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Eaton v. Town of Wells, continuted.

IV. Equitable Use Interests
	[¶32]  The Eatons argue that the court erred in finding that the Town
met its burden of proving an easement by prescription. The party asserting
the easement must prove (1) continuous use (2) for at least 20 years (3)
under a claim of right adverse to the owner, (4) with  his knowledge and
acquiescence, or (5) a use so open, notorious, visible, and uninterrupted that
knowledge and acquiescence will be presumed.  See S.D. Warren Co. v.
Vernon, 1997 ME 161, ¶ 5, 697 A.2d 1280, 1282; Town of Manchester v.
Augusta Country Club, 477 A.2d 1124, 1130 (Me. 1984).  When the land is
wild and uncultivated, Maine applies the rule that open and continuous use
for the requisite length of time raises a rebuttable presumption that the use
was permissive. See S.D. Warren Co., 1997 ME 161, ¶ 16, 697 A.2d at 1284;
Town of Manchester, 477 A.2d at 1130.  "'The test of a public use is not the
frequency of the use, or the number using the way, but its use by people who
are not separable from the public generally.'" S.D. Warren Co., 1997 ME
161, ¶ 16, 697 A.2d at 1284 (citation omitted).
	[¶33]  The Eatons argue, inter alia, that the record was devoid of
material evidence to support any of the elements and that the facts were
similar to a previous, yet separate, case involving Moody Beach, in which
another justice of the Superior Court rejected a finding of prescriptive
easement.  See Bell v. Town of Wells, 557 A.2d 168 (Me. 1989).  We review
the trial court's factual findings in the present case as to the elements of a
prescriptive easement for clear error and will affirm those findings if there
is competent evidence in the record to support them even though the
evidence could support alternative factual findings.  See S.D. Warren Co. v.
Vernon, 1997 ME 161, ¶ 5, 697 A.2d 1280, 1282. Although the trial court
in the Moody Beach case may have reached a different conclusion based on
the facts of that case, the trial court in this case is not bound by the trial
court in another case.  The determination is a factual issue and the court
looks to the evidence presented in the case before it. Contrary to the
Eatons' contention, the court had ample evidence in this case.
 	[¶34]  The court made the following findings: Beginning with William
Eaton's conduct and continuing through the plaintiffs' conduct in 1983 and
1989, the Eatons acquiesced, rather than gave permission, to the public's
right to use Wells Beach for a broad range of recreational purposes, ranging
from strolling to sunbathing, picnicking, and swimming and all other
recreational beachfront activities both on the dry sand and the intertidal
zone. There was no evidence that the public ever sought or obtained
permission to use the beach for said purposes, and the public has treated
the beach as its own for recreational purposes. The public use intensified in
the 1960s when the Town built a jetty that extends out into the Webhannet
River in front of Wells Harbor.  At this point the public could access the
beach from either the southern end at the end of Mile Road or from the
northern end at the jetty. Unlike the users of Moody Beach, with the
exception of the owners of the few oceanfront lots having ownership to the
Atlantic Ocean, all of the users of Wells Beach, including the lot owners on
the east and west side of Atlantic Avenue, were public users. Even after the
1983 and 1989 takings, the Town continued to perform beach maintenance,
such as lifeguard stations, cleaning the beach, policing the beach, and
protecting the piper plover population, an endangered bird species.
Contrary to the Eatons' arguments, the court did distinguish between the
upland portions of the Eatons' property and the intertidal portions and did
recognize the 2200 feet as made up of separate noncontiguous parcels, but
found acquiescence of a broad range of recreational purposes "both on the
dry sand and in the intertidal zone" and all along the beach from the Mile
Road to the jetty.
	[¶35]  The court had the testimony of Alberta Wentworth, Irene
Brown, Hope Shelley, Robert Littlefield, and Edgar Moore, each testifying to
the uses of the beach from the Mile Road to the jetty. Alberta Wentworth, a
lifelong resident of Wells and 93 years old, testified that for as long as she
could remember, the public has always been free to use the beach from the
sea walls in front of the cottages to the low water mark. Irene Brown, age
76, born and raised on the Mile Road accessing Wells Beach, testified to her
memories of the beach. She remembered playing on the beach from the
time she was age four or five, through her teen years, from the 1920s to the
1940s. She also observed other people on the beach picnicking, having
bonfires, and parties.  She remembered the gypsies with ponies on the
beach.  She never saw anything preventing her from going on the whole
length of the beach and has never sought permission to go onto the beach. 
