights, which are not absolute, versus the State's rights and interests under the SILA.
This reasonable use test has traditionally been applied in other situations
involving "the reciprocal rights of riparian owners to stream flowage." Poire v.
Manchester, 506 A.2d 1160, 1163 (Me. 1985)(citing David v. Getchell, 50 Me. 602, 604-605,
(1862)). "Riparian proprietors have an equal right to use of water, and the right of each
5 The Law Court relied upon the Capul1e reasoning in Great Cove Boat Club. 672 A.2d at 95. 6 The 1989 Amendment reads in pertinent part (additions underlined):
(6) The director may grant the proposed lease if the director finds that, in addition to any other findings that the director may require, the proposed lease: a. Will not unreasonably interfere with navigation; b. Will not unreasonably interfere with fishing or other existing marine uses of the area; and c. Will not unreasonably diminish the availability of services and facilities necessary for commercial marine activates; and d. Will not unreasonably interfere with ingress and egress of riparian owners. rd. Testimony from the Director of the Bureau of Public Lands stated:
[T]he proposed legislation will .. .2) yield a fair return to the State; 3) enhance public access; 4) protect the commercial marine industry infrastructure.
The bill will require individuals who wish to use the publicly owned submerged lands for private purposes to compensate the people of the State, not only with rental fees to support a management program, but by providing other, appropriate means of access and public compensation. In this way the use and enjoyment of the submerged lands will not be denied to anyone, but will in fact be made more widely available to Maine's citizens and visitors alike.
Leg. Rec. Senate Joint Stand Committee on Energy and Natural Resources, Hearing Date: April 10, 1989.
6 qualifies that of all the others; the question as between them is whether the use made by
one is reasonable and consistent with the corresponding use by the rest." Id.
In this case it is uncontested that the State has a right to lease its submerged
lands to both public and private interests with the directive to not unreasonably
interfere with 1) navigation; 2) fishing or other existing marine uses of the area; 3) the
availability of services and facilities necessary for commercial marine activates; and 4)
the ingress and egress of riparian owners. 12 M.R.S. §1862(6). Thus, under the express
statutory authority of SILA, riparian rights are limited or qualified to the extent
necessary to effectuate the purposes identified by the statute, provided however that
such limitations do not unreasonably infringe on riparian rights. See Becker v. Bureau of
Parks and Land, 2005 ME 120 '1I4, 886 A.2d 1280, 1281.7
There is explicit statutory authority for the State to lease the submerged land in
front of the Brittons' property for commercial purposes consistent with the criteria set
forth in SILA. See 12 M.R.S. §1862(6). The question presented is whether the Brittons
have proven that the limitations on their riparian rights created by the Donnells' wharfs
are unreasonable under all the facts shown by the evidence.
In this case, the Donnells use the Lease to maintain a commercial marine facility.
The facility supports fishing or other existing marine uses of the area and commercial
marine activities. When the Brittons acquired their property, the Varrell Extension was
in place. The Brittons' property is located on mud flats that limit the size and manner
by which boats can access the property above the low-water line. The allotted space
between the Varrell Extension and Simpson's Wharf is forty-one feet, sufficient to
permit the Brittons to land a small boat. At present, under local ordinance, the Brittons
7 If, as the Brittons assert, littoral owners have an absolute right to access across their entire frontage, then such owners can frustrate the purposes articulated by the Legislature in SILA.
7 are unable to build a pier to their property. The Donnell permits and lease are subject
to modification if the Brittons obtain a permit for a wharf. The Court finds that the use
made by the Donnells as lessees of the State is reasonable and consistent with SILA and
that the Brittons have failed to prove unreasonable interference with their riparian
III. Other Claims
Because the Court finds and concludes that the Brittons have failed to prove that
their reparian rights have been unreasonably infringed upon, likewise they have failed
to prove a violation of the '~harves and Weirs Act. 39 M.R.S.A. §l026.
Notwithstanding the language in the act requiring consent from an upland owner
before a wharf can be erected in front of his shoreland, the Law Court has held that the
act is subject to an "unreasonable infringement" analysis Sawyer v. Beal, 97 Me. 356, 54
A. 848 (1903). This is essentially the same analysis required under SILA. Given Sawyer,
there is no conflict between the '~harves and Weirs Act and SILA. They both require
that to support a claim for interference with riparian rights the upland owner must
prove unreasonable infringement.
