Mabee v. Nordic Aquafarms Inc.

• Decision Date: 27 October 2021
• Docket Number: Civil Action RE-2019-0018
• Parties: JEFFREY R. MABEE, et al., Plaintiffs v. NORDIC AQUAFARMS INC., et al., Defendants.
• Court: Maine Superior Court

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JEFFREY R. MABEE, et al., Plaintiffs v. NORDIC AQUAFARMS INC., et al., Defendants.

No. RE-2019-0018

Superior Court of Maine, Waldo

October 27, 2021

DECISION AND JUDGMENT

ROBERT MURRAY, JUSTICE

This litigation arose coincident to defendantNordic Aquafarm Inc.'s (hereinafter referred to as "Nordic") announcement of a plan to develop a commercial fish farm in Belfast, Maine near the Penobscot Bay.This announcement stoked concerns among some community members, some of whom are Plaintiffs in this litigation, over the development of the fish farm.The primary legal dispute between the plaintiffs and Nordic in this case centers around title to a section of the intertidal flats^[1]running along the Bay in the vicinity of the Little River and U.S. Route 1.The particular disputed fiats adjoin the upland properties depicted on Belfast Tax Map 29 as Lots 35, 36, 37, and 38.^[2] Nordic hopes to install underground pipes through Lot 36 to access the Bay and use the pipes to feed water to the fish farm and carry water discharge from it.To facilitate this plan, Nordic negotiated an agreement to purchase usage rights for the flats appurtenant to Lot 36 from the owners of the Lot defendants Janet and Richard Eckrote.Plaintiffs claim that the Eckrotes do not own the intertidal flats along their Lot and have no right to permit Nordic to use the intertidal property.Plaintiffs assert that the rightful owners of these intertidal flats as well as those flats along the upland^[3] property of Lots 35, 36, and 37 are plaintiffsJeffrey Mabee and Judith Grace, the current owners of Lot 38.Amongst other claims, Plaintiffs also assert that a conservation easement that Mabee and Grace granted to party-in-interest Upstream Watch, which was then assigned to plaintiff Friends of Harriet L. Hartley Conservation Area, prohibits Nordic's planned usage of the land.Defendants dispute Plaintiffs' claims to title over the intertidal land and their other claims concerning it.Finally, Plaintiffs contend that the deed which conveyed title to the Eckrotes' predecessor in interest, Frederick Poor, contains a restrictive covenant that prohibits use of the land for commercial purposes, including housing pipes for a commercial fish farm.

Plaintiffs' have pled their claims against Defendants in a five-count complaint.Count I (Declaratory Relief) and Count II (Quiet Title) seek a judgment from the Court declaring that plaintiffsJudith B. Grace and Jeffrey R. Mabee are the rightful owners of this disputed section of the shore, that a certain lease granted by the defendants Richard and Janet Eckrote to Nordic Aquafarms for use of a section of the shore is invalid, and other related relief to quiet title to the disputed property.Count III and Count IV both seek injunctions against Defendants and other parties in interest to prohibit these parties from asserting title to the shore from violating the provisions of Plaintiffs' conservation easement, and taking other actions adverse to Plaintiffs' alleged property rights.Count V brings a claim for slander of title against Nordic.

In turn, Nordic has brought counterclaims against Plaintiffs which it pleads in two counts.Count I seeks a declaratory judgment determining that Plaintiffs"have no property rights requiring [Nordic] to obtain permission or a property interest from them in order to bury its seawater pipes for aquaculture under the Eckrotes' upland and under the adjacent intertidal zone."(Nordic's Ans. at pg. 16(Feb 10, 2020)).Count II brings a claim for tortious interference with an advantageous relationship against Plaintiffs and party-in-interest Upstream Watch.

The Eckrotes have also brought their own counterclaims against Plaintiffs.Count I of their counterclaims seeks a declaratory judgment that they have fee title to the intertidal land appurtenant to their Lot and that Plaintiffs have no property rights in this disputed land.Count II asserts that the Eckrotes have established title to this land through adverse possession.Count III brings a claim for slander of title against Plaintiffs.Count IV asserts that Plaintiffs are liable under the common law of torts and 14 M.R.S. § 7551-B for trespassing on the Eckrotes' intertidal land.Count V requests that the Court find that the Eckrotes have established title to the disputed flats through boundary by acquiescence.Count VI requests a court order quieting title to the disputed flats in the Eckrotes' favor on the grounds described above.Count VII brings a claim for tortious interference with an advantageous relationship against Plaintiffs and Upstream.

