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Eaton v. Town of Wells
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 176
Docket:	Yor-99-700
Argued:	September 6, 2000
Decided:	October 20, 2000			

Panel:	WATHEN, C.J., and CLIFFORD, RUDMAN, SAUFLEY, ALEXANDER, and
	 	CALKINS, JJ.
Majority:	WATHEN, C.J., and CLIFFORD, RUDMAN, ALEXANDER, and CALKINS, JJ.
Concurrence:	SAUFLEY, J.




	
LISLE A. EATON et al. v. TOWN OF WELLS et al.


WATHEN, C.J.

	
	[¶1]  Lisle A. Eaton, Alice M. Eaton, and Priscilla Jane Eldridge (the
Eatons) appeal from a judgment entered in the Superior Court (York County,
Kravchuk, C.J.) after a non-jury trial granting the public and the Town of
Wells an easement over a portion of Wells Beach and from the court's order
clarifying its final judgment.{1}  The Town cross-appeals from the judgment
declaring record title in the Eatons and denying its claim for adverse
possession and from the summary judgment denying its claim of title to said
property.  Finding no error, we affirm the judgment. 
I. Background
	[¶2]  On December 31, 1997, Lisle A. Eaton, individually and as
attorney-in-fact for his siblings, Donald H. Eaton, Jr. and Priscilla Jane
Eldridge, filed a complaint against the Town of Wells, the Town selectmen,
and all users of plaintiffs' property and all persons unascertained, not in
being, or unknown claiming under such users. The complaint was amended
to add and dismiss claims and to dismiss and redesignate parties.  As
amended, it identified plaintiffs as Lisle A. Eaton, individually and attorney-
in fact for Priscilla Jane Eldridge, and Alice M. Eaton; defendant as the
Town of Wells; and the remaining claims as a quiet title action at law and a
quiet title action in equity.{2}
	[¶3]  The Town filed an answer and counterclaim, which included
claims for declaratory judgment - fee simple; adverse possession; title by
acquiescence; declaratory judgment - easement; easement by prescription;
dedication and acceptance; implied easement; and offset taxes. The State of
Maine was allowed to intervene and filed an answer raising as an affirmative
defense the public trust rights in the intertidal zone to encompass walking
and other recreational  and amusement activities, in addition to fishing,
fowling, and navigation.
	[¶4]  During the pendency of the action, the Town filed a motion for
preliminary injunction to authorize the Army Corps of Engineers access on
and across the 2200 linear feet of sand beach in dispute for the purpose of
laying pipeline and incidental construction in connection with the Wells
Harbor Federal Navigation Project. It later requested the court's consent to
withdraw its motion for a preliminary injunction, and the Eatons filed a
motion for sanctions and attorney fees in relation to the motion. The court
deferred action on the motion until the trial.
	[¶5]  Both sides filed motions for summary judgment and the court
entered judgment denying the Town's motion as to the Eatons' complaint
because of issues of material fact as to the Eatons' record title to the
property; granting the Eatons' motion as to the counts of the Town's
counterclaim involving the Town's record title and tax offsets; and denying
the Eatons' motion as to the remaining counts of the Town's counterclaim. 
	[¶6]  The court held a bifurcated trial to first address the Eatons'
claim of record title; and, second, if the Eatons prevailed, to address the
Towns' equitable use claims.  On the first part of the bifurcated trial, the
court found that the Eatons are the record title owners of any residual land
not conveyed from the parcel of land originally purchased by William Eaton
in 1892 and shown on the plans of the Wells Beach Improvement Company.
On the second part of the bifurcated trial, the court found, inter alia,  that
the Town established the public's right to use "Wells Beach" both on the dry
sand and the intertidal zone for general recreational purposes, including but
not limited to bathing, sunbathing, picnicking and walking, through an
easement by prescription and, in the alternative, through dedication and
acceptance.  The Town also established the Town's right to use the beach
through a prescriptive easement for purposes associated with beach
maintenance and preservation including raking, litter control, maintaining
wildlife habitats, and seasonal lifeguard stands, but did not prove it has a
right to install pipe over the subject parcel to aid in its harbor dredging
project and did not prove title to the beach by adverse possession. The
judgment also ordered the Town to pay the Eatons' costs but not attorney
fees in connection with the Eatons' motion for sanctions and attorney fees
relating to the Town's motion for preliminary injunction. The court then
entered a final judgment based on the prior decisions in the bifurcated trial.
