Cedar Beach v. Abrahamson

• Court: Superior Court of Maine
• Decided: September 15, 2014
• Docket: CUMre-12-392
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKETNO. RE-12-39J/

CEDAR BEACH/CEDAR ISLAND SUPPORTERS, INC., ROBERT JACKSON, JOHN FORRER, ROBERTA HELFGOTT, MARILEAN JOHNSON, JANET BARIBEAU, and PETER HILL,

Plaintiffs

v. JUDGMENT

CHARLES H. ABRAHAMSON, SALLY M. ABRAHAMSON, CHARLES H. ABRAHAMSON LIVING TRUST, SALLY M. ABRAHAMSON LIVING TRUST,

and

GABLES REAL ESTATE, LLC,

Defendants

WELLS FARGO BANK, N.A.,

Party-in-Interest

Jury-waived trial on plaintiffs' amended complaint, filed April 3, 2013,'

was held on May 27-29, 2014. The transcript was filed on June 16, 2014. Written

closing arguments were filed June 30, 2014.

Plaintiffs include Cedar Beach/ Cedar Island Supporters, Inc., an entity of

approximately 300 members from various states and countries. CBCIS was

formed because the members were concerned about the blockade of Cedar Beach

1 The parties stipulated the original complaint was filed October 24, 2012. Road and the denial of the public's right to access the beach. Plaintiffs also

include Robert Jackson, John Forrer, Roberta Helfgott, Pam Johnson, Janet

Baribeau, and Peter Hill.,

Plaintiffs ask the court to declare the public has acquired a prescriptive

easement over Cedar Beach Road on Bailey's Island in Harpswell, Maine. The

court has considered the testimony, exhibits, and arguments of counsel. For the

following reasons, the court declares the public has acquired a prescriptive

easement over Cedar Beach Road.

FINDINGS

A. Property

Dr. Eugene McCarty owned Cedar Beach Road beginning in 1926. He

died on May 3, 1957 and the property was transferred by his executrix in 1959.'

(Pis.' Exs. 1; 4.) Before his death, Dr. McCarty allowed the public to travel down

Cedar Beach Road to use Cedar Beach• and the small beach• at the end of the

road.

Dr. McCarty's niece, Julia Sturtevant,' and her daughter, Meredith

Starbranch,' inherited property from Dr. McCarty, including a cottage, the

Willows, and the property surrounding the Willows, the cottage lot. (Pis.' Ex. 3.)

The Cedar Beach Road parcel first was purchased by Ms. Sturtevant and her

husband, Roger Sturtevant in 1959. (Pis.' Ex. 4.) The Cedar Beach Road parcel

'Plaintiff Kevin Johnson was dismissed as a party. 'Plaintiffs begin the prescriptive period in 1957, when Dr. McCarty died. Defendants begin the period in 1959, when the property was transferred. • Cedar Beach is also known as Robinhood Beach, Cedar Island Beach, and the big beach. ·The small beach is also known as the sandy beach, the children's beach, and Mary's Cove. 'Ms. Sturtevant died in 1996. 'At the time of trial, Ms. Starbranch was unwell and unable to testify.

2 was transferred to Ms. Sturtevant and Ms. Starbranch in 1961. (Pls.' Exs. 9; 10.)

The Cedar Beach Road parcel was acquired by Richard and Phyllis Perry in 1982,

and by Charles and Sally Abrahamson in 1998. (Pls.' Exs. 9; 19; 33.)

The Ridge property, which consisted of 2 % acres," was part of the larger

parcel inherited by Ms. Sturtevant and Ms. Starbranch. The Ridge property was

reserved to them when they transferred other property in 1961. (Pls.' Exs. 3, 11,

13.)

The two parcels owned by Ms. Sturtevant and Ms. Starbranch were,

therefore, acquired separately and were described separately.• (Pls.' Exs. 3; 4; 9;

10; 11; 12; 13; 19.) Parcel I is the ridge property, which includes the small beach;

parcel II is Cedar Beach Road. (Pls.' Ex. 5.) By 1962, Ms. Sturtevant and Ms.

Starbranch owned both parcels I and II.

A 1947 survey commissioned by Dr. McCarty depicts the road as "Beach

Road." (Pls.' Ex. 2.) A 1960 survey commissioned by Ms. Sturtevant and Ms.

Starbranch depicts the road as "Beach Road (Private)" and shows a gate on the

road. (Pls.' Ex. 5.)

On December 12, 1987, in compliance with the statute, Cedar Beach Road

was posted to prevent the acquisition of a right-of-way over land owned by the

Perrys and Gerald and Polly Clements. 14 M.R.S. § 812 (2013); (Pls.' Ex. 63.) The

certificate separately described Cedar Beach Road as one of three parcels. At the

time, the Perrys owned the road and the adjacent parcel. (Pls.' Exs. 19, 21, 63.)

·The Cedar Beach Road parcel consists of approximately .28 acres. Order on Mot. for Partial Summ. Judgment dated 5/1/14, p.5 n.4; (Pls.' Ex. 10 (1008 feet x 12 feet).) · Defendants did not address in their post-trial brief the merger issue they raised previously. See Logan v. City of Biddeford, 2001 ME 84, 9I 9, 772 A.2d 1183 (whether lots maintain separate character depends, in part, on the history of the parcels).

3 Six or nine months before trial, the Abrahamsons and Betsy Atkins of

Gables Real Estate, LLC entered a purchase and sale agreement for the sale of

Cedar Beach Road to Ms. Atkins. The agreement pertains only to the Cedar

Beach Road parcel.

B. Witnesses

1. Martin Eisenstein

Martin Eisenstein has lived in Auburn for 30 years. He graduated from the

University of illinois in 1972 and the University of Illinois School of Law in 1975.

He received a Masters in Law in 1976 in Stockholm, Sweden.

In 1987 or 1988, he did not live on Bailey's Island and was not a property

owner but was told about Cedar Beach. He first visited Bailey's Island in 1987 or

1988 to use Cedar Beach and the small beach with 25 or 30 parents, school staff,

and students from Auburn. None of them was a resident of or owned property in

Harpswell. They parked on Robinhood Road and walked down Cedar Beach

Road to the beach. At the time, Mr. Eisenstein did not know who owned the

property and no one told him he was trespassing on anyone's property.

Mr. Eisenstein did not go to Cedar Beach between 1988 and 2004. In April

or May 2004 he purchased property on Cedar Beach Road. Prior to 2004, Mr.

Eisenstein was not told not to use Cedar Beach Road or either of the beaches. He

never saw signs directing him not to use the road or the beaches.

After his purchase, he used Cedar Beach four or five times per year,

usually with several other people from all over the world. Mr. Eisenstein did not

recall seeing the Abrahamsons on the beach. There were always a number of

people on the beach when he was there, speaking various languages, including

French, German, Swedish, Norwegian, and the Bosnians' language.

4 On Labor Day 2011, Mr. Eisenstein noticed a net fence blockade that

blocked access to the beach. There was no way to get around, over, or under the

fence. After that date, Mr. Eisenstein used the Lester property to get to Cedar

Beach. Previously, he may have seen a chain and two posts, three or four feet

high at the other end of Cedar Beach Road near Robinhood Road. (Pls.' Ex. 71,

17.) The chain was always on the ground. Prior to Labor Day 2011, Mr.

Eisenstein never saw a sign or notice with instructions not to use Cedar Beach

Road or the beaches. No one ever told him or anyone in his presence not to use

Cedar Beach Road or the beaches.

Mr. Eisenstein is a member, the secretary, the clerk, and the registered

agent for plaintiff Cedar Beach/ Cedar Island Supporters, Inc. (CBCIS). There

were approximately ten incorporators of CBCIS in the summer of 2012. CBCIS

has more than 300 members from many places, including 17 states, the District of

Columbia, and a few foreign countries. Members must apply to the Board of

Directors of CBCIS for membership. CBCIS does not represent the Town of

Harpswell or the State of Maine. Mr. Eisenstein agreed that CBCIS and its

members are not authorized to speak on behalf of the Town of Harpswell. One

member of CBCIS, Kevin Johnson, is a selectman and initially was a plaintiff in

the lawsuit but was dismissed.

CBCIS was formed because the members were concerned about the

blockade and the denial of the public's right to access the beach. Mr. Eisenstein

believed the public had a prescriptive easement. He determined CBCIS should

speak to the Abrahamsons about the blockade. He understood that the

Abrahamsons put up the blockade and they subsequently confirmed that belief.

5 In 2104, CBCIS settled a related lawsuit with the Aspatores, who own

Cedar Beach." (Pls.' Ex. 82.) CBCIS prosecuted this current lawsuit against the

Abrahamsons, who own Cedar Beach Road, to protect and preserve continued

access by the public to Cedar Beach.

CBCIS first approached the Town of Harpswell about initiating the

lawsuit. The selectmen refused to bring the case for a number of reasons,

including expense. Mr. Eisenstein did not recall that it was the Town's position

that there was no public easement, but the selectmen determined the lawsuit

would be too expensive. The Town was concerned about that expense and was

risk-averse.

In 2011, the Town of Harpswell sent out questionnaires regarding the use

of Cedar Beach Road to determine how to proceed and discussed public access

over Cedar Beach Road to the beach. (Pls.' Ex. 81.) In 2013, after the lawsuit

against the Abrahamsons was initiated but before the lawsuit against the

Aspatores was initiated, the Town of Harpswell put on a warrant a bond in the

amount of $220,000.00 to obtain easement rights over the Aspatore and

Abrahamson properties either through negotiation and a transfer by deed or

through a lawsuit and court order. The article passed overwhelmingly. (Pls.' Ex.

87.) The Board of Selectmen was unwilling to file a lawsuit and the article did

not authorize the selectmen or the Town of Harpswell to join the lawsuit. This

arrangement lapses in December 31, 2014 unless the Town of Harpswell renews

the expiration date, which is permitted.

10 There was a separate deed in 1996 from Goodwin Trust to the Aspatores with a reservation of rights in the deed from the Good wins to the Aspatores.

6 2. Harry Starbranch, Jr.

Harry Starbranch, Jr. is an attorney who practices criminal law in New

Hampshire. He was born in 1962 in Fort Worth, Texas. He lived in Alaska for

two years, moved to Cape Neddick, Maine, and then to Cider Hill. The family of

his mother, Ms. Starbranch, has lived in the York area since he could remember.

His parents, Harry Starbranch, Sr. and Ms. Starbranch, divorced at some point.

His entire family visited Bailey Island with friends. They stayed in tents

because there were no structures. Although he agreed there are two beaches, he

confuses them. There was a beach on the property owned by his mother and

grandmother, Ms. Sturtevant, which was the beach they always used and always

talked about. He recalled three visits, from 1964 to 1970; if there were more

visits, they were few in number. He has not returned to Bailey Island since 1970.

He would not now be able to find Bailey Island on his own.

He recalled a chain three or four feet high across the road. The chain

would have precluded a vehicle from proceeding down the road but a person

could walk around the chain. He could not recall whether the chain was near the

beach or the entry point to the road. The last thing his family did when leaving

the property was to put the chain back up. When they returned, the chain was

down. Mr. Starbranch, Jr. also recalled some sort of sign to deter trespassing but

did not recall what the sign said. There were no other efforts he could recall to

keep people off of the road.

Mr. Starbranch, Jr. recalled a stonewall that ran the length of Cedar Beach

Road and a heavy forest behind the wall. On one occasion when he was six,

seven, or eight years old, he sat on the wall with his brother and admonished

people not to use the road. He did not know if he sat near the word "gate" on the

7 property survey. (Pis.' Ex. 5.) He did not know if he sat in the area depicted in

photograph five in exhibit 89. (Pis.' Ex. 89, 5.) He did not know the people who

approached. One person obeyed; two disregarded his instructions, took the

chain down, and drove over the chain and down the road. He did not know

where they went. The adults told his brother and him not to do that again

because they would get hurt.

His mother deferred to his grandmother with regard to decisions about

the property. His grandmother became very upset when people used the little

beach. The maddest he ever saw his grandmother was when she spoke about

Bailey Island.

Mr. Starbranch, Jr. never spoke to his grandmother about a 1962 posting of

the property. He became aware of his mother's affidavit and Ms. Sturtevant's

letter in the months prior to trial when the documents were provided by one of

the attorneys. (Pis.' Ex. 55, 78, 79.) He did not recall seeing signs like those

depicted in the photographs attached to his mother's affidavit. The 1962 posting

was consistent with his belief about his mother and grandmother's general view

with regard to people using the property. For the entire time they owned the

property, neither his mother nor his grandmother gave any permission to use the

road to get to the little beach or to use the little beach; there was no permission

for the public to come and go. His mother and grandmother selectively gave

permission to friends to go camping with the family.

He did not recall a ridge on his grandmother's property. He did not recall

hearing people discuss the ridge property.

A fieldstone fireplace designed for a campsite was located near the small

beach. People trespassed and used the property for parties, which involved

8 alcohol use and littering. The family was concerned about responsibility and was

concerned that law enforcement was unresponsive to their concerns. Each time

his family visited the property, the family was required to clean the property;

they were never sure what they would find upon arrival.

In 1982, Mr. Starbranch, Jr. was willing to gather his college friends and

close the road by parking pick-up trucks across the road. His grandmother was

concerned for his safety and he never followed through with the plan.

His mother and grandmother eventually sold the property because of

problems regarding use and concerns about liability. It was a rough crowd using

the property and they had concerns about using the property themselves. His

grandmother was also concerned about what would happen with the Bailey

Island property if they lost the road; the concern was whether the property

would be worth anything in that event. As long as they owned the property

there was always the concern that they had lost control of the property and they

realized they would not be able to return much longer. There was no discussion

within his family, however, about filing a lawsuit to quiet title.

3. Harry Starbranch, Sr.

Harry Starbranch, Sr. has been an attorney for 51 or 52 years. In June 1957,

he married Ms. Starbranch. He was in the Air Force and she was a student at Mt.

Holyoke.

He believed his wife and mother-in-law inherited the property on Bailey

Island in 1957. Ms. Sturtevant had very strong feelings about people not

trespassing on the property and did not think the public had a right to cross the

property. Mr. Starbranch, Sr. did not know why she felt that way. He recalled

two beaches, one small and one larger. The large beach was not owned by his

9 wife and mother-in-law and they never went there. They were concerned about

the public's use of the road. They did not give permission to the public to use

the road to the beach based on that concern.

He did not know if there were other traveled ways to the beach. He stated

they went down the drive, now called the "road," to the cottage and down to the

small beach. They went down the road only and he did not know about any way

other than the road.

He recalled a chain across the road but did not remember the height of the

chain. He recalled also a couple of posts in 1960 at the entrance to the road

where he marked "gate" on the map. (Pis.' Ex. 5.) Except for the chain, there

was nothing restricting access to the road or the beach when he visited. There

were no signs. He did not recall seeing anyone tell people to leave the road or the

beaches. He did not recall seeing anyone use the large beach but he could not see

the large beach from his mother-in-law and wife's property. His two boys used

the small beach. He did not remember a fireplace on the beach, did not

remember his son telling people not to use the road, and did not remember

doing significant cleanup when they arrived at the property.

During the 1960 visit with his wife and in-laws, he put a padlock on the

chain that was there because his wife, her mother, and her stepfather wanted to

restrict access. The purpose of the chain was to keep people out. They also

discussed that they wanted to post the road, although he could not recall who

initially raised the issue of posting the road. They discussed posting the road at

the beginning of the road, marked "gate" on the map. (Pls.' Ex. 5.) Ms.

Sturtevant had researched the issue and discussed the legal requirements of

posting the road. She was a trained physicist, very precise, a brilliant and very

10 capable woman, according to Mr. Starbranch, Sr. He described her as the nicest

women he had ever met.

Mr. Starbranch, Sr. and his wife were in Maine before they moved to Fort

Worth, Texas in June 1961. He was in the Air Force in Fort Worth and remained

in Texas with his wife for the entirety of 1962. He prepared an affidavit for his

wife's signature at her instruction. (Pls.' Ex. 78.) His wife, his wife's mother, and

his wife's stepfather spoke to Mr. Starbranch, Sr. about the issue. The

information in the affidavit for Ms. Starbranch's signature was transmitted to

him by his wife from Ms. Sturtevant. Ms. Sturtevant did not ask Mr. Starbranch,

Sr. to prepare an affidavit for her signature. The information included the two

photographs; he did not know who took the photographs or whether he had the

original photographs. The photographs were taken at the road. As far as he

could tell, his wife and her mother were concerned about losing the right to have

a private road.

Mr. Starbranch, Sr. added the "information and belief" language to the

affidavit because the information had come from his mother-in-law. His wife had

no personal knowledge of the contents of the affidavit. Mr. Starbranch, Sr. did

not see the postings in 1962 because he was in Texas with his ex-wife. He was not

aware that she posted anything." He never saw any signs posted on the

property.

