Britton v. Maine Dep't of Conservation

• Court: Superior Court of Maine
• Decided: September 4, 2007
• Docket: YORap-05-41
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. ~r-05-41 y 6A\?r yoP, - 11/;)007

ROBERT W. BRITTON, et al.,

Plaintiffs

v. ORDER 'nNA,LD L. GARBRECH 'AW LIBRARY

MAINE DEPARTMENT OF JAN 1 S 2008 CONSERVATION, et al.,

Defendants

This matter comes before the Court on Defendants' Motion for Summary

Judgment pursuant to M.R. Civ. P. 56. Following hearing, the Motion is Denied.

FACTUAL BACKGROUND Plaintiffs Robert and Eleanor Britton ("the Brittons") own property on the York

River in York Harbor, Maine. Defendant Daniel P. Donnell ("Donnell") owns property

which abuts the southeastern portion of the Brittons' property, and Defendant Donnell

Realty Trust ("DRT") owns property which abuts the northwestern portion of the

Brittons' property. Mary Donnell Coite, Daniel P, Donnell, II and Michael Donnell are

also defendants in their capacity as trustees of the DRT. Donnell operates a commercial

wharf called Simpsons Wharf, and the DRT operates a wharf called Varrell Wharf,

which is a public marina. Both wharves extend below the low-water mark. All of the

parties own the tidal flats in front of their properties according to their deeds, but they

dispute where the boundary line lies across the tidal flats between the Britton and

Donnell properties. This is relevant to whether Simpsons Wharf encroaches on the Brittons' property. But, because the Brittons concede that Donnell's deed affords him

the right to dock boats off of Simpsons Wharf, they do not challenge those floats.

Instead, the primary issue in this case is whether the Varrell Wharf floats

improperly occupy the area in front of the Brittons' property and in which the Brittons

claim unobstructed riparian rights. The Brittonscontend that the Varrell Wharf floats

occupy 48 feet of the 90-98 foot width of their riparian area, severely restricting access to

the water between the wharves.

The Brittons have owned their property since 1975; the Varrell Wharf has been in

its present position since approximately 1955. Also, some floats apparently were

installed in the 1950s. The Brittons' predecessor in title did not object to the floats, and

when the Brittons moved in, they initially had an arrangement with the Donnells which

allowed them to dock two boats at Varrell Wharf. That arrangement ended in

approximately 1984. The Brittons then began planning to add a pier of their own and

they objected to the location of the Varrell Wharf floats in front of their property. The

Brittons have challenged the floats ever since, including opposing a permit that the

Army Corps of Engineers granted to Donnell in the early 1980s.1

In 2003, Donnell and the DRT sought leases from the State for the submerged

land where the Varrell and Simpson wharves are located. They did so because their

constructive easemenf, which they had over the submerged lands for thirty years

pursuant to a Maine statute, was due to expire in 2005. The Brittons objected to the

The Army Corps also granted the Brittons a permit in 1990, and it ordered removal of 20 feet of Varrell floats to allow the installation of a pier on the Britton property. The Donnells challenged this in the federal district court, which rejected their request for equitable relief. Donnell v. U,S., 834 F. Supp. 19, 27 (D. Me. 1993). After the lawsuit, however, the Army Corps decided not to require the Donnells to remove any floats.

2 This was not a prescriptive easement. The Donnell easement was a statutory creation, to exist for only a limited time.

2 leases before the Bureau of Lands (lithe Bureau"), but the Bureau granted the leases

over their objection in 2005. The Brittons brought this action in July 2005, part of which

was an 80C appeal. This Court determined that the 80C appeal of the Bureau's actions

was untimely and dismissed that portion of the lawsuit, leaving claims against Donnell

and the DRT for declaratory and injunctive relief, a statutory nuisance claim, and a

claim under the Wharves and Weirs Act. Donnell and the DRT contend that the

litigation is a veiled collateral attack on the Bureau's decision to issue the leases. The

Brittons argue that they do not collaterally challenge the leases, rather they contest the

alleged use of those leases to violate their property rights. They seek removal of the

floats that interfere with their access to their entire water frontage, along with damages

for nuisance. Donnell and the DRT now move for summary judgment, and the Brittons

contend that they are also entitled to summary judgment.

