Kilmartin v. Barbuto
| Decision Date | 04 September 2014 |
| Docket Number | C.A. WB-12-0579 |
| Parties | PETER F. KILMARTIN, Attorney General of The State of Rhode Island, Plaintiff v. JOAN M. BARBUTO; LYNNE D. KAESMANN; WILLIAM H. ANDERSON; SUSAN BRANDT; JOANN HARRINGTON; CLARENCE G. BROWN; JUDITH W. BROWN; JOHN B. STELLITANO, Trustee of The John Bruno Stellitano Living Trust; JAMES M. TOBIN; JOSHUA M. VOCATURA; HATTIE G. VOCATURA TRUST; NICHOLAS P. JAREM; SANDRA L. JAREM; MICMAYS, LLC; JOAN A. CARR; JOHN C. MAFFE, JR.; PATRICIA JEAN SHANNON; STEPHANIE E. IMMEL; JEANNE E. SHANNON; and JOSEPH M. SHANNON, Defendants AND DUNES PARK, INC., DONNA PIRIE, MARGARET ANDREO, JANE L. TAYLOR, DAVID K. McGILL, MIRIAM B. McGILL, TIMOTHY F. SHAY, BRIAN P. SHAY, and JUSTIN T. SHAY, JEFFREY A. FEIBELMAN, TRUSTEE OF THE 627 REALTY TRUST, Defendant Intervenors |
| Court | Rhode Island Superior Court |
Washington County Superior Court
For Plaintiff Michael L. Rubin, Esq.; Gregory S. Schultz, Esq.
For Defendant Justin T. Shay, Esq.; William R. Landry, Esq. Patricia A. Buckley, Esq
DECISION
More than one hundred (100) years ago, five owners of beachfront property in the Misquamicut Beach area of Westerly, Rhode Island filed and recorded a plat map with the Town of Westerly. During the past century there has been an on-again off-again dispute about the intent of the owners to dedicate a portion of the beach for use by the general public. The issue of the legal status of a portion of the beach became active again when members of the community complained that things such as fences and no-trespassing signs were being put on the beach by the adjacent homeowners.
Attorney General Peter F. Kilmartin (Attorney General), acting on behalf of the State of Rhode Island (State), has brought suit against certain homeowners (Homeowners) on Misquamicut Beach. At issue in this case is an approximately two-mile long stretch of land running east to west and bordering the shore of the Atlantic Ocean and extending approximately 80-120 feet landward (northward) from the sea (Disputed Area or Beach Area). The Attorney General claims that in 1909, the original owners of the Disputed Area (Plattors) recorded in the Town of Westerly Land Evidence Records a subdivision plat (1909 Plat) by which the Plattors made an offer of an easement across the Disputed Area to the general public.[1] The Attorney General seeks from this Court a declaratory judgment pursuant to the Uniform Declaratory Judgment Act (UDJA) permanently enjoining the Homeowners from interfering with the public's right to use the Disputed Area as a public easement, including the erection of fences traversing the Disputed Area from Homeowners' individual lot lines south to the Atlantic Ocean shore.
The Homeowners contend that the public does not have any easement rights over the Disputed Area. The Homeowners deny that the Plattors ever dedicated to the public an easement over the Disputed Area because, in the first place, the Plattors did not have the power to offer the Disputed Area to the public as an easement through dedication; and second, because even if the Plattors did have the power to make an offer of dedication, the Attorney General cannot show that the Plattors ever intended to make an offer of dedication to the public.
The Court conducted part one of, potentially, a two-part bench trial over eleven hearing days between April 1 and April 25 2014. Both sides have submitted briefs in support of their positions, and the Court has heard extensive oral arguments from the litigants. It is the Court's task to determine whether the creators of the 1909 Plat effectively offered the Disputed Area to the public through dedication as an easement.[2]
On September 18, 2012, the Attorney General filed suit against seven property owners along Atlantic Avenue in Westerly Rhode Island. In his original complaint, the Attorney General alleged eight counts against these original Defendants, including public nuisance; purpresture; private nuisance; trespass; and unlawful use of easement against the State as owner of the parcel. The State sought to vindicate what it asserted was the dedication of an easement across the Disputed Area in favor of the State and/or the public, and requested a preliminary and permanent injunction enjoining the Defendants from interfering with the State and the public's right to use the easement. The Attorney General asserted his authority to bring an action against the original Defendants pursuant to statutory and common law authority to maintain actions to abate public nuisances and purprestures; and pursuant to State's position as owner, in fee, of certain lots depicted on the 1909 Plat. On November 30, 2012, over the State's objection, this Court granted the original Defendants' motion to require joinder of persons needed for a just adjudication, and ordered the State to provide notice of the suit to neighboring landowners. Eventually, the number of defendants represented in this litigation was extended, by court order, to the current group of twenty-one.
