HARPSWELL — Attorneys representing a land owner who wants to prevent public use of the Cedar Beach access road have responded to a legal brief filed by access proponents.
Betsy Atkins purchased the road in June 2014 from Charles and Sally Abrahamson through her real estate company, Gables LLC. The purchase made Atkins and the Abrahamsons co-defendants in a lawsuit brought against them by Cedar Beach/Cedar Island Supporters for public access to the beach.
A Cumberland County Superior Court judge ruled in favor of CB/CIS in September 2014, finding that a public easement had been established on the 1,008-foot road.
Gables appealed the case to the Maine Supreme Judicial Court in December.
In their reply brief, filed with the high court on April 29, Gables argues that the Superior Court decision should be invalidated based on the legal principle of “laches” – that the plaintiffs waited an unreasonable length of time to assert their right to access the road.
The defendants claim that the road had been posted as private property many times before CB/CIS brought the issue to court. They say in 1987 and in 1999, the road’s owners had the sheriff post the road and record an affadavit.
Gables argues that the plaintiffs waited too long after these postings to bring the the matter to court, and in that period several key witnesses either died or become unable to provide testimony.
“No Maine case law suggests that the public users of a road can simply sit on their perceived rights for decades waiting until the owners lose their ability to call crucial witnesses to testify,” the brief says.
Attorney Ben Leoni, who represents Gables, said in an interview Monday that in public easement cases, “it’s crucial that you have those witness available … and the two most crucial witnesses to the defense are the property owners themselves.”
Superior Court Justice Nancy Mills dismissed that argument. She ruled that public access had not been interrupted for long enough to cause the issue to be brought to court.
But simply posting property is “enough by statute,” Leoni said.
“There’s no clearer assertion of private property,” he said. “… Plaintiffs recognized this, but (sat on it). Our argument is you can’t do that.”
As for the high court’s response, “we feel our chances are good,” Leoni said. “Everyone agrees on the facts; it’s just a question of how the law should deal with that.”
The Supreme Judicial Court is Maine’s highest court of appeal. The court has not decided if it will hear oral arguments.