The entry will be as follows:
Judgment entered for the Defendants on Counts III, IV and V of the amended complaint.
Dated: August 27, 2008
PLAINTIFFS: GERALD F. PETRUCCELLI, ESQ. PETRUCCELLI MARTIN & HADDOW PO BOX 17555 PORTLAND ME 04112-8555 DEFENDANT: MAINE DEPARTMENT OF CONSERVATION MARGARET A. BENSINGER, AAG 6 STATE HOUSE STATION AUGUSTA ME 04333-0006 8 STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. A~-95-0~1 . G t18 --Yo~- IjI'5jJ OI O
MAINE DEPARTNIENT OF CONSERVATION, et al.,
This case comes to this Court on remand from the Supreme Judicial Court of
Maine, which partially vacated this Court's prior judgment. On remand this Court must
determine whether the defendants' wharf constitutes a nuisance or violates the
Wharves and Weirs Act, 38 M.R.S.A. §1026(2008). The remand order also directs this
Court to consider certain affirmative defenses raised by the Donnells.
BACKGROUND Plaintiffs Robert W. and Eleanor F. Britton own property at 15 Simpson's Lane in
York Harbor, Maine. The Brittons purchased the property from Edward Kennedy in
1975 and occupy it seasonally. The property is adjacent to the York River and has
approximately 105 feet of river frontage at the low-water mark. The land abutting the
river is a mud flat that significantly limits the size of boats that can be brought close to
shore.
The defendants Daniel P. Donnell and the Trustees of the Donnell Realty Trust
(the Donnells) own and operate two wharves extending parallel along the Brittons' property boundary. The first wharf, Varrell Wharf, lies northwesterly of the Brittons'
property and consists of two primary sections. One section runs parallel to the Brittons'
property from the shore into the deep water. The second section is located in the
navigable portion of the river just past the low-water line, and runs along the Brittons'
frontage for forty-eight feet. Varrell Wharf has been maintained and operated in this
configuration since 1955. When Daniel P. Donnell installed the second section of Varrell
Wharf in 1955 he believed he had the absolute right to do so and did not need anyone's
consent. (Oct. 15, 2008 Order at err 3). Donnell never did obtain the consent of Edward
Kennedy or his successors, the Brittons, for this second section.
The Donnells' second wharf is Simpson's Wharf, which parallels the Brittons'
southwestern boundary as it runs into the river. The Donnell's purchased Simpson's
Wharf from Edward Kennedy in 1962, and the deed included the right to dock boats on
the wharf's northwesterly side. There is a forty-one foot gap along the Britton's river
frontage between Varrell Wharf and Simpson's Wharf. This gap is reduced when boats
dock along the northwest side of Simpson's Wharf.
From 1975 through the mid-1980's the Brittons docked two boats at Varrell
Wharf. The parties had a disagreement that resulted in the Brittons making other
docking arrangements. The Brittons also sought permission from the Town of York to
build a pier from their property. The Town denied their application because the current
zoning ordinance forbids the construction of a wharf from the Brittons' property.
Nonetheless, the Brittons' have objected to the forty-eight foot section of Varrell Wharf
running along their frontage since 1987.
The Brittons commenced this suit in 2005. At that time the Donnells entered into
a Submerged Land Lease with the State of Maine pursuant to the Submerged and
Intertidal Lands Act (SILA), 12 M.R.S.A. § 1862(2). When the Legislature enacted SILA
2 in 1975, the State gave pre-existing structures such as Varrell Wharf thirty-year
constructive easements to continue operating. Britton v. Dept. of Conservation, 2009 ME
60,
lands under Varrell Wharf expired, prompting the Donnells to obtain a lease from the
State under SILA. 1 Id. The State granted them a lease over the Brittons' objection,
"finding specifically that Varrell Wharf did not unreasonably interfere with the Brittons'
riparian rights." Id. at
The Brittons filed a Rule 80C appeal from the State's decision, and also brought
independent claims against the Donnells alleging nuisance and violations of the
Wharves and Weirs Act, 38 M.R.S.A. § 1026. This Court dismissed the Rule 80C appeal
as time-barred, and on motion for summary judgment determined that the State's lease
did not preclude the Brittons' attempt to enforce their private rights. Id. at
A.2d at 307. The Court also determined "that any claims alleging a continued
interference with the Brittons' riparian rights, [including] the Wharves and Weirs Act,
were not time-barred." Id. at
After a bench trial this Court issued judgment for the Donnells. Id. at
A.2d at 307. The Court examined the facts under "SILA's unreasonable interference
standard and found that ... the interference with the Brittons' riparian rights was not
unreasonable." Id. Absent unreasonable interference, the Court held that the Brittons
had failed to show a violation of the Wharves and Weirs Act. Id. The Court did not
address the Donnells' affirmative defenses. Id.