DISCUSSION

1. Summary Judgment Standard.

Summary judgment is proper where there exist no genuine issues of material fact

such that the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c);

see also Levine v. RB.K. Caly Corp., 2001 ME 77,14, 770 A.2d 653, 655. A genuine issue is

raised "when sufficient evidence requires a fact-finder to choose between competing

versions of the truth at trial." Parrish v. Wright, 2003 ME 90, 1 8, 828 A.2d 778, 781. A

material fact is a fact that has "the potential to affect the outcome of the suit." Burdzel v.

Sobus, 2000 ME 84, 1 6, 750 A.2d 573, 575. "If material facts are disputed, the dispute

must be resolved through fact-finding." Curtis v. Porter, 2001 ME 158, 1 7, 784 A.2d 18,

22. At this stage, the facts are reviewed "in the light most favorable to the nonmoving

party." Lightfoot v. Sch. Admin. Dist. No. 35, 2003 ME 24,16,816 A.2d 63, 65.

3 2. Statutory Nuisance Claim.

A civil lawsuit may be brought when a landowner experiences an injury to his or

her "comfort, property, or the enjoyment of his [or her] estate by a common and public

or private nuisance." 17 M.R.S.A. § 2701 (2005). The Brittons contend that the alleged

encroachment of the floats into their riparian area constitutes a nuisance because it

interferes with their property rights, especially the right to unobstructed water access

from their property.

a. Riparian Rights and the Public Trust Doctrine.

A major issue in this case is whether the Court should apply the public trust

doctrine, which is an integral part of a common law riparian rights analysis. Common

law riparian rights include water access, installation of wharves "subject to reasonable

restrictions," and unfettered use of water adjacent to the land "for the transaction of

business associated with wharves." Great Cove Boat Club v. Bureau of Public Lands, 672

A.2d 91, 95 (Me. 1996). Riparian rights are not absolute; they are "subject to reasonable

regulation by the State in the exercise of its public trust rights." Id. In Great Cove, the

Law Court held that the State could reasonably regulate the plaintiff's wharfing rights

by requiring it to acquire a "lease or easement" to install a wharf or dock. Id.

Unlike Great Cove, however, this case does not involve a claim that property

owners have absolute rights to maintain wharves regardless of the state's interest.

Here, the parties do not dispute that riparian owners' rights are subject to reasonable

regulation by the United States Government and the State of Maine acting in the public

interest. The Brittons, however, contend that the public trust doctrine does not control

the outcome of this case because it does not involve the taking of private land or

interference with private owners' property rights in favor of the public. Instead, they

4 contend that Maine property law applies because this case involves a dispute between

private landowners. They claim that their riparian rights are suffering, not as a result of

the leases or the state's general regulatory power, but due to Donnell's and the DRT's

use of the riparian area to facilitate his commercial enterprise.

What is at issue in this case is the manner in which the Donnells and the DRT

have used the leases granted to them by the Bureau. Although those leases are beyond

attack, the existence of a lease does not give a lessee the right to unreasonably interfere

with the property rights of abutters. The public trust doctrine does not govern this

landowner dispute, as neither side questions the ability of the government to regulate

waterfront usage. Instead, the Court's analysis will focus on whether Donnell's and the

DRT's private and commercial use of the leased area interferes with the Brittons'

riparian rights.

b. Extent of Riparian Rights.

Having determined that the common law of riparian rights governs this matter,

the focus becomes the extent of those rights and the manner in which courts have

addressed purported interference with those rights. Maine law presumes that "the

owner of the sea frontage has, in virtue of his ownership, the right of ocean access for

the whole width of the frontage." Robinson v. Higgins Co., 126 Me. 55, 58, 135 A. 901, 902

(1927). In Robinson, the defendant lobster company had received a license to extend the

end of its wharf "from the municipal officers." 126 Me. at 57, 135 A. at 902.

Nevertheless, Law Court upheld an injunction prohibiting the company from extending

its wharf because the expansion in front of the plaintiffs' Boothbay Harbor property

would "unduly trench upon" their rights. 126 Me. at 59, 135 A. at 903.

This principle has also been applied in cases involving other bodies of water. For

example, this Court addressed a claim regarding interference with plaintiffs' riparian

5 rights due to activity at the Town of Freeport's wharf on the Harraseeket River. Coffin

v. Town of Freeport, CUMSC-CV-1986-1141 (Me. Super. Ct., Cum. Cty., Mar. 29, 1989)

(Lipez, J.). In Coffin, moorings off of the south side of the Town's wharf prevented the

plaintiffs, adjacent landowners, from making full use of their own wharf. Id. The Court

held that the situation warranted injunctive relief for the plaintiffs because that portion

of the float system interfered with their riparian rights. Id.