	[¶7]  The Eatons filed a motion for proposed findings of facts and
conclusions of law, that the court denied.  The Eatons appealed and the
Town cross-appealed.  Thereafter, the Town filed a motion to suspend M.R.
Civ. P. 73(f) to allow the Superior Court to act on a motion to clarify its
judgment, which we granted. The court entered an order clarifying that its
final judgment and all other orders in this case did not establish the
boundaries of the house lots that abut the concrete seawall to the west of the
subject sand beach.  The Eatons appealed this order as well, and the appeals
were consolidated.
	[¶8]  A general overview of the relevant facts may be summarized as
follows: The case involves title to and equitable use of a certain portion of
Wells Beach. The Eatons' great grandfather, William Eaton, acquired
approximately 40 acres on the peninsula containing Wells Beach in 1892
from Samuel Littlefield, Augustus Littlefield and George Chaney. The
peninsula is bounded on the east by the Atlantic Ocean, on the west by
Webhannet River, on the north by the mouth of the Webhannet River, and on
the south by land of another.  With others, William Eaton formed the Wells
Beach Improvement Co. and developed the peninsula initially with 300 lots,
situated on both sides of Atlantic Avenue, a road running through the
development and parallel with the ocean. For purposes of the easement,
focus was on the portion of Wells Beach extending over one mile in length
between Mile Road (a/k/a the casino area) to the south and the jetty (a/k/a
Wells Harbor or the mouth of the Webhannet River) to the north.
	[¶9]  Through the years, William Eaton's portion of the peninsula
development was reduced to certain lots on the westerly side of Atlantic
Avenue and the 44 lots on the easterly side of Atlantic Avenue within the
portion between the Mile Road and the jetty. The individual lots were sold,
and the subject premises is the remaining strip of sand beach easterly of the
44 lots beginning approximately 3000 feet to the north of the Mile Road and
encompassing 2200 linear feet of sand, which is not contiguous because
certain lots in the development were sold with the land extending to the
Atlantic Ocean. During and after William Eaton's development of the
property, the public used the beach, both the dry sand portion and the
intertidal portion, for sunbathing, walking, and other recreational purposes,
and the Town maintained the beach.  
II. Record Title
A.  Town's title

	[¶10]  The Town argued that the court erred in granting the Eatons'
motion for summary judgment dismissing the Town's claim of record title to
the subject premises. We review the Superior Court's "entry of summary
judgment for errors of law, viewing the evidence in the light most favorable
to the party against whom the judgment was entered."  Rodrigue v.
Rodrigue, 1997 ME 99, ¶ 8, 694 A.2d 924, 926 (citation omitted). Summary
judgment will be upheld if the evidence produced demonstrates that there
is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. See id. (citation omitted). 
	[¶11]  The Town argued in its counterclaim that it holds record title
to the subject premises through two sources. First, it contends that in 1643,
Thomas Gorges, acting as agent for Lord Proprietor of Maine Sir Ferdinando
Gorges, granted John Wheelright, Henry Boade, and Edward Rishworth
full and absolute power to allott, bound and sett forth any
lotts or bounds vnto any man that shall come to inhabitt in
their Plantacon. . . . the bounds of the said Plantacon to begin
from the northeast side of Oegungig Riuer vnto the southwest
side of Kinnibuncke and to runne eight miles vp into the
countrey . . . .
The Town argues that Wheelwright, Boade and Rishworth were the original
proprietors of the Town of Wells and received the grant in that capacity.  
They argue that "as the feudal concept of property ownership gave way to
fee ownership, this grant of authority . . . had the effect of conveying fee title
to the land described to the Town of Wells."
	[¶12]  Viewing the evidence in the light most favorable to the Town
and assuming for purposes of summary judgment that Messrs. Wheelright,
Boade, and Rishworth were the original proprietors and that proprietors
obtained both "the right of soil" as well as jurisdiction, see Montgomery v.
Ives, 21 Miss. (13 Smedes & Marshall) 161 (1849) (stating that whereas in
royal provinces, the crown retained both the right of soil and jurisdiction, in
the proprietary governments, the proprietors acquired the right of soil, as
well as jurisdiction, from a grant), the trial court correctly concluded that
based on those facts the Town as a matter of law did not prove its title
because the proprietors did not convey any interest to the Town by deed.