She always treated it as a public beach. 
	[¶36]  Hope Shelley, age 66, town historian, former curator of the
Wells Beach Historical Society, and author of Images of America:  Beaches of
Wells, testified from research that since 1850, the public has always used
the beach for recreational purposes, such as swimming, walking, playing
ball, racing cars, landing airplanes, beach parties, and school picnics. By
identifying landmarks, clothing, and postmarks, she was able to identify and
explain numerous postcards collected by her for her book showing people
using Wells Beach in the area of the subject premises in the early 1900s. She
also testified from town records that as far back as 1901 the Town put out
garbage pails for health concerns, that beginning in 1937 the Town hired a
police officer to patrol the beach, that in 1938 the Town hired someone to
clean the beach, and that with increased tourism in the twentieth century
the Town increased its summer maintenance to include life-saving
equipment and toilet facilities and also added advertising and regulatory
activities.
	[¶37]  Robert Littlefield, age 81, former town manager, tax assessor,
selectman and planning board member beginning in 1949, testified that
Wells Beach is the lifeblood of the town.  He had observed a lot of people on
the beach when he was a child up to his teenage years.  From 1950 to 1990,
the Town had lifeguards and police for the beach, cleaned the beach, and
had an advertising budget for the beach. The Town also regulated beach
activity, such as posting signs prohibiting alcohol and requiring dogs to be
on leashes. He neither personally nor on behalf of the Town ever saw any no
trespass or private property signs on Wells Beach or ever sought permission
to use the beach in 75 years. He always regarded it as a public beach. Edgar
Moore, age 58, assistant road commissioner and a lifelong resident, testified
that he has used the beach for recreational purposes since his childhood
when he used to attend night parties, drag race on the beach, and walk up
and down the beach. He also testified how the Town has maintained the
beach. 
	[¶38]  In addition, Lisle Eaton testified that he never posted no
trespass signs or private property signs.  He never gave the public
permission to use the beach. Nor did he ever give the Town permission to
put lifeguard stands, garbage cans on the beach or to otherwise maintain it. 
Further, he was aware that, since 1983 and 1989, the Town continued to
maintain the beach.
	[¶39]  The Eatons also argue that, because they did not know they
owned the property until 1983, they could not have acquiesced to the use.
Because the court found that the public use was continuous for 100 years
dating back to William Eaton's time, however, even if the court found that
the plaintiffs did not know they owned the property until the 1980s, there
was ample evidence that William Eaton knew of his ownership interest and
acquiesced to the public use. Thus, the court could have found that a
prescriptive easement had been established during that period. There was
also evidence that the Town's use of the beach to maintain it went back to
the early 1900s as well so that its prescriptive easement had also been
established prior to the current Eatons' ownership.
	[¶40]  Finally, the Eatons argue that the court's finding that a claim of
right for purposes of prescriptive easement existed is inconsistent with its
other finding that no claim of right for purposes of adverse possession
existed. The Eatons fail to recognize, however, that the claims are distinct. 
"[A]dverse possession concerns itself chiefly with the acquisition of a
present possessory estate, that is, fee simple absolute . . . Prescription, on
the other hand, concerns itself wholly with the acquisition of rights in the
land of another, such as easements."  Powell on Real Property § 91.01[3]
(2000).  The 1989 condemnation was for purposes of laying pipe and storing
sand from dredging the harbor, a use separate and distinct from the use for
recreational purposes and the use for maintaining the beach in terms of
placing lifeguard stands, trash bins, etc.  The 1983 taking for accessways
involved the right of access, whereas the prescriptive easement in this case
does not involve the right of access but the right to use the beach once
there.  Even if the Town's actions represented an acknowledgement that
the Eatons are the owners of the beach, those actions did not mean that the
public or the Town were asking permission to use the beach for recreational
or maintenance purposes. Therefore, the court did not err in finding that
the Town proved every element of a prescriptive easement.  Because we
affirm the court's judgment concerning the public's and the Town's right to
use the property through prescriptive easement, we need not address the
alternative theory of dedication.
