Man’s waterfront access suit headed to state Supreme Court



ELLSWORTH — A man who is suing for waterfront access in the Gouldsboro village of Corea is appealing his case to the state Supreme Court.

Robert Swan’s challenge to a Hancock County Superior Court ruling last fall is accompanied by a parallel appeal by the Surfrider Foundation Maine Chapter, which is seeking to preserve public access.

Hancock County Superior Court Judge Robert Murray ruled on Sept. 28, 2015, that Swan did not have the right to access the waterfront in front of his neighbors’ property.

Murray said there was nothing in Swan’s deed that gave him title to Jenny’s Lane, which is the pathway to the beach, nor did Swan prove he gained a legal right of access over time.

The judge added that Swan did not specify the pathway in dispute.

“No survey, photographs, maps or even narrative testimony was introduced to specify the precise location of the right of way or easement the plaintiffs claim they are entitled to over the defendants’ two parcels,” Murray wrote.

Swan’s attorney, Ferdinand Slater of Ellsworth, argued in his appeal filed in February that all of the elements exist proving there has been continuous and adverse use of the property for at least 20 years — the benchmark time period in Maine for what is known as a prescriptive easement.

The fact that the current property owners, Roberta Lochte, Marybeth Parks and Joan Quintal-Blum, reconfigured Jenny’s Lane to keep it from bisecting their property is evidence the old pathway existed, Slater argued.

“To allow Jenny’s Lane to continue to function as a right of way, the appellees executed and recorded an instrument relocating the lane,” Slater wrote.

He said the picture recorded with the instrument depicts the former path of Jenny’s Lane and the new route drawn just north and labeled “New Right of Way.”

The lawyer representing the foundation, Mat Todaro of Verrill Dana in Portland, filed his appeal March 22.

He said the proof of a public easement must be demonstrated by 20 years of continuous and adverse use, meaning the owner let it be known that he or she did not want anyone accessing the property.

Like Slater, Todaro argued that the lower court failed to address the fact that the person the current property owners bought their land from — Edgar Jones — officially recorded a note on his deed in 1962 notifying the public they could not use the pathway.

“Nobody would ever record that instrument if the public wasn’t using the property in a way that threatened their rights,” Todaro said. “It helps to show he tried to take steps to stop the public use.”

Slater said Jones later attempted to stop public use of the lane by placing large stones in the path throughout the 1960s and in 1977.

“These stones were also ignored and moved by the local fishermen seeking access to the shore for their businesses,” Slater wrote in his appeal.

He said the landowners allowed the new right of way to become overgrown and objected when Swan pruned vegetation to allow passage for the public.

The Surfrider Foundation is an international, not-for-profit environmental organization that states as its mission the protection and enjoyment of the world’s ocean, waves, and beaches through an activist network.

Melissa Gates of Cushing, regional manager for the foundation, said only 10 percent of Maine’s 3,500 miles of tidal shoreline, including islands, is publicly owned.

Jacqueline Weaver

Jacqueline Weaver

Reporter at The Ellsworth American
Jacqueline's beat covers the eastern Hancock County towns of Lamoine through Gouldsboro as well as Steuben in Washington County. She was a reporter for the New York Times, United Press International and Reuters before moving to Maine. She also publicized medical research at Yale School of Medicine and scientific findings at Yale University for nine years.[email protected]

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