See Howard v. Hutchinson, 10 Me. 335 (1833), cited in Glidden v. Belden,
684 A.2d 1306 (Me. 1996).
	[¶13]  Both Howard, involving a pre-revolutionary grant, and
Glidden, involving a post-revolutionary re-write of a grant, involved the issue
of who owned the rights in rangeways.  Howard was a trespass action
brought against the surveyor for the Town of Sidney for cutting down and
carrying away trees from a rangeway. See Howard, 10 Me. at 336. The
Kennebec Proprietors in 1761 had laid out the tract of land now situated
within the limits of the Town of Sidney and divided it into lots. See id. at
347. The plan represented three ranges with vacant spaces reserved
between the ranges called rangeways. See id.  The Court concluded with
respect to the Town's rights in the rangeways arising out of the original
laying out, division, and sale of lots as follows: "Whatever rights might have
been acquired by the owners of adjoining lots, it is clear that the town of
Sidney acquired no right of soil in these reservations.  The fee either
remained in the original proprietors, or passed with the grant of the lots
adjoining." Id.  In Glidden, a more recent case, we were also dealing with
who owned the rangeways in a plan laid out by the Kennebec Proprietors in
the Town of China.  See Glidden, 684 A.2d at 1309-10. Citing the above
quoted language in Howard, we stated that the Court in Howard "also held
that ownership of the rangeways remains with the Proprietors unless they
expressly convey their interest therein or the public-at-large acquires an
easement over them by the laying out of a road by the municipality pursuant
to the enabling statute or by user." Id. at 1313 (emphasis added).
	[¶14]  The Town argues Howard is distinguishable from and thus not
instructive in this case. In this case Wheelright, Boade and Rishworth were
the original proprietors obtaining their grant directly from Thomas Gorges,
the Deputy Governor of the Province of Maine. In Howard and Glidden, the
Kennebec Proprietors derived their interest not from the Governor of the
Province of Maine, but through a deed from the heirs of Boston merchants
who owned the premises.  See Glidden v. Belden, 684 A.2d 1306, 1309 n.1
(Me. 1996) (citing Ronald F. Banks, Maine Becomes a State 47 (1970)).  The
Boston merchants acquired the property when the grant was sold to them
by William Bradford and a group of pilgrims, who were granted the premises
in 1629 by the Council for New England.  See Ronald F. Banks, Maine Becomes
a State 47 (1970).{3} The Town contends that in Howard the court did not
discuss the capacity of the proprietors and their relationship to the Town of
Sidney whereas in this case the Town "presented facts that explained the
means by which the land granted to proprietors came to be held by the
Town in fee."  The only "fact" they present, however, is that their expert
witness stated in an affidavit that "[a]s the feudal concept of property
ownership gave way to fee ownership, this grant of authority from Thomas
Gorges to Messrs. Wheelright, Boade and Rishworth had the effect of
conveying fee title to the land described to the Town of Wells." This
statement, however, is an assertion of law for which the Town offered no
legal authority.  Nor did it offer any underlying factual basis to support the
bald and conclusory statement by its expert.
	[¶15]  Contrary to this legal conclusion, historical sources reveal the
following:   The Kennebec Proprietors "are not to be compared with the
mere proprietors of New England townships, although their powers and
rights before the law were substantially the same." Gordon E. Kershaw, The
Kennebeck Proprietors 1749-1775 at xiv (1975).  Proprietors of New England
towns have been defined as: 
the original grantees or purchasers of a tract of land, usually a
township, which they and their heirs, assigns, or successors,
together with those whom they chose to admit to their
number, held in common ownership.  They enjoyed the
absolute ownership and exclusive control over such tract or
tracts of land granted to them and were responsible
collectively for the improvement of the new plantation.  More
specifically, they were responsible for inducing and enlisting
settlers and new comers, for locating home lots and dwelling
houses, for building highways and streets . . . .  In other
words, they constituted the nucleus of the newly settled
community and at first they controlled the whole machinery
of the town's life, both political and economic.  