On appeal, the Law Court affirmed the dismissal of the Rule 80C action, but
vacated the remainder of the judgment. The Law Court agreed that the statute of
The lease contains a provision entitling the State to alter the loca tion and / or docking arrangements on Varrell Wharf if the Brittons obtain permission to build a pier from the appropriate authorities.
3 limitations did not bar the Brittons' claims under the Wharves and Weirs Act, but it
held that SILA's unreasonable interference standard did not provide the correct legal
standard for deciding such actions. Rather, the Law Court held that the Wharves and
Weirs Act is violated when a riparian structure is "so situated or [is] so near the shore of
another as to injure or injuriously affect the latter in the enjoyment of his rights as such
owner ....// Id. 9I 23, 974 A.2d at 310 (internal quotations omitted) (quoting Sawyer v.
Beal, 97 Me. 356, 358, 54 A. 848, 848--49 (Me. 1903». On remand the Law Court
instructed this Court to analyze the Brittons' Wharves and Weirs Act claims under the
Sawyer standard, and to address the Brittons' nuisance claim and the Donnells'
affirmative and equitable defenses. Id. 9I9I 25-27,974 A.2d at 310-11.
The Brittons claim that Varrell Wharf injures their enjoyment of their riparian
rights as a matter of law. They also attack the relevancy or applicability of the Donnells'
affirmative defenses. The Donnells argue in turn that the Brittons have lost the ability to
enforce their riparian rights through prescription, estoppel, abandonment, laches, or by
coming to the nuisance. They alternatively argue that Varrell Wharf does not injure the
Brittons'rights.
1. The Wharves and Weirs Act
Under common law, the owners of property adjacent to navigable bodies of
water hold special riparian property rights appurtenant to their estate in the land. Great
Cove Boat Club v. Bureau of Pub. Lands, 672 A.2d 91, 95 (Me. 1996) (citing Capune v.
Robbins, 160 S.E.2d 881, 886 (N.C. 1968»). These riparian rights traditionally included:
(1) [T]he right to have the water remain in place and retain, as nearly as possible, its natural character, (2) the right of access to the water, (3) subject to reasonable restrictions, the right to wharf out to the navigable portion of the body of water, and (4) the right of free use of the water immediately adjoining the property for the transaction of business associated with wharves.
4 Id. (citing Kalo, Coastal and Ocean Law 119-20 (1991)).
The Wharves and Weirs Act protects these common law rights by providing
waterfront owners with a statutory cause of action against anyone who erects or
maintains a wharf or weir in front of another's property without permission. 38
M.R.S.A. § 1026; Britton, 2009 1vIE 60,
not absolute. The Law Court in Sawyer v. Beal explained that the Act only protected a
waterfront owner's existing riparian rights and did not create new ones. 97 Me. 356, 358,
54 A. 848, 848 (1903). Accordingly, a riparian owner can only maintain an action under
the Act if "he is able to show that in some way he has been injured in the use and
enjoyment of his land and shore by the construction of a [wharf] in front of his shore."