" The affidavit provides, in part: "before me, the undersigned authority, on this day personally appeared MEREDITH KELLS STARBRANCH, who being by me duly sworn, declared to me: That in accordance with Chapter 174, Section 12 of the Revised Maine Statutes, she has posted two notices of her intention to prevent the acquisition of a right- of-way or other easement in or over her land in conspicuous places upon her land commonly known as the ""Ridge" property, that being the lot of approximately 2 3 I 4 acres on the eastern shore of Fresh Water Cove ... that each of the two notices were posted for a period of SIX (6) successive days .... " (Pls.' Ex. 78.)

11 Mr. Starbranch, Sr. recalled he probably transferred the affidavit after his

wife signed it but he could not remember how. Until this litigation, he last saw

the affidavit when his wife signed it.

He was not aware of a ridge lot. A 1961 deed contains Mr. Starbranch,

Sr.'s signature. He did not recall what the document was intended to do, did not

recall who drafted the document, did not recall who directed him to sign it, and

did not recall anything about it. (Pls.' Ex. 11.) He has no idea if he read the

document before he signed it. Reading the document did not refresh his

recollection regarding the ridge lot. Although there is a reference to the ridge

property in his wife's affidavit, he did not know what that meant when he wrote

the affidavit because the term ridge property does not mean anything to him. His

wife and mother-in-law did not treat the property as two separate parcels.

He inserted the language about the ridge lot based on the instructions he

received from Ms. Sturtevant and the metes and bounds language came from

her as well. He had no memory of taking information from exhibit 78 and

putting the information in exhibit 11.

He returned to the property in 1967 with his wife and two children. He

never saw Bailey Island again after the 1967 trip. Bailey Island is not his favorite

place in the world. He was divorced in the early 1970s. His ex-wife called him

after their divorce with regard to the sale of the Bailey Island property.

4. Janet Baribeau

Janet Baribeau has lived in Brunswick, Maine since 1970. She grew up on

Bailey Island and was familiar with Cedar Beach. Her family's history on Bailey

Island has been continuous since her great-great grandparents. They used Cedar

Beach every summer for swimming, for digging clams, and for family picnics.

12 She learned to swim at a young age at Cedar Beach. Her first memory was

from age two in 1940 looking at crabs at low tide and playing with neighborhood

children. Her family continued to use the beach every sunny day when she was a

child and a teenager. They did not visit the beach often during winter but they

did visit from spring to fall.

From her house, which was not far from Robinhood Road, she walked on

the path, then Robinhood Road, and then Cedar Beach Road to the small and

large beaches, which were considered one beach. Occasionally, she went to Fresh

Water Cove and swam off the dock. She walked over the ridge property, which

included a high physical ridge that ran along the side of Fresh Water Cove

between the cove and Cedar Beach Road, referred to as the "ridge property."

She followed the same path after joining Cedar Beach Road, a dirt road with

mud puddles. (Pls.' Ex. 5.)

There were years in which cars were driven down Cedar Beach Road and

parked in a field where the Aspatores' home is now located. At some point, cars

were no longer driven down the road. There also was a chain just as one entered

Cedar Beach Road from Robinhood Road. The chain was about three feet high

and could be stepped over. People usually walked around the chain on a well-

worn path. The chain was taken down at different times, put to one side, and put

back. She recalled the chain was down more often than it was up. There were

also two cedar posts, one on each side of the road.

Ms. Baribeau moved from Bailey Island to Brunswick but continued to use

the beach. From 1959 through 1987 she used the beach as often as she could,

probably six times during the summer. She was a busy mother of six children.

She drove down the road and parked beyond where cars are allowed to park

13 now, just past the Robinhood Inn. The road was wider but granite slabs were put

in on the side so parking is not possible now. She· and others then walked to

Cedar Beach with strollers and babies.

Ms. Baribeau recalled twenty-five people on Cedar Beach and twelve to

fifteen people on the little beach on a nice day. Everyone made friends with

everyone from the cottages; this was a favorite place to get together. There were

people on the beaches from outside Harpswell as well, including motel guests

using the beach; use of the beach was not limited to Harpswell residents.

Ms. Baribeau never asked permission to use either the beach or the road.

No one ever told her she was not supposed to be there except during the past

five or ten years. She was never asked to leave the beach or the road. She did not

see a sign warning she could not use the beach or the road. In the 1960s, there

might have been a sign on the fence stating "pedestrians only beyond this point,"

but she was not sure. She interpreted that sign to mean pedestrians were

welcome. In 1962, Ms. Baribeau did not see any "no trespassing" posting on the

road or near the beach.

Her previous use of the beach and the road changed just before or during

Labor Day weekend 2011, when she was visiting Cedar Beach with her family.

As they left the beach, she saw a barrier or blockade Mr. Abrahamson had built

to stop people from going down the path that always had been used to access the

beach. The Abrahamsons' lawn abuts the edge of the walkway. Mr. Abrahamson

also put up a sign that stated Cedar Beach is a private beach.

Ms. Baribeau was upset he had put up a barrier because people had

walked through the area for decades. She stated, "no one will ever stop me from

using this beach." Mr. Abrahamson responded, "If you plan to come down here,

14 you'd better have hiking boots on." Although they could have walked around

the barrier, they would not have done that.

Ms. Baribeau had never seen the Town of Harpswell or any public entity

plow the road, regrade the road, put gravel on the road, trim the bushes, or

maintain the road in any way. The Town of Harpswell police did not patrol

Cedar Beach Road.

5. John Goodwin

John Goodwin was born in 1954. His family acquired property on Bailey

Island in 1961, which included Cedar Beach. His family sold the property to the

Aspatores. (Pls.' Ex. 71, 5/17.) His family rented in the area previously. They

built a house at 48 Cedar Beach Road but never built on the property at the

beach, now the Asp a tore property.

Mr. Goodwin visited Cedar Beach as a child. His family built a camp in

1962 and they spent summers on the property until he was in high school, from

which he graduated in 1972. In the 1960s during the summer, he was either at

the beach, usually Cedar Beach but sometimes the small beach, or boating almost

every nice day. During those years, the beach was not crowded and people on

the beach were from the area or people renting in the area. On weekends, cars

were parked along the road. He had summer jobs when he was old enough to

work and went to the beach occasionally but not as often as when he was a child.

In the 1960s, he walked over the meandering path to Fresh Water Cove

where his family kept an outhaul. Mr. Goodwin's father said he wrote to get

permission from Ms. Sturtevant to use the path. They walked over the ledge to

the hill and down to the cove.

15 There was a chain and two posts by Cedar Beach Road and Robinhood

Road. There were metal posts on the edge of the road with metal rings for the

chain. Mr. Goodwin's dad probably had a key because he owned property at the

end of the road. It was common simply to step over the chain to walk down the

road because the chain bowed down and was low enough to step over. There

also were paths around each post to step around. His family was able to drive to

their lot and other property owners drove down the road. People from the area

walked down the road.

He had never seen anyone plow the road. Mr. Goodwin did not see any

"no trespassing" signs and there was no limit on the public use of the road. Cars

were parked from 1958 through 1987 on Cedar Beach Road. There is no room to

park there now.

The beach was blocked off a few years ago on Labor Day. Mr. Goodwin

thought Mr. Abrahamson blocked the beach but Mr. Goodwin did not see it

being done.

6. Nancy Orr Johnson Jensen

Ms. Jenson was born in 1938 and grew up on Bailey Island. Her family

owned a beach, which does not appear on the survey. They went to Cedar Beach

most often but occasionally to the small beach. Her first memory is as a child

going to the beach with friends. They had Sunday school picnics prior to the late

1950s. She did not know who owned the beach or the road. She never inquired

about the owner and she never asked permission from anyone to use the beach

or the road. She walked down the road to the beach and did not drive a car.

16 In the 1940s and 50s, people drove cars on Cedar Beach Road and parked

in an open field, now the Aspatore property. From 1957 through 1987 the use of

cars stopped and Ms. Jensen did not see cars parked in the area during that time.

A chain was put up on Cedar Beach Road, possibly in the 1960s. The chain

was a heavier type of chain but low enough to allow people to step over it or

walk around it. It was always the same chain, a heavier chain that sagged,

attached to two posts. She was unable identify the post when shown a

photograph. (Pls.' Ex. 69, 0022.) The chain was mostly up; she did not recall

seeing it down. She remembered noticing that the chain was gone. She

interpreted the chain as designed to keep cars off the road. During the period

from 1957 through 1987, there was a sign on the right-hand side of the chain. She

could not remember exactly what the sign said.

Ms. Jensen visited the beach one or two times per week before she moved

to Brunswick in 1960 and less frequently after she moved. There were

approximately twenty people on the beach during these visits. People from

outside Bailey Island, people from Brunswick, and people who did not own

property in Harpswell used the beach.

Beginning in 1960, Ms. Jensen taught second and fourth grade in

Brunswick for two years. In 1962, she taught in Germany in the military and

next moved to Illinois. She returned to Maine for two to four weeks in the

summer and went to the beach during those visits one or two times per week.

The number of people on the beaches during those summer visits remained

consistent. She sometimes visited the beach at night because there were no

crowds. That frequency of visits to the beach continues to this day.

17 Through 1987, Ms. Jensen was never told not to use the road and never

asked permission to use the road. During the past two or three years, Mr.

Abrahamson erected a substantial blockade to the beaches. He said he was

blocking the beach. Ms. Jensen and her friend said they would continue to use

the beach and pass the blockade. Mr. Abrahamson replied that he didn't think

they would because the blockade would be substantial and they would have to

have big boots on to go around it. She returned to the beach later and the

blockade had been taken down but she did not recall when. That was the first

and only time she had been told she could not use the road or the beach.

She never saw the Town of Harpswell work on the road, grade the road,

maintain the road, plow the road, or post a speed limit on the road.

7. Marilean I ohnson

Marilean (Pam) Johnson is 82 years old and has lived on Bailey Island for

80 years. She lived in Florida from 1953 to 1955.

Her first memory is going to Cedar Beach at age three or four years. She

has seen pictures of herself and her mother at the beach. They always went to

the big beach and not to the little beach unless to chase a child who ran away.

At the beginning of her use, Dr. McCarty owned the road and the beach.

She knew him very well and he supported people using the beach. He closed the

beach one day and charged one dollar as a fundraiser for the Boy Scouts.

When she was much younger, people drove to the beach and parked on

the Goodwin property. There was always a chain on the road, ,even when Dr.

McCarty owned the property. Because there had been a fire, which may have

been caused by a car, Dr. McCarty did not want cars on the road but he

welcomed people using the road. She could step over the chain, but normally,

18 she went around the chain on a path to the left. The chain was always up during

Dr. McCarty's ownership to deter cars.

From the late 1950s to 1987 she did not remember a change in the use of

the chain. Signs began to go up three or four years ago.

She has visited the beach continuously every year beginning in the spring,

throughout the summer, definitely in the fall, and once or twice during the

winter. From her house, she walked to the beach on Robinhood Road and Cedar

Beach Road. She raised four children on the big beach, from 9:00 a.m. to 4:00

p.m., at least five days per week all summer when her children were growing up.

The first was born in 1955 and the last was born in 1969. She stopped going to the

beach two years ago.

While at the beach, she relaxed while the children swam. She taught the

children to swim at the beach. She had many friends there, who met at the beach

to socialize. On a nice day there would be thirty-five people at the big beach and

perhaps ten or twelve at the little beach. There were people there she did not

recognize, although not many. She worked at the Bailey Island Motel, which

sent people to the beach.

No one gave her express permission to use the road and she never asked

permission to use the beach or the road because she never thought she needed to.

She never saw a "no trespassing" sign or a sign stating passage was strictly

forbidden. Because there were no signs that said, "don't come," she went. Except

during the past five years, no one ever told her she could not use the beach or the

road and no one ever said to leave the beach or the road.

19 There was a short cut from Fresh Water Cove to the Cedar Beach Road

across the ridge. She and others used the short cut. The ridge was opposite

Judge Haines's house. (Pls.' Ex. 71, 17.)

8. Robert Jackson

Mr. Jackson was born June 13, 1939. His parents first purchased a cottage

on Bailey Island on Oceanside Road in 1947, which was when he first visited

Bailey Island. Cedar Beach Road begins at Oceanside Road. (Pls.' Ex. 71, 17.) He

followed Cedar Beach Road to get to Cedar Beach; that was the only way to get

to Cedar Beach by land. His family still owns a cottage and abutting property.

In 1947, he went to both beaches with members of his family. In 1948, he

pulled his younger brother in a wagon to the beach. They continued to go to the

beach frequently into the 1960s. Although it varied due to weather, there would

be twenty-five or thirty people on the beaches in August.

When his family purchased the cottage in 1947, his family lived in

Massachusetts. The family lived in Massachusetts for approximately four years

before moving to Cape Elizabeth, Maine. He returned to the beaches each

summer after 1947 with family, friends, and relatives. He brought friends from

Newton, Massachusetts and Winchester, Massachusetts to use the beach. They

used the beach very often, although perhaps not daily, but it was "the place to

be." There was a mix of people using the beach, including people renting

cottages, people who lived on the island, and others he did not know. He made

friends with people there, especially those with children.

Mr. Jackson used the beach consistently with his family and friends until

he left for college. The number of people using the beach remained consistent but

20 on good days and holidays, attendance was higher than usual. He very, very

rarely saw cars traveling down Cedar Beach Road.

During summers, he worked as a sternman on a lobster boat, mossed, and

worked at a fish laboratory. He became familiar with people from the Bailey

Island community and their children. He attended Dartmouth College from 1957

to 1961. During college, he spent summers on Bailey Island. Except for two six-

week military summer camps, he was on Bailey Island at the beach. He noticed

no significant change in the number and mix of people on the beach.

After college, he went to officer's basic training at Fort Sill in Oklahoma.

He then went to Bailey Island for a short period of time, then to Fort Dix, and

then to Germany until June 1963. He immediately left for graduate school at

Rutgers in New Jersey until the summer of 1964, when he received a M.B.A. He

returned to Bailey Island or Cape Elizabeth depending on the time of year.

He was married in 1959 and the first of his three children was born in

1960. In 1960 his family stayed at Bailey Island while he was at summer camp

and in the military. When he was in college, his wife and children spent a

significant part of the summer on Bailey Island. In 1961 they joined him in

Germany until1962. When they were in New Jersey, his wife and daughter went

to Bailey Island independently of him; he was at the beach less frequently than

his family. Over the years, there was no difference with regard to the number

and mix of people at the beach.

He spent one and one-half years in New York City at Haskins & Sells, a

CPA firm, and then moved to Hopkinton, Massachusetts, where he and his

family remained until 1969. He and his family consistently made return trips to

Bailey Island each year and used the beach on each trip.

21 He purchased a cottage on Bailey Island in 1960 abutting the property of

his parents. He and his family continued to use the beach frequently to swim,

skip rocks, clam, and fish. The number of people using the beach remained

consistent and included people from the area and from away.

His family next moved to Amsterdam, New York, where he worked for a

different company for three years. The family continued to go to Bailey Island for

the summer. Although his family went to the beach more often than he did, he

continued to go down Cedar Beach Road to the beach. He and his family then

lived in Granby, Connecticut for three years while he worked for Connecticut

General. They continued the same pattern of traveling to Bailey Island and the

beaches. Nothing changed with regard to the number or mix of people at the

beach. The only change concerned houses that were being built on the road from

Robinhood Inn to the beach. A log cabin had been constructed on the Haines

property in the 1940s. (Pls.' Ex. 71, 5.)

He and his family moved next to Liverpool, New York for one year and

continued to visit Bailey Island in the summer with the same frequency. The

family then lived in Monmouth, Maine for nine years and Mr. Jackson worked

for a textile business. He left in 1983 and eventually opened his own accounting

practice. Visits to Cedar Beach increased during their residence in Monmouth.

They were there every week or every other week; his family visited more

frequently than he did. In 1983, the number of people and mix of people at the

beach remained consistent.

In 1983, Mr. Jackson and his family moved to Cundy's Harbor, where they

continue to live. They continued to use the beach through 1987. He went to

Bailey Island on weekends with his family and brother; his family may have

22 been there for longer periods. More people had moved to Bailey Island and

summer homes had become winter homes but the number and mix of people at

the beach remained consistent. It was a "youngster's beach" as opposed to one

for retirees.

He did not remember the exact frequency of their use of the beach. His

children were more beach oriented in the 1970s than in the 1980s. During the

New York/Massachusetts/New York City time, he had fewer visits to the beach

because of the distance involved.

There is a higher elevation ridge with solid rock outcroppings west of

Cedar Beach Road. (Pis.' Ex. 69, 0057; Ex. 71, 17 (gray and olive green area).) The

ridge area is a higher elevation than Cedar Beach Road. East of Cedar Beach

Road is a fairly even elevation.

Mr. Jackson saw a chain across the road in several places over many years.

