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HARPSWELL — Shoreline access proponents claimed victory this week after a judge upheld the public’s right to use a private road on Bailey Island to reach nearby Cedar Beach.
In a 73-page ruling issued Monday, Sept. 15, Cumberland County Superior Court Justice Nancy Mills sided with plaintiffs in a lawsuit against the owners of the road, ruling that an easement ensuring public access has been established on the 1,008-foot-long way.
“We’re elated, not just because we won, but because of the manner in which we won,” said Mike Helfgott, president of Cedar Beach/Cedar Island Supporters, the group that brought the lawsuit.
“(Mills’) decision was so broad and sweeping that it pretty much validates, in our mind at least, everything we had been saying about the justness of our cause,” Helfgott said.
The recognition of a prescriptive easement means that the public has a legal right to use the private road. It essentially overrides the private landowner’s property rights.
The decision will allow the public to access the beach from the road for the first time in three years.
But euphoria over the ruling may not last long, because defendants in the case are already making plans to appeal the decision to the Maine Supreme Judicial Court.
“Obviously, we’re very disappointed by the ruling,” said Chris Chandler, the lead defense attorney, of the Portland law firm Curtis Thaxter. “It seems clear, at least to us, that the court made several errors and we plan on appealing it to the supreme court.”
“There’s obviously some public policy and broader philosophical issues that need to be addressed,” Chandler added, “not the least of which is what this means for people who own property and how that property will be protected and what you need to do to protect it.”
Bailey Island residents and summer visitors have been walking down the road to Cedar Beach for generations.
In 2011, property owners Charles and Sally Abrahamson abruptly blocked off public access, setting off debate over the public’s right to the road and beach.
CB/CIS, which claims 300 members, sued the Abrahamsons in April 2013, asking the court to recognize the existence of a public easement on the road.
Betsy Atkins, a Florida-based business owner who owns property abutting the road through her real-estate company, Gables, LLC , later intervened in the case and hired additional attorneys to argue against the lawsuit.
A three-day trial was held in Portland in late May. In July, Atkins completed a purchase of Cedar Beach road and additional property in the area from the Abrahamsons.
To prove an easement existed, CB/CIS had to show that the road had been used continuously by the public for 20 years, with the knowledge, but not permission, of the landowners.
David Bertoni, lead council for the plaintiffs from the Lewiston-based Brann and Isaacson firm, said two witnesses in the case testified that there was clearly no permission to use the property, although there was no “legally cognizable” effort to stop people from doing so, Bertoni said.
“The combination of no permission and really no effort to prevent the use of beach created a public easement,” he said.
In fact, road owners were so concerned about public use that they attempted to blockade the road several times in the 1970s and 1980s, but other users ignored or removed the obstacles, Mills pointed out in her decision.
She concluded, however, that there was no proof that the road was specifically posted against the establishment of an easement in 1962, and largely dismissed evidence provided by the defense to prove it had been posted.
Bertoni acknowledged that no court ruling is “iron clad,” but said he doesn’t think there is clear ground to challenge Mills’ decision.
He cautioned, however, that the “increasing unfriendliness” of the high court to public easements could complicate the inevitable appeal.
“If they are predisposed against public easements,” Bertoni said, “then there’s a worry that it might be looked at through a more critical lens than otherwise.”
A sign marks the private portion of Cedar Beach Road in Harpswell that has been closed during a legal battle over public access to the beach. A court decision this week said the public has the right to use the road.