Roy H. Akagi, Ph.D., The Town Proprietors of the New England Colonies at 3
(1924).  Although seventeenth century proprietors and eighteenth century
proprietors differed, even in the seventeenth century, "there was already
some differentiation between the territorial and the political jurisdiction of
the town[,] and the proprietors alone claimed the former function." Id. at
289; see also id. at 12, 20-21, 33, 46.  "From the beginning it was the
proprietors, not the town, who had the complete jurisdiction over the town
lands."  Id.  at 289.
	[¶16]  Further, as used above, the proprietors of a "town" also
changed.  In Wells, the original proprietors were the above-mentioned John
Wheelright, Henry Boade and Edward Rishworth of Wells. See Edward E.
Bourne, Ll.D., The History of Wells and Kennebunk at 10 (1875) [History of
Wells]. Thereafter, however, Massachusetts took control and on July 5,
1653, granted to the Town of Wells corporate powers, providing, inter alia,
that Wells shall be a township, every inhabitant shall "enjoy all theire just
propaietyes, titles, and intersts in the howses and lands which they doe
possess, whither by graunt of the toune possession, or of the former
Genneral Courts," and "all the present inhabitants of Wells shall be
freemen." Id. at 32.  Once the Town was incorporated, the ownership and
control of the common lands went through a period of uncertainty.  Bourne
reported: 
[O]n the 20th of March, 1715-16, [those who had taken up
their residence] voted themselves to be owners in common
of all the ungranted land . . . .  This vote was the introduction
of the proprietary of the town, and from this period they and
their heirs or grantees assumed the title of the soil, and
made grants according to their pleasure.  To manage safely
and judiciously their interests in the township, it was
necessary that a proper organization should be effected, and
on the 14th of May following, a meeting of the proprietors
was called . . . .  Thus the town, as such, was divested of all
control of the lands from this date, and all legislation in
regard to them and all grants were thenceforth at the will of
the proprietors.  
History of Wells at 652-53. After years of laying out lands and making grants,
the proprietors voted to divide the land and assign it by lottery to the
persons owning legal rights in the common, and on February 1, 1773, with
112 proprietors, a proprietors' meeting was held for the purpose of drawing
the lottery.  See id. at 656-58.  A small amount of land still remained in the
proprietors, another committee was formed to divide the "commons," and
in 1812 it was voted that "'the committee for dividing the commons, be
directed to cause all the lands already surveyed to be divided into lots, and
to prepare for drawing the same.'" Id. at 660. Bourne noted, however, that
"[t]hese instructions do not appear to be have been complied with. . . . [T]he
few little ungranted tracts of land remaining in the different parts of the
town are either tenantless, or have been taken up by some persons who have
thought it best not to permit them to run to waste."  Id.  
	[¶17]  Therefore, even though the proprietors that eventually led to
the Town of Wells were closer to the royal grant than the Kennebec
Proprietors, the factual distinction does not affect the law concerning the
ownership of the remaining land.  As with the Kennebec Proprietors and the
Towns of Sidney and China, the Wells proprietors were empowered to
divide and allot the lands, but it was Massachusetts that controlled the
incorporation of the Town of Wells.  Also, as can be seen by subsequent town
history, there was always a question of who owned the remaining land and
the townspeople years after the town was established voted to take control
of the common land.  Thus, the Town's argument that title passed when the
feudal concept evolved into a fee system of ownership is neither consistent
with our case law nor supported by the history of proprietors in the colonies
in general or the town history in particular.  Thus, the trial court was
correct that as a matter of law the Town, without an express grant from the
proprietors, derived no title. 
	[¶18] 	Second, the Town contends that in 1720 the Town
received a deed from Symond Epps, in behalf of himself, and Daniel Epps,
administrators of Major Daniel Epps, deceased, and also in behalf of John
Wadleigh through a letter of attorney, conveying all their interest received in
deed to John Wadleigh from Thomas Chabinock Nampscossah. Thomas
Chabinock was the sagamore (leader) of the native people in that area, and
in 1649 devised to John Wadleigh "all that the sd Sagamores Lands, with his
whoole right Title & Interest, Called by the name of Nampscoscocke,
bounding betweene Noguncoth [later known as Oqunquit] & Kenebunke
[Rivers], & vp as hy as Cape Porpus falls . . . ." Likewise, the trial court
looked to the above-referenced 1715-16 town meeting and "conclude[d]
that as a matter of law the interest which the Town of Wells obtained in
1720 under these instruments was not intended to be nor was it a fee
interest in the land described by the instruments."  As the trial court noted,
by 1720, significant portions of the Town were already owned by individuals,
which the Town acknowledged, and thus the intent of the parties to the
deed could not have been to convey to the Town the same properties. See
Calthorpe v. Abrahamson, 441 A.2d 284, 286 (Me. 1982)  (stating that the
court in interpreting the language of deed, which is a question of law, seeks
to ascertain the intention of the parties to the deed).  Therefore, the court
did not err in concluding as a matter of law that the 1720 deed did not
transfer title to the Town.