He saw a chain where the orange and black portions of Cedar Beach Road join on

the map. (Pis.' Ex. 71, 17.) The chain was in various locations along the road but

the locations were within 25 feet of each other. The chain was a low height,

about as high as a car bumper, and the chain drooped in the middle. A person

could step over the chain, which was frequently done, and sometimes the chain

was removed. When it was up, he would step over it or go around it. He did not

see a sign near the chain, and during the various years he discussed in his

testimony, he never saw "no trespassing" or "private property" signs.

The post depicted in photograph 20 in exhibit 69 was similar to the post

that was there. (Pis.' Ex. 69, 0020.) The same type of post was not used in all the

locations. He recognized the post depicted in photograph 22 in exhibit 69

because he saw it during the view of the property taken with counsel and the

23 judge. (Pls.' Ex. 69, 0022.) The post was located on the left side of the road as

they approached the beach, a good distance from the first set of posts at the head

of the road. He was sure it had been there a long time but did not know the

beginning date. Although wooden posts were used, the chain was either

connected to the trees or to two wooden posts. (Pls.' Ex. 69, 0025.) He

remembered cement, granite, and metal posts.

Mr. Jackson never saw a sign on Cedar Beach Road or the beaches that

looked like those depicted in the photos included in exhibit 78. (Pls.' Ex. 78, 2.)

Mr. Jackson concluded that the photos depict high ground behind the sign and

there is no high ground in the area where Cedar Beach Road joins Robinhood

Road. The ground is lower in that area. He noted further that the signs do not

identify what is being closed or protected.

Mr. Jackson never asked for permission to use Cedar Beach Road or the

two beaches because he did not think that was necessary. He believed it was a

public area and someone maintained it. There were no houses toward the end of

the road until much later.

In September 2011, Mr. Abrahamson placed a fence across the bottom of

the road at the opposite end of where the chains had been placed and near the

Abrahamsons' property before the beach on the orange area beside the yellow

area on the map. (Pls.' Ex. 71, 17.) Mr. Jackson was not sure what the fence

meant. He knew Mr. Abrahamson had attempted to sell his property and

believed the fence had something to do with that. The fence was definitely a

physical barrier. He continued to use the beach by walking around the fence and

using the Lester property with permission.

24 9. Jackie Merrill

Jackie Merrill has lived on Bailey Island all her life and is familiar with

Cedar Beach. She currently lives in her grandmother's house on the island. Her

mother taught her to swim at Cedar Beach and she has photos of herself there

when she was an infant in the early 1950s. As a child and teenager she used the

beach two or three times per year at least. It was a special occasion to go there.

She took her own children every sunny day during the summer to Cedar

Beach, which she called the "best playground in the world." They might take a

walk on the beach in the fall and winter just for the quiet nature of the beach.

She used the beach until approximate! y three years ago, when the sign asked her

not to go there and she stopped going.

She recognized most people on the beach as island residents or summer

visitors. Some she did not recognize and assumed they were from away.

She recalled a chain at the beginning of Cedar Beach Road where the

orange Cedar Beach Road meets the black Cedar Beach Road on the map. (Pls.'

Ex. 71, 17.) On occasion, the chain was down but not often. She always walked

to Cedar Beach pushing carriages or pulling wagons. There was always a path to

take around the side of the chain or she could step over the chain. Before 1987,

she had never seen a "no trespassing" or "private property" sign on the road.

She lived on Bailey Island in September 1962 and used the beach during that

time.

She remembered a rusty post on either side of the road in the early 1970s.

Photograph 20 in exhibit 69 did not depict the post she saw. (Pls.' Ex. 69, 0020.)

She could not recall if photograph 22 depicted the post she saw. (Pls.' Ex. 69,

0022.) She did not remember a chain between two trees or wooden posts.

25 She is very familiar with the ridge property in this area and spent time on

the ridge in order to get away from her parents. The ridge is located on the

Elizabeth Parks and Campbell properties. (Pls.' Ex 71, 17.) She walked from

Fresh Water Cove shore up over the ridge, across the Abrahamsons' property,

which was a field, to the beach. In the early 1970s, there were no houses on the

ridge property and none on the Abrahamson and Campbell properties. There

were houses on the Haines and Lester properties. (Pls.' Ex. 71, 17.)

Ms. Merrill never asked permission to get to the beach or to use Cedar

Beach Road. It was a tradition and she did not think that she needed permission.

She was never told not to use the road or the beach. Although people accessed

the beach from the ridge or by boat, most of the time people used Cedar Beach

Road to get to the beach.

Because of the chain, she concluded that the owners of the property did

not want vehicle traffic. Her forefathers had gone down the road and she

believed it was okay to go down Cedar Beach Road. She had never seen the

Town of Harpswell maintain Cedar Beach Road between Robinhood Road and

the beach and there were no speed limit signs. She did see police presence on one

occasion but could not recall when and did not know what the police were

doing.

10. Peter Hill

Peter Hill was born in 1926 in Concord, Massachusetts. His grandmother

bought a cottage, The Nautilus, on Bailey Island in 1928. His dad built a cottage

adjacent to Mr. Hill's grandmother's cottage in 1933 and Mr. Hill has summered

there ever since. His brother bought a cottage, The Seashell, next to his

grandmother's cottage in the 1960s or 1970s. The three cottages are still owned

26 by his family members. His sister acquired the property at Mackerel Cove and

his niece acquired the Adams cottage, which is next to his house.

He is familiar with Cedar Beach Road, which he used to access the two

beaches. At the end of Cedar Beach Road, he crossed the ledge on the Aspatore

property to get to the main beach. He frequented the big beach more than the

small beach but used the small beach from time to time. His earliest memory of

going down Cedar Beach Road to the beach was from the 1930s. He did not

always recognize the people on the beach when he visited as a child.

Until 1952, he lived in Concord, Massachusetts. He then moved to

Washington D.C., where he was a reporter for the Washington Post for one year.

In the spring of 1954, he finished his master's degree at Boston University and for

two years taught in Meriden, New Hampshire. From 1956 until2005, he lived in

Washington D.C. where he obtained a Ph.D. and taught at George Washington.

He went to the beach from age four until the time of trial and always

accessed the beach by Cedar Beach Road. After his son was born in 1953 or 1954,

his family visited the beach more than once during the summer and brought

guests and other people on the island to the beach. As an adult he used the beach

from August until early September. From 1960 through 1987 he was on Bailey

Island in August and visited the beach perhaps one time during August. It was a

tradition to go to Robinhood Beach.

On a good day a dozen or more people would be on the big beach. He did

not really notice the small beach. He recalled a sign on Cedar Beach Road or the

beaches. Although he stated first the sign said, "do not trespass" or "private

property," his best recollection was the sign said, "no parking" because parking

was always a problem. No one ever told him not to use the beach or the road.

27 He recalled a knee-high chain across the road. He walked around or

possibly stepped over it because it was low enough to step over. The sign might

have been on the chain but he could not recall. He did not have a clear

recollection of the posts to which the chain was attached. (Pls.' Ex. 69, 0020,

0022.)

In 2013, he went to the beach to see if he could get yelled at; he was not.

He noticed many more buildings in the area. He never saw the Town of

Harpswell maintain Cedar Beach Road and he did not maintain it.

11. Gale I ackson

Gale Jackson is one of Robert Jackson's three children. She is familiar with

Cedar Beach and the small beach. She was born in 1966 and recalls visiting the

beaches first when she was four to six years of age, the early 1970s. Her use

continued through 1987. As a child, she used the small beach because her

parents were concerned about the tidal pools at Cedar Beach and about being

unable to return from the island during high tide.

She visited both beaches by walking down Cedar Beach Road, which was

the only way to get to the beaches by land. In the early 1970s, she visited the

·beach every other day. Later in the 1970s and 1980s, she visited the beach every

day for the three months spent on Bailey Island.

She went to the beaches with her parents, sisters, and friends from places

other than Bailey Island and Maine. People renting on the island used the beach.

On a good, bright, sunny day, there could be forty or fifty people at the beaches.

The number did not decline over the years. She worked at Cook's Lobster House

and noticed customers from the restaurant at the beach. She also recommended

the beaches when asked where to go by people from away.

28 She recalled a chain, which varied from time to time, in the area where the

orange Cedar Beach Road joins the black Cedar Beach Road. (Pls.' Ex. 71, 17.)

The chain was attached to a post and a three-foot high metal pole. The chain was

approximately one foot off the ground. She did not know if the righthand post

was made out of granite as depicted in photograph 20. (Pls.' Ex. 69, 0020.) The

metal post was not as depicted in photograph 22. (Pls.' Ex. 69, 0022.) The metal

post was just a green pipe. There was a path to the left of the chain; she and

others stepped over the chain.

Through 1987, she was never told not to use the road or the beach. She

never asked for permission to use the road or the beach.

12. James Hays

James Hays was born in 1948 in Portland, Maine. He grew up in Cape

Elizabeth and Cumberland through high school. He then joined the Army and

was stationed in New Jersey and Germany. He returned from Germany in 1971.

After his return, he lived in Portland and Freeport.

His grandparents lived on Bailey Island and he spent summers with them.

His first memory of using the beach was at age twelve in 1960. He became very

familiar with the entire island, including the beaches and Cedar Beach Road. He

used the beach to age fifteen sporadically, perhaps five times per summer, with

friends and family. In the 1970s and 1980s, he rarely used the beach. His wife

took his sons to the beach.

He vaguely recalled a one-foot high chain attached to a round pipe on

Cedar Beach Road during the early 1960s in the area where the black Cedar

Beach Road joins the orange Cedar beach Road on the map. (Pis.' Ex. 71, 17.)

There was a path to the left side, which he used to walk around the chain.

29 He believed the post depicted in photograph 20 was installed during the

past ten years. (Pls.' Ex. 69, 0020.) He did not recognize the post depicted in

photograph 22. (Pls.' Ex. 69, 0022.)

13. Wendy Lefavor

Wendy Lefavor lives on Orrs Island and grew up on Bailey Island on

Fowler Road by Cedar Beach. She is very familiar with Cedar Beach and Cedar

Beach Road. She walked down Robinhood Road to Cedar Beach Road to get to

Cedar Beach. On occasion, she used the small beach as well.

She was born in 1960. Her mother took her to Cedar Beach when she was

one or two years of age. During the 1960s, 1970s, and 1980s she used the beach

five days per week, if not six. The beach was the entertainment in the summer.

On a nice summer day, she saw sixty or seventy or more people on both beaches.

Most were from the island but there were also people she did not recognize. In

the winter, she walked on the beach two or three days per week. She continued

to use the beach until people could no longer go there.

She was familiar with a ridge in the middle of the Campbell property.

(Pls.' Ex. 71, 17.) She recalled a one-foot high chain across Cedar Beach Road at

the front of the road where Cedar Beach Road meets Robinhood Road. The chain

was very low and people could either walk across or around it. Sometimes, the

chain was on the ground. The chain was attached to the post depicted in

photograph 22. Wls.' Ex. 69, 0022.)

She never saw any signs during the 1960s, 1970s, or 1980s on Cedar Beach

Road or on the beach. She never asked permission to use the beach or the road.

She did not know who owned the beach and never spoke with the owners.

30 14. Charles Abrahamson

Charles Abrahamson bought his property in 1998 from Richard and

Phyllis Perry. (Pis.' Ex. 33.) He paid $420,000 for the property. There was some

construction when he bought the property and he added the main house in 1999.

The Perry/ Abrahamson deed references two parcels. Mr. Abrahamson

and his wife placed the property in the family trust. (Pis.' Ex. 36.) That deed

references both parcels. (Pis.' Ex. 36.) Other deeds show transfers of the

property in and out of the trust and reference the same two parcels. (Pis.' Exs.

43, 44.)

Parcel I in his deed includes the bright yellow property that appears on

the map. Parcel II in his deed includes the orange Cedar Beach Road that

appears on the map. (Pis.' Ex. 71, 17; 33.) Mr. Abrahamson believed he was

purchasing one piece of property from Robinhood Road down to the main

property where the house is located. At the time of the purchase, Mr.

Abrahamson believed he could close the road to the public based on advice from

the realtor but had no intention of closing the road at that time.

His deed includes a description of the road. Dr. McCarty sent a plan to the

Town of Harpswell when he built the road in 1947. (Pis.' Ex. 2.) Mr.

Abrahamson believes the road is probably wider in some places and narrower in

others than shown on that plan. The 1,000-foot length and 12-foot width is

roughly accurate. The 1947 plan depicts an earlier version of what has become

Cedar Beach Road. The Sturtevant/Starbranch plan is very similar. (Pis.' Ex. 5.)

He never met either woman but he has seen their names. Cedar Beach Road

starts approximately at the triangle. (Pis.' Ex. 5.)

31 Mr. Abrahamson had a "Notice to Prevent Acquisition of Right of Way

and/ or Easement by Adverse Possession" prepared. (Pls.' Ex. 64.) The notice is

dated 1999. He read the notice, believed it was accurate, and signed it. In the

notice, parcel I corresponds to the yellow property on the map and parcel II

corresponds to the road with the same description used in the various deeds.

Parcels I and II overlap physically and have been surveyed that way. The yellow

property overlaps into the road by six feet and the road narrows.

A copy of the notice was posted by a deputy sheriff in a conspicuous place

on each parcel for six successive days beginning June 18, 1999. The notice was

also filed in the registry of deeds. (Pls.' Ex. 64.)

In 2001, Mr. Abrahamson requested a twenty percent abatement of his

property taxes based on his allowing access across his property to the beaches.

(Pls.' Ex. 65.) In his request, he noted that on occasion, there have been more

than 250 people on the two beaches. Mr. Abrahamson believed the public use of

Cedar Beach Road to the beaches adversely affected the value of his property. He

did not recall whether he had an appraisal done when he purchased his property

and did not know whether his purchase price reflected the use by the public.

He noted also in the abatement request that cars blocked the entrance of

Cedar Beach Road at the point where the black road joins the orange road on the

map. (Pls.' Ex. 71, 17.) Cars were also parked on the black "U-shaped" area on

the map. (Pls.' Ex. 71, 17.) People were not able to go down Cragmoor Lane and

emergency vehicles could not get around the curve on Robinhood Road. It

became apparent also that trash was accumulating. Mr. Abrahamson's

abatement request was denied.

32 In 2008, Mr. Abrahamson and his wife, Sally Abrahamson, prepared an

affidavit. (Pls.' Ex. 66.) He read the affidavit carefully before he signed it and the

affidavit was accurate to the best of his knowledge, except for paragraph 6(b ).

Mr. Abrahamson intended to list those who had a deeded right-of-way over the

entire length of Cedar Beach Road. At the time the affidavit was signed, Terry

MacGillivray had a right-of-way down the road; the question was how he would

get from the road to the water. Mr. MacGillivray owned the Robinhood Inn,

which is now a private home. The property is located near the U-shaped road on

the map. (Pls.' Ex. 71, 17.)

The Aspatores have a one-foot right-of-way on the side of the road to

access the rest of their property. It seemed to Mr. Abrahamson they should have

a right-of-way all the way to the end of the road so he included them. The deed

may not support that conclusion. The Gables Real Estate I Betsy Atkins property

does not have an easement to the end of the road. That easement ends where the

Gables I Atkins property touches Cedar Beach Road.

In the past, Mr. Abrahamson welcomed the public's use of Cedar Beach

and Cedar Beach Road. He sold ice cream to people on the beach a few times per

week. On Labor Day 2011, he physically blocked access to the beaches. He had

decided enough is enough.

Mr. Abrahamson has maintained the road since he purchased the

property. A few residents on the road have helped him on their own volition,

including John Campbell, Joan Lester, and the Aspatores. The Town of

Harpswell does not plow, grade, or police the road or parking, and does not post

speed limits. Mr. Abrahamson does not allow parking on Cedar Beach Road.

33 None of the witnesses who testified has helped maintain the road since he

owned it, except Ms. Lester.

Since Mr. Abrahamson has owned the property, the public has come

down the road and the public used the little beach as well. Once every few years

tourists drove down the road out of curiosity. Mr. Abrahamson requested they

not drive on the road, and, in most cases, they simply left. People have asked if

they could bring a person in a car down the road, such as a relative who could

not walk to the beach, and Mr. Abrahamson allowed that. He also allowed

neighbors to drive down the road. He could not say no one has ever asked

permission but, by and large, people just walk down the road.

He previously favored public access to his land. He told people he started

hunting with this dad when he was ten years old. They did not have the

privilege of hunting on their own land and always hunted on someone else's

land. Mr. Abrahamson felt that allowing people to use his road was his way of

saying thanks.

The economy changed and the Abrahamsons felt they might have to do

something different. There was a change in people's attitude. Use of the road

and the beaches was no longer viewed as a privilege; the use was an entitlement.

It was as if it was the people's beach and they could do what they wanted.

The Abrahamsons were frustrated. They negotiated with the Town of

Harpswell and the land trust. The Abrahamsons finally closed the little beach.

Because no one listened to them, they closed the road seven or eight feet before

the end of the road.

