Bell v. Town of Wells

• Decision Date: 23 May 1986
• Citation: 510 A.2d 509
• Parties: Edward B. BELL, et al. v. TOWN OF WELLS, et al.
• Court: Maine Supreme Court

Page 509

510 A.2d 509

Edward B. BELL, et al. v. TOWN OF WELLS, et al.

Supreme Judicial Court of Maine.

Argued March 4, 1986.

Decided May 23, 1986.

Curtis Thaxter Stevens Broder & Micoleau, Sidney St. F. Thaxter (orally), Nancy C. Ziegler, Sharon M. Lawrence, Portland, for plaintiff.

Verrill & Dana, Michael T. Healy, William C. Knowles, Portland, for Town of Wells.

James E. Tierney, Atty. Gen., Paul Stern, Asst. Atty. Gen. (orally), Augusta, for Bureau of Public Lands.

Richardson, Tyler & Troubh, Harrison L. Richardson (orally), Elizabeth C. Stouder, Portland, for Moody Beach Tier II Group.

Before NICHOLS, ROBERTS, VIOLETTE, WATHEN, GLASSMAN and SCOLNIK, JJ.

GLASSMAN, Justice.

The plaintiffs, each an owner of shorefront property in the Moody Beach area of the Town of Wells (Town), appeal from the judgment of the Superior Court, York County, granting the motion of the State and the Town to dismiss the plaintiffs' quiet title actions as barred by sovereign immunity. Because we hold that sovereign immunity is not applicable in the instant case, we vacate the judgment.

I. Procedural History

The plaintiffs brought suit against the Town, the State, ¹ and individual unnamed users of the plaintiffs' property who may claim any interest in it. ² Counts I and II of the complaint are, respectively, a quiet title action at law pursuant to 14 M.R.S.A. §§ 6651-6654 (1980) and a quiet title action at equity pursuant to 14 M.R.S.A. §§ 6655-6658 (1980). ³ In their complaint the plaintiffs make the following allegations: Portions of the plaintiffs' property are located in the intertidal zone, and other portions in the upland above the ordinary high water mark. ⁴ The plaintiffs hold title to both the intertidal and the upland portions. The public at large has rights of fishing, fowling and navigation in the intertidal portion. In recent years individual unnamed defendants acting under color of right and over the plaintiffs' objections have increasingly used the plaintiffs' property beyond the scope permitted under these public rights. The Town has engaged in a series of actions that have created an apprehension that it or individual users of the plaintiffs' property claim ownership of the plaintiffs' property or rights in it. These actions include removing signs erected on the upland by the plaintiffs, failing to instruct police officers to protect the plaintiffs' property from the individual unnamed defendants' unlawful use, and generally promoting the use of the plaintiffs' property for recreational purposes.

By each count of their complaint, the plaintiffs seek a declaratory judgment pursuant to 14 M.R.S.A. §§ 5951-5963 (1980) that they are vested with title to the upland clear of all claims of the defendants and that the defendants' rights in the intertidal zone are limited to the public rights of fishing, fowling and navigation. The plaintiffs do not seek to extinguish these rights, but to secure declaration as to their nature and scope.

In their respective answers the Town and the State denied that the plaintiffs were entitled to any relief. They raised, inter alia, affirmative defenses of estoppel, prescription, implied dedication, custom, and acquiescence. In addition, they contended that the public trust doctrine created a right in the public to use the plaintiffs' property for recreational and other purposes.

In June, 1985 the State and the Town filed a motion to dismiss Counts I and II as barred by sovereign immunity. After hearing, the court granted the motion to dismiss. Reciting that it was relying on the Opinion of the Justices, 437 A.2d 597 (Me.1981), and Cushing v. Cohen, 420 A.2d 919 (Me.1980), the court held that the State "has an interest in Moody Beach and in that sense it has title" and that since this interest made the State an indispensable party, the quiet title actions were barred by sovereign immunity. The plaintiffs moved pursuant to M.R.Civ.P. 59(e) to alter or amend the decision to confine the dismissal to the allegations with respect to the intertidal portion of the plaintiffs' property. The State and Town opposed this motion on the ground that sovereign immunity barred adjudication of public rights both above and below the high water mark. The court refused to change its prior decision, entered a final judgment as to Counts I and II and stayed further proceedings pending this appeal by the plaintiffs.

On appeal the plaintiffs contend that the State is not an indispensable party in the quiet title actions and that, therefore, sovereign immunity is not applicable. The State and Town contend that on the basis of the affirmative defenses the public enjoys recreational and other rights in the plaintiffs' property and that sovereign immunity prevents any determination either to the contrary or as to the scope of those rights. The essence of their contention is that when the State asserts an interest, of whatever nature, in property, it may prevent a quiet title action by intervening in the litigation and raising the bar of sovereign immunity.

