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STATE OF MAINE SUPERIOR COURT YORK, ss. Civil Action Docket No. RE-09-0111 ROBERT F. ALMEDER et al., Plaintiffs, MEMORANDUM OF DECISION and v. FINAL JUDGMENT ON FEE TITLE CLAIMS TOWN OF KENNEBUNKPORT (Title to Real Estate Involved) Defendant. I. Introduction …………………………………………………………………………1 II. Background…………………………………………………………………………4 III. Parties……………………………………………………………………………....5 IV. Findings of Fact…………………………………………………………………10 A. Goose Rocks Beach…………………………………………………….10 B. History of Land Transactions………………………………………..15 . C. Sources of Title………………………………………………………….36 Western Beach Properties………………………………………..36 Middle Beach Properties………………………………………….71 Eastern Beach Properties…………………………………….…102 V. Plaintiffs’ Title Claims…………………………………………………….…..178 VI. Town’s Title Claim.…………………………………………………………...249 VII. Conclusion and Order……………………………………………………...269 I. Introduction Robert F. and Virginia S. Almeder and 22 other owners of beachfront property on Goose Rocks Beach in Kennebunkport brought this action against the Town of Kennebunkport and all persons unascertained seeking to quiet title to, and declare their 1 exclusive rights in, the beach in front of their respective upland residential lots down to the water, subject to limited public use rights in the intertidal zone portion of the beach. The Town of Kennebunkport filed nine counterclaims in response, one of which asserts fee simple title to the beach. The State of Maine and approximately 200 owners of non- beachfront property in the vicinity of the beach intervened. Litigation over rights to tidal property in Maine has been ongoing since before its independence from Massachusetts. It is not uncommon for cases of this nature to involve extensive factual records and arcane legal issues. In an early 19th century dispute over rights to tidal flats in Portland, the Supreme Judicial Court of Massachusetts observed: “The whole evidence was reported by the judge and is exceedingly voluminous, and not capable of being much abridged.” Codman v. Winslow, 10 Mass. 146, 147 (1813). The instant case is no exception, particularly since it actually consists of twenty-four quiet title/declaratory judgment actions rolled into one. The court heard 11 days of testimony; and parties presented an “exceedingly voluminous” written record consisting of nearly 700 exhibits, which included hundreds of deeds and thousands of pages. To consider and address fully the issues presented, the court’s decision, unfortunately, is lengthy and proved “not capable of being much abridged.” Plaintiffs’ claims of title are based upon their current deeds together with more recent deeds in their respective title chains that purport to include the beach. Earlier grants or deeds in the chains of title, however, did not include the beach. Over time, deeds began to reference the ocean and/or the beach—some in general terms and others with greater specificity. This first began to occur in the late 19th century when individuals acquired oceanfront land with deeds that either did not include the beach or had property descriptions different from earlier source deeds. As land was subdivided, and then transferred and re-transferred over the years, deeds began 2 referencing the beach or describing the water as a seaward boundary. In other instances, deeds have been modified in the context of intra-family or other transfers to add language inclusive of the beach. This practice has carried forward throughout the last century and into this one, with the most recent instance in 2007, two years prior to the filing of this litigation. In the end, after full consideration of the evidence, the court has concluded that only one Plaintiff has established title. Close examination of sources of title is warranted in a case such as this one. In dispute are discrete, “postage stamp-like” pieces of land—the dry and wet sand portions of the beach in front of 23 non-contiguous oceanfront residential lots. As was stipulated, none of the parties to this case claim exclusive use or possession of the disputed properties, which form part of a larger whole that has been used over the years not only by Plaintiffs but by others, including members of the public. The Town’s claim of fee title to the beach is based upon a 1684 deed from Massachusetts to the town of Cape Porpus, its predecessor, and upon records showing a history of public land grants from the town going back to its earliest years. The 1684 deed is a unique element of this case but is not an independent basis for title in the Town. Although early town records confirm that public grants of unclaimed land were regularly made at town meetings, the evidence establishes that ultimately it was the town proprietary—an entity related to but distinct from the town itself and comprised of land-owning inhabitants of the town—that controlled and held title to the “common and undivided land” within