Sawyer, 97 Me. at 358,54 A. at 849. Quoting Sawyer, the Law Court stated that the
proper test in this case is whether, considering all relevant facts, Varrell Wharf "is 'so
situated or so near the shore' of the Brittons' property as to injure or injuriously affect
the Brittons in the enjoyment of their riparian rights." Britton, 2009 ME 60,
A.2d at 310 (quoting Sawyer, 97 Me. at 358, 54 A. at 848). The Brittons contend that
Proprietors of Maine Wharf v. Proprietors of Custom House Wharf resolves this question in
their favor. 85 Me. 175, 27 A. 93 (1892). In Proprietors, the Law Court upheld the equity
court's determination that a wharf encroaching two feet into the plaintiff's riparian
frontage was a nuisance. The Law Court stated that the injuries caused by the wharf
would "be small, but would be many," and that the plaintiff was entitled to have its
premises be clear of obstructions. Id. at 179, 27 A. at 94. The Brittons point to Proprietors
and argue that if a two-foot encroachment merited an injunction in that case, than
Varrell Wharf's forty-eight foot incursion along their riparian frontage must be a
nuisance as a matter of law.
5 The Donnells correctly point out, however, that Proprietors presented factual and
procedural circumstances that distinguish it from this case. In Proprietors both parties
maintained active wharves on their adjacent properties. Id. at 177, 27 A. at 93. That case
originated as an action in trespass after the defendant built a second wharf that
encroached two feet along the plaintiffs entire property boundary and beyond into the
navigable water. Id. After litigation the defendant removed the portion of the wharf
covering land actually owned by the plaintiff to the low-water mark, but not the portion
of the wharf built over riparian lands in front of the plaintiff's lot. Id. The plaintiff
brought additional legal action to the Law Court to compel the defendant to remove the
remainder of the wharf. Id.
The Law Court treated the riparian intrusion as an extension of the dry-land
trespass. Id., 27 A. at 94. In the Court's view, the action settling the trespass extended
beyond the low-water mark to prevent the defendant from circumventing the practical
effects of the injunction. Id. On these "and other facts stated in the bill" the Court
granted judgment for the plaintiff. Id., 27 A. at 93. The Law Court's extension of the
right to exclude into the riparian zone was consistent with Proprietors's assertion of a
trespass action, and subsequent case law indicates that physical trespass on a riparian
owner's upland property will render related occupancy of the riparian zone
presumptively illegal. See Perry v. Dodge, 144 Me. 219, 67 A.2d 425 (1949) (plaintiff
obtained injunction against operation of fish weir located below low-water mark in
front of plaintiff's property with a leader extending onto plaintiff's shore). Absent
upland trespass, this analysis is inconsistent with both the Wharves and Weirs Act and
the Law Court's treatment of riparian rights as "a qualified property" or "appurtenant
estate" subject to other competing rights. See Great Cove Boat Club, 672 A.2d at 95
(quoting Capune v. Robbins, 160 S.E.2d 881, 886 (N.C. 1968)).
6 Unlike Proprietors, this case does not present any allegations of physical trespass.
This Court is instead presented with claims under the Wharves and Weirs Act, which
require a different analysis, i.e. whether Varrell Wharf is injuring the Brittons' enjoyment
of their riparian rights. Under this test, the first important distinction between
Proprietors and the present action is that in Proprietors both parties had active, existing
wharves. See Proprietors, 85 Me. at 93, 27 A. at 178. A review of other cases in which the
Law Court has found riparian obstructions to be objectionable reveals that in almost all
instances the riparian owner had or could build a wharf to access deep water. Compare
Robinson v. Fred B. Higgins Co., 126 Me. 55, 135 A. 901 (1927) (plaintiff cottagers' shore
was rockbound and wharf was only safe way to reach navigable water), and Coffin v.
Town of Freeport, 1989 Me. Super. LEXIS 61 (Mar. 29, 1989) (expansion of town wharf
unreasonably interfered with plaintiff's twenty-six year old commercial wharf,
restaurant, and lobster pound) with Sawyer v. Beal, 97 Me. 356, 54 A. 848 (1903) (fish weir
did not interfere with navigation to riparian plaintiff's land), and Whitmore v. Brown, 102
Me. 47, 65 A. 516 (1906) (plaintiff gave no evidence that proposed expansion of
defendant's wharf would impede access to plaintiff's land).