II. The English Common Law and the Massachusetts Colonial Ordinance

Under settled American judicial construction the following conception of the English common law pertaining to the intertidal zone has prevailed in the United States: By the common law of England that was brought to this country by the earliest settlers, unless title to the intertidal zone was held by private landowners pursuant to grant or prescription or by the crown in its private capacity, the title was vested in the crown which held it in trust for the use of the public. Shively v. Bowlby, 152 U.S. 1, 11-13, 14 S.Ct. 548, 551-52, 38 L.Ed. 331 (1894); Lansing v. Smith, 4 Wend. 9, 20 (N.Y.1829); Pike v. Munroe, 36 Me. 309, 313 (1853). The crown could convey the title to the intertidal zone to private subjects, but the title so conveyed was held subject to the public rights of navigation and fishing. Shively, 152 U.S. at 13, 14 S.Ct. at 552; Lansing, 4 Wend. at 20-21; Moulton v. Libbey, 37 Me. 472, 485-88 (1854). See also Opinion of the Justices, 437 A.2d 597, 605 (Me.1981).

We note that this American judicial conception represents a reconstruction by nineteenth-century American judges of the English common law of the sixteenth and seventeenth centuries. Legal scholarship has sharply challenged the accuracy of this judicial reconstruction of the English common law. ⁵ We need not resolve this controversy because the Maine common law of the intertidal zone has not developed directly from English common law, but from the Massachusetts Colonial Ordinance of 1641-47. We turn then to the enactment and subsequent history of the Colonial Ordinance.

In 1629 Charles I granted lawmaking power to the Governor and the Company of the Massachusetts Bay Colony. The Charter of Massachusetts Bay (March 4, 1629), reprinted in R. Perry, Sources of our Liberties 82, 89 (1960). In 1641 the General Court of the Massachusetts colony enacted the Body of Liberties. Section 16 of this enactment provided for public fishing and fowling rights in the intertidal zone while leaving open the question of title:

Every Inhabitant that is an howse holder shall have free fishing and fowling in any great ponds and Bayes, Coves and Rivers, so farre as the sea ebbes and flowes within the presincts of the towne where they dwell, unlesse the free men of the same Towne or the Generall Court have otherwise appropriated them, provided that this shall not be extended to give leave to any man to come upon others proprietie without there leave.

Massachusetts Body of Liberties § 16 (December 10, 1641), reprinted in R. Perry, supra, at 148, 150. In response to a public demand for a more comprehensive codification, the General Court labored over a period of three years from 1645 to 1648 to compile, revise and supplement its statutes. In October 1648 the General Court concluded its work and ordered the codification to be printed. ⁶ Under the heading "Liberties Common," the codification provides in pertinent part:

Everie Inhabitant who is an hous-holder shall have free fishing and fowling, in any great Ponds, Bayes, Coves and Rivers so far as the Sea ebs and flows, within the precincts of the town where they dwell, unles the Free-men of the same town, or the General Court have otherwise appropriated them. Provided that no town shall appropriate to any particular person or persons, any great Pond conteining more then ten acres of land: and that no man shall come upon anothers proprietie without their leave otherwise then as heerafter expressed; the which clearly to determin, it is declared that in all creeks, coves and other places, about and upon salt water where the Sea ebs and flows, the Proprietor of the land adjoyning shall have proprietie to the low water mark where the Sea doth not ebb above a hundred rods, and not more wheresoever it ebs farther. Provided that such Proprietor shall not by this libertie have power to stop or hinder the passage of boats or other vessels in, or through any sea creeks, or coves to other mens houses or lands. And for great Ponds lying in common though within the bounds of some town it shall be free for any man to fish and fowl there, and may passe and repasse on foot through any mans proprietie for that end, so they trespasse not upon any mans corn or meadow. [1641 1647]

Liberties Common § 2, The Book of the General Lawes and Libertyes Concerning the Inhabitants of Massachusetts 35 (Cambridge, Mass., 1648; facsimile reprint, T. Barnes ed. 1975) (years in brackets in the original). ⁷

Section 16 of the 1641 Body of Liberties as amended by the 1648 Book of the General Lawes and Libertyes came to be called the Colonial Ordinance of 1641-47. See J. Whittlesey, Law of the Seashore, Tidewaters and Great Ponds in Massachusetts and Maine xxxv-xi (1932). The Colonial Ordinance in its 1648 form was republished in the 1660 and the 1672 revisions of the Massachusetts Bay Colony Laws. Id. at...