Our thanks to a new colleague from the U. Maine Law School, who gave us the heads-up about a recent decision from that state's supreme court about private ownership of beaches, Almeder v. Town of Kennebunkport, No. Yor-12-599 (Feb. 4, 2014).
Littoral property owners sued the Town to determine who owns certain portions of the beach. You know the usual drill in beach cases: the wet sand beach, the dry sand beach, uplands, and the water are the usual dividing lines. Some states like Hawaii mandate that all beaches are public, and up to the highest reaches of the wash of the waves. Others say the public beach extends only to the mean high water mark. In others, some beaches may be privately owned down to the low water line.
Maine appears to be one of the latter, and the owners sought declaratory judgments that they owned or had the exclusive right to use the beach down to the low water mark. The Town asserted the public owned and had rights to the beach by virtue of a prescriptive easement, and an easement by custom, while the State intervened to assert that the public could use the intertidal zone under the public trust doctrine.
The trial court determined that there was a history of public use of the beach without permission of the littoral owners, although that when things got too disruptive, the owners have asked offenders to leave. But "[r]arely has a Beachfront Owner otherwise ever requested that a beachgoers 'move along.' Testimony indicated it would be impractical to ask beachgoers engaged in ordinary recreational activity to leave." Slip op. at 6. While some owners put up "no trespassing" signs, on the whole the court determined that beachgoers would have ignored the signs. The court thus concluded that the public had gained an easement by prescription and an easement by custom to use the beach for recreation on both the wet and the dry sand beaches. It also held the State established that the public had a right under the public trust to use the intertidal zone for public trust uses such as fishing and navigation.
Each side appealed. The owners objected to the rulings that they did not protect their rights, while the State asserted the trial court wrongly limited the scope of public use. After disposing of appealability and intervention questions, the Maine Supreme Court held that the public's use of the beach was not "adverse" to the owners. Recall that an easement by prescription follows the usual adverse possession rules, and the claimant must show (1) that the use is under claim of right adverse to the owner; (2) the use is with the owner's knowledge and acquiescence; and (3) the use continued for the prescriptive period. The court addressed only the first part of the test, as it held that was dispositive.
Maine law has a "presumption of permission," and "public recreational uses are presumed to be undertaken with the presumption of the landowner, thereby defeating the adversity element of a prescription claim." Slip op. at 15. The presumption exists to encourage landowners to allow hunting, hiking, and the other outdoor activities that Maine is known for. Under this presumption, public recreational use is consistent with private use, and thus not adverse to the owner. The court clarified that the presumption does not apply only to "wild and uncultivated" land, but is applicable to all land. The issue is the use made by the public: if recreational, it is presumed permissive, unless the party claiming the easement shows otherwise.
Although the court did note the existence of a presumption of permission, it evaluated adversity without affording the Beachfront Owners the benefit of the presumption. The failure to apply the presumption of permission was an error, and it was an error that affected the court’s view of the significance of its own factual findings. We need not remand the matter for the trial court to consider its findings in light of the application of the presumption of permission, however, because we conclude that, as a matter of law, there was insufficient evidence to determine that the Town rebutted the presumption.
Slip op. at 19-20. The mere fact that the Town spent money to provide public conveniences on the beach was insufficient, "as a matter of law" to overcome the presumption of permission. Moreover, evidence to support prescription must be specfic to each parcel, and
generalized testimony regarding walks along the entire Beach and findings about use of the Beach 'from river to river' cannot establish the elements of a prescriptive easement specific to any Beachfront Owner or any specific parcel of Beach property.
Slip op. at 21-22.
The court also made short work of the easement by custom argument, dismissing the claim as "a largely dead doctrine in the United States." Slip op. at 22. The court declined to recognize the doctrine, and held there is no such thing under Maine law.
The court also held that the trial court's public trust ruling was premature as it had not been actually litigated by the parties, and the court had not applied the presumption of permission, which was equally applicable to public trust claims as prescriptive easement claims.
More on this case and its implications:
- Court’s decision about accessing Kennebunkport private beach is good news for landowners, organizations say - Bangor Daily News
- Maine High Court Weighs In On Who Owns The Beach - Boston Public Radio WBUR
Aldmer v. Town of Kennebunkport, No. Yor-12-599 (Feb. 4, 2014)
