Cedar Beach/Cedar Island Supporters, Inc. v. Gables Real Estate LLC.

145 A.3d 1024

2016 ME 114

CEDAR BEACH/CEDAR ISLAND SUPPORTERS, INC., et al.

v.GABLES REAL ESTATE LLC.

Docket No. Cum–14–531.

Supreme Judicial Court of Maine.

Argued: Nov. 4, 2015.

Decided: July 19, 2016.

Christian T. Chandler, Esq. (orally), and Benjamin M. Leoni, Esq., Curtis Thaxter, LLC, Portland, for appellant Gables Real Estate, LLC.

David W. Bertoni, Esq. (orally), Stacy O. Stitham, Esq., and Anne M. Torregrossa, Esq., Brann & Isaacson, Lewiston, for appellee Cedar Beach/Cedar Island Supporters, Inc.

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

JABAR, J.

[¶ 1] Gables Real Estate LLC (Gables) appeals from a judgment of the Superior Court (Cumberland County, Mills, J. ), entered after a three-day bench trial, declaring that the public has a prescriptive easement over a parcel of property Gables owns known as Cedar Beach Road. Because we determine that the elements of adversity and nonacquiescence were not established, we vacate the judgment.

I. BACKGROUND

[¶ 2] Members of the public, both individually and collectively as Cedar Beach/Cedar Island Supporters, Inc. (the claimants), brought this action seeking a declaratory judgment that the public had acquired a prescriptive easement over a privately-owned right-of-way known as Cedar Beach Road. In its seventy-three-page judgment addressing these claims, the court's discussion of this property and its use covered testimony presented about the actions of various individuals since the early twentieth century. The court made numerous findings of fact, all of which are supported by competent evidence in the record. For the sake of brevity, and because we have no reason to question any of the court's findings, we reference only a very limited number of those findings below.

[¶ 3] Eugene McCarty owned Cedar Beach Road from 1926 to 1957. During his ownership, he permitted the public to walk down Cedar Beach Road to access Cedar Island Beach and the Small Beach (collectively, the beaches). To keep vehicular traffic off of the road, however, he installed a chain, which remained in place for many years. In 1959, McCarty's estate transferred certain property (Parcel I, or, the Ridge Property) to his niece, Julia Sturtevant, and her daughter, Meredith Starbranch. Also in 1959, Sturtevant and her husband purchased another parcel previously owned by McCarty (Parcel II, or, the Cedar Beach Road), which was transferred to Sturtevant and Starbranch in 1961.

[¶ 4] Starting in the 1960s, the use of the road by members of the public became a source of complaints by the owners of the road and some of the families who had deeded rights-of-way over the road because members of the public frequently littered on Cedar Beach Road and used the road to attend parties on the neighboring beaches. The Haley family, which owned¹ a deeded appurtenant easement over Cedar Beach Road, erected two six-foot pieces of chain-link fence across the road sometime between 1978 and 1980. Within days the fence was “mowed down by a pickup truck” driven by Scott Allen, a member of the public who did not reside on Cedar Beach Road.

[¶ 5] Cedar Beach Road was acquired by Richard and Phyllis Perry in 1982. In December 1987, in compliance with 14 M.R.S. § 812 (2015),² the Perrys and the owners of an adjacent parcel posted a notice to the public on their property for six successive days giving notice of their intent to prevent acquisition of a right-of-way.

[¶ 6] Charles and Sally Abrahamson acquired the property in 1998. The Abrahamsons posted notice of their intent to prevent the acquisition of a right-of-way on Cedar Beach Road again in 1999. For many years, Charles Abrahamson permitted the public to use Cedar Beach Road to access the beaches. However, on Labor Day 2011, Abrahamson blocked the road, precipitating this court action. After the underlying trial but prior to the court's entry of judgment, Gables acquired Cedar Beach Road from the Abrahamsons.

[¶ 7] After a three-day bench trial, the court entered a judgment declaring that the public had acquired a prescriptive easement over Cedar Beach Road, concluding that the claimants had satisfied all the elements of a public prescriptive easement, and specifically that they “ha[d] proved adversity.” The court concluded that continuous use of the road by the public had been established for the period between 1959 and 1987. The court concluded that evidence of loud parties on the beach, “trashing” of the beach by dogs and humans, littering, and taking down the chain-link fence erected by the Haley family was “sufficient to establish adversity,” and held that this conduct exceeded traditional recreational uses and was clearly undertaken without permission. The court also concluded that Gables failed to show nonacquiescence, ruling that the Haleys' erection of the chain-link fence did not constitute a nonacquiescent act because the Haley family was not the fee owner of Cedar Beach Road.