	[¶41]  The Eatons also argue that, even if the court did not err in
granting an easement, the scope of the easement, i.e., "for general
recreational purposes," is overly broad and vague, does not reflect the
evidence presented at trial, and overburdens the Eatons' property. The
Eatons also challenge the scope of the Town's right to use the beach for
maintenance purposes. Even if the Eatons had properly preserved this
argument, their claim fails.  The issue whether a property is overburdened is
a question of fact. See Gutcheon v. Becton, 585 A.2d 818, 822 (Me. 1991).
"[T]he permissible uses of an easement acquired by prescription are
necessarily defined by the use of the servient land during the prescriptive
period." Id. cited in S.D. Warren Co. v. Vernon, 1997 ME 161, ¶ 13, 697
A.2d 1280, 1283. "When presented with an alleged overburdening of a
prescriptive easement, the factfinder must balance the prior use of the right
of way established during the prescriptive period against any later changes
in the method of use that unreasonably or unforeseeably interfere with the
enjoyment of the servient estate by its current owner." Id.  Not all changes
in the use, however, will result in a per se overburdening of a prescriptive
easement "when the change does not manifest itself in some greater
independent burden on the servient estate."  Id.  As to the argument that
the description of the easement is too broad,  we also apply the test that
"the scope of a prescriptive easement should be so limited as to prevent a
clearly foreseeable overburdening." Id. at 823.
	[¶42]  Even if we look to the use during the prescriptive period,
contrary to the Eatons' argument, the language "general recreational
purposes" adequately reflects the uses during the prescriptive period and
would not unreasonably or unforeseeably interfere with the enjoyment of the
servient estate by its current owner.  As the evidence above shows, the court
had competent evidence to support the language.  Although the court listed
certain recreational activities as examples, those were not the only
recreational uses given in the testimony. As to the Town's right to maintain
the beach, all of the uses provided were ways the Town used the property
during the prescriptive period.  Further, even if maintaining the habitat of
the piper plover was not a use for 20 years, the use does not manifest itself
in some greater independent burden on the Eatons' property. Thus, the
court's conclusions concerning the scope of the easement were not clearly
erroneous. 
V. Remaining arguments
	[¶43]  The Eatons argue that the court erred in evidentiary rulings
concerning Moody Beach, which beach was the subject of prior litigation. 
See  Bell v. Town of Wells, 557 A.2d 168 (Me. 1989). They argue that the
court abused its discretion by its disparate treatment of the parties: 
allowing as relevant the Town's historical evidence of the use of other
beaches in Wells, in Maine, and in New England but disallowing as irrelevant
the Eatons' evidence of the acquisition, ownership, development and use of
Moody Beach and other beaches in Maine.
	[¶44] We review the trial court's rulings on admissibility of evidence
for clear error or abuse of discretion.  See Moody v. Haymarket Assocs.,
1999 ME 17, ¶ 4, 723 A.2d 874, 875.  Contrary to the Eatons' arguments,
because the issues in this case involve the ownership and use of Wells Beach,
the court did not err in excluding as irrelevant the evidence of the
ownership of beaches outside of the Town of Wells.  Moreover, even if the
court should also have excluded evidence of the use of other beaches, it was
harmless because the court specifically noted in its judgment that it did not
rely on that evidence for its decision. As for the exclusion of evidence
concerning Moody Beach in particular, the court did not abuse its discretion
in its ruling that it would allow counsel to argue from the findings in the
Moody Beach trial court decision, but it would not compare the evidence
presented in that case with the present case. As stated above, the court is
not bound by trial court decisions in other cases.