On May 14, 2013, the original Defendants and the Defendant Intervenors filed with this Court a motion for summary judgment. This Court heard oral arguments from both sides on their respective cross-motions for summary judgment. The Attorney General's position was that, as a matter of law, the Plat and the Indenture (Indenture) demonstrate the clear intent to dedicate the disputed parcel to the public. The Homeowners argued that the Plat, as a matter of law, did not demonstrate the clear intent to dedicate the disputed parcel to the public. The Court, finding that there were material issues of fact, denied both sides' motions for summary judgment via a bench decision. The Court further entered a scheduling order under Rule 16 that provided for factual and expert discovery, including depositions. The parties prepared for trial.
Prior to the trial date, the parties amended the scheduling order and agreed on the parameters of a two-part, non-jury trial. The parties agreed that two issues would be addressed during this trial. First, during Phase I, the parties would litigate the issue of whether or not the five owners who became parties to the 1909 Plat caused to be extended, to the general public, by virtue of the 1909 Plat, an easement across the Disputed Area. If the Court found that, indeed, those five owners did offer to the general public easement rights across their property, the question for the Court during Phase II of the trial would be whether or not the general public had accepted the offer of an incipient dedication. The Court would then make a determination as to whether to exercise its jurisdiction under the UDJA and grant the injunctive and declaratory relief demanded by the Attorney General.
Over the course of eleven hearing days, beginning on April 1, 2014, this Court conducted Phase I of the trial. The State's burden during this phase was to demonstrate that the 1909 Plat clearly and unambiguously manifested the Plattors' intent to dedicate an easement to the general public across the Disputed Area. In support of its case, the State presented seven witnesses and over 200 documented exhibits. Mr. Alfred Thibodeau, a Rhode Island title attorney, was called to testify about his analysis of the 1909 Plat and the Indenture, and expressed his opinion, as an expert, that the Plattors intended to convey public rights in the right of way corridors extending from Atlantic Avenue to the Beach, and in the Beach Area itself. Mr. Alfred DiOrio, a Rhode Island licensed surveyor, next testified about the markings that the creator of the 1909 Plat used on that document, and about surveys that were published for a number of state, local, and private entities between 1909 and the present day. The Director of the Rhode Island Coastal Resources Management Council (CRMC), Mr. Grover Fugate, was the next witness for the State and offered testimony about how his agency has interpreted the public rights over the right of way corridors depicted on the 1909 Plat. Next for the State was Professor Steven Corey, a social historian from Columbia College in Chicago, who specializes in environmental and urban history, including the process of urbanization. Professor Corey testified about research that he conducted on behalf of the State with respect to the development of the Misquamicut Beach area in the early part of the twentieth century, and expressed that, in his view, the developers of what was then known as the Pleasant View beach community (Pleasant View) conceived the Beach Area as a single continuous beach. Professor Corey's testimony suggested that the developers of Pleasant View—some of whom included signatories to the 1909 Plat and the Indenture—wanted the entire Beach Area to be public as part of their overall scheme to develop the community for profit. Mr. David Thompson, the Westerly Town Assessor, testified about the Town of Westerly's assessment of taxes based on the publicly-recorded property limits of lot owners along Atlantic Avenue. The State then called Ms. Janet Freedman, a coastal geologist with CRMC, who testified about the topography of the Disputed Area and its evolving boundaries, both as they stand presently and as they were estimated to have been in the past. Finally, Mr. Paul LeBlanc, an engineer for the Town of Westerly, was called by the State for his expert opinion as to whether the 1909 Plat was nebulous with respect to depicting the southern boundary of the lots on the southern side of Atlantic Avenue.
The Homeowners countered with three witnesses and more than two hundred documented exhibits. First, the Homeowners called Mr Joseph Priestly, who, like Mr. Thibodeau, is also a Rhode Island title attorney. Mr. Priestly's extensive testimony centered on his...
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