In another case, the Law Court noted that even if a landowner receives a license

to build a wharf, "the license will not protect the wharf from complaints for

infringement of private rights." Whitmore v. Brown, 102 Me. 47, 56, 65 A. 516, 520 (1906).

There, the Law Court refused to grant injunctive relief to prevent a defendant from

expanding his wharf off of Mt. Desert Island, despite an abutter's claim that it infringed

on her property rights. 102 Me. at 62, 65 A. at 522. Although the abutter was not

entitled to equitable relief, the Court stated that she may be able to establish a right to

legal relief for possible "infringement of her individual legal rights" in a separate action

at law. Id.

Whether a wharf did actually obstruct or impede navigation and thereby become

a nuisance at common law ... [is] a question of fact." Whitmore, 102 Me. at 56, 65 A. at

530. As the plaintiffs in Coffin and Robinson were entitled to seek redress from the courts

when they alleged that their neighbors interfered with their use and enjoyment of their

riparian rights, the Brittons also are entitled to seek such a detennination. Their

statutory nuisance claim rests on whether the unfettered use and enjoyment of the York

River inherent in their riparian rights is impaired by the placement of the floats and

other objects connected with the wharves. This presents a genuine issue of material

fact, and the Donnells' summary judgment motion is Denied as to this issue.

6 3. Wharves and Weirs Act.

Maine law provides that "[n]o fish weir, trap or wharf shall be erected or

maintained in tidewaters below [the] low-water mark in front of the shore or flats of

another without the owner's consent." 38 M.R.S.A. § 1026 (2005). The remedy for a

violation of this provision is a civil action to recover a $50 penalty per offense. Id.

Donnell and the DRT contend that the statute of limitations bars this claim. They

assert that Varrell Wharf has been in its current location since at least 1955, and

Simpsons Wharf has been in its current location since at least 1962. The Brittons have

resided on their York River property since 1975, and they filed this civil action in July

2005. The statute of limitations for the cause of action permitted under the Wharves

and Weirs Act, nuisance or trespass, is six years "after the cause of action accrues." 14

M.R.S.A. § 752. The Wharves and Weirs Act prohibits installation and maintenance of

wharves in front of another person's property without that person's consent; therefore,

under its explicit language, a cause of action can accrue as a result of erecting or

maintaining a wharf. The statute of limitations does not begin to run solely from

installation of a wharf.

The Brittons' complaint alleges that, following the Bureau's grant of leases for

submerged lands in 2005, they have not consented to the manner in which Donnell and

the DRT have used the leased area, which allegedly has impacted them. Any claims

flowing from the use of the leased area and involving interference with the Brittons'

riparian rights are not time-barred.3 As Donnell and the DRT advance no other legal

argument in support of summary judgment on this claim, and a genuine issue of

3 To the extent that this lawsuit seeks to collaterally challenge the permit(s) and decision(s) of the Army Corps of Engineers in the 19805 and 1990s, however, those claims would be time-barred.

7 material fact remains as to the nature and scope of any pennission or implied consent4,

the motion is Denied on this issue.

4. Declaratory Iudgment Claim.

This Court has the authority to issue declaratory judgments concerning legal

rights. 14 M.R.S. § 5953 (2005). Seeking a declaratory judgment is a long-recognized

method by which a person can obtain "a binding judicial detennination of [his or her]

legal rights" in property. Colquhoun v. Webber, 684 A.2d 405, 411 (Me. 1996) (citations

omitted).

The issue of the validity of the leases issued by the Department of Conservation

has already been detennined adversely to the Brittons, who now argue that the manner

in which the leased area is being used violates their property rights. Donnell and the

DRT argue that this count essentially presents a collateral attack on the legality of the

leases. They further argue that the Bureau already detennined that the Varrell and

Simpsons Wharves did not violate the Brittons' rights because there is a safe, navigable

passage between the wharves, allowing the Brittons access to the York River.

Additionally, they note that the Donnell and DRT leases provide for a reduction in the

leased area should the Brittons receive approval to construct a wharf, which also would

protect their rights.