The second key distinction between Proprietors and the case at hand is the age of
the challenged structure. The action in Proprietors was occasioned by the construction of
a new wharf that encroached on the plaintiff's upland property. Proprietors, 85 Me. at
178,27 A. at 93. This facet of Proprietors is consistent with later case law. In almost every
action where an upland owner's riparian rights were violated, the offending structure
was either newly proposed or newly built? See Robinson, 126 Me. at 57, 135 A. at 902
2 The lone exception is Pern) v. Dodge, in which U[t]he defendant had maintained and operated a fish weir for several seasons" before the weir was challenged. 144 Me. at 219,67 A.2d at 425. Prior to 1948 the upland owners had not objected to the defendant's weir. Id., 67 A.2d at 426. In 1948 new owners acquired the property and immediately took action to eject the defendant's operation. rd. at 220,67 A.2d
7 (plaintiff sued because defendant sought to extend the end of its wharf by thirty feet);
Coffin, 1989 Me. Super. LEXIS 61 at ** 5-7 (Mar. 29, 1989) (town recently extended wharf
by eight feet and reconfigured attendant floats); cf Whitmore 102 Me. at 54-55, 65 A. at
519 (proposed expansion of defendant's wharf would not injure plaintiff's riparian
rights).
Furthermore, in two of these cases the Law Court strongly implied that it would
be difficult for plaintiffs to challenge long-established structures. While the plaintiffs in
Robinson could challenge the expansion of the defendant's wharf, the Court also found
that through inaction they had waived their right to challenge the existing wharf in
front of their property. 126 Me. at 57, 135 A. at 902. The Law Court was even more
explicit in Whitmore when it stated that the plaintiff could not bring equitable claims
against twelve-year-old buildings and wharves. 102 Me. at 54-55, 65 A. at 519. Unlike
Proprietors and other prior cases, in this case this Court is being asked to rule on a wharf
that has existed in its current configuration for now almost fifty-five years, fifty of
which were without legal challenge.
The facts before this Court are distinct and are not clearly controlled by prior
case law. Furthermore, the test enunciated by the Law Court requires consideration of
all the facts relevant to this case. In this case, the Brittons as riparian owners cannot
legally construct their own wharf under the existing regulatory regime in York Harbor.
Absent their own pier, the tidal flats in front of the Brittons' property restrict the types
and drafts of watercraft the Brittons can use to access their land. This in itself may
severely limit the enjoyment of their riparian rights, but such injury is caused by the
town ordinances and the nature of their lot rather than the Donnells' wharf.
at 426. As discussed above, Perry also involved a physical trespass to the plaintiff's upland in addition to the claim under the Wharves and Weirs Act.
8 Absent a pier, the Brittons can realistically use only small, easily maneuverable
watercraft to reach navigable water from their flats. Given the forty-one foot gap
available to them, Varrell Wharf is not "so situated or so near the shore of the Brittons'
property as to injure or injuriously affect the Brittons in the enjoyment of their riparian
rights." Britton, 2009 ML. 60,
the Wharves and Weirs Act.
2. Nuisance
The Brittons also claim that Varrell Wharf constitutes a nuisance, though they
acknowledge that the nuisance cause of action overlaps and is largely subsumed by
their claim under the Wharves and Weirs Act. "The essence of private nuisance is an
interference with the use and enjoyment of land." Town of Stonington v. Galilean Gospel
Temple, 1999 ME 2,
Keeton et al., Prosser and Keeton on the Law of Torts § 87, at 619 (5th ed. 1984)). The
Brittons contend that Varrell Wharf unreasonably interferes with their enjoyment of
their riparian property rights. This Court disagrees and holds that Varrell Wharf is not a
nuisance for the same reasons that it does not injure the Brittons' enjoyment of their
riparian rights under the Wharves and Weirs Act.
3. Prescription
Though the Donnells have not violated the Wharves and Weirs Act, in response
to the Law Court's mandate on remand, this Court will address their affirmative
defenses. The Donnells' first defense is prescription, namely that they have obtained the
right to maintain Varrell Wharf in its current location through long and unchallenged
use. The Brittons argue that riparian rights cannot be acquired or extinguished through
adverse use or possession, and challenge the premise that the Donnells have been in
"possession" of their property rights.
9 Riparian rights are a species of property right appurtenant to ownership of
waterfront land, and they generally possess the usual attributes and incidents of
property in land. Great Cove Boat Club, 627 A.2d at 95 (citing Capune, 160 S.E.2d at 886);
see Yates v. Milwaukee, 77 US 497, 504 (1871) (stating that the "riparian right is property
... though it must be enjoyed in due subjection to the rights of the public ..."); 78 Am.