[¶ 8] The court also determined that the actual permission McCarty gave to the public ended with his death in 1957. Despite this, the court held that the chain McCarty placed across the entrance of Cedar Beach Road continued to serve McCarty's original purpose of prohibiting motor vehicle travel along the road. There was conflicting evidence regarding whether other potential acts of nonacquiescence occurred in the 1960s and 1970s, such as the presence of a no trespassing sign or other such message at the entrance of Cedar Beach Road. The court ultimately found the opposing testimony on these acts of nonacquiescence to be more credible.

[¶ 9] Gables timely appealed. See 14 M.R.S. § 1851 (2015) ; M.R.App. P. 2(b).

II. DISCUSSION

[¶ 10] We review a public prescriptive easement claim de novo. Almeder v. Town of Kennebunkport, 2014 ME 139, ¶ 18, 106 A.3d 1099 ; see also Loavenbruck v. Rohrbach, 2002 ME 73, ¶ 11, 795 A.2d 90 (“What acts of dominion will result in creating title by adverse possession is a question of law.” (alteration omitted) (quotation marks omitted)).

[¶ 11] To establish the existence of a public prescriptive easement, the party seeking to establish the 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”; and either “(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, ¶ 15, 804 A.2d 364.

[¶ 12] Central to the instant case are the concepts of adversity and nonacquiescence in the context of the acquisition of a public prescriptive easement. “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 139, ¶ 21, 106 A.3d 1099.

[¶ 13] Adversity is proven through 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 though the claimant owns the property himself (3) such that the use provided the owner with adequate notice that the owner's property rights are in jeopardy.” Id. ¶ 20, (alterations omitted) (quotation marks omitted).

[¶ 14] In the case of a private prescriptive easement, adversity is presumed if the claimant shows that he has used the property continuously for twenty years and the owner has acquiesced. Id. ¶ 29 n. 18. However, when a party is claiming the existence of a public prescriptive easement, the party must prove adversity because the public recreational use of private uncultivated lands is presumed to be permissive. Id. ¶ 29; Lyons, 2002 ME 137, ¶ 19, 804 A.2d 364.

[¶ 15] The presumption of permission promotes the long tradition in Maine of public recreational use of private property by assuring that such use “is consistent with, and in no way diminishes, the rights of the owner in his land.” Lyons, 2002 ME 137, ¶ 19, 804 A.2d 364 (quotation marks omitted). The use of a way by members of the public to access properties where they conduct recreational activities does not rebut the presumption of permission concerning that way. See S.D. Warren Co. v. Vernon, 1997 ME 161, ¶¶ 15–17, 697 A.2d 1280. The presumption serves an important societal purpose in that it allows for greater access to Maine's renowned natural features by permitting landowners to rely on the presumption of permission to protect their ownership interests, rather than encouraging them to take steps to restrict recreational use of their lands. See Almeder, 2014 ME 139, ¶ 30, 106 A.3d 1099.

[¶ 16] To rebut the presumption of permission, adversity must have been sustained continuously for at least twenty years. See Blackmer v. Williams, 437 A.2d 858, 860 (Me.1981) (holding that “[t]o establish an easement by prescription, a party must prove that the elements of prescriptive use have continued for a period of at least twenty years”). The level of adversity required is a disregard of the owner's claims entirely and use of the land as though the claimant owned the property. Stickney v. City of Saco, 2001 ME 69, ¶ 21, 770 A.2d 592.

[¶ 17] In S.D. Warren Co., the plaintiff landowner attempted to establish both private and public prescriptive easements over a right-of-way on a neighboring landowner's property. 1997 ME 161, ¶¶ 1–3, 697 A.2d 1280. We held that the plaintiff's use of the road for commercial purposes satisfied the adversity element for purposes of a private prescriptive easement. Id. ¶ 11. In an attempt to rebut the presumption of permission and establish a public easement, the claimant submitted evidence that an independent logger had recently used the right-of-way, and that two hunters regularly used the right-of-way to access hunting grounds. Id. ¶¶ 15, 17. We ruled that this level of public activity did not provide...