The Abrahamsons have suffered retaliation as a result of closing the road.

They have received hate mail, phone calls, and anti-Semitic mail. This response

34 was hurtful to them; they considered this the thanks they were given for what

they had done for the past ten or twelve years.

15. Janice Skillings-Go££

Janice Skillings-Go££ was born in 1952 in Bath and lived on Bailey Island.

Nine generations of her family have lived in the same spot on Bailey Island. She

described the Bailey Island community as tight-knit; word gets out as to what

happens on the island. Generations of families have lived there. The number of

Bailey Island residents is fairly stable but there may be fewer now. During winter

there are fewer than 1,000 people.

She is familiar with the Cedar Beach area and the road. Her earliest

recollection of using the beaches was when she was three years old with her

mother. She remembers that instance because as the youngest of four children,

she was rarely alone with her mother. She has used the beach since then to the

day of her testimony. She consistently used both beaches but she prefers the

larger one. She has been at the beaches every year of her life since she was three.

She uses Cedar Beach Road to get to the beach; there is no other route by

land. She has arrived at the beaches by boat as well. During her entire childhood

and her teens and twenties, she used the beach often for swimming and walking

from spring to fall and after school when school was in session. She swims very

early in the year until October.

To age eight, she used the beach a few times per summer. From age eight,

she would meet friends and walk to the beach five days per week. This

continued until she was fourteen, when she began working summers and used

the beach on her days off and evenings. Her use continued through September

into October.

35 She had already been swimming at the beach at the time of trial. As long

she can tolerate the water, she goes in as early as April but definitely by May.

During the time period before she was twelve, she never saw a sign on

Cedar Beach Road or the beaches that said, "no trespassing," "keep out," or

words to that effect. No one said she could not use the road or the beaches.

She worked during the summers in high school and beyond and took a

year off to travel in Europe. She graduated from high school in 1971 and went to

Europe from fall1971 until June 1972. She then returned to Bailey Island to work

and live with her family.

She went to college at the University of Maine and graduated in 1977.

When she was in college, she lived at home, worked, and used the beach on her

days off during the summers. She always returned to see her mother on her days

off and that continued into her twenties.

She started law school in 1980 and interrupted her studies to move to

Oregon. When she was in Oregon, she spent summers in Maine. During one

summer, she rented a cottage and during another, she stayed in her husband's

family home on Great Island. She used the beaches during her free time,

whenever she could, and every day if she worked in the mornings.

She worked on occasion at Bailey Island restaurants and a motel. She sent

guests to the beach and explained where the beach was. The motels and

restaurants always sent people to the beaches. The directions to the beach were

given to out-of-staters and people from away.

Through the end of 1987, she walked down Cedar Beach Road with

friends and family and invited people from other places to go to the beach. She

saw other people walking down the road to the beach. She never saw "no

36 trespassing" or "keep out" signs or signs with words to that effect through the

end of 1987. In the late 1970s or early 1980s, she saw a sign that read, "no cars."

Cars had been driven down the road and parked at the end of the road. There

was some grumbling about the prohibition but the area was so crowded with

cars residents could not get out of their driveways.

She had never seen signs on Cedar Beach Road like those depicted in the

photographs attached to the Meredith Starbranch affidavit. (Pls.' Ex. 78.) If there

had been such signs, there would have been public outrage. Further, Ms.

Skillings-Goff' s mother would have known about it and there would have been

issues in the family about whether Ms. Skillings-Goff could use the beach

thereafter.

During Ms. Skillings-Goff's twenties, a chain was located at the very

beginning of the road near the turn. At first it was a rope and then a more

substantial chain. A lobster clasp at the end of the chain was clipped to a ring on

a post. The chain was down on the ground frequently. The chain was perhaps a

couple of feet high but low enough to step over; people could walk around the

chain on either side or step over it. It is possible there was a chain or rope in the

1960s but she did not recall seeing that.

The posts depicted in photographs 21 and 23 were not the post she saw.

(Pis.' Ex. 69, 0021, 0023.) The post in photograph 21 was in the woods somewhere

and not on the road. Further, the post she saw was not that substantial.

Everyone used the road to access the beaches. It was a common

occurrence for people to walk down the road and engage in recreational

activities on the beaches.

37 Ms. Skillings-Goff never asked permission to use the road or the beaches.

She always thought they were privately owned by some people who owned

property in the area and thought more than one family owned them. She

nonetheless used the road without permission, as everyone did.

In 2013, the number of people at the beach declined because of the

controversy about the entrance to the beach on the Abrahamson property. Mrs.

Lester let her friends cross because access was denied on the Abrahamson

property but people were still at the beach. She believed last summer there was a

barrier across the end of the property.

She is a lawyer and practiced in Boston and Salem, Massachusetts

beginning in 1986. In 2013, she left her law firm and started her own practice.

She is married with one daughter who is nineteen and attends Harvard. She has

taken her daughter to the beach since she was born. Last summer was the last

time she visited the beach with her daughter. Ms. Skillings-Goff now lives in

Brunswick but goes to the beaches on the weekends.

16. Betsy Atkins

Betsy Atkins owns Gables Real Estate, LLC. Ms. Atkins did not know the

precise date Gables Real Estate, LLC was formed. Gables owns other properties,

including property in Coral Gables, on which the company name is based. She

spends five months on her property in Maine, arriving in :tvfay and leaving the

last half of October.

The Gables/ Atkins property abuts Cedar Beach Road for 94 feet. (Pls.' Ex.

71, 17; 39-41.) Ms. Atkins removed a structure on the property and built a home

on the property ten years ago. Cragmoor Lane leads to her driveway. (Pls.' Ex.

69, 0011.) Her driveway connects with Cedar Beach Road but that connection is

38 not shown on the map. (Pls.' Ex. 71, 17.) She does not use the orange part of

Cedar Beach Road for transportation. (Pls.' Ex, 71, 17.) She does walk the road

regularly to the beaches for exercise. Sometimes she is accompanied with friends

or family and sometimes she is alone.

Her next-door neighbor, Wallace Millner, put up the sign shown in

photograph 11. (Pls.' Ex. 69, 0011.) He bought his property from her

approximately six or seven years ago. (Pls.' Ex. 42.) Her property has an

easement on Cedar Beach Road. She was asked whether the easement extended

for the entirety of the road and her response was, "I don't know the technicalities

of how easements work." She then stated she knew what an easement is but did

not know if it entitled her to go to the end of the road or just to access her

She has walked to the end of Cedar Beach Road and she goes to the

beaches, as recently as the day before her testimony. At her request, the

Abrahamsons gave her permission to do so. She has asked for such permission

many times over the past ten years.

There is a current agreement between her and the Abrahamsons to buy

the orange part of Cedar Beach Road. (Pls.' Ex. 71, 17.) She testified, "I do not

recall the precise price. I think we have the purchase and sale, we can put it in

evidence, but I don't remember the precise price." The agreement involves the

purchase of Cedar Beach Road only. She approached the Abrahamsons about

the purchase six to nine months before trial but she did not remember precisely.

Because there is a purchase and sale to her, she "presumes" the sale is to her and

the Abrahamsons are prohibited from selling to anyone else but stated, "I do not

39 know all the nuances of contract law." At the time of trial, the sale was in

process and the bank was to issue a final approval to release its mortgage.

Gables intervened in this lawsuit to protect its property as it may be

impacted by a public prescriptive easement. Ms. Atkins stated the road is

currently a private road and she seeks to maintain it as a private road. If the

public obtains an easement, she believes there will be significantly more traffic,

rubbish, garbage, diapers, cans and bottles, toilet paper, and debris. People

wander down the road, walk into her yard, and allow their pets to walk into her

yard. She is impacted by noise as well. She hopes to do all she can to keep the

road private.

Ms. Atkins prepared an email that outlines problems, concerns, and

objections with regard to Cedar Beach Road becoming a public road. She is

concerned about litter because she finds toilet paper, tissues, and excrement,

which she assumes is human because toilet paper is involved. She spends an

hour or so weekly picking up trash and cleaning up in the area near her fence on

the western end of her property by the road. She erected a gate and fence in that

area at the end of summer 2013. (Pls.' Exs. 69, 0027-0029; 89, 6.) The gate is

sixteen feet, which includes two doors and a fence on the sidelines to support the

gate. She uses the gate to access her property one or two times per week. She

installed the gate to keep people and dogs off her property, to conceal mulch and

woodchips for her extensive gardens, and for privacy. (Pls.' Exs. 69, 0030; 89, 6;

De£. Gables Real Estate LLC's Ex. 93.) Whether the gate and fence had solved the

trash problem remained to be seen because few people are in the area during the

winter.

40 Although she has recording security cameras on her property, she has

never examined the recordings to see if anyone engaged in unseemly activity on

her property. She has three dogs, which she walks on leashes but if other dogs

enter her yard, her dogs run off.

She is also concerned that Robinhood Road is blocked with cars, which

would obstruct passage of an ambulance, fire truck, and other vehicles. She was

not aware that passage on Cedar Beach Road was blocked.

She agreed the ground is elevated as one approaches the Campbell

property on Cedar Beach Road en route to the beach. (Pls.' Ex. 71, 17.) The

Campbell home sits up a bit and has sloping terrain behind it.

17. Kevin Johnson

Kevin Johnson has lived in Harpswell for twenty-eight years. He was born

in 1955 in Florida but his family moved to Bailey Island immediately after his

birth. Several generations in his family, back to the early 1700s, have lived on

Bailey Island. His grandmother's house is located on Robinhood Road, six

hundred feet up the hill. He lived there beginning at the age of four. He still

lives and works on Bailey Island.

His first memory of the beaches predates 1960. His sisters were born in

1957 and 1960; his brother was born in 1969. His family and neighborhood kids

packed their beach items and walked to the beach along Cedar Beach Road, the

only land route to the beaches. He continued to use the beach for the next several

years very frequently. He was a caretaker for cottages on the island. People also

drove down Cedar Beach Road and parked. He had permission to do so from the

family who owned property down the road.

41 He was in the Army from 1973 to late 1977. He then moved back to Bailey

Island and resumed going to the beach. During his four years in the Army, he

returned to Bailey Island and stayed with his parents at the house his father built

on Bailey Island in the 1960s, where his mother still lives. He visited one time

during his Army years and stayed a few weeks. He went to the beaches with the

friends he grew up with.

From 1973 to 1977 he lived in California. Since that time, he has lived in

Maine and he has not been away for extended periods of time. When he returned

in 1977, he spent the following summer at the beach. He walked to the beach

during the different seasons. By Labor Day, the water was cold and swimming

ended.

During the summers, through 1970, there were about twenty people on

each beach. The population of Bailey Island, a "tight-knit community," fluctuates

but is higher now with more summer people and more year-round people.

During the 1970s, he recognized people on the beaches and saw non-locals as

well. People from the restaurants and inns and summer people staying on the

island visited the beaches.

From 1970 to 1973 in the summer, he continued to visit the beach two or

three times per week. He worked mowing lawns and raking moss and had a

flexible schedule. During his time off, he used the beach on weekends and

weekdays. From late 1977 to present day, he has continued to use the beaches.

During his use through 1973, Mr. Johnson never saw a "no trespassing"

sign. No one ever told him to get off the road or the beaches. He did not ask for

permission to use the road or the beaches.

42 He was aware of a chain across Cedar Beach Road in the area where the

black and orange roads join on the map. (Pls.' Ex. 71, 17.) The chain was low, a

few inches off the ground. The chain was down sometimes and never had a

padlock attached to it. There was a path around the chain, which was well worn

from years of bicycles and other traffic. The chain was attached to two rusty,

angle iron posts, like the post depicted in one photograph in exhibit 69. (Pls.' Ex.

69, 0022.) He recalled that the chain had always been there.

At one point after he returned to Maine, he saw an eight-foot high, ten-

foot wide chain link fence in the bushes in the black area of the road (Pls.' Ex. 71,

17.) Supporting columns were connected to the fence. He had never seen that

fence standing up. Apparently, someone installed the fence and it was taken

down. The fence was not in the road for more than one day.

In his affidavit prepared in this case, Mr. Johnson stated that in 1979, an

owner of property on Cedar Beach Road, who he believed was Meredith

Starbranch, erected a fence on Cedar Beach Road just after the intersection with

Robinhood Road and before the chain. He stated further in the affidavit the fence

was designed to prevent walkers from accessing the walkway and was torn

down by Scott Allen who does not live on Cedar Beach Road. (Def. Gables Real

Estate, LLC's Ex. 94.)

From his first memory through 1987, Mr. Johnson never asked permission

to use the beach or the road. He never saw a "'no trespassing" or "keep out" sign

on the road or at the beaches. He never saw a chain or rope across the road

attached to a tree. He never saw signs like the signs depicted in the photographs

attached to the Meredith Starbranch affidavit. (Pls.' Ex. 78.) He did not believe

those photographs depicted Cedar Beach Road because the background was

43 wrong. Cedar Beach Road on the ridge on either side is heavily forested and has

been for fifty years. He never saw the Town of Harpswell or the State of Maine

maintain Cedar Beach Road.

18. Terri Pontbriand

Terri Pontbriand was born in 1956. She lived on Orrs Island and then

lived on Bailey Island from 1958 until 1978. As a child, she went to the beach

everyday in the summer and sporadically during other months. As a teenager,

she visited the beach once or twice per week. She described the beach as a really

pleasant place for a walk in the evening.

In 1978, she married and moved to Auburn but returned to Bailey Island

weekly. She moved to Durham in 1980. When she lived in Auburn and Durham,

she continued to visit but less frequently because she had children and a job. She

visited her mother and father at least two weekends per month and walked the

beach.

On nice days in the 1960s, 1970s, and 1980s, it was not unusual to see more

than ten families on the beach with children. Depending on the day, the sun, and

the tide, the number of people at the beach could exceed forty. It was not

possible to know where the people came from. She assumed some came from

the cottages and some were year-round people but "a hodgepodge" of people

used the beach.

She recalled a gate, located closer to Robinhood Road than the beach, on

the dirt road used to walk to the beach. (Pls.' Ex. 71, 17.) The gate included

orange rusty posts and a knee-high chain strung between the posts. People either

walked over the chain or followed a well-worn path to the left side of the chain.

44 There was a ridge located on the Campbell property. (Pls.' Ex. 71, 17.)

Adults and kids traveled a winding path from Cedar Beach Road to Fresh Water

Cove, where some had boats. They walked around the ledges, followed the path

on the Campbell property to the Abrahamson property to reach the small beach,

and continued on the ledges.

Ms. Pontbriand never had permission to use the beach or the road. She

never knew she needed permission to do either one.

During the past year, she learned from her brother about a fence in the

Cedar Beach Road area. She was not on the island at the time. In August 2012,

she signed an affidavit prepared in this case. (De£. Gables Real Estate, LLC' s Ex.

95.) In the affidavit, Ms. Pontbriand states that in 1979, an owner of property on

Cedar Beach Road erected a fence on Cedar Beach Road just after the intersection

with Robinhood Road and before the chain between two posts. The fence was

designed to prevent walkers and bikers from accessing to the walkway. The

fence was removed within one day by Scott Allen, who does not live on Cedar

Beach Road. (Gables' Ex. 95.) The affidavit refreshed her recollection regarding

when she learned about the fence. The Cedar Beach controversy has been going

on much longer than one year.

19. Mark Haley

Mark Haley lives in Cape Elizabeth. He is a retired lawyer who consults

on a part-time basis for some of his former employers. He is familiar with Cedar

Beach Road because his parents bought property in 1968 at the terminus of the

road. (Pls.' Ex. 15.) His family's deed contained a right-of-way over Cedar Beach

Road. He was nineteen years old and at Bowdoin at the time of the purchase.

The Cedar Beach Road property was "entertainingly close" and Mr. Haley and

45 his fraternity brothers used the cottage for parties. He was at the property quite

frequently, including spring and summer and very frequently in the fall. He

would spend a few hours up to a few nights at the cottage.

He attended law school and returned in 1974. He lived in Brunswick and

used the Bailey Island property frequently on nights and weekends. The Haleys

rented their summer home to the Lesters for at least part of the summer for ten

years from 1975 to 1985. The Haley property was sold in 1986.

Mr. Haley recalled two steel !-beams, two feet in height, in place at the

head of Cedar Beach Road at the time his family purchased the property.

Photograph 22 in exhibit 69 depicts what Mr. Haley refers to as the !-beams. (Pls.'

Exs. 71, 17; 69, 0022.) A length of chain went through eyelets of the two posts and

was secured by a lock with a key. Mr. Haley did not know who put up the chain

or lock. His father was given keys to the lock, which was not always locked. On

occasion, Mr. Haley left, he unlocked the chain and left it on the ground because

he expected to be back in fifteen minutes. He could not recall an occasion when

the chain was left unlocked and down for more than a few hours. His family

continued to lock the chain on a regular basis. If they did not lock the chain, there

would be a lot of cars down the road, parked in driveways, which prevented

owners from leaving their property.

