Flaherty v. Muther

• Decision Date: 22 March 2011
• Docket Number: Docket No. Cum–09–631.
• Citation: 17 A.3d 640,2011 ME 32
• Parties: Robert FLAHERTY et al.v.Helen MUTHER et al.
• Court: Maine Supreme Court

17 A.3d 640

2011 ME 32

Robert FLAHERTY et al.

v.Helen MUTHER et al.

Docket No. Cum–09–631.

Supreme Judicial Court of Maine.

Argued: Nov. 10, 2010.Decided: March 22, 2011.

James A. Billings, Esq. (orally), Walter F. McKee, Esq., Lipman, Katz & McKee, PA, Augusta, ME, for Helen Muther and Paul Woods.Philip P. Mancini, Esq., Alexander W. Saksen, Esq. (orally), Drummond & Drummond, LLP, Portland, ME, for the Broad Cove Shore Association.Thomas R. McNaboe, Esq., Cumberland Foreside, ME, Andre G. Duchette, Esq., Taylor, McCormack & Frame, LLC, Stephen D. Bither, Esq. (orally), Portland, ME, for the J–Lot owners.Janet T. Mills, Attorney General, Paul Stern, Dep. Atty. Gen. (orally), Augusta, ME, for the State of Maine.Sidney St. F. Thaxter, Esq. (orally), David P. Silk, Esq., Susan E. Schorr, Esq., Curtis Thaxter Stevens Broder & Micoleau LLC, Portland, ME, for amicus curiae Sidney St. F. Thaxter.Neal L. Weinstein, Esq., Old Orchard Beach, ME, for amicus curiae The Surfrider Foundation.Amicus curiae Orlando Delogu, Esq., Portland, ME, pro se.Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.LEVY, J.

[¶ 1] This case centers on a right-of-way over a private house lot that provides access to a small beach in Cape Elizabeth. The owners of the house lot, Helen Muther and Paul Woods, individually and as trustees of the Buffett Coastal Trust, appeal from a judgment entered in the Superior Court (Cumberland County, Crowley, J.) in favor of the owners of eighteen neighboring properties (the J–Lot owners) and the Broad Cove Shore Association.¹ Muther and Woods contend that the court erred by (1) granting a summary judgment that declared that the J–Lot owners were not bound by an earlier settlement agreement between Muther and Woods and the Association; (2) granting a summary judgment in favor of the Association on Muther and Woods's claims of indemnification, fraud, and implied warranty of authority related to the settlement agreement; (3) construing the scope of an easement to allow the J–Lot owners access to the intertidal land ² for general recreational purposes; (4) determining that a gate erected on the easement as part of the settlement agreement and surveillance cameras unreasonably interfered with the J–Lot owners' use of the easement; (5) allowing the State to intervene; and (6) awarding costs and expenses to some of the J–Lot owners.

[¶ 2] The J–Lot owners cross-appeal from a judgment entered by the court after a bench trial (1) preventing them from using the easement to access the upland ³ of Muther and Woods's lot and an adjoining lot; and (2) declaring that they had not acquired prescriptive rights to Muther and Woods's upland. In addition, the State, as an intervenor, cross-appeals from a judgment declaring that the public's rights to use the intertidal land in front of Muther and Woods's property are limited to fishing, fowling, and navigation.

[¶ 3] We affirm the judgment in all respects, except that we vacate the judgment with respect to the unreasonableness of the gate and cameras on the easement and the award of costs, and we dismiss the appeal as to the award of attorney fees as interlocutory.

I. BACKGROUND

[¶ 4] Due to an extensive procedural history and the number of issues addressed on appeal, the facts recited here are lengthy. We view the summary judgment record in the light most favorable to the nonprevailing party, Kurtz & Perry, PA. v. Emerson, 2010 ME 107, ¶ 15, 8 A.3d 677, 680, and the trial record in the light most favorable to the prevailing party, Batchelder v. Realty Res. Hospitality, LLC, 2007 ME 17, ¶ 3, 914 A.2d 1116, 1118.

A. The Parties and Properties

[¶ 5] Muther and Woods, as trustees of the Buffett Coastal Trust, own oceanfront property in a subdivision in Cape Elizabeth; their property is designated as Lot J–46 on a recorded 1970 subdivision plan. They began renting Lot J–46 in 1999 before acquiring the property in 2004. The 1967 deed that conveyed Lot J–46 to Alan Balfour, the person who created the J–Lot subdivision, described Lot J–46 as extending “to the shore of the Atlantic Ocean.” As a consequence of that language, the court concluded that Muther and Woods's land extends only to the mean high watermark.⁴ See Hodgdon v. Campbell, 411 A.2d 667, 672 (Me.1980). The record does not indicate who holds title to the intertidal land in front of Lot J–46. The 1970 plan also depicts nineteen ⁵ other lots designated J–27 through J–45 (the J–Lots) and a twenty-foot-wide easement over Lot J–46 that is labeled “20' Drainage & Walkway Easement.” Each of the J–Lot deeds references the 1970 plan. ⁶

[¶ 6] The oceanfront property to the south of Lot J–46 is owned by William Holt; it is not part of the J–Lot subdivision and is not included on the 1970 plan. Holt owns the intertidal land in front of his property. Holt is not a party to this litigation. Collectively, the dry sand upland and the intertidal land that are part of Holt's property, the dry sand upland of Lot J–46, and the intertidal land in front of Lot J–46 are known locally as Secret Beach.