	[¶45]  Further, the court did not abuse its discretion in finding that
the Town had not acted in bad faith, see Linscott v. Foy, 1998 ME 206, ¶¶
16, 17, 716 A.2d 1017, 1021, and accordingly in denying the Eatons' claim
for attorney fees incurred in defense of the Town's motion for preliminary
injunction. See Chiappetta v. LeBlond, 544 A.2d 759, 760 (Me. 1988). 
Contrary to the Eatons' contention, the court found that the Town brought
the request in anticipation of a dredging project and that the project's
failure to be funded was through a series of circumstances beyond anyone's
control. This finding was based on evidence that, although anticipated,
Congress did not fund the project. Nor did the court abuse its discretion in
refusing to grant the Eatons' motion for findings of fact. See Sewall v.
Saritvanich, 1999 ME 46, ¶ 10, 726 A.2d 224, 226.  The thoroughness of
the findings of fact in the court's twenty-one-page decision provided a
sufficient basis to inform the parties of the reasoning underlying the court's
conclusion.  See id.
	[¶46]  Nor were there any errors in the court's order clarifying that its
final judgment did not establish the boundaries of the house lots that abut
the concrete seawall to the west of the subject sand beach. We had authority
to grant the Town's motion for suspension of appeal to the extent necessary
to enable the Superior Court to hear and determine the Town's motion for
clarification, pursuant to M.R. Civ. P. 73(f), and accordingly the Superior
Court had authority to act pursuant to our order. The Eatons argue that the
abutting landowners were named as defendants as part of the following class:
"all users of Plaintiffs' Property other than persons claiming any right, title
or interest by, through, or under an instrument recorded in the York County
Registry of Deeds"; and ". . . all other persons unascertained, or not in
being, or unknown, or out of the state, and all other persons whomsoever
who may claim any right, title, interest, or estate, legal or equitable, by,
through, or under such users of Plaintiffs' property."  They argue that
service by publication was proper because it would have been impossible to
name every person using the beach and impractical to identify all current
owners. They further argue that there has been no claim by the Town that
any of those abutting owners were unaware of the suit and that they should
be defaulted.
	[¶47]  Service in quiet title actions "shall be made as in other actions
on all supposed known claimants residing either in the State or outside the
State, and notice to persons who are unascertained, not in being or
unknown shall be given by publication as in other actions where publication
is required." 14 M.R.S.A. § 6653 (1980) (emphasis added). Contrary to the
Eatons' contention, the owners of lots 1 through 44 abutting the "strip of
sand beach" in question were identifiable and ascertainable. Therefore, in
order to include them, they should have been specifically named in the
complaint, and service other than by publication should have been
attempted.
	[¶48]  Accordingly, the Eatons' argument concerning whether the
location of the boundaries of the Eatons' property in respect to the abutting
landowners was addressed is irrelevant because the abutting lot owners
were not included in the litigation.  Moreover, even if they had been
included, the emphasis was on the "strip of sand beach." While it is possible
that there is sand beach west of the seawall, the court's finding that sand
beach meant that beach to the east of the seawall was supported by
competent evidence describing the beach "from low water mark to cement
sea wall." Accordingly it was not clearly erroneous.
VI. Public Trust Doctrine
	[¶49]  Because we affirm the trial court's decision that the public and
the Town have an easement by prescription to use both the dry sand portion
of the beach and the accompanying intertidal zone, we need not reach the
State's contention that we expand the public trust doctrine established in
Bell v. Town of Wells, 557 A.2d 168 (Me. 1989).
	The entry is:
					Judgment affirmed.

SAUFLEY, J., concurring.

	[¶50]  I concur in the result and in the reasoning of the Court.  I write
separately, however, because I would overrule Bell v. Town of Wells, 557
A.2d 168 (Me. 1989).  
	[¶51]  By our unduly narrow judicial construction of the time-honored
public trust doctrine, our holding in Bell restricted the public's right to
peaceful enjoyment of one of this state's major resources, the intertidal
zones.  Pursuant to our holding in Bell, a citizen of the state may walk along a
beach carrying a fishing rod or a gun,{6} but may not walk along that same
beach empty-handed or carrying a surfboard.  This interpretation of the
public trust doctrine is clearly flawed.  As the dissent so eloquently summed
up, "the public's right even to stroll upon the intertidal lands hangs by the
slender thread of the shoreowners' consent."  Id. at 192 (Wathen, J.,
dissenting).  I would conclude that the analysis of the Bell dissent
constitutes the correct interpretation of the scope of the public trust in
intertidal zones, see id. at 187-89, and I would apply that analysis to the
intertidal zone on the Eaton's property. 