There were cheap, white tin signs with red paint that read, "private

property" nailed on trees at the head of the road. He could not recall if the sign

said anything else. The sign was in place for more than one week. He believed

there were other signs put up by owners along the road on both sides but he

could not be certain.

46 Throughout the time he spent at the beach and the property, there were

problems with regard to use of the road and the beach. The road and the fire lane

were blocked, which prevented ingress and egress. The problems at the beach

were of a different nature and grew progressively worse. Primarily at night,

there were many parties, fires, beer cans, and dogs. The dog owners did not

clean up after their dogs. The beach was trashed. Mr. Haley called the sheriff to

get people off the beach because Mr. Haley was worried about fire danger. He

recalled dealing fairly regularly with the Cumberland County Sheriff's Office in

an effort to remove people from the property.

Additional action was taken to block access to Cedar Beach Road. In 1978,

1979, or 1980, Mr. Haley's father, brother, cousin, and Mr. Haley erected posts on

either side of the road and two pieces of a six-foot chain link fence to prevent

ingress, to keep people out. This effort was not directed at one class of people.

The problem had become so serious that they decided to put up the fence.

The fence was mowed down and the chain was broken by a pick-up truck

driven by Scott Allen. Mr. Haley called Scott Allen; Mr. Haley knew Mr. Allen

and his father. Mr. Haley asked Mr. Allen to meet at the property and to replace

the chain and pay for the value of the chain link fence. Mr. Allen paid the money

at Mr. Haley's office in Bath and replaced the chain. They did nothing further

after erecting this chain link fence because it was "an exercise in futility," even

though Mr. Haley was concerned about the property. The access issue had

become a very passionate and emotional issue among all of the various parti~s.

Rightly or wrongly, they were concerned about vandalism when they were not at

the property.

47 20. Joan Lester

Joan Lester lives in Boston. She recently retired as a professor of Native

American Studies at Tufts. Her specialty is Native American art from New

England.

The Lester property is surrounded by the Aspatore property. (Pls.' Ex. 71,

17.) Cedar Beach continues to the Atkins property. The Atkins property includes

a beach on the eastern side and a walkway and a beach on the northern side. The

owners prefer that no one use these beaches and have posted a "private

property" sign. Ms. Lester has used the small beach many times with her

children and grandchildren. The Abrahamsons have generously allowed her

grandchildren to use the beach

Her first encounter with Bailey Island occurred during her honeymoon in

1960. She and her husband stayed at Spruce Ledge at the end of the island. They

rented a place each summer during the 1960s to 1975. They parked on the road

and walked with their children to the beach. From 1975 until 1985, they rented

the Haley cottage for long weekends and one week in the summer. From 1985 to

1990, they rented other houses on the island. During these years, they put their

towels and chairs in their inflatable boat and carried the boat down Cedar Beach

Road to the beach.

The Lesters purchased their property in 1990. The Perrys were

constructing a house at the time. The construction was never completed.

Ms. Lester did not see a fence on Cedar Beach Road and never saw "no

trespassing" or "private property" signs. There were signs on trees with the

neighbors' names on them. There was a chain, which was locked when the

Haleys owned the property and which was sometimes down. There was a path

48 around the chain. She saw many people stepping over or going around the chain

and she and her husband did the same.

When they rented in the area, there were often very loud noisy parties.

Because she was a renter, she did not feel entitled to call the sheriff. Her

neighbors did call and law enforcement arrived and broke up t.he parties.

They saw bottles, candy wrappers, and cigarette butts on the beach in

front of her property. The stone steps leading to her beach were sometimes

blocked and the people would be indignant if she asked them to move. She

began asking where people were from; they were from Canada and other states

and were staying at the motel.

Dogs were a big issue. People brought dogs to the beach, walked them off-

leash, and let them run wild. The dogs stole the children's sandwiches.

Cedar Beach Road is the only way to get to her property by land. There is

an eight-to-ten-foot high fence by the Atkins property. It is not possible to see

over or through the fence. It was installed a few years ago and was there last

summer.

She responded to the Town of Harpswell survey regarding use. (De£.

Gables Real Estate, LLC's Ex. 97.) She referred to signs Mr. Perry put up after

she bought her property. Mr. Perry said too many people were coming down.

The signs said, "no vehicles, road is only for islanders and their guests." When

she stated in her response to the Town of Harpswell's questionnaire that there

had always been signage and, since 1965, a chain, she meant that people could

not drive down the road. The only other signs she recalled displayed the names

of owners until Mr. Abrahamson put up his sign.

49 She recalled two cement pillars with a chain. She did not recognize what

was depicted in photograph 22 in exhibit 69. (Pls.' Ex. 69, 0022.) She did not

believe a road appeared behind the cement post in photograph 20. (Pls.' Ex. 69,

0020.)

To her knowledge, neither the Town of Harpswell nor the State of Maine

maintained Cedar Beach Road. Mr. Abrahamson maintained the road and Mr.

Perry tried to maintain the road when he had funds. The road was a mess with

big caverns and care was required when driving.

B. Assessment

The above is a summary of each witness's testimony. Unless otherwise

stated," the court found the testimony of the witnesses to be credible."

Inconsistencies and discrepancies in the testimony of most of the witnesses were

"Ms. Atkins is the owner of a real estate company doing business in Florida and Maine. She testified that she did not know if her easement covered the entire length of Cedar Beach Road, that she does not understand the technicalities of easements, that she did not recall the purchase price of her purchase and sale agreement with the Abrahamsons, and that she only presumes they cannot sell the road to· anyone but her because she does not know the nuances of contract law. This testimony, although not particularly relevant to the issues to be decided, was not credible. Mr. Starbranch, Jr. and Mr. Starbranch, Sr. were gracious witnesses. Mr. Starbranch, Jr.'s familiarity with Bailey Island was, however, based on three visits; the last visit was in 1970 when he was eight years old. Mr. Starbranch, Sr.'s familiarity with Bailey Island was based on two visits; the last visit was in 1967. The fact that their relationship with Bailey Island was minimal and occurred more than forty years ago likely accounts for their lack of memory and necessarily affects consideration of those things they believe they do remember. In contrast, other witnesses lived and/ or visited for years in the area of Cedar B"each Road, walked down Cedar Beach Road very frequently, and had the opportunity to observe who and what was there. "The court is mindful of the following frequently used jury instruction: '1nconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause you to question such testimony. Two or more persons witnessing an incident or a transaction may see or hear it differently, and innocent mistakes in memory sometimes happen. In weighing the effect of any discrepancy, always consider whether it relates to an important issue or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood." Alexander, Maine Jury Instruction Manual§ 6-24, at 6-4:1 (2013 ed.).

50 not the result of intentional falsehood and did not affect the court's assessment of

credibility or the court's conclusions.

CONCLUSIONS

A. Prescriptive Easement

Maine has long accepted the doctrine that the public can acquire a non-

possessory interest in land. Stickney v. City of Saco, 2001 ME 69, err 15, 770 A.2d

592; Town of Manchester v. Augusta Country Club, 477 A.2d 1124, 1128 (Me.

1984). "The party asserting a public, prescriptive easement must prove: (1)

continuous use; (2) by people who are not separable from the public generally;

(3) for at least twenty years; (4) under a claim of right adverse to the owner; (5)

with the owner's knowledge and acquiescence; or (6) a use so open, notorious,

visible, and uninterrupted that knowledge and acquiescence will be presumed.

Lyons v. Baptist Sch. of Christian Training, 2002 ME 137, err 15, 804 A.2d 364.

(1) Continuous Use

"Continuous use 'occur[s] without interruption.'" Almeder v. Town of

Kennebunkport, 2014 ME 12, err 22, _ A.3d _(quoting Stickney, 2001 ME 69, err

18, 770 A.2d 592). Daily, weekly, or monthly use is not required. Continuous use

requires "the kind and degree of occupancy (i.e., use and enjoyment) that an

average owner would make of the property." Almeder, 2014 ME 12, err 22, _

A.3d _(quoting Stickney, 2001 ME 69, err 18, 770 A.2d 592).

Defendants do not dispute continuous use, although they use the term,

"continuous trespass." (Defs.' Br. 15.) Based on the testimony of Mr. Starbranch,

Jr., Mr. Starbranch, Sr., Ms. Baribeau, Ms. Jensen, Ms. Johnson, Mr. Jackson, Ms.

Merrill, Mr. Hill, Ms. Lefavor, Ms. Skillings-Goff, Mr. Johnson, Ms. Pontbriand,

Mr. Haley, and Ms. Lester, plaintiffs have proved continuous use of Cedar Beach

51 Road" from 1959 through 1987." Although the most frequent use occurred

during the summer months, people used the road during non-summer months as

well.

(2) By People Not Separable from the Public Generally

"To create a public easement, ... the adverse use must be general and not

limited to a few specific individuals .... The test of a public use is not the

frequency of the use, or the number using the way, but its use by people who are

not separable from the public generally." Flaherty v. Muther, 2011 ME 32, 9I 81,

17 A.3d 640; see also S.D. Warren Co. v. Vernon, 1997 ME 161, 9I 16, 697 A.2d

1280. The landowner must be notified the general public, not individuals, claims

an adverse right. Mary Shields, Note, Public Easements in Spectrum: A Solution

to Protect the Public Interest, 66 Fed. Comm. L.J. 177, 191 (2013); see Restatement

(Third) of Property (Servitudes)§ 2.18 cmt. c (2000). "The adverse use that leads

to creation of the servitude provides the basis for determining its terms."

Flaherty, 2011 ME 32, 9I 83, 17 A.3d 640; see id. 9I 84 (use by three households,

one for twenty years, one for ten years, and one for one year, was not sufficient

to provide notice to landowner that entire neighborhood of nineteen households

was claiming an easement). Use of a private road by owners or residents of land

adjacent to the road is not for a public purpose of benefit; use by those without

interest in the adjacent land may be a public use. Shields, supr:E!, at 191.

"Because Cedar Beach Road is the only land route to the beach and was the route consistently used by members of the public, there is no issue with regard to the physical extent of the easement. Mary Shields, Note, Public Easements in Spectrum: A Solution to Protect the Public Interest, 66 Fed. Comm. L.J. 177, 192 (2013). "Although legally effective, the 1987 and 1999 notices deterred few from using the road until Mr. Abrahamson erected the barrier on Labor Day 2011.

52 Based on the testimony of Mr. Starbranch, Jr., Ms. Baribeau, Mr. Goodwin,

Ms. Jensen, Ms. Johnson, Mr. Jackson, Ms. Merrill, Mr. Hill, Ms. Jackson, Ms.

Lefavor, Ms. Skillings-Goff, Mr. Johnson, Ms. Pontbriand, ~1r. Haley, and Ms.

Lester, plaintiffs have proved use by people not separable from the public

generally. The witnesses, their fam,ilies and friends, people who owned

property on Bailey Island, people renting property on Bailey Island, people

visiting Bailey Island, people who were recognized by the witnesses and people

who were not recognized, and people from other states and countries used

(3) For at Least Twenty Years

"The prescriptive period includes any twenty-year span in which

adversity and acquiescence have been continuously maintained." Almeder, 2014

ME 12,

argue the Perrys' sign prohibiting vehicles precludes plaintiffs from proving a

twenty-year period. (Defs.' Br. 18.) Based on Ms. Lester's testimony, the court

concludes the sign was put up after the Lesters purchased their property in

1990.

Based on the testimony of Mr. Starbranch, Jr., Mr. Starbranch, Sr., Ms.

Baribeau, Mr. Goodwin, Ms. Jensen, Ms. Johnson, Ms. Merrill, Mr. Hill, Ms.

Lefavor, Mr. Johnson, Ms. Pontbriand, Mr. Haley, and Ms. Lester, plaintiffs have

proved continuous use of the road for more than twenty years.

(4) Under a Claim of Right Adverse to the Owner

"Adversity is established by evidence that the claimant has used the

property (1) in the absence of the owner's express or implied permission, and (2)

'as the owner would use it, disregarding [the owner's] claims entirely, using it as

53 though he own[s] the property himself' (3) such that the use 'provided the owner

[] with adequate notice that the owner's property rights are in jeopardy."'

Almeder, 2014 ME 12, err 20, _ A.3d _(quoting Lyons, 2002 ME 137, errerr 17, 26,

804 A.2d 363); see Blanchard v. Moulton, 63 Me. 434, 436-37 (1873) ("[A]dverse

use[] is nothing more than such ... use of the property as the owner himself

would exercise.") There is no subjective intent requirement. /\.lmeder, 2014 ME

12, err 21 n.12, _ A.3d _;see Dombkowski v. Ferland, 2006 ME 24, errerr 23 n.6,

24, 893 A.2d 599 (eliminating intent requirement in adverse possession claims).

"[P]ublic recreational uses are presumed to be undertaken with the

permission of the landowner, thereby defeating the adversity element of a

prescription claim." Almeder, 2014 ME 12, err 23, _ A.3d _(citations omitted).

"This presumption of permissive use does not result in burden shifting. It leaves

with the plaintiffs the burden of proving adversity through a claim of right

hostile to the owner's interest, without benefit of any presumption of adversity

arising from long term public recreational uses of the land." J.yons, 2002 ME 137,

err 25, 804 A.2d 364; see Almeder, 2014 ME 12, err 28, _ A.3d _." Public

recreational use "is consistent with and in no way diminishes, the rights of the

owner in his land." Lyons, 2002 ME 137, err 19, 804 A.2d 364.

The "open lands tradition" followed by Maine "recognizes the State's

desire to encourage the hunting, hiking, and other outdoor activities for which

Maine is celebrated and on which much of Maine's economy ils based." Almeder,

16 "The Law Court in Almeder stated, "the burden of proof is on the claimant to rebut the presumption of permission in order to establish adversity." Almeder, 2014 ME 12,

54 2014 ME 12, 9I 24, _ A.3d _(citations omitted); see Lyons, 2002 ME 137, 9I 24

& n.6, 804 A.2d 364. The Law Court recently stated:

The presumption recognizes that public recreational use is consistent with, and in no way diminishes, the rights of the owner in his land. Particularly for land that is not being actively used by its owner, the claimant's use can be better regarded as permissive until affirmatively shown to be adverse. Thus, the presumption offers a double benefit of protecting landowners from equitable claims to the use of their properties (as well as to their titles) while allowing the public to continue to use the property for recreational purposes. Finally, the presumption reflects our long-standing disapproval of public recreational easements by prescription: In a consistent line of cases this court has declined to hold that the mere use by the general public of wild and uncultivated land as a route for hauling seaweed, for hunting, or for mere pleasure or recreation, is sufficient to show the adverse use essential to create a prescriptive easement.

Almeder, 2014 ME 12, 9I 25, _ A.3d _ (internal quotations and citations

omitted).

The Law Court clarified in Lyons that the presumption of permission

depends on how the public uses the land and not on the type of land at issue. See

Almeder, 2014 ME 12, 9I 27, _ A.3d __;Lyons, 2002 ME 137,. 9I9I 20-25, 804 A.2d

364. The presumption has been applied to children playing on a vacant lot, to

hunters and snowmobilers crossing a field, to families camping on wood lots,

and to neighbors using a road on a landowner's wooded lot. See Lyons, 2002 ME

137, 9I 24, 804 A.2d 364. The presumption has also been applied to cases

involving public use of private beaches. See Almeder, 2014 ME 12, 9I 27, _ A.3d

__;Town of Manchester, 477 A.2d 1124, 1126 (Me. 1984); Littlefield v. Hubbard,

124 Me. 299, 304, 128 A. 285, 288 (1925).

A lengthy history of a town's maintaining, patrolling, and enforcing laws

and conducting public gatherings on contested property has been sufficient to

support a claim of a public prescriptive easement. Lyons, 2002 ME 137, f)If)I 28-30, 804 A.2d 364 (discussing Eaton v. Wells, 2000 ME 176, 760 A.2d 232)~'; see

Almeder, 2014 ME 12, 9I 31, _ A.3d _ (Town's expenditure of funds to

provide public conveniences and increase tourism and establishment of parking

regulations and other uses at the beach not suffi~ient to overcome the

presumption of permission); Bayberry Cove Childrens' Land Trust v. Town of

Steuben, 2013 ME 35, 9I 9, 65 A.3d 1188 (Town's !!minor and sporadiC 11

maintenance of the road did not prove continuous use of road for required

period); Stickney, 2001 ME 69, 9I9I 1, 3, 770 A.2d 592 (City maintained road for

over forty years; Law Court determined road was a public way); Town of

Manchester, 477 A.2d at 1130 (Town's expenditure of time and money to keep

right-of-way repaired and assistance with maintenance and security of the beach

were voluntary actions that were subordinate to Club's ownership of beach).

Town or state involvement in maintenance of a public prescriptive easement is

not, however, a prerequisite for such an easement. See Town of Kittery v.