Jur. 2d Waters § 32 (2002) ("While the exact nature of such [riparian] rights has been
variously described, it is generally agreed that they constitute property rights,
possessing the usual attributes and incidents of property ...."). They are analogous to
appurtenant easements in that they are non-possessory interests vested in the riparian
owner to use the public waters for specific purposes not allowed to the general
populace. See Great Cove Boat Club, 627 A.2d at 94 (describing easements appurtenant).
For example, landowners adjacent to a natural stream have the right to use and enjoy
the water subject to the interests of their fellow riparian owners. Lockwood Co. v.
Lawrence, 77 Me. 297, 316 (1885). Similarly, owners of shorefront property have rights to
access the water in front of their property and wharf out to navigable water, subject to
the public interest. Great Cove Boat Club, 672 A.2d at 95. Other courts have analogized
these latter rights to a landlocked owner's right to access a highway. Home for Aged
Women v. Commonwealth, 89 N.E. 124, 126 (Mass. 1909); 78 Am. Jur. 2d Waters § 153
(2002).
While no reported case in Maine has directly addressed the question of whether
the riparian right to access deep water can be gained or lost through prescription, the
Law Court has examined other types of riparian rights as affected by prescriptions. In
Lockwood Company v. Lawrence the defendant sawmills claimed a "prescriptive right to
the use of a stream beyond the general right of reasonable use" in common with the
other riparian owners. 77 Me. at 319-20. Though the defendant in that case was
10 unsuccessful on the facts, the Law Court stated that a prescriptive right to use lithe
waters of another personl/ could be established through the same principles as a
prescriptive easement in land. Id.
This principle was applied to the precise question currently before this Court in
the Connecticut case of McGibney v. The Waucoma Yacht Club, Inc., 182 A.2d 622 (Conn.
1962). In McGibney the Supreme Court of Connecticut was asked whether the defendant
yacht club "had, by prescription, acquired enough of the plaintiff's private [riparian]
rights of wharfing out and access to entitle it to maintainl/ certain floating docks that
obstructed access to plaintiff's wharf. Id. at 565. The court answered in the negative
because the defendant in that case failed to establish that it had maintained the floats
continuously for the statutory period.
Together, Lockwood Company and McGibney stand for the proposition that
riparian rights, including the right of access, may be acquired or limited through
prescriptive use. See also 78 Am. Jur. 2d Waters § 363 (2002) (I/A water right or priority
acquired by appropriation may be lost by abandonment laches, adverse use, or
estoppet but not by mere usurpation."). These authorities indicate that the Donnells'
could legally acquire superior rights in the Brittons' riparian frontage through
prescription. Prescriptive rights are acquired through 1/(1) continuous use (2) for at least
20 years (3) under a claim of right adverse to the owner, (4) with his knowledge and
acquiescence, or (5) a use so open, notorious, visible, and uninterrupted that knowledge
and acquiescence will be presumed." Sandmaier v. Tahoe Dev. Group, Inc., 2005 ME 126,
9I 5, 887 A.2d 517, 518 (quoting Eaton v. Town of Wells, 2000 ME 176, 9I 32, 760 A.2d 232, 244).
This Court has already found that Varrell Wharf does not infringe on the
Brittons' riparian rights. However, in the alternative, if Varrell Wharf did injure the
11 Brittons' enjoyment of their rights, there is no question that this injury has been
maintained for over fifty years. The record shows that Varrell Wharf has operated year-
round in its current configuration since it was constructed in 1955. The Brittons'
predecessor, Edward Kennedy, knew of the wharf's presence and neither expressly
approved or objected to it. From their purchase of the property in 1975 until
approximately 1987, the Brittons did not object to the wharf. The only question, then, is
whether the Donnells' use of the Kennedy /Britton frontage was done under a claim of
right adverse to the riparian owners.