[¶ 7] By virtue of their deed references to recorded subdivision plans, all of the J–Lot owners hold a twenty-foot-wide walkway easement by implication over Lot J–46 that extends to the mean high water mark of Secret Beach. The parties stipulated that all of the J–Lot owners have the same right to use the easement to access the intertidal area of Secret Beach. The 1970 plan does not specify any restrictions or conditions regarding uses of the easement or activities on Secret Beach. Nor does it address the use of a gate or surveillance equipment relative to the easement.

[¶ 8] The Broad Cove Shore Association is a nonprofit corporation that comprises approximately 243 homeowners within seven subdivision plans in Cape Elizabeth, including the J–Lot subdivision plans. Some, but not all, of the J–Lot owners are Association members.

[¶ 9] The Town of Cape Elizabeth also holds a deeded drainage easement over the same right-of-way. In 2006, for drainage purposes, the Town rearranged and placed large rocks where the easement meets the intertidal area of Secret Beach.

B. Historical Use of the Easement and Secret Beach

[¶ 10] At trial, several witnesses testified about their use of Secret Beach around the time of the creation of the J–Lot subdivision. Bruce Balfour, who is not a J–Lot owner, regularly used the intertidal area of Secret Beach for general recreational purposes from 1969 through the early 1970s. Norman and Nancy Wulf have used the easement and the intertidal and upland portions of Secret Beach for general recreational purposes since the early 1970s. Robert Flaherty has regularly used Secret Beach for general recreational purposes since 1969.

[¶ 11] Regarding the J–Lot owners' use of Lot J–46's upland portion of Secret Beach, the court found that Mary Arnold regularly used the upland since she became a J–Lot owner in 1985 until 1995, and that the Wulfs and Flaherty have used the upland since they became J–Lot owners in 1995 and 2005, respectively. ⁷

[¶ 12] Since 1999, when Woods began living at Lot J–46, he has photographed people using the easement and the intertidal land. When Muther and Woods acquired Lot J–46 in 2004, it was their intention to change the use of the easement and intertidal zone. There was no evidence showing that any person's use of the easement or of Secret Beach was interfered with or challenged before 2004. The court found that since 2005, Muther and Woods have been “hyper-vigilant about monitoring the use of the easement and of Secret Beach,” and Woods has confronted individuals, including J–Lot owners and their families, who were using the easement. Some J–Lot owners were frightened by their confrontations with Woods in the easement and have limited their use of the easement and Secret Beach as a result.

C. The Prior Litigation and Settlement Agreement

[¶ 13] In November 2005, Muther and Woods complained against the Association, Leslie Connolly, and Beth Hess,⁸ seeking, among other remedies, a declaratory judgment to establish that Association members did not have a legal right to use the easement over Lot J–46 and that the walkway easement was appurtenant only to the J–Lots. Muther v. Broad Cove Shore Ass'n, 2009 ME 37, ¶ 2, 968 A.2d 539, 540. In response, the Association asserted prescriptive rights to the easement.

[¶ 14] During this prior litigation, some of the J–Lot owners were not members of the Association. However, many of the J–Lot owners each contributed between $500 and $750 to a legal defense fund created by the Association.

[¶ 15] At a judicial settlement conference in November 2006, the parties reached a settlement agreement, and they read the terms of the agreement into the record at the conclusion of the settlement conference. Of the J–Lot owners, only Beth Hess attended the settlement conference. At the hearing held at the conclusion of the settlement conference, the Association's attorney represented on the record that he had “full authority on behalf of the Association” and assented to a statement that the settlement was binding on all of the Association's members.

[¶ 16] By the terms of the settlement read into the record, Muther and Woods would install a locking gate on the easement and Association members would have access to the easement through an electronic key card system. Muther and Woods would control distribution and activation of the key cards. The Association was to charge its members a $150 annual beach access fee to pay for and maintain the gate, but the fee would be waived for the J–Lot owners. The Association also “agreed to indemnify [Muther and Woods] if they are sued for an act or omission arising out of the conduct of the [Association].” Additionally, in connection with a nondisturbance clause, the attorney for Hess and Connolly stated on the record, “there's been a lot of controversy with respect to particularly Mr. Woods's...