MacKenzie, 2001 ME 170, 9I 16 n.10, 785 A.2d 1251.

It is clear from this record neither the Town of Harpswell nor the State of

Maine was involved in any way with Cedar Beach Road. Although a public

entity's involvement in the easement, such as maintenance, is evidence of

adversity, that involvement is not required to establish adversity, as defendants

argue. (See Defs.' Br. 14-17.}'

"In Almeder, the Law Court criticized the decision in Eaton v. Town of Wells, cited by plaintiffs. Almeder, 2014 ME 12, <[ 27 n.16, _ A.3d _;Eaton v . Town of Wells, 2000 ME 176, 760 A.2d 232. 18 Defendants cite Lyons to argue that absent the involvement of a town or municipality, a group of individuals representing the public cannot prevail in a case involving a public prescriptive easement because they are unable to demonstrate the requisite maintenance and control consistent with ownership. Defs.' Mem. at 17, n.14; Lyons, 2002 ME 137, 91:91: 34-38, 804 A.2d 364. Defendants cite to the dissent in 1~yons. The portion of

56 a. Owners' Permission

Actual permission to use the road ended with Dr. McCarty's death. There

was no express or implied permission from Ms. Sturtevant or Ms. Starbranch and

none was requested. They never would have given permission to use the road.

b. Use of Property

The claimants must have used the property "as the owner would use it,

disregarding [the owner's] claims entirely, using it as though he own[s] the

property himself." Almeder, 2014 ME 12,

omitted). Although Ms. Baribeau, Mr. Goodwin, Ms. Jensen,, Ms. Johnson, Mr.

Jackson, Ms. Merrill, Mr. Hill, Ms. Jackson, Ms. Lefavor, Ms. Skillings-Goff, Mr.

Johnson, Ms. Pontbriand, and Ms. Lester testified about the chain and about

stepping across or around the chain, their intent when crossing the chain forms

the foundation for adversity. Ms. Baribeau understood that pedestrian access on

the road was permitted. Mr. Goodwin's family owned what is now the Aspatore

property and had an easement over Cedar Beach Road. (Pls.' Ex. 45.) Ms. Jensen

interpreted the chain as a device to keep cars off the road. Ms. Johnson believed

the chain was in place to stop cars from going down the road. Mr. Jackson never

asked permission to use the road because he thought it was a public area for

many, many years, he thought the road was possibly public, someone was

maintaining it, and the road led to the beaches. Ms. Merrill never asked

permission to use the road because, traditionally, she did not think permission

was needed. Mr. Hill was never told not to use the road but he was not asked

about whether he asked for permission or whether he believed permission was

the road maintained by the Town of Mapleton was not disputed in Lyons. See Lyons, 2002 ME 137, 9[37, n.8, 804 A.2d 364.

57 required. Neither Ms. Jackson nor Ms. Lefavor asked for permission to use the

road. Ms. Skillings-Gof£ thought the road was privately owned by more than

one family, did not ask permission to use the road, and used the road. Mr.

Johnson did not ask for permission to use the road. Ms. Pontbriand did not have

permission to use the road and never knew she needed permission to use the

road. Ms. Lester enjoyed a right-of-way over the road from 1975 to 1985. At

other times when her family rented on the island, her family walked down the

Except for the testimony of Ms. Skillings-Gof£, the testimony of these other

witnesses may be insufficient to prove adversity in light of the presumption. See

Almeder, 2014 ME 12,

The court concludes, however, that the actions of other members of the public

demonstrated the requisite "hostility or antagonistic intent." Lyons, 2002 ME

137,

Starbranch, Sr., Mr. Haley, and Ms. Lester, it is clear that members of the public

engaged in loud noisy parties from at least 1962 through 1986. People used

alcohol, littered, and allowed dogs to roam and defecate, and rendered the

property a "trash heap" that required hours to clean up. The owners became

concerned about using the property themselves and about liability. They were

afraid they would lose the road and they were afraid of the people using the

road. On occasion, the Sheriff's office was called by neighbors and responded to

break up the parties; more often, the Sheriff's office was unresponsive.

The problems became so serious that members of the Haley family in

1978, 1979, or 1980 decided to erect two six-foot chain link pieces of fence in the

road. The fence was mowed down by a pick-up truck within days. Because of

58 continuing problems, the Haleys declined to take further action because, they

determined, such action would have been futile.

This conduct is sufficient to establish adversity. This use demonstrates the

public members' disregard for the owners' rights and use of the property as their

own, which the owners acknowledged and were ver~ concerned about. Lyons,

2002 ME 137,

and was clearly undertaken without permission. Almeder, 2014 ME 12,

A.3d

c. Notice to Owners their Rights in Jeopardy

Ms. Sturtevant and Ms. Starbranch were given adequate notice that their

rights were in jeopardy. They complained about people using the property, the

parties, and the littering. Their concern about the use of the road was nonstop.

Ms. Sturtevant became incensed about people accessing and using the little

beach. Ms. Sturtevant and Ms. Starbranch feared the value of their property

would be affected if they lost the road and no longer had a private road.

Plaintiffs have satisfied the Almeder and Lyons requirements. See

Almeder, 2014 ME 12,

A.2d 363). Plaintiffs have proved adversity.

(5) With the Owner's Knowledge and Acquiescence or Use So Open,

Notorious, Visible, and Uninterrupted that Knowledge or

Acquiescence Will Be Presumed

"Knowledge and acquiescence may be established either by proof of

actual knowledge and acquiescence, or by proof of a use 'so open, notorious,

visible, and uninterrupted that knowledge and acquiescence will be presumed."'

Almeder, 2014 ME 12, '1I 21, _ A.3d _(quoting Androkites v. White, 2010 ME

59 133, 9I 14, 10 A.3d 677). "Acquiescence by the owner to the use is essential ....

Acquiescence implies 'passive assent or submission to the use, as distinguished

from the granting of a license or permission given with the intention that the

licensee's use may continue only as long as the owner continues to consent to it.'

Acquiescence is 'consent by silence."' Town of Manchester, 477 A.2d at 1129-30

(quoting Pace v. Carter, 390 A.2d 505, 507 (Me. 1978) and Dartnell v. Bidwell, 115

Me. 227, 230, 98 A. 743, 745 (1916)). Breaking the silence by denials or

remonstrances is evidence of nonacquiescence. Dartnell, 115 Me. at 230, 98 A. at

745. One demonstration of nonacquiescence will interrupt a claim of prescriptive

easement. See id. (one letter sufficient evidence of nonacquiescence). Actual

interruption of claimant's use or possession is not required. Dowley v. Morency,

1999 ME 137, 9I 23, 737 A.2d 1061. Nonacquiescence may be shown by "verbal

protest alone." Noyes v. Levine, 130 Me. 151, 152, 154 A. 78, 79 (1931); see

Mumme v. Clark, 1998 Me. Super. LEXIS 132, at *11 (May 15, 1998) (conduct and

language showing landowner's resistance to claimants' use of alleged right-of-

way precluded finding of acquiescence). "Acquiescence differs from adversity in

that adversity regards the actions of the claimant, whereas acquiescence looks to

the actions of the owner." Almeder, 2014 ME 12, 9I 21, _ A.3d __j Dawley,

1999 ME 137, 9I 23, 737 A.2d 1061.

Notice or efforts to interrupt the user of the land must come from the

owner. See Mcintire v. Talbot, 62 Me. 312, 313 (1873) ("The admissibility of the

testimony of N.T. Talbot, one of the defendants, in relation to the efforts of Mr. E.

Thorndike, senior, to interrupt the user of the way in 1854, depends upon

whether Thorndike at that time had a title to the servient estate which has been

transmitted to the defendants."); Stickney, 2001 ME 69, 9I 23, 770 A.2d 592 (owner

60 never obstructed use of lane); Dawley, 1999 ME 137, 9I 24, 737 A.2d 1061 (oral

and written notice from party's attorney to discontinue use sufficient evidence of

nonacquiescence); Glidden v. Belden, 684 A.2d 1306, 1317 (Me. 1996); O'Connor

v. Beale, 143 Me. 387, 392-93, 62 A.2d 870, 873 (1948); Noyes, 130 Me. at 152, 154

A. at 78-79; Dartnell, 115 Me. at 231, 98 A. at 745.4 Tiffany Real Prop.§ 1205 (3d.

ed. 2010) ("interruption of the user by a third person is immaterial"); James W.

Ely, et al., Law of Easements & Licenses in Land§ 5:16 (2014) ('"Actions by a third

person do not interrupt an adverse usage because they do not represent an

assertion of dominion by the owner."). The notice must communicate "a demand

to quit or other statement of nonacquiescence." Dawley, 1999 ME 137, 9I 26, 737

A.2d 1061. The notice must notify those claiming an easement, in this case "the

public." See Dartnell, 115 Me. at 232, 98 A. at 745.

If use is open, notorious, visible, and uninterrupted, knowledge and

acquiescence will be presumed. Lyons, 2002 ME 137, 9I 15, 804 A.2d 364. Use is

"open" if it is "without attempted concealment." Striefel ':~ Charles-Keyt-Leaman

P'ship, 1999 ME 111, 9I 11, 733 A.2d 984 (claim of adverse possession). Use is

"visible" if it is "capable of being seen by persons who may view the premises."

Id. Use is "notorious" if "known to some who might reasonably be expected to

communicate their knowledge to an owner maintaining a reasonable degree of

supervision over his property." Id. These requirements provide the landowner

with adequate notice that his "property rights are in jeopardy." Id.

Defendants argue the following actions show nonacquiescence on the part

of the landowners:

(1) Harry Starbranch, Jr. told people not to use the road when he was six,

seven, or eight years old. Mr. Starbranch, Jr. was not the owner of the road.

61 Further, he was not the agent of the owners. See Restatement (Third) of Agency

§§ 2.01, 2.03 (2006) (setting forth the requirements for actual and apparent

authority). The owners did not know about Mr. Starbranch, Jr.'s conduct until it

was completed. When they did learn, he was told not to do this again.

(2) Harry Starbranch, Jr. testified there was a sign near the chain to deter

trespassers. Mr. Starbranch, Jr. visited Bailey Island three times as a child. His

last visit was in 1970, when he was eight years old. The testimony Ms. Baribeau,

Mr. Goodwin, Ms. Johnson, Mr. Jackson, Ms. Merrill, Ms. Skillings-Goff, Mr.

Johnson, and Ms. Lester, who walked down Cedar Beach Road for years and

never saw such signs," is accepted as the correct version of events.

(3) The chain across the road showed the owners assertion of their right to

control use of the road. The chain was installed by Dr. McCarty to deter vehicle

traffic on Cedar Beach Road after a fire that may have been caused by a car. The

low chain remained in various iterations and at various locations near the

intersection of Robinhood and Cedar Beach Roads. Based on the testimony of

Ms. Baribeau, Ms. Jensen, Ms. Johnson, Ms. Merrill, Ms. Skillings-Goff, and Ms.

Lester, the court concludes the chain's continued purpose was solely to continue

Dr. McCarty's desire to prevent vehicles from traveling down Cedar Beach Road.

Based on the testimony of Mr. Haley and Ms. Lester, the court concludes the

chain had a lock during the period when the Haleys owned property on Bailey

Island.'"

"Mr. Starbranch, Jr. saw a sign but could not remember what the sign said. Mr. Starbranch, Sr. saw no signs. Mr. Haley did not testify about seeing "no trespassing" signs. As discussed below, Mr. Haley saw cheap tin signs that read, "private property." •· The court does not accept the testimony on this issue from Mr. Johnson, who stated there never was a padlock on the chain, or from Mr., Starbranch, Sr., who stated he put a padlock on the chain to keep p~ople out.

62 (4) The photo of the metal post that supported the chain for some time

showed the remnants of the word "private" were still visible. Robert Jackson

stated that the post depicted in photograph 22 in exhibit 69 was a good distance

down the road from the posts at the head of the road. He did not see a sign near

the chain and during all the years he discussed in his testimony, he never saw

"no trespassing" or "private property" signs. Mr. Jackson was asked about the

post, not the remnants of the sign on the post.

Wendy Lefavor stated that the chain was attached to the post depicted in

photograph 22 in exhibit 69. She also stated she never saw signs on the road

during the 1960s, 1970s, and 1980s. Ms. Lefavor was asked about the post, not

the remnants of the sign on the post.

Kevin Johnson stated that the post depicted in photograph 22 in exhibit 69

looked like the rusty angle iron post the chain was attached to. He also stated

that from the late 1950s until 1973, he never saw any "no trespassing" or "keep

out" signs of any kind. Mr. Johnson was asked about the post, not the remnants

of the sign on the post.

Mark Haley stated that the chain was attached to two steel I-beams and

that photograph 22 in exhibit 69 depicted the !-beams. He also was asked about

the post, not the remnants of the sign on the post. When asked whether there

were signs at the end of the road, he stated there were cheap, white with red

paint "private property" tin signs nailed to trees.

Mr. Jackson's recollection of the post depicted in photograph 22 of exhibit

69 is reliable because his recollection was refreshed during the view on April 29,

2014. The post was located a good distance down the road from the chain near

63 the head of the road. No one identified or saw the remnants of the word

"private" on the post.

(5) Mark Haley's testimony that he remembers a "private property" sign

in 1968. As discussed above, Mr. Haley noticed a cheap white tin sign with red

paint that read, "private property." He did not testify when he saw the signs"

and he did not testify about who may have posted the signs.

(6) Mr. Haley testified he called the sheriff on multiple occasions to

remove individuals from the property. Based on this record, Mr. Haley never

owned property on Bailey Island.

(7) Testimony from plaintiffs and Mark Haley regarding a fence across the

road during the late 1970s intended to stop pedestrian use of the road. In 1978,

1979, or 1980, this fence was erected by Mr. Haley's father, brother, cousin, and

Mr. Haley. Based on this record, these individuals did not own Cedar Beach

Road.•

In his affidavit, Mr. Johnson discussed this fence and stated, "In 1979, an

owner of property on Cedar Beach Road, I think it was Meredith Starbranch,

erected a fence .... " His thought was clearly not correct on this record. In her

affidavit, Ms. Pontbriand discusses the fence but does not identify any person

she believes erected the fence.

(8) The 1979letter from Julia Sturtevant to Sheriff SharRe.

This letter was admitted over plaintiffs' objection as an ancient document

pursuant to Rule 803(16)." M.R. Evid. 803(16). As discussed at trial, there is a

difference between the admissibility of evidence and the weight to be given to

" Previously, he testified about I-beams present when his parents purchased the property. No time frame was requested or discussed with regard to the signs. " Authenticity was not disputed.

64 the evidence. There is no other evidence in the record about this letter.,,

Although defendants argue, "evidence that a letter was mailed raises a

presumption of receipt by the addressee," there is no evidence in this record as to

whether the letter was mailed. Accordingly, there is no evidence that those using

the road received notice of nonacquiescence. See Dartnell, 115 Me. at 232, 98 A.

at 745; Dowley, 1999 ME 137, 9I 24, 737 A.2d 1061. The court has not considered

the affidavit of Marlene Grimes, submitted by plaintiffs and the Abrahamson

defendants in support of, and in opposition to, plaintiffs' motion for partial

summary judgment dated 12/5/13. (Defs.' Mem. 7, n.S.) The affidavit was not

offered into evidence at trial and likely would have been subject to objection."

(9) 1962 Notice

By statute, "a landowner may prevent others from acquiring rights

through adverse use by posting a notice as follows

If a person apprehends that a right-of-way or other easement in or over his land may be acquired by custom, use or otherwise by any person, class of persons or the public, he may give public notice of his intention to prevent the acquisition of such easement by causing a copy of such notice to be posted in some conspicuous place upon

,, On the last day of trial, 5129114, defendants sought unsuccessfully to introduce documents defendants received from the Town of Harpswell, and provided to plaintiffs' counsel the previous evening. Defendant Gables Real Estate, LLC's counsel represented he had been seeking the documents for weeks. The first complaint was filed 10 I 1241 12; discovery ended 11 I 5 I 13. These documents were not newly discovered evidence and should have been requested by defendants long before several weeks before trial. " Defendants argue the court may take judicial notice of "pleadings, dockets, and other records of that court in the same or in other lawsuits." (Defs.' Br. 7, n.5); Field & Murray, Maine Evidence § 201.3 at 57 (6th ed. 2007) (citing Finn v. Lipma1:1 526 A.2d 1380 (Me. 1987)). In Finn, the husband sued the wife's divorce attorney. The court properly took judicial notice of the underlying divorce action. Finn, 526 A.2d at 1381. It is unlikely an affidavit, filed in a summary judgment proceeding, would be an appropriate subject of judicial notice at trial. See M.R. Civ. P 56(c) & (e). In any event, there was no request at trial for the court to take judicial notice. If there had been, the rule allows the opposing party an opportunity to be heard upon request. M.R. Evid. 201(d) & (e). "Plaintiffs argue section 812 must be strictly construed. See Foisy v. Bishop, 232 A.2d 797, 799 (Me. 1967); Farrell v. Farrell, 118 Me. 441, 441, 108 A. 648, 649 (1920).

