Bell v. Town of Wells

• Decision Date: 30 March 1989
• Citation: 557 A.2d 168
• Parties: Edward B. BELL, et al. v. TOWN OF WELLS, et al.
• Court: Maine Supreme Court

Page 168

557 A.2d 168

57 USLW 2590

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

Supreme Judicial Court of Maine.

Argued Sept. 21, 1988.

Decided March 30, 1989.

Sidney St. F. Thaxter (orally), John D. Gleason, Sharon L. McHold, Lawrence C. Walden, Nancy C. Ziegler, Curtis, Thaxter, Stevens, Broder & Micoleau, Portland, George L. Haskins, Hancock, for plaintiffs.

Tybe Brett, Todd Burrows, Orlando Delogu, Alison Rieser, University of Maine School of Law and Marine Law Institute, Portland, amici curiae.

James E. Tierney, Atty. Gen, Paul Stern (orally), Asst. Atty. Gen., Thomas D. Warren, Deputy Atty. Gen., Philip F.W. Ahrens, III, Deputy Atty. Gen., Augusta, for State Bureau of Public Lands.

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

Harrison L. Richardson, Barri Lyn Bloom, Elizabeth G. Stouder, Richardson & Troubh, Portland, Richard Emmet, Everett B. Carson, N.R.C.M., Augusta, for Conservation Law Foundation and Natural Resources Council of Maine.

Ralph W. Austin, Jensen, Baird, Gardner & Henry, Kennebunk, guardian ad litem.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD, HORNBY and COLLINS, JJ.

McKUSICK, Chief Justice.

In their quiet title action initiated in 1984 against the Town of Wells, the State Bureau of Public Lands, and various individuals, ¹ Edward B. Bell and other owners of land bounded by the sea at Moody Beach in Wells ² sought a judicial declaration and injunction limiting the use the public may make of the beach. After a four-week bench trial, the Superior Court (York County; Brodrick, J.) on October 1, 1987, entered judgments in plaintiffs' favor declaring the state of the legal title to Moody Beach. In doing so, the court reviewed and applied the rules of property law governing the ownership of intertidal land ³ in Maine, declared the Public Trust in Intertidal Land Act ⁴ unconstitutional, and made a factual determination that the public had acquired no easement over Moody Beach by local custom or otherwise. ⁵ On the present appeal, ⁶ we affirm.

We agree with the Superior Court's declaration of the state of the legal title to Moody Beach. Long and firmly established rules of property law dictate that the plaintiff oceanfront owners at Moody Beach hold title in fee to the intertidal land subject to an easement, to be broadly construed, permitting public use only for fishing, fowling, and navigation (whether for recreation or business) and any other uses reasonably incidental or related thereto. Although contemporary public needs for recreation are clearly much broader, the courts and the legislature cannot simply alter these long-established property rights to accommodate new recreational needs; constitutional prohibitions on the taking of private property without compensation must be considered. On this basis we agree with the Superior Court's conclusion that the Public Trust in Intertidal Land Act, which declares an unlimited right in the public to use the intertidal land for "recreation," is unconstitutional. Finally, on the record in this case no public easement by local custom has been proven to exist at Moody Beach, ⁷ even assuming--as need not be decided in this case--that in Maine a public easement may be acquired over privately owned land by local custom.

The Facts

Moody Beach is a sandy beach located within the Town of Wells. It is about a mile long and lies between Moody Point on the north, the Ogunquit town line on the south, the Atlantic Ocean on the east, and a seawall on the west. Moody Beach has a wide intertidal zone with a strip of dry sand above the mean high water mark. More than one hundred privately owned lots front on the ocean at Moody Beach. In addition, the Town of Wells in the past has acquired by eminent domain three lots which it uses for public access to the ocean. Each plaintiff now before the court owns a house or cottage situated on one of 28 private oceanfront lots. Each lot is about 50 feet wide and is bordered on the west by Ocean Avenue. At trial, the parties stipulated that the plaintiff oceanfront owners hold title to the parcels described in their deeds in fee simple absolute and that their parcels were bounded on the Atlantic Ocean. A public beach, now known as Ogunquit Beach, lies immediately to the south of Moody Beach; the Village of Ogunquit acquired that beach by eminent domain in 1925.

