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Both sides in Harpswell beach lawsuit argue history is on their side

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Both sides in Harpswell beach lawsuit argue history is on their side

PORTLAND — The outcome of a lawsuit aimed at securing public access to a beach off a private Bailey Island road hinges on whether landowners properly posted the road more than 60 years ago. 

Opening arguments in the bench trail on the lawsuit, brought against landowners Charles and Sally Abrahamson by a group of Harpswell residents, were heard Tuesday in Cumberland County Superior Court. 

Cedar Beach/Cedar Island Supporters filed suit against the couple in 2012 to place a public prescriptive easement on a short stretch of road leading to Cedar Beach, at the northern tip of Bailey Island. Another party, Gables LLC, later joined as a defendant in the case. 

In order to prove there is a prescriptive easement, the plaintiffs must prove there has been uninterrupted use of the property for at least 20 years.

The road and beach have been the object of contention for the better part of four years.

David Bertoni, the attorney representing CB/CIS, told Justice Nancy Mills that whether the road was posted against an easement in 1962 is at the core of the argument over public access. 

In this case, Bertoni argued, CB/CIS claims a public easement on the road was created between 1959 and 1987 because residents used it in a open and "inescapable" manner.

He said the court is being asked to deal with "legal alchemy" in deciding if an agreement in place from the 1950s was amended or cancelled. 

Before to his death in 1959, the prior landowner permitted full public access to the beach and road, Bertoni said. In 1962, new owner Meredith Starbranch posted it against a prescriptive easement, the lawyer said.

Although plaintiffs freely admit the road was posted again two other times, in 1987 and 1999, "no one, including people who were there the month the posting allegedly occurred," can recall that it was posted in 1962, Bertoni said. 

"We have brackets here: 1959 and 1987," Bertoni told Mills. "If if didn't happen between those two years, it didn't happen."

Maine law requires landowners to post a copy of their intention to oppose a public easement in a conspicuous place on the property for six days. They may also file a copy at the registry of deeds. 

Although the plaintiffs admit that a chain and fence were placed across the road after 1962, the obstacles did not prevent public access to the beach or prohibit a public easement, even though landowners opposed the access. In its complaint, CB/CIS even admits a fence erected in 1979 was removed by a non-resident.

But the repeated attempts to dissuade public access to the road are exactly why a public easement was never established, argued Christian Chandler, the attorney for the defendants.

Despite Bertoni's assertion of "legal alchemy," the case is relatively straightforward, Chandler argued: no easement is possible because landowners have repeatedly, and openly, opposed its creation.

Property owners have taken "every action they could possibly take to prevent a public prescriptive easement from ripening" on the road, Chandler told Mills.

The requirements for an easement, including continuous, unobstructed access, have not been met, Chandler contended, because the obstacles put up by landowners between between 1959 and 1987 interrupted public access.

In addition to the chain and fence, there was a 1979 letter from the then owner of the road to the Cumberland County Sheriff's Office asking for help to stop littering, trespassing and "unruly behavior" on a road that is "definitely not open to the public," except for a few neighbors, Chandler pointed out.

The letter, chains, gates and other means are all methods used by a succession of landowners to protect their rights to the property and "maintain their ability to control it," Chandler said. 

The trial, including testimony from witnesses who used the road to access the beach for decades, was expected to last most of this week, but Mills is not expected to immediately announce her decision. 

Peter L. McGuire can be reached at 781-3661 ext. 100 or pmcguire@theforecaster.net. Follow him on Twitter @mcguiremidcoast.