  
B.  Eatons' title

	[¶19]  The Town contends that none of the deeds or devises into the
predecessors of William Eaton conveyed a 40-acre parcel near the subject
parcel. They correctly contend that a person can convey only what is
conveyed into them. See Calthorpe v. Abrahamson, 441 A.2d 284, 287 (Me.
1982). Construction of the language of a deed, however, is a question of law. 
See id. at 286.  The existence and nature of particular boundaries is a
question of law and the location of those boundaries is a question of fact. See
Tallwood Land & Dev. Co. v. Botka, 352 A.2d 753, 755 (Me. 1976).
	[¶20]  There is no dispute concerning the chain of title beginning
with the deeds into William Eaton in 1891 and 1892 up to the plaintiffs.  In
1891 Augustus T. Littlefield and George Chaney conveyed to William Eaton:
three undivided eighths parts of a certain lot of salt marsh
and beach hommocks situate in said Wells at Wells beach
bounded in the whole thus - Beginning at Marsh of the
grantee and by Town River - thence Easterly by said River to
the Atlantic Ocean - thence Southwesterly by the Ocean to
Grantee's land - thence Northwesterly by Grantee's land to
the place of beginning, containing forty acres more or less . .
. .
(emphasis added).  In 1892 Samuel S. Littlefield conveyed the remaining
5/8 interest in the same property.  No other deeds or written documents
used this description. Instead, the court based its findings concerning the
source of title into Augustus Littlefield, George Chaney, and Samuel
Littlefield on deeds and probate records with more generalized
descriptions, through the assistance of the genealogical studies of Fred
Boyle. 
	[¶21]  Mr. Boyle, a professional genealogist, traced the ownership to
the subject premises through the ancestors of Samuel Littlefield's
grandmother and Augustus Littlefield's great-grandmother, Elizabeth Storer
Littlefield, beginning with a deed in 1645 from the proprietors John
Wheelwright, Henry Boade, and Edward Rishworth to Ezekial Knights.
Ezekial Knights, Jr., with the consent of his father Ezekial Knights,
conveyed property to Samuel Storer in 1674 as follows:
a Certen Tract of Prcell of sault Marsh, or Meddow Land,
lijing & being between that part of the Webbhannet River
Called the fishing Hoole, & the sea Wall, being a Certen
Gurnet or Nose of Land compassed about with water, It lijing
vpon the sayd River, on the Southermost side there of,
abutting vpon the sea Wall contayneing the quantity of about
seauen or 8 Acers bee It more or less, with a Certen skirt of
vpland or sea Wall, wch lyeth Adioyneing thervnto, where
wee vsed to set our hay . . . 
(emphasis added.)  Lydia Storer, as widow and administratrix of the estate of
Samuel Storer, conveyed to Samuel Storer's brother, Joseph Storer, and
later, together with her children and their spouses, re-conveyed to Joseph
Storer's son, John Storer, the following property:
a Certain Island of Salt marsh lying on the South east side of
the River of wells aforesaid formerly Known by the name of
Knights Island and also a point of upland Joyning to Said
Marsh bounded by the sea wall on the southeast Togeather
with all the Rights Comon Rights Priviledges and
appurtinancis whatsoever thereof and there to any wais
belonging or may hereafter belong by any Manner of ways or
means whatsoever or howeoever (all which Land and Marsh
did formerly belong to Samvel Storer Decea who was husband
to Lydia Storer aboves . . . .
(emphasis added).  

