Public prescriptive easements AGAIN?

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The Law Court has addressed the issue of public prescriptive easements again in Cedar Beach/Cedar Island Supporters, Inc., et al. v. Gables Real Estate LLC, 2016 ME 114.  As with its earlier decision in the Goose Rocks case (Almeder v. Town of Kennebunkport, 2014 ME 139, P18) – upon which we have blogged multiple times (Goose Rock mystery, Goose Rocks again, Back in the saddle, More about agency deference; looming arguments; and youtube, Goose Rocks, muskets and takings law, Goose Rocks Response, Goose Rocks redux – hold the phone!) the decision in Cedar Beach shows a sensitivity to ensuring that owners of land used by the public are not easily deemed to have lost their right to stop that access through longstanding public use.

Here, members of the public filed a declaratory judgment that the public had acquired a prescriptive easement over a privately-owned right of way known as Cedar Beach Road.  In a 73-page decision, the Superior Court (Mills, J.) agreed.  The Law Court (opinion by Justice Jabar) reversed.

The SJC began its analysis stating “We review a public prescriptive easement claim de novo.”  I found this statement potentially confusing – they don’t start from scratch and re-visit the fact finding of the Superior Court de novo – it’s like most other evidentiary decisions, as the cases cited after this statement provide.  The appellants filed a motion for reconsideration; if the Court does issue any changes in the existing decision, an elaboration to this effect might be helpful.  The law is reviewed de novo with no deference; the Court, it is my understanding, defers to the trial court’s fact finding unless clearly erroneous.  Here, the Court said that it had “no reason to question any of the court’s [factual] findings,” and thus, again as I understand it, was ruling that these facts as so found showed that there was no public easement as a matter of law.

The reason why, the Court said, was because, as a starting point, while you presume adversity if a claimant shows continuous use of property for 20 years with acquiescence, with public easements, you don’t.  Rather, the public’s use is presumed to be permissive, so the claimant can overcome that presumption.  To rebut the presumption, the Court said, the claimant must show continuous adversity for at least 20 years.  Here, the Court said that the trial court found adversity based on three activities that it said were insufficient to overcome the presumption of permission – loud parties on the beach, littering on the road, and removal of a chain link fence placed across the road sometime between 1978 and 1980.  The Court said the first two activities didn’t show adversity because the parties were on the beach not the road, and the litter wasn’t “the type of hostile action that shows disregard of the owner’s claims entirely[.]”

The fence didn’t do it because, the Court said, one or two incidents over decades isn’t enough:  “all required elements must have been present continuously during the prescriptive period.”

This of course raises the question of what is enough – do you need to rip down a fence every year for 20 years, and are thus dependent on the owner continually putting up a fence?  The Court said “the continuity required does not necessarily require an uninterrupted constancy,” but this wasn’t enough.  As a second basis for finding the fence insufficient, the court said that the owner’s putting up the fence didn’t show nonacquiescence because it wasn’t erected by the owner of the road, but by someone who owned a deeded easement over the road.  The Court then said that owner of such an easement can try to keep people out to protect his easement, the Court said, and while the removal of the fence showed adversity, the placement of the fence showed nonacquiescence.  Just one of those in the period was enough to interrupt the time period, even if standing for only a few days.

I’m not quite absorbing that last point.  Even if someone doesn’t own the road puts up a fence, that shows nonacquiescence – but whose nonacquiescence?  Surely, that of the easement owner.  But how would it show the nonacquiescence of the road owner?  The road owner didn’t put up the fence.

The motion for reconsideration argues that this decision is inconsistent with Alemeder, which it says confirmed that adversity no long requires hostile acts or conflict; that the facts about the fence needed to be explored before saying it killed a finding of nonaquiescence, e.g., was it put up after 20 years of public use or whether the immediate removal didn’t give the public notice of the interruption of use; and the ruling about the easement holder’s action gives that easement holder the ability to effect others’ rights in a way not previously found under Maine law.

It’s the first point I see having general interest and importance.  The claimants say in their motion that the judgment finds that the owners of the road didn’t allow the public to use the road beginning in 1957, so the public was tromping all over it for 20 years without permission.  That should be enough.  There is no need to show specific actions by the public other than tromping all over the road.

Where does this leave us?  If the public is tromping all over an owner’s land for 20+ years, to get a public easement, with no positive indications that the owner ever said fine with me, that’s not enough to get a public prescriptive easement. What more you need isn’t clear to me.

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