The evidence at trial regarding the history of public recreational use of Moody Beach was inconclusive. Dr. Edwin Churchill, chief curator of the Maine State Museum, testified that visitors to 17th century Maine used the beaches and a number of hotels were operating in the Wells area by the latter half of the 19th century. An 1865 history of Wells specifically refers to a "large hotel on the beach which is much patronized in summer by persons who are in search of sea air and bathing." Dr. Churchill testified that the beach in question was Wells Beach but that Wells Beach then encompassed the areas now known as Ogunquit, Moody, and Wells Beaches. Recreational activities took place on the beaches of Cape Elizabeth and Kennebunk, and Dr. Churchill inferred that similar activities occurred on the beaches of Wells in the 19th century. Dr. Churchill, however, found no specific reference to recreational activity in the particular area now known as Moody Beach.

The testimony regarding more recent public recreational use of Moody Beach was conflicting. Defendants' witnesses testified that they always had considered Moody Beach public and that the public had used the beach for general recreational purposes for as long as they could remember. On the whole evidence, however, the Superior Court found:

The only open and continuous public use ... proved to exist in this case for the 20 years preceding the filing of this lawsuit ... was the public's (and the plaintiffs' for that matter) consistent habit of strolling up and down the length of Moody Beach. All of the plaintiffs testified that they were perfectly willing to permit this, never complained about it and would continue to permit this activity in the future.

I.

The Public Easement in the Privately Owned Intertidal Land

Does Not Extend Beyond That Reserved in the

Colonial Ordinance Broadly Construed

A. The Upland Owner's Fee Title to Intertidal Land

On the first appeal in this case, we examined in detail the historical sources of the legal regime governing the ownership of intertidal land in Maine. Bell v. Town of Wells, 510 A.2d 509 (Me.1986) (Bell I ). ⁸ The elaborate legal and historical researches reflected in the extensive briefs filed with us on this second appeal fail to demonstrate any error in the conclusions we reached less than three years ago.

Long before 1820 it was established in the common law of Massachusetts, applicable to its entire territory including the District of Maine, that the owner of shoreland above the mean high water mark presumptively held title in fee to intertidal land subject only to the public's right to fish, fowl, and navigate. See Storer v. Freeman, 6 Mass. 435 (1810) (Parsons, C.J.) (involving land in Cape Elizabeth in the District of Maine). That rule of law governing titles to intertidal land had its origin in the Colonial Ordinance of 1641-47 of the Massachusetts Bay Colony and long before the separation of Maine was received into the common law of Massachusetts by long usage and practice throughout the jurisdiction of the Commonwealth. Id. at 438. Then, by force of article X, section 3 of the Maine Constitution, ⁹ that property rule was confirmed as the law of the new State of Maine. Only 11 years later, this court speaking through Chief Justice Mellen categorically rejected an argument that the rule of real property law taken into the common law from the Colonial Ordinance did not prevail in Maine:

Ever since [the 1810 decision in Storer v. Freeman ], as well as long before, the law on this point has been considered as perfectly at rest; and we do not feel ourselves at liberty to discuss it as an open question.

Lapish v. Bangor Bank, 8 Me. 85, 93 (1831) (emphasis added). The very next year the Massachusetts Supreme Judicial Court, speaking through Chief Justice Shaw, stated of the rule vesting fee ownership of intertidal land in the upland owner:

[T]he rule in question ... being a settled rule of property, it would be extremely injurious to the stability of titles, and to the peace and interests of the community, to have it seriously drawn in question.

Barker v. Bates, 30 Mass. (13 Pick.) 255, 258 (1832) (Colonial Ordinance applies in territory of former Plymouth Colony). ¹⁰ See also Barrows v. McDermott, 73 Me. 441 (1882) (rule of property law derived from the Colonial Ordinance applies in Piscataquis County, even though originally a part of the Acadia Colony).

The pioneer Supreme Court opinion on coastal property rights, Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894), written by Justice Gray, formerly Chief Justice of the Massachusetts Supreme Judicial Court, emphasizes the uniqueness of the Maine ¹¹ and Massachusetts legal rule governing title to intertidal land or flats:

In Massachusetts, by virtue of an ancient colonial enactment, commonly called the Ordinance of 1641, but really passed in 1647, and remaining in force to this day, the title of the owner of land bounded by tide water extends from high water mark over the shore or flats to low water mark, if not beyond one hundred rods. The private right thus created in the flat is not a mere easement, but a title in fee, which will support a real action, or an action of trespass quare clausum fregit, and which may be conveyed by its owner with or without the upland; and which he may build upon or enclose, provided he does not impede the public right of way over it for boats or vessels. But his title is subject to the public rights of navigation and fishery; and therefore, so long as the flats have not been built...