65 the premises for 6 successive days .... A certificate'" by an officer qualified to serve civil process that such copy has been served or posted by him as provided, if made upon original notice and recorded with it, within 3 months after the service or posting in the registry of deeds for the county or district in which the land lies, shall be conclusive evidence of such service or posting.

14 M.R.S. § 812 (2013).

The affidavit of Meredith Starbranch provides, in part:

MEREDITH KELLS STARBRANCH, who being by me duly sworn, declared to me: That in accordance with Chapter 174, Section 12 of the Maine Revised Statutes, she had posted two notices of her intention to prevent the acquisition of a right-of-way or other easement in or over her land in conspicuous places upon her land commonly known as the "Ridge" property, that being the lot of approximately 2 % acres on the eastern shore of Fresh Water Cove ... this declaration is made upon her best information and belief, so help her God.

(Pls.' Ex. 78.)

This affidavit was offered by defendant Gables Real Estate, LLC as an

ancient document pursuant to M.R. Evid. 803(16)." The affidavit was admitted

over objection."' During trial on 5/28/14, plaintiffs filed a brief supporting their

continuing objection to the admissibility of the affidavit. It was agreed

defendants would respond to plaintiffs' argument in their post-trial brief. (Defs.'

Br. 2-4.)

'"There is no certificate in this case. (Order on Pls. and Defs.' Mot. for Summary Judgment dated 5/1/14 at 5.) x; At trial, defendants offered exhibit 78 pursuant to M.R. Evid. 803(6), (8), and (16).

Defendants now rely on Rule 803(14) in their post-trial brief. M.R. Evid. 803(14); (Defs.' Br. 2.) That rule was not relied on at trial by defendants and plaintiffs have not had the opportunity to address that rule. This rule does not appear to apply to this notice, as opposed to a deed or other "document purporting to establish or affect an interest in property." M.R. Evid. 803(14). Further, the advisory committee notes provide, "the record is merely made admissible without giving it presumptive force. If there is a genuine controversy, more persuasive evidence should be sought." Field & Murray, supra,§ 803.14 at 463. There is a genuine controversy on this record. "The authenticity of the affidavit was not disputed.

66 Rule 803 does not dispense with the requirement of firsthand knowledge,

which "may appear from [the] statement or be inferable from the circumstances."

Fed. R. Evid. 803 advisory committee's note; see Brumley v. Albert E. Brumley &

Sons, Inc., 727 F.3d 574, 579 (6th Cir. 2013); Columbia First Bank, FSB v. United

States, 58 Fed. Cl. 333, 337 (Fed. Cl. 2003) (citing Fed. R. Evid. 803 advisory

committee's note); Casco N. Bank, N.A. v. Estate of Grosse, 657 A.2d 778, 781

(Me. 1995) (although affidavit did not state it was made on personal knowledge,

the affidavit shows affiant had had personal knowledge).

a. Personal Know ledge

Ms. Starbranch had no personal knowledge of the posting described in her

affidavit and, contrary to defendants' argument, personal knowledge cannot be

inferred under the circumstances on this record. See Columbia First Bank, FSB,

58 Fed. Cl. at 337. Ms. Starbranch was in Texas during the entire year of 1962.

The information that appears in the affidavit was transmitted from Ms.

Sturtevant. For these reasons, Ms. Starbranch's attorney husband, Mr.

Starbranch, Sr., added the "information and belief" language in the affidavit.

Defendants' further arguments that Ms. Starbranch caused her agent to

post the property, confirmed the posting, and confirmed the photographs were

on her property are not supported by this record. (Defs.' Br. 3.) Similarly,

defendants' argument that the "portions of the affidavit related to the location of

the posted signs, their content, and the photographs themselves are clearly

admissible" because Ms. Starbranch was familiar with her property and was

qualified to verify the signs were on her property also is not supported by this

record. See,~ State v. Sargent, 361 A.2d 248, 251 (Me. 1976) ("The foundation

67 for admission of a photograph into evidence may properly be laid by any witness

who knows that it fairly represents what it purports to represent.").

The circumstances surrounding the affidavit are troubling. It is

unexplained on this record why Ms. Sturtevant engaged in the artifice of Ms.

Starbranch's posting the property instead of Ms. Sturtevant's posting the

property herself. This apparent unnecessary procedure, dictated by Ms.

Sturtevant, resulted in the recording in the registry of deeds of a document

containing incorrect Information. (Pls.' Ex. 78 ("MEREDITH KELLS

STARBRANCH, who being by me duly sworn, declared to me ... she had posted

two notices ....").) Based on Ms. Starbranch's lack of personal knowledge and

the dubious method requested by Ms. Sturtevant, the court accords no weight to

exhibit 78."

Based on this record and the circumstances surrounding the affidavit, the

court concludes that Mr. Starbranch, Sr.'s testimony that Ms. Sturtevant, her

husband, and Ms. Starbranch said they wanted to post the road does not make it

more likely than not that the property was posted. No witness in this trial

testified that he or she saw a sign like that depicted in the photographs attached

to the affidavit. (Pls.' Ex. 78.) Ms. Skillings-Goff's testimony was particularly

credible on this issue: if the property had been posted as the defendants suggest,

there would have been public outrage and there would have been an issue in h~r

own family about whether she, who has used the beaches every year of her life,

could continue that use.

"In hindsight and after research, the court concludes exhibit 78 should not have been admitted. As discussed, although admitted, the court gives no weight to the affidavit.

68 b. Location of Posting

In addition to the affidavit signed by Ms. Starbranch, about which she had

no personal knowledge, Mr. Starbranch, Sr. signed a deed about which he had no

recollection. (Pls.' Ex. 11.) The deed references the "Ridge lot ... which consists

of approximately 2% acres on the eastern shore of Fresh Water Cove." (Pls.' Ex.

11.) Mr. Starbranch, Sr. had no knowledge of a ridge lot. The affidavit provides

the notices were posted on the '"Ridge property', that being the lot of

approximately 2% acres on the eastern shore of Fresh Water Cove." (Pis.' Ex. 78.)

The Cedar Beach Road parcel comprised approximately .28 acres. (Pis.' Exs. 9;

10.)

Assuming the 1962 notice was posted, which the court concludes has not

been proved, the conclusion that the posting was on the Ridge property and not

on Cedar Beach Road is supported by the language in the deed signed by Mr.

Starbranch, Sr. and the Meredith Starbranch affidavit; the separate description of

parcels I and II in the deeds, the testimony of Mr. Goodwin, Ms. Baribeau, Ms.

Johnson, Mr. Jackson, Ms. Merrill, Mr. Hill, Ms. Lefavor, and Ms. Pontbriand

about the Ridge property; the testimony of Mr. Jackson and Mr. Johnson about

the background of the photographs; and Ms. Sturtevant and Ms. Starbranch' s

ongoing concern about the small beach.

Based on the testimony of Ms. Baribeau, Mr. Goodwin, Ms. Jensen, Ms.

Johnson, Mr. Jackson, Ms. Merrill, Mr. Hill, Ms. Lefavor, Ms. Skillings-Goff, Mr.

Johnson, and Ms. Lester, plaintiffs have proved actual acquiescence on the part

of Ms. Sturtevant and Ms. Starbranch.

69 B. Affirmative Defenses

The Abrahamson defendants asserted the following affirmative defenses:

failure to state a claim; standing; contrary to public policy; laches; reference to

any and all affirmative defenses and waiver of none; barred by the 1962, 1987,

and 1989 notices; abandonment; statute of limitation; and easement by custom

not recognized. Defendant Gables Real Estate, LLC asserted the following

affirmative defenses: failure to state a claim; standing; contrary to public policy;

laches; statute of limitation; barred by 1962, " 1987, and 1989 notices;

abandonment; reservation of rights; and easement by custom not recognized.

Plaintiffs do not dispute the efficacy of the 1987 and 1989 notices.

Plaintiffs withdrew count II of their amended complaint, the claim for acquisition

of an easement by custom. Almeder, 2014 ME 12,

5/9/14 at 1, n.1.) No further affirmative defenses were added or discussed. The

defenses of failure to state a claim and that the plaintiffs' claims are contrary to

public policy were not discussed or pursued at trial and are not addressed in

defendants' post-trial brief."

1. Laches

"Laches is the omission to assert a right for an unreasonable and

unexplained length of time and under circumstances prejudicial to the adverse

party." Longley v. Knapp, 1998 ME 142,

R.R. Trainmen, 148 Me. 95, 99, 90 A.2d 717, 720 (1952) (laches applies "when it

,, This affirmative defense is discussed above. " The defense of the statute of limitations was also not addressed in defendants' post- trial brief and their position is unclear. As discussed with regard to laches, any judicially recognizable injury occurred when Mr. Abrahamson erected the barrier in 2011. See Johnston v. Dow & Coulombe, Inc., 686 A.2d 1064, 1065-66 (Me. 1996); see also 14 M.R.S. § 812; Almeder, 2014 ME 12,

70 would be inequitable to enforce the right."); see also Stewart v. Grant, 126 Me.

195, 201, 137 A. 63, 66 (1927) ("If by the laches and delay of the complainant it has

become doubtful whether the opposing parties can be in a position to produce

evidence necessary to a fair presentation of their case, or if they are deprived of

any just advantage which they might have had before the claim became stale and

antiquated, the court in equity will deal with the claim as if barred.")

In this case, as in Longley, plaintiffs used the road for years until the road

was blocked. They had no reason to seek declaratory relief until that time.

Accordingly, their failure to assert their right to use the road was not

unreasonable or unexplained and application of laches is not appropriate.

Longley, 1998 ME 142,

A.2d 364 (after defendant erected barrier across road, plaintiffs brought suit

alleging a public easement by prescription had been acquired).

2. Standing

In the order of 5 I 9 I 14 on defendant Gables Real Estate, LLC' s motion for

summary judgment, the court addressed the issue of standing and proof at trial.

"Whether a party has standing to bring a claim is a jurisdictional question." N. E.

Ins. Co. v. Young, 2011 ME 89,

explained:

Litigants normally may not assert the rights of third parties but must demonstrate that they have received some particularized injury in order to have standing to raise their claim. A person has suffered a particularized injury when the other party's actions have adversely and directly affected that party's property, pecuniary or personal rights.

Id. (internal citations and quotations omitted); see Halfway House, Inc. v. City of

Portland, 670 A.2d 1377, 1379 (Me. 1996) ("Standing to sue means that the party,

71 at the commencement of the litigation, has sufficient personal stake m the

controversy to obtain judicial resolution of that controversy.").

In Flaherty, the Law Court observed that it had "decided numerous cases

regarding acquisition of prescriptive easements by individuals and the public."

Flaherty, 2011 ME 32, <[ 81, 17 A.3d 640 (citing Lyons, 2002 ME 137, <[ 22 n.5, 804

A.2d 364; Blackmer v. Williams, 437 A.2d 858 (Me. 1981); Town of

Kennebunkport v. Forrester, 391 A.2d 831 (Me. 1978)); see alSQ Shadan v. Town

of Skowhegan, 1997 ME 187, <[<[ 6-7, 700 A.2d 245; S.D. Warren Co., 1997 ME 161,

<[ 17, 697 A.2d 1280.

The court concluded plaintiffs alleged an injury distinct from that of the

general public because they alleged they used Cedar Beach Road to access the

beach, that use had been denied, and they believed they have the right to

continued use of the road. (Am. Compl. <[<[ 1-2, 5, 7-8 13, 31.) The court

concluded also that at trial, plaintiffs must show "use by people who are 'not

separable from the public generally."' S.D. Warren Co., 1997 ME 161, <[ 17, 697

A.2d 1280 (quoting Forrester, 391 A.2d at 833 n.2); see also Stickney, 2001 ME 69,

<[ 18, 770 A.2d 592 ("[T]he test of a public use is the use of the road by people

who are inseparable from the public generally .... "). That issue is discussed

above.

The entry is

The public has acquired a prescriptive easement over Cedar Beach Road, which is parcel II as described in a deed from Charles H. Abrahamson and Sally M. Abrahamson to Charles M. Abrahamson and Sally M. Abrahamson as Trustees of the Charles H. Abrahamson Living Trust dated June 13, 2003, and any amendments thereto, and Charles H. Abrahamson and Sally M. Abrahamson as Trustees of the Sally M. Abrahamson Living Trust, dated June 13, 2003, and

72 any amendments thereto. This deed is dated August 2, 2005 and is recorded in the Cumberland County Registry of Deeds in Book 23002, Page 280.

Date: September 15, 2014 Nancy Mills Justice, Superior C

RE-12-392

Plaintiffs: David Bertoni, Esq. Anne Torregrossa, Esq.

Defendants & Christian Chandler, Esq. Intervenor Benjamin Leoni, Esq. Sidney Thaxter, Esq. Gerald Schofield, Esq.

73 c CENI £ RED NOV 0 7 1014

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CMLACTION Docket No. RE-12-392 / NM-(/U.fV)- 5-4- 14

Plaintiffs ORDER ON DEFENDANT v. GABLES'S MOTION FOR SUMMARY JUDGMENT CHARLES H. ABRAHAMSON, et al.,

Defendants and

Before the Court is defendant Gables's motion for summary judgment.

Gables makes two related arguments: (1) plaintiffs lack standing to sue on behalf

of the general public; and (2) even if plaintiffs had standing to sue at the

commencement of litigation, their claim is moot based on the settlement of a

companion case that excludes the general public from using Cedar Beach. For

the following reasons, the motion is denied.

BACKGROUND

In their amended complaint, plaintiffs seek a declaratory judgment that

the public has acquired a right to use Cedar Beach Road on Bailey Island in

Harpswell, Maine by prescription (count I) or custom 1 (count II). Plaintiffs

include Cedar Beach/ Cedar Island Supporters, Inc., an entity "made up of 1 Easement by custom has never been recognized as a viable cause of action in Maine. See Almeder v. Town of Kennebunkport, 2014 ME 12,

members of the public who have previously enjoyed passage to Cedar Beach and

Cedar Island by way of Cedar Beach Road, whose passage over Cedar Beach

Road has recently been denied, and who are of the opinion and belief that they

have a right to the continued use of Cedar Beach Road." (Am. Compl.

Add. S.M.F. 'li 1.) Plaintiffs also include several individuals who "previously

enjoyed regular passage to Cedar Beach and Cedar Island by way of Cedar Beach

Road." (Am. Compl. 'll'll 3-5, 7-8.) Some of the plaintiffs in this case were also

plaintiffs in a related case, Cedar Beach/ Cedar Island Supporters, Inc. v.

Aspatore, Cumberland Superior Court Docket No. CV-2013-344. (Supp. S.M.F. 'li

5; Opp. S.M.F. 'li 5.)

The Aspatore case has settled. (Gables S.M.F. 'li 8.) The settlement

agreement was conditioned on the acceptance of a public access easement on the

Aspatore land by the Town of Harpswell, which has since been effected. (Gables

S.M.F.

deed, the Aspatore defendants are required to deed an easement "for the benefit

of the Inhabitants of the Town of Harpswell." (Gables S.M.F. 'li 11.) The terms of

the settlement agreement, as reflected in the proposed deed, also specify that use

of the easement area is "limited to the Town, Town residents and their guests

and Town non-resident taxpayers and their guests (meaning to include bed and

breakfast guests and motel guests)." (Gables S.M.F. 'li 12.) The Town is required

to develop and implement a mechanism to reasonably ensure use of the

easement area by authorized users only." (Pls.' Opp. S.M.F. 'li 15.)

PROCEDURAL HISTORY

On October 24, 2012, plaintiffs filed their complaint. An amended

complaint was filed on April 3, 2013. Defendants Abrahamsons and Gables

2 ( ( __

raised the affirmative defense of standing in their answers. Defendant Gables

filed a motion for leave to file a motion for summary judgment, which was

granted on April 11, 2014. Plaintiffs' motion for leave to file a surreply in

opposition to the defendant motion for summary judgment was granted on

5/7/14.

DISCUSSION

Gables argues both standing and mootness in its motion for summary

judgment. "Standing and mootness are closely related concepts describing

conditions of justiciability." Madore v. Maine Land Use Regulation Comm'n,

1998 ME 178, 9[ 8, 715 A.2d 157. "Standing to sue means that the party, at the

commencement of the litigation, has sufficient personal stake in the controversy

to obtain judicial resolution of that controversy." Halfway House, Inc. v. City of

Portland, 670 A.2d 1377, 1379 (Me. 1996). "When a party initially holds the

requisite personal interest, but is later divested of that interest" the doctrine of

mootness applies. Madore, 1998 ME 178, 9[ 8, 715 A.2d 157. In deciding these

issues on a motion for summary judgment, the court views the facts "in the light

most favorable to the plaintiffs as the nonmoving party." Lougee Conservancy v.