Maine's common law of adverse possession and prescription traditionally hewed
to the minority rule of examining the "subjective intentions of the person claiming
adverse possession." Dombkowski v. Ferland, 2006 ME 24,
(collecting cases). Under this approach an adverse claimant's mistaken belief that it had
the right to use or occupy the property in question would defeat the claim. [d. In
Dombkowski the Law Court discussed 14 M.R.S.A. § 810-A (1993) and determined that
the Legislature intended to abandon the common law's inquiry into the adverse
claimant's subjective intent. Dombkowski, 2006 ME 24,
Accordingly, '''[h]ostile' simply means that the possessor does not have the true
owner's permission," and '''[u]nder a claim of right' means that the claimant is in
possession as owner, with intent to claim the land as [its] own, and not in recognition of
or subordination to [the] record title owner." Id. at
3 While 14 M.R.S.A. § 81O-A and Dombkowski are both directed at claims for adverse possession rather than prescriptive easements, it would be anomalous to alter the elements of the former without changing the latter. Adverse possession and prescription share common policy concerns, with their primary distinction being the exclusivity and extent of the property rights gained or lost. See Restatement (Third) of Prop.: Servitudes § 2.17 (2000) (cited in Sandmaier, 2005 ME 126, CJ[ 8, 887 A.2d at 519. Additionally, the Law Court did not differentiate between the two claims when it defined the elements of "hostility" and "claim of right" in Dombkowski. 2006 ME 24, CJ[ 12,893 A.2d at 602.
12 v. Charles-Keyt-Leaman P'ship, 1999 ME 111,
omitted).
Here the Donnells do not claim that they possess the land under Varrell Wharf
because that title is held by the State. The Donnells inability to possess against the State,
however, does not preclude them from occupying and claiming against the Brittons'
private, non-possessory riparian rights over that public land. The record shows that the
Donnells have not occupied the Brittons' frontage with any subjective hostility to the
Brittons' riparian rights, but this subjective lack of hostility is not determinitive. This
Court found that Daniel P. Donnell never sought or received Mr. Kennedy's or the
Brittons' permission to maintain Varrell Wharf in front of their riparian land, making
the Donnells' use of that area objectively hostile to the riparian owners. See Dombkowski,
2006 ME 24,
Similarly, in 1955 Daniel P. Donnell believed he had an absolute right to situate
Varrell Wharf in its current location without anyone's consent. While the Donnells have
since acknowledged the State's superior right to the lands under the wharf, they have
never recognized that Mr. Kennedy or the Brittons might have superior private riparian
rights to cross those lands and access the deeper water. This failure to acknowledge the
riparian owners' rights satisfies the "claim of right" element. See id. The facts thus
establish that the Donnells have continuously used or occupied the Kennedy /Brittons'
riparian frontage for more than twice the statutory period with the riparian owners'
knowledge, and have done so under an objectively hostile claim of right.
Assuming that Varrell Wharf injured the Brittons' riparian rights, the Donnells
have gained a superior riparian right to the portion of the Brittons' frontage occupied
by Varrell Wharf through prescriptive use. Without superior riparian rights, the
Brittons do not have any claim against the Donnells under the Wharves and Weirs Act.
13 See Sawyer, 97 Me. at 358, 54 A. at 848 (stating that the Act only protects riparian
owner's existing rights).
4. Abandonment
The Donnells' second affirmative defense is abandonment. The Donnells argue
that the Kennedy /Brittons' long acquiescence to Varrell Wharf's presence evinces their
intent to abandon their riparian rights over that portion of their frontage.
"A party alleging abandonment of a right-of-way has the burden of proving, by clear and convincing evidence: (1) an act on the part of the owner of the right-of-way evincing a clear intention to abandon, and (2) an act by the owner of the servient tenement adverse to the owner's interest."
Stickney v. City of Saco, 2001NIE 69,
Sprague, 609 A.2d 1175, 1179 (Me. 1992)). Mere nonuse is insufficient evidence of an
intent to abandon, but "the acquiescence to the erection of a permanent barrier on a
right-of-way can satisfy the burden of both prongs ...." ld.
The Brittons contend that Varrell Wharf is not a permanent structure obstructing
their right to access the navigable waters, and therefore cannot establish their intent to
abandon their riparian rights over the area in question. In the past the courts have
found things like cottages and houses to be permanent obstructions, see Chase v.