	[¶22]  Joseph Storer conveyed his interest in his homestead,
"[t]ogether with all the salt marsh and Thatch banks Joyning thereto . . .
between the Homestead and the Sea" in 1720 to his son John Storer.  John
Storer died intestate and his estate was divided into specific properties for
each child. Elizabeth Storer Littlefield, his daughter, acquired among other
property "3 a of salt marsh in Wells called Trot's Island + 2 a of salt marsh
in Wells called the Lower Hawk." Elizabeth Storer Littlefield was married to
Jonathan Littlefield, who predeceased her,{4} and was the mother of Jonathan
Littlefield, John Storer Littlefield, Samuel Littlefield, Clement Littlefield,
and Elizabeth Littlefield.  Elizabeth Storer Littlefield died in 1823 and her
four sons acquired 1/4 interests in her property.
	[¶23]  In 1821, Samuel Littlefield conveyed his interest to his
brothers John Storer Littlefield and Clement Littlefield, so that John and
Clement then had 3/8 interests each. John Storer Littlefield through his will
conveyed his 3/8 interest to his son, Samuel Storer Littlefield. Samuel also
acquired his uncle Jonathan Littlefield [II]'s 1/4 share through a deed giving
Samuel his 5/8 interest. 
	[¶24]  Augustus T. Littlefield and George Chaney acquired the other
3/8 interest as follows:  Clement Littlefield, Augustus's grandfather, by deed
dated November, 1831 conveyed to his son Jonathan Littlefield [III]:
one undivided moiety or half part of my home farm whereon
I now dwell, lying in Wells aforesaid, being one-half part of all
my share or interest in the real estate of my honored father,
Jonathan Littlefield [I], late of said Wells deceased, now in my
possession, consisting of upland and salt marsh, according to
the reputed boundaries thereof . . . .  
(emphasis added.)  He conveyed the other one half to his son Storer
Littlefield. Jonathan Littlefield [III] conveyed his interest to his son,
Augustus T. Littlefield.  Storer Littlefield conveyed his interest to his son
Joseph Littlefield, who conveyed it to George Chaney.
	[¶25]  The trial court concluded that the language in the deed
from	Ezekial Knights to Samuel Storer in 1674 fairly described the 40-
acre parcel as ultimately conveyed to William Eaton in 1892. "In
interpreting a deed, 'a court should give words their general and ordinary
meaning to see if they create any ambiguity.'" Sylvan Properties Co. v. State
Planning Office, 1998 ME 106, ¶ 8, 711 A.2d 138, 140-40 (citation
omitted). "Examination of extrinsic evidence surrounding execution of a
deed is only proper when the language of the deed is ambiguous and the
intention of the parties is in doubt." Id.  "In the absence of extrinsic
evidence, the intent of the parties should be ascertained by resort to the
rules of construction of deeds, such as the familiar rule that boundaries are
established in descending order of control by monuments, courses,
distances and quantity." Snyder v. Haagen, 679 A.2d 510, 513 (Me. 1996).
We find that the court's interpretation that the language in the Knights to
Storer deed described the 40-acre parcel, both as to location and size, is
sound, reasonable, and consistent with the extrinsic evidence and the rules
of construction.. In particular, we find that the court's explanation of the
seemingly inconsistent number of acres of the lot was proper:
[T]he grammatical construction suggests that more than a
seven or eight acre salt marsh is being conveyed because
there is also a skirt of upland or seawall.  The terms upland,
seawall, and beach are used with some imprecision in all of
these documents, but it is reasonable to conclude that in
1674 the language must have been used in reference to the
land in front of the marsh (on the seaward side) running to
the ocean or intertidal zone.  (Emphasis added.)
Based on this rationale, the court correctly determined that even though the
language in the deed from Knights to Storer referenced seven or eight acres
of salt marsh, it conveyed forty acres because it included the skirt of upland,
seawall and beach.
	[¶26]  Moreover, we find the same analysis applies to the other
seemingly inconsistent acreage amounts. Although the description of
Elizabeth Storer's share from her father of the two salt marsh parcels only
totalled five acres and made no reference to the upland, as the Ezekial
Knights deed did, the subsequent deed from her son Clement to his sons
referred to a salt marsh and upland.  Thus it can be inferred that the salt
marsh included the upland skirt as well.  Therefore, the court did not err in
its interpretation of the deeds and its conclusion that they conveyed the
subject premises.