The parties have agreed that in the first phase of this jury-waived trial the parties will try Counts I, II, III, and IV of Plaintiffs' complaint, Counts I, II, V, and VI of the counterclaims filed by defendants Janet and Richard Eckrote, and Count I of the counterclaims filed by Nordic.(See"Order on Motion to Bifurcate" entered on November 18, 2018.)The remaining counts will be tried in the second phase of the trial, which will proceed at a later date.The first phase of the trial was held on June 23, 24, and 25, 2021.The Court conducted a site visit on June 23, 2021 where the undersigned justice viewed the land in dispute while accompanied by the parties' attorneys and the parties' designated expert witnesses.After the presentation of evidence, the Court received post-trial briefs from the parties presenting their arguments on the merits of their claims and defenses.

The following map provides a rough sketch of the area in dispute, it is based on Belfast Tax Map 29 and is the same sketch that was provided in the Court's previous orders on Plaintiffs' motions for summary judgment.The sketch is not in the trial record and is not relied on as evidence.It is provided here only to assist the reader by providing a simplified visual of the area at issue.^[4]

(Image Omitted)

I.TRIAL RECORD

The Court has studied the testimony of the witnesses, deeds, surveyor's reports, and the other evidence presented at trial that was admitted into the record.The trial record is too voluminous for the Court to reiterate all of the facts that are reflected in the evidence nor are all of the facts in the record material to the matters the Court must decide in this phase of the trial.Therefore, the Court will use the following paragraphs to describe what it believes to be the evidence most pertinent to the issues before the Court and what it believes is necessary background information for interested members of the public to understand the Court's judgment.

A. Harriet Hartley's Conveyances and the Parties' Chains of Title

The land now contained in Lots 35 (Morgan), 36 (Eckrotes), 37 (Schweikerts), and 38 (Mabee and Grace) depicted on Belfast Tax Map 29, including the intertidal land adjoining these Lots, were once all part of a tract of waterfront real estate owned by Harriet L. Hartley.Jeffrey Mabee, Judith Grace, Janet Eckrote, Richard Eckrote, Donald Schweikert, Wendy Schweikert, and Lyndon Morgan all trace their respective titles back through numerous conveyances occurring over many years which are all rooted in the various deeds that Harriet L. Hartley used to convey portions of her tract of waterfront land between 1946 and 1950.

Hartley took sole ownership of this parcel of land including the parties' current lots on February 10, 1935, after the death of her husband Arthur Hartley.(Stip. Facts re: Title ¶¶ 14-15.)The boundaries of this original parcel are described by a 1934 deed recorded in Waldo County Registry of Deeds in Book 386 on page 453^[5] that transferred the title to Hartley and her husband as joint tenants.

The deed states:

A certain lot or parcel of land situated in Belfast in the County of Waldo and State of Maine, bounded and described as follows, to wit: Bounded northerly by land of Adoniram Moody and land owned by W. L. West, deceased, at the time of his decease; easterly by Penobscot Bay; southerly by Little River and land of Belfast Water District and westerly by land conveyed by Eva T. Burd and Ewin D. Burd to Milton B. Mills by deed recorded in Waldo Registry of Deeds.

(Id.¶ 14, Ex. 10.)The parties' disputes over the intertidal land are all rooted in the language of the deeds that Hartley used for subsequent conveyances of the above property.

The first conveyance of note was between Hartley and one of the Eckrotes' predecessors in title, Frederick Poor, on January 25, 1946, memorialized by a deed recorded in Book 452at page 205.(Id.¶ 16.)The deed describes the boundaries of the lot with the following language.

A certain lot or parcel of land situated in Belfast in the County of Waldo and State of Maine, bounded and described as follows, vis: Beginning at the head of a gully in the center of a concrete culvert which is on or near the southerly bound of the Atlantic Highway; thence Southeasterly following the bottom of the gully 275 ft. more or less to an iron bolt in the mouth of a brook; thence Easterly and Northeasterly along high water mark of Penobscot Bay410 ft. more or less to a stake at the outlet of a gully; thence Northerly up the bottom of the said gully 100 ft.; thence West 507 feet to the center of a gully on or near the southerly bound of the Atlantic Highway; thence Westerly along the southerly bound of said highway, 206 feet to the point of beginning.

(Stip. Facts re: Title, ¶ 21.)The deed also provides that "the lot or parcel of land herein described is conveyed to Fred R. Poor with the understanding it is to be used for residential purposes only, that no business for profit is to be conducted there unless agreed to by Harriet L. Hartley, her heirs or assigns."(Id.¶ 19.)Today, the land Fred Poor acquired in that deed is roughly...