Apparently (if the level of media coverage is any measure), the question of public access to beaches is a big thing in Maine:
- After Harpswell court case, public use surges on beaches
- Opponent of Harpswell beach access puts property up for sale
- Maine’s high court hears arguments in beach access case in Harpswell
- Maine high court reverses decision giving public access to Harpswell beach
- Owner of Harpswell beach road says it will remain open — for now
This question has also already resulted in a couple of decisions which we’ve covered:
- Maine: On Second Thought, We Were Right When We Said That Beach Property Is Not Subject To Special Rules
- New Cert Petition: By Upholding Public Beach Road Access, Maine Supreme Court Judicially Took Our Driveway
And here’s the latest, an opinion from the Maine Supreme Judicial Court, Cedar Beach/Cedar Island Supporters, Inc. v. Gables Real Estate LLC, No. Cum-14-531 (July 19, 2016). The court concluded that the owners of the road had not acquiesced in light of Maine law’s presumption that the owner has granted the public permission to use uncultivated land for recreational use. To rebut the presumption, the party claiming a public prescriptive easement must show 20 years of continuous public use.
The trial court agreed with the claimants, concluding that they showed adversity and acquiescence because of the history of “loud parties” on the beach, the fact that the public littered on the road, and because a chain-link fence erected 40 years ago was later removed. The Supreme Court rejected the first two reasons, holding that the parties took place on the beach and not on the road, and “littering is not the type of hostile action that shows disregard of the owner’s claims entirely and use of the land as though the claimant owned the property.” Slip op. at 10. Littering is bad, but it’s not adverse. Got it.
The fence removal was the most problematic. But it was not enough: the court concluded that it was a single instance, and “one or two” incidents of acquiescence are not enough to prove adversity. The erection of the fence “evidenced a clear demonstration of nonacquiescence sufficient to defeat the creation of a public prescriptive easement at that time.” Slip op. at 12 (emphasis added). But the converse was not also true, and the removal alone wasn’t enough to prove acquiescence.
Thus, the court presumed that the owners allowed the public to use the road for recreational purposes. Access denied.
Big thanks to our Maine (and State and Local Govt Section) colleague, Mike Dumas, for monitoring these cases, and sending the opinion along.