	[¶52]  Although principles of stare decisis must be considered in
determining whether we should give deference to the holding in Bell, the
length and expense of the trial that bring the parties before us today speak
eloquently of the need to address this issue immediately.  As long as the
public's legally cognizable interest in the intertidal zones remains artificially
constricted by the holding in Bell, each time that the public and a private
landowner clash over the scope of allowed recreational use of intertidal
zones, the resolution will be uncertain.  If such disputes reach litigation, the
public will be required to prove actual historic use of the intertidal zone at
issue for "recreational" purposes.  In each case, the landowner will be
forced to defend against the possibility of ever expanding prescriptive rights
in the public.  Moreover, such disputes are not likely to be rare.  Maine has
approximately 3480 miles (5600 kilometers) of coastline.{7}  It is the longest
coastline on the eastern seaboard of the United States.{8}  The potential for
multiple disputes, for continuing uncertainty, and for extensive litigation is
obvious.  
	[¶53]  Thus, we should acknowledge the problems created by our
holding in Bell before landowners and the public are forced through years of
uncertainty and unworkable restrictions founded upon a faulty legal analysis. 
Although it is the policy of the courts to abide by precedent and not to
disturb a settled point, the doctrine of stare decisis does not require a
"mechanical formula of adherence to the latest decision." Adams v. Buffalo
Forge Co., 443 A.2d 932, 935 (Me. 1982) (citations omitted).  Accordingly,
in order to overturn Bell, the Court's "unease with the analysis undertaken
in that case must outweigh the compelling policy of following judicial
precedent."  Shaw v. Jendzejec, 1998 ME 208, ¶ 8, 717 A.2d 367, 370.  
	[¶54]  I would conclude that the judicial unease with the Bell analysis
far outweighs the admittedly important policy of following precedent.{9}  The
rule in Bell is a recent creation of our own interpretation of an ambiguous
term.  In essence, we determined that the public did not historically own a
right that was analogous to "recreation" as addressed in the Public Trust In
Intertidal Land Act.{10}  The Legislature has not taken any action in response
to the Bell holding, that is, it has not revised the Public Trust In Intertidal
Land Act to narrowly define "recreation" in the same manner that the Bell
holding does.  Thus, it has left the matter open for judicial correction. 
Furthermore, because the Bell opinion was rendered only eleven years ago,
overturning that rule "will not do violence to a long line of authority, nor will
it interfere with the reliance interests of these or other litigants."  Adams,
443 A.2d at 936.  
	[¶55]  In summary, common sense and sound judicial policy dictate
that our holding in Bell should be overruled now, in order to preclude
continuing uncertainty, expense, and disputes.  Because I would overrule
Bell, I would conclude that the public trust doctrine applies to the intertidal
zone at issue here and that the Town's prescriptive easement claim need
only be addressed to the extent that it is asserted regarding the dry sand
portion of the beach at issue.


Attorneys for plaintiffs: Robert M.A. Nadeau, Esq., (orally) Amy B. McGarry, Esq. Nanette M. Ardry, Esq. Nadeau McGarry & Smith, P.A. 199 Main Street Sanford, ME 04073 Attorneys for defendants: Durward W. Parkinson, Esq., (orally) Susan Bernstein Driscoll, Esq. Michael W. MacLeod-Ball, Esq. Bergen & Pakinson, LLC 62 Portland Road Kennebunk, ME 04043 John J. Wall III, Esq. Thomas F. Monaghan, Esq. Monaghan, Leahy, Hochadel & Libby, LLP P O Box 7046 Portland, ME 04106 Andrew Ketterer, Attorney General Paul Stern, Deputy Attorney General (orally) 6 State House Station Augusta, ME 04333-0006
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