CitiMortgage, Inc., 2012 ME 103, 9[ 2, 48 A.3d 774.

1. Standing

"Whether a party has standing to bring a claim is a jurisdictional

question." North East Ins. Co. v. Young, 2011 ME 89, 9[ 11, 26 A.3d 794. As the

Law Court has explained:

Litigants normally may not assert the rights of third parties but must demonstrate that they have received some particularized injury in order to have standing to raise their claim. A person has suffered a particularized injury when the other party's actions have adversely and directly affected that party's property, pecuniary or personal rights.

3 c- c ld. (internal citations and quotations omitted).

The Law Court has never explicitly addressed whether an individual or

private entity has standing to bring a claim for a public prescriptive easement.

See Lyons v. Baptist Sch. of Christian Training, 2002 ME 137, <[[ 22 n.S, 804 A.2d

364. Without ruling on standing, the Lyons court noted:

"(1) a public easement could be asserted by an individual as a defense to a trespass action, and (2) a declaratory judgment action, M.R. Civ. P. 57, would appear to be available to private individuals and entities where they have been barred from access to ways on lands that they previously used and, in good faith, believe they can continue to use due to a private or public prescriptive easement."

ld. In several cases, the Law Court has ruled on the merits of a claim by a private

individual for a public prescriptive easement without addressing standing. Id.

<[[<[[ 26-31; Shadan v. Town of Skowhegan, 1997 ME 187, <[[<[[ 6-7, 700 A.2d 245;

S.D. Warren Co. v. Vernon, 1997 ME 161, <[[ 17, 697 A.2d 1280.

Gables's argument proceeds from the premise that plaintiffs must

represent the general public to bring a declaratory judgment seeking a public

prescriptive easement. To have standing, plaintiffs must allege that they have

suffered a particularized injury different from that incurred by the general

public. Buck v. Town of Yarmouth, 402 A.2d 860, 861 (Me. 1979). At trial,

plaintiffs must show "use by people who are 'not separable from the public

generally.'" S.D. Warren Co., 1997 ME 161, <[[ 17, 697 A.2d 1280 (quoting

Inhabitants of the Town of Kennebunkport v. Forrester, 391 A.2d 831, 833 n.2

(Me. 1978)); see also Stickney v. City of Saco, 2001 ME 69, <[[ 18, 770 A.2d 592

("[T]he test of a public use is the use of the road by people who are inseparable

from the public generally ...."). Plaintiffs are not required to raise an issue of

4 c (

fact regarding this element of their case at this stage to survive a motion for

summary judgment with regard to standing.

The plaintiffs in this case have raised an issue of fact regarding standing.

They allege that they have used Cedar Beach Road to access the beach, that use

has recently been denied, and they believe they have the right to continued use

of the road. (Am. Compl. '['[ 15, 6-9, 13; Pls.' Add. S.M.F. '[ 1.) Because plaintiffs

have alleged an injury distinct from that of the general public, they have raised

an issue of fact regarding standing to bring a claim for a public prescriptive

easement.

2. Mootness

Gables next argues that, even if plaintiffs had standing at the

commencement of the suit, their claim is now moot because of the settlement in

the Aspatore case. The test for mootness is "whether there remain sufficient

practical effects flowing from the resolution of the litigation to justify the

application of limited judicial resources." Halfway House, Inc., 670 A.2d at 1380

(quoting Employee Relations v. Labor Relations Bd., 655 A.2d 326, 327-28 (Me.

1995)). A case is moot "if the passage of time and the occurrence of events

deprive the litigant of an ongoing stake in the controversy although the case

raised a justiciable controversy at the time the complaint was filed." Halfway

House, Inc., 670 A.2d at 1379-80 (emphasis added).

In spite of the settlement in the Aspatore case, plaintiffs have raised an

issue of fact regarding their having an ongoing stake in the controversy. If they

prevail in this case, plaintiffs will be able to use Cedar Beach Road to access and

use the beach as provided by the settlement agreement in the Aspatore case. The

5 ( c fact that the general public may be precluded from using the beach does not

render plaintiffs' claim moot.

Defendant Gables's Motion for Summary Judgment is DENIED.

Date: May 9, 2014 ancy Mills Justice, Superio

6 DAVID BERTONI ESQ ANN TORREGROSSA ESQ BRANN & ISAACSON - PJ t PO BOX 3070 LEWISTON ME 04243-303

RICHARD ABBONDANZA ESQ GERALD SCHOFIELD JR ESQ l_;J6 HOPKINSON & ABBONDANZA 511 CONGRESS ST SUITE 801 PORTLAND ME 04101

CHRISTIAN CHANDLER ESQ --r""" J..,_,--..~,, d r CURTIS THAXTER PO BOX 7320 PORTLAND ME 04112-7320 \ -

( £ NTERED NOV 0 5 2014 C_

STATE OF MAINE CUMBERLAND, ss

CEDAR BEACH/CEDAR ISLAND SUPPORTERS, INC., et al.,

Plaintiffs ORDER ON PLAINTIFFS v. AND DEFENDANTS' MOTION FOR PARTIAL CHARLES H. ABRAHAMSON, SUMMARY JUDGMENT et al.,

Before the court is plaintiffs' motion for partial summary judgment.

Plaintiffs argue defendants cannot raise a genuine issue of material fact

regarding whether a notice posted in 1962 on property now owned by the

Abrahamson defendants prevented the public from acquiring an easement by

prescription over a portion of Cedar Beach Road on Bailey Island in Harpswell,

Maine. Plaintiffs ask for a ruling that the 1962 notice does not apply to the Cedar

Beach Road. Defendants ask for a ruling that the notice does apply to Cedar

Beach Road. For the following reasons, the motions are denied.

In their amended complaint, plaintiffs seek a declaratory judgment that

the public has acquired a right to use Cedar Beach Road on Bailey Island by (

prescription, count I, or custom, count II. In defendants' answers, the 1962 notice

is raised as an affirmative defense to the acquisition of a prescriptive easement.

In 1957, Julia Sturtevant and Meredith Starbranch acquired a cottage and

all the land surrounding the cottage and adjoining Cedar Beach Road on Bailey

Island. (Supp. S.M.F. errerr 1-2.) In 1961, Ms. Sturtevant and Ms. Starbranch

acquired Cedar Beach Road; the deeds contain the language, "subject to the

rights of others in common to use said Beach Road as a right of way." (Supp.

S.M.F. errerr 8-11.) On December 27, 1961, Ms. Sturtevant and Ms. Starbranch

conveyed a portion of their land and a right of way over Cedar Beach Road to

Margaret E. Seamans. (Supp. S.M.F. errerr 12-13.) Ms. Sturtevant and Ms.

Starbranch retained a 2.71 acre parcel, referred to as the "Ridge Lot" in the

Seamans deed. (Supp. S.M.F. err 14.) The deed to Ms. Seamans contained language

that the grantors reserved rights to connect utilities, "to two houses on the Ridge

Lot, the area retained by the Grantors, and buy water service ... if at any time in

the future houses are built on said retained area which consists of 2 %acres on

the eastern shore of Fresh Water Cove." (Supp, S.M.F. err 15.) The deed also

contained language that referred to Cedar Beach Road as a parcel separate from

the Ridge Lot. (Supp. S.M.F. err 16.)

In September 1962, Ms. Starbranch posted a "Notice to Prevent

Acquisition of Right of Way or Easement" on her property and filed the notice in

the Cumberland County Registry of Deeds. 1 (Supp. S.M.F. err 19.) In her affidavit,

Ms. Starbranch states she posted notices, "to prevent acquisition of a right-of-

1 Defendants dispute whether the notice was posted solely for the Ridge lot but do not dispute that Ms. Starbranch posted a notice on her property. (Abrahamsons' Opp. S.M.F. 9I 19; Gables's Opp. 9I 19.) 2 Defendant Gables owns a deeded easement over Cedar Beach Road. (Gables's Add. S.M.F. <[ 46.) 3 The operative law in 1962 was identical to current law. R.S. ch. 174, § 12 (1954). The

2 ( (

way or other easement in or over her land in conspicuous places upon her land

commonly known as the 'Ridge' property, that being the lot of approximately 2

3/4 acres on the shore of Fresh Water Cove." (Supp. S.M.F.

Opp. S.M.F.

photographs. (Abrahamson & Gables Add. S.M.F.

Eisenstein Aff. Ex. G.) There was a chain across Cedar beach Road connecting

two posts during the 1962 notice period. (Abrahamsons & Gables's Add. S.M.F

On October 24, 2012, plaintiffs filed their complaint, which they amended

on April 3, 2013. Defendant Gables, LLC2 filed a motion to intervene, which was

granted on April 8, 2013. Plaintiffs filed their motion for partial summary

judgment on December 5, 2013. Defendant Gables and defendants Abrahamsons

filed separate oppositions to plaintiffs' motion for summary judgment. On April

11, 2014, the Court granted defendant Gables's motion to supplement the

summary judgment record with the affidavit of Harry Starbranch, the son of

Meredith Starbranch.

1. Standard of Review

Under Rule 56, a party may move for summary judgment on a claim "or

any part thereof." M.R. Civ. P. 56(a). "Summary judgment is appropriate when

there is no genuine issue of material fact that is in dispute and, at trial, the parties

would be entitled to judgment as a matter of law." Fitzgerald v. Hutchins, 2009

2 Defendant Gables owns a deeded easement over Cedar Beach Road. (Gables's Add. S.M.F. 9I 46.)

3 (

ME 115, err 9, 983 A.2d 382 (citing Dyer v. Dep't of Transp., 2008 ME 106, err 14, 951

A.2d 821). "An issue is genuine if there is sufficient evidence supporting the

claimed factual dispute to require a choice between the differing versions; an

issue is material if it could potentially affect the outcome of the matter." Brown

Dev. Corp. v. Hemond, 2008 ME 146, err 10, 956 A.2d 104 (citing Univ. of Me.

Found. v. Fleet Bank of Me., 2003 ME 20, err 20, 817 A.2d 871).

Defendants "bear the burden of making a prima facie showing of each

element of" their defense. Rutland v. Mullen, 2002 ME 98, err 8, 798 A.2d 1104; see

also Martinez-Rodriguez v. Guevara, 597 F.3d 414, 419 (1st Cir. 2010) ("With

respect to each issue on which the nonmoving party has the burden of proof at

trial, that party must 'present definite, competent evidence to rebut the

motion."') To avoid summary judgment, the non-moving party cannot rely

"merely upon conclusory allegations, improbable inferences, and unsupported

speculation." Dyer, 2008 ME 106, err 14, 951 A.2d 821 (quoting Vives v. Fajardo,

472 F.3d 19, 21 (1st Cir. 2007)).

2. 1962 Notice

By statute, a landowner may prevent others from acquiring rights through

adverse use by posting a notice as follows:

If a person apprehends that a right-of-way or other easement in or over his land may be acquired by custom, use or otherwise by any person, class of persons or the public, he may give public notice of his intention to prevent the acquisition of such easement by causing a copy of such notice to be posted in some conspicuous place upon the premises for 6 successive days .... A certificate by an officer qualified to serve civil process that such copy has been served or posted by him as provided, if made upon original notice and recorded with it, within 3 months after the service or posting in the registry of deeds for the county or district in which the land lies, shall be conclusive evidence of such service or posting.

4 ( c 14 M.R.S. § 812 (2013). 3 In this case, there is no "certificate by an officer qualified

to serve civil process," which would be "conclusive evidence" of posting. (Supp.

S.M.F.

that the 1962 notice was "posted in some conspicuous place upon the premises

for 6 successive days" to avoid summary judgment. 14 M.R.S. § 812.

Plaintiffs argue the evidence shows Cedar Beach Road and the Ridge lot

are separate parcels. They argue that, because the 1962 notice refers only to the

Ridge lot, the notice did not prevent the public from acquiring rights over Cedar

Beach Road. Plaintiffs support this argument by stating the Road lot and the

Ridge lot, if taken together, would constitute approximately 3 acres. 4 The notice

references a 2 3 I 4 acre lot, which is closer in size to the 2.71 acres of the Ridge lot

alone.

Defendants claim the notice applied to all of Ms. Starbranch' s property,

including Cedar Beach Road. (Abrahamsons & Gables's Opp. S.M.F.

argue first that the statute does not require a precise description of the land

posted. 14 M.R.S. § 812. The statute requires a person who is concerned about

an easement "in or over his land" to post a notice is some conspicuous place. In

her affidavit, Ms. Starbranch states she "posted two notices of her intention to

prevent the acquisition of a right-of-way or other easement in or over her land in

conspicuous places .... " The affidavit itself raises a genuine issue of material

fact regarding whether the notice applied to Cedar Beach Road.

3 The operative law in 1962 was identical to current law. R.S. ch. 174, § 12 (1954). The current statute is cited in this order for convenience. 4 Defendants argue plaintiffs cannot establish the size of the Cedar Beach Road parcel because they failed to designate an expert surveyor. The dimensions of the parcel are clear from the facts, however, and it is a simple calculation from those dimensions to determine the size of roughly 0.28 acre. (Supp. S.M.F. ']I 7; Eisenstein Aff. ']I 11.)

5 ( (

Defendants also argue that because the Road lot abutted and is contiguous

to the remainder of the Sturtevant/ Starbranch property, the lots merged. See

Fitanides v. Holman, 310 A.2d 65, 67 (Me. 1973). Accordingly, defendants argue

the notice applied to all of the Sturtevant/ Starbranch land. Plaintiffs filed a

motion to strike this legal argument pursuant to Rule 12(f). M.R. Civ. P. 12(f); see

also M.R. Civ. P. 56(i)(1). Rule 12(f) applies to pleadings. Further, defendants are

not proposing a new cause of action; they are stating the law. Defendants have

not waived the ability to argue the law.

Defendants next rely on the proposed expert testimony of Attorney

Ronald Bissonnette. Defendant Gables designated real estate attorney Ronald

Bissonnette as an expert. After reviewing the documents in this case, he opined:

"a prudent attorney skilled and experienced in examining title could not

conclude that the 1962 Notice does not encompass, include, or refer to the earth

described as the Beach Road owned by Meredith Kells Starbranch and Julia

Sturtevant at the time of the 1962 Notice." (Abrahamson Add. S.M.F.

Add. S.M.F.

the Beach Road, thereby foreclosing any opportunity to claim an easement .... "

(Abrahamson Add. S.M.F.

[1979] letter leads me to conclude that the 1962 notice was intended to include

the Beach Road, although that is a factual determination that I would leave to the

factfinder." (Pls.' Am. Reply S.M.F.

Under Rule 702 of the Maine Rules of Evidence, if "specialized knowledge

will assist the trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert ... may testify thereto in the form of an

opinion or otherwise." M.R. Evid. 702. "Although the expert need not be able to

6 ( (

state his opinion with any special degree of certainty, he must be able to provide

some insight beyond the kind of judgment an ordinarily intelligent juror can

exert." State v. Woodburn, 559 A.2d 343, 346 (Me. 1989). When applying Rule

702, "the trial court must consider whether the matter is beyond common

knowledge so that the untrained juror will not be able to determine it

intelligently and whether a person with specialized knowledge can give a helpful

opinion." Pelkey v. Canadian Pac. Ltd., 586 A.2d 1248, 1254 (Me. 1991). The issue

is whether a "notice [was] posted in some conspicuous place upon the premises

for 6 successive days." That matter is not beyond common knowledge. 5

Finally, defendants rely on the supplemental affidavit of Harry

Starbranch, Meredith Starbranch's son. Although Attorney Starbranch does not

have personal knowledge of the 1962 posting, he states in his affidavit that his

family "consistently and regularly attempted to prevent the general public from

using Cedar Beach Road as an access to Merry's Cove or Cedar Beach .... " (H.

Starbranch Aff.

"the only access to the cove or the beach was along the road." (H. Starbranch Aff.

has been raised regarding whether the 1962 posting to apply to Cedar Beach

Plaintiffs' Motion for Partial Summary Judgment 1s DENIED.

5 Even assuming specialized know ledge would help the trier of fact in this case, Attorney Bissonnette's, testimony provides only that there is an issue of fact as to whether the notice applies to Cedar Beach Road. His testimony is insufficient to support a summary judgment in favor of the defendants, as they request. (Gables's Mem. at 8-9; Abrahamson Mem. at 11.)

7 ( (

Defendants' Motion for Partial Summary Judgment is DENIED.

Date: May 1, 2014 ancy Mills Justice, Superior

8 DAVID BERTONI ESQ ANNE TORREGROSSA ESQ BRANN & ISAACSON PO BOX 3070 LEWISTON ME 04243-303

CHRISTIAN CHANDLER ESQ c.0_, CURTIS THAXTER PO BOX 7320 PORTLAND ME 04112-7320 6

RICHARD ABBONDANZA ESQ GERALD SCHOFIELD JR ESQ HOPKINSON & ABBONDANZA 511 CONGRESS ST SUITE 801 PORTLAND ME 04101