Eastman, 563 A.2d 1099, 1102 (Me. 1989) (cottage), Fitzpatrick v. Boston & Maine R.R., 84
Me. 33, 24 A. 432 (1891) (houses), but have found driveways, weeds, or pastures
insufficient to establish the requisite intent. Stickney, 2001 ME 69,
(driveway); Phillips v. Gregg, 628 A.2d 151, 152-53 (Me. 1993) (overgrowth); Bartlett v.
City of Bangor, 67 Me. 460,466 (1878) (pasture and associated fence).
Varrell Wharf consists of floats attached by metal brackets to a series of pilings
driven into the submerged riverbed. (R. vol. I at 47; R. vol. II at 20-21.) It has been in
place for almost fifty-five years, and is commercially operated year-round. Given the
14, wharf's history, use, and substantial physical features, the wharf is a permanent
structure obstructing passage along its length. Its presence and operation constitutes a
permanent obstruction to the Kennedy /Brittons' water access, and its fifty years of
unchallenged existence constitutes clear evidence of an intent to abandon the riparian
rights to that portion of the frontage.
5. Laches & Estoppel
The Donnells also assert the doctrines of laches and estoppel.
Laches is negligence or omission seasonably to assert a right. It exists when the omission to assert the right has continued for an unreasonable and unexplained lapse of time, and under circumstances where the d~lay has been prejudicial to an adverse party, and where it would be inequitable to enforce the right.
Me. Sch. Admin. Dist. No. 27 v. Me. Pub. Emples. Ret. Sys., 2009 tv1E 108, <[ 16 (citing Fisco
v. Dep't of Human Servs., 659 A.2d 274, 275 (Me. 1995».
While the Brittons' thirty-year delay in bringing their claim is arguably'
unreasonable, they correctly argue that this lapse has not prejudiced the Donnells'
ability to defend the action. While the Donnells may have been prejudiced insofar as
they now rely on the income from the challenged portion of Varrell Wharf, they have
also benefited from that income. The facts do not support the Donnells' defense of
laches.
Another variation on the theme of delay, the doctrine of "[e]quitable estoppel
precludes an owner from asserting his legal title when, by his own action or inaction, he
has cause another to act or to alter her position to her detriment." Stickney, 2001 ME 69,
<[ 44, 770 A.2d at 608. The record does not show that the Donnells acted or otherwise
changed their position in reliance on the Brittons' long silence. In 1955 Daniel P.
Donnell constructed Varrell Wharf in the belief that he had an absolute right to do so,
15 and that structure has not been altered since. Absent reliance, the Donnells' defense of
equitable estoppel must fail.
6. Coming to the Nuisance
Finally, on remand this Court has been instructed to consider the applicability of
the doctrine of coming to the nuisance. Generally, the fact that a nuisance condition
existed when a plaintiff acquires its land does not prevent that plaintiff from bringing
suit. Eaton v. Cormier, 2000 ME 65,
Plastics, Inc., 676 A.2d 504,508 (Me. 1996)); Restatement (Second) of Torts § 840D (1979).
Applied here, the Brittons are not barred from suing the Donnells for nuisance merely
because Varrell Wharf was in place when the Brittons purchased their riparian
property. Had the Court found that Varrell Wharf injured the Brittons, the fact that
Varrell Wharf predated their ownership might weigh on the equitable remedies
available. Eaton, 2000 ME 65,
that the Brittons are entitled to a remedy, and cannot address what effect the doctrine
might have.
On the Brittons' claims for nuisance and violation of the Wharves & Weirs Act, judgment for the Donnells.
Further, the Donnells have established by the affirmative defenses of prescription and abandonment, the right to maintain their existing wharf.4 The Donnells have failed to establish the affirmative defenses of latches, equitable estoppel or coming to the nuisance.
~"A4~~ Justice, Superior Court
4 Nothing in this judgment is meant to affect the State's authority to order changes to the Donnells' wharf under the S.T. L.A. lease. PLAINTIFF: DEFENDANT: GERALD F. PETRUCCELLI, ESQ. MARK FUREY, ESQ. PETRUCCELLI MARTIN & HADDOW THOMPSON BULL FUREY BASS & MCCOLL PO BOX 17555 16 PO BOX 447 PORTLAND ME 04112-8555 PORTLAND ME 04112-0447