III. Equitable Title by Adverse Possession
	[¶27]  The Town contends that the court erred in relying upon the
eminent domain takings in 1983 and 1989 to deny the Town's claim of title
by adverse possession. The party seeking title by adverse possession must
prove by a preponderance of the evidence "possession for a 20-year period
that is actual, open, visible, notorious, hostile, under a claim of right,
continuous, and exclusive." Dowley v. Morency, 1999 ME 137, ¶ 19, 737
A.2d 1061, 1068-69 (citing Striefel v. Charles-Keyt-Leaman Partnership,
1999 ME 111, ¶ 6, 733 A.2d 984, 989) (footnote omitted).  "Adverse
possession presents a mixed question of law and fact."  Striefel, 1999 ME
137, ¶ 7, 733 A.2d at 989. "'[W]hat acts of dominion will result in creating
title by adverse possession is a question of law. . . . Whether those acts were
really done, and the circumstances under which they were done, raise
questions of fact.'" Id.  (citation omitted). "'Even though the evidence could
support an alternative factual finding, that alone does not compel reversal of
the findings below when they are supported by competent evidence.'"  S.D.
Warren Co. v. Vernon, 1997 ME 161, ¶ 5, 697 A.2d 1280, 1282 (citation
omitted). 
	[¶28]  The court denied the Town's claim for adverse possession
because the Town failed "to prove by a preponderance of the evidence that
it has been in possession of the land 'under a claim of right.'" The claim of
right must be an "'intent to claim the land as [its] own, and not in
recognition of or subordination to [the] record title owner.'"  Striefel v.
Charles-Keyt-Leaman Partnership, 1999 ME 111, ¶ 14, 733 A.2d 984, 991
(quoting Black's Law Dictionary 248 (6th ed. 1990)).  The court determined
that the Town explicitly acknowledged the Eaton's record interest in this
parcel through its actions in the 1983 and 1989 takings, which negated the
Town's claim of right to the fee.
	[¶29]  The Town first argues that eminent domain takings cannot, as
a matter of law, be construed as recognition of a subordinate interest, citing
23 M.R.S.A. § 3023 (1992) for the proposition that a municipality may take
property through eminent domain if title is defective and contending that is
what it did. The court found, however, that even though the Town argued
this position at the time of the trial, the Town acknowledged at the time of
the takings that the Eatons were the record owners.  The Town as the party
claiming adverse possession has the burden to prove each element of the
claim by a preponderance of the evidence.  The court found that the Town
did not prove that a title defect was the basis for the takings in 1983 and
1989. The Town's intent was a finding of fact and we defer to the factfinder
on issues of credibility, weight and significance of evidence. Neither the
condemnation order in 1989 nor the letters sent to the Eatons cited a title
defect or stated that the Town was reserving any claim of title to the
property in question for said reason. Nor did the Town introduce any
evidence of its intent during the 1983 takings.  Although the court could
have found that the Town used eminent domain proceedings because there
was a defective title, the court need not have found that was the reason.
Therefore, the court did not err in determining that the Town did not prove
its claim of right on this basis.  
	[¶30]  The Town argues next that the evidence, as seen in the
court's findings, showed that the Town acquired title by adverse possession
prior to the 1983 and 1989 takings and once the Town acquires title by
adverse possession, it cannot be divested of that right.  See S.D. Warren Co.
v. Vernon, 1997 ME 161, ¶ 11, 697 A.2d 1280, 1283; Restatement (3d) of
Property § 2.17 cmt. a at 261-62 ("[A] fee simple persists in the person to
whom the estate is forfeited."); see also Picken v. Richardson, 146 Me. 29,
36, 77 A.2d 191, 194 (1950) cited in Town of Sedgwick v. Butler, 1998 ME
280, ¶ 6, 722 A.2d 357, 358 ("[T]he common law rule . . . is that a perfect
legal title cannot be lost by abandonment.").
	[¶31] Even though the trial court's decision does not specifically
state when adverse possession would have passed but for the 1983 and 1989
actions, even if it had found that it would have ripened before the 1983 and
1989 takings,{5} it can be inferred from the court's findings that it found that
the 1983 and 1989 takings were merely reflective of the Town's
understanding of title even prior to 1983 and thus still negated the claim of
right for purposes of adverse possession.  Because this is a factual
determination, we defer to the trial court's determination and find no error.



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