In support of these contentions, the Donnells cite a case in which the Law Court

held that a litigant's claim was properly dismissed as a collateral attack, upon a final

judgment. Cline v. Maine Coast Nordic, 1999 ME 72,

plaintiff had a license for a fishing weir that he had not maintained for a number of

4 The Brittons purchased their property in 1975, but no dispute about the wharves seems to have arisen until 1984, when the Brittons could no longer use them. There is also some debate about whether consent of the prior owner can be inferred. Finally, Donnell and the DRT suggest that if the motion is denied, they will raise the issues of adverse possession and/ or prescription, which they have not yet addressed due to the predominantly factual nature of the inquiry.

8 years. Nevertheless, he objected to his neighbors' aquaculture lease. Id. <[ 3, 728 A.2d at

687. The Court held that, although the license issue was not the focus of the decision

concerning the aquaculture lease, lithe granting of the lease had a direct impact on

whether the weir could be used." Id. <[ 12, 728 A.2d at 689. Because the lease decision

was final, and it involved consideration of the conflicting license, it could not be

challenged in a separate civil action. Id.

Cline is distinguishable from the present case. There, the Court focused on a

conflicting license and lease, both regulatory grants and both of which necessarily were

considered before the administrative body. Here, the Brittons take issue with the

manner in which the leases are being used. Viewing the facts in the light most

favorable to them, the Bureau's determination that an appropriate navigable distance

exists between the wharves is distinct from the issue of whether the use of the wharf

constitutes a nuisance. Additionally, the Bureau's decision did not have a regulatory

effect on the Brittons. It merely considered the impact on them as a factor in

determining whether to grant the Donnell and DRT leases, and that decision does not

govern any subsequent concerns regarding the manner of use of the leased property.

Clearly, the validity of the leases may not be challenged, as this Court dismissed

the administrative appeal with prejudice. However, holding a valid lease does not

permit Donnell or the DRT to conduct permitted activity in a manner that otherwise

violates the Brittons' rights. Whether a declaratory judgment should issue for either

party depends on whether the operation of the floats in the Brittons' riparian area

violates their property rights, which turns on the factual issues. At trial, the Court must

also consider whether the Donnell and DRT leases would be useless without the ability

to operate the floats. Both the Brittons' riparian rights and Donnell and the DRTs

9 rights under the lease must be considered, and the parties dispute where the boundary

line across the tidal flats lies. Accordingly, summary judgment is Denied on this count.

5. Applicability of the Colonial Method.

Lastly, there is some dispute about whether the Colonial Method should be used

to determine the intertidal boundary between the Donnell and Britton properties.

Because this is more relevant to issues regarding Simpsons Wharf than Varrell Wharf, it

may not be necessary to address this potential boundary dispute. Should the Court

reach this issue, a brief analysis of the Colonial Method follows.

The Colonial Method enables a property owner to determine the sideline

boundary of lots adjacent to water when the deed does not provide a clear boundary.

See Emerson v. Taylor, 9 Me. 42, 43 (1832). This method is derived from the Colonial

Ordinance of 1641, which has become a part of Maine common law, and provides that

the property interest of an owner whose land borders on water extends to the low-

water mark unless a different designation appears in the deed. Id. In Emerson, the Law

Court explained how the boundary lines are to be drawn when there is a dispute. Id. at

44-45.5

Here, the Donnells contend that it is the Brittons' burden to establish the location

of the intertidal zone, and they have not done so. The Brittons have provided a survey

establishing the boundary lines. But, the Donnells argue that a new survey should be

performed using the Colonial Method because, in order to get an accurate measure of

the frontage to which an owner is entitled, one must measure the sidelines of the lots as

they originally existed.

5 For a detailed explanation of the Colonial Method, see Ogunquit Beach Dist. v. Perkins, 138 Me. 54/ 62-63/21 A.2d 660/ 665 (1941).

10 In this case, however, a new survey using the Colonial Method is not required in

light of the existing survey. See Call v. Carroll, 40 Me. 31, 34 (1855) (holding that the

Colonial Method applies "when the lots are all run out at the same time;" otherwise, it

is not a mandatory exercise, but a "satisfactory rule for dividing the flats at the point of

division"). The Brittons' survey contains sufficient description for the lines to be

determined without using the Colonial Method.

CONCLUSION

Summary judgment is Denied for either party.

Dated: September i ' 2007

Gerald F. Petruccelli, Esq. - PL Bruce A. McGlauflin, Esq. - PL Mark Furey, Esq. - DEFS (DONNELL)