the town. In the unique circumstances presented, where only one beachfront property owner was able to establish title, the court concludes that the Town has title to all other disputed properties because the town proprietary held title to town common land, including the beach; the record does not establish that the proprietors conveyed out the 3 beach or properly concluded their affairs; and thus title has passed to the Town by operation of law. II. Background The relevant procedural history of this action is set out in Almeder v. Town of Kennebunkport, 2014 ME 139, ¶¶ 3-6, 106 A.2d 1099. In sum, the trial court with agreement of counsel previously bifurcated the case and conducted a trial on two of the nine counts in the Town’s counterclaim—the prescriptive easement claim (count IV) and the easement by custom claim (count VI). Following trial, the court issued partial judgment determining that the Town of Kennebunkport and others, including the public, had a public prescriptive easement as well as an easement by custom to engage in recreational activities in both the intertidal zone and the dry sand portion of the beach. The court further concluded under the public trust doctrine that the traditional public use rights in the intertidal zone (fishing, fowling and navigation) encompassed the right to engage in certain “ocean-based” activities. See Almeder v. Town of Kennebunkport, 2012 Me. Super. LEXIS 195 (Me. Super. Ct. Oct. 16, 2012) (Brennan, J.). The Law Court vacated the trial court’s partial judgment, Almeder, 2014 ME 12, and, after entertaining and denying a motion for reconsideration, re-issued its decision and remanded the case with instructions to “conduct proceedings and issue a decision on the remaining causes of action that were the second part of the bifurcated trial, to the extent the parties wish to continue to assert those claims.” Almeder, 2014 ME 139, ¶ 37, 106 A.2d 1099. The Court expressly directed that on remand the parties must “present evidence as to the location of each Beachfront Owner’s specific parcel,” and 4 “the court must determine, with the presentation of additional evidence, the boundaries of each Beachfront Owners’ parcel.”1 Id. ¶ 27 n.17. Consistent with the Law Court’s mandate, and with agreement of the parties, the court conducted a trial on the record title claims only, namely counts I and II of the complaint and count I of the counterclaim. Consideration of the remaining use-based claims was deferred by agreement, to be addressed in future if necessary and/or requested.2 The court’s findings of fact, conclusions of law and judgment with respect to the claims of record title to the property are set out below. III. Parties A. Plaintiffs 1. Robert F. and Virginia S. Almeder, Trustees of the Almeder Living Trust (“Almeder”), 113 Kings Highway, Goose Rocks Beach, Kennebunkport, County of York, State of Maine, the current deed to which is recorded in the York County Registry of Deeds, Book 15659, Pages 864-65. 2. John T. and Priscilla M. Coughlin, Trustees of the P.M.C. Realty Trust (“Coughlin”), 115 Kings Highway, Goose Rocks Beach, Kennebunkport, County of York, 1 The Law Court also stated: “Beyond that, the court may hear additional argument on the sufficiency of the parcel-by-parcel evidence but the parties may not introduce any new or additional evidence as to the uses giving rise to the prescriptive easement claim, and must rely on the evidence as already presented to support that cause of action. They may, however, introduce evidence relevant to the title- and deed-based claims on which the court has yet to issue a decision, i.e., those remaining causes of action that the parties agreed would be tried in the second portion of the bifurcated trial, if the parties wished to go forward with those claims.” Id. ¶ 27 n.17. 2 The remaining counts of the Town’s counterclaim—counts II (adverse possession), III (acquiescence), IV (prescription), V (dedication and acceptance), VII (public easement), and VIII (implied quasi-easement)—were deferred by agreement, to be heard, if necessary, in conjunction with any further trial on the easement and public trust claims if the Town or State elected to go forward on those claims. But see § VII, infra. 5 State of Maine, the current deed to which is recorded in the York County Registry of Deeds, Book 3085, Pages 5-6. 3. Mark E. Celi and William E. Brennan, Jr., Trustees of the Celi Kennebunkport Real Estate Trust No. 1 (“Celi”), 123 Kings Highway, Goose Rocks Beach, Kennebunkport, County of York, State of Maine, the current deed to which is recorded in the York County Registry of Deeds, Book 11798, Pages 290-91. 4. Goose Rocks Beach Holdings, LLC (“GRB Holdings”), 149 Kings Highway, Goose Rocks Beach, Kennebunkport, County of York, State of Maine, the current deed to which is recorded in the York County Registry of Deeds, Book 15048, Pages 714-21.

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