MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2013 ME 35
Docket:   Was-12-129
Argued:   October 26, 2012
Decided:  March 21, 2013

Panel:       SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
             JABAR, JJ.


              BAYBERRY COVE CHILDRENS’ LAND TRUST et al.

                                         v.

                               TOWN OF STEUBEN

MEAD, J.

         [¶1] The Town of Steuben appeals from a judgment entered in the Superior

Court (Washington County, Cuddy, J.), declaring that the Bayberry Cove

Childrens’ [sic] Land Trust (Trust) and Paul and Pauline West own all rights, title,

and interest in a piece of real property known as the Town Landing Road located in

the Town of Steuben.       The Town argues that the court erred in rejecting its

contention that it acquired a public way by prescriptive use when the court

concluded that (1) the Town failed to use the property continuously for the

statutory period, (2) the people who used the land were separable from the public

generally, and (3) the Town failed to demonstrate a claim of right adverse to the

owners.     The Town also asserts that the court erred as a matter of law in
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considering the state of mind of the prescriptive users. We find the continuous use

issue dispositive and affirm the judgment.

                                I. BACKGROUND

      [¶2] A short, narrow road located in the Town of Steuben connects the town

ways of Rogers Point Road and Warf Road with a sandy beach along Gouldsboro

Bay. A ramp situated at the end of this road provides vehicles access to the beach

and Gouldsboro Bay.

      [¶3] The road, known as the Town Landing Road, is bordered to the west by

property owned by the Trust. The Trust obtained title to the property in 1989 by

warranty deed conveyed from Trustee Edward Atkinson and his wife Brenda

Koskinen. Town Landing Road is bordered to the east by property owned by Paul

and Pauline West and another property. The Wests acquired their property from

Pauline’s parents; the property has been in her family for over sixty years.

      [¶4] Beginning in the 1980s, Paul West initiated a series of communications

with the Town about his concerns regarding the use of the road. Between 1999

and 2010, West grew increasingly concerned about the activities of approximately

seven commercial fishermen using the Town Landing Road ramp because they

were leaving equipment and trash on the beach and using toxic chemicals to wash

their boats. In 2010, West placed a sailboat on the road, thus blocking access to

the beach; the Town instructed him to remove it during the summer of 2011.
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Shortly afterward, the Trust filed a complaint seeking a declaratory judgment as to

the ownership of the road, which the Wests later joined. After a bench trial, the

court declared that the Trust and Wests owned Town Landing Road free and clear

of any interests claimed by the Town on behalf of the public in general. The Town

filed a motion for additional findings of fact; the court granted the motion and

issued further findings. The court denied the Town’s supplemental motion for

findings of fact. This appeal followed.

                          II. STANDARD OF REVIEW

      [¶5] Because the Town filed a motion for findings of fact pursuant to M.R.

Civ. P. 52(a), “we review the original findings and any additional findings made in

response to the motion for findings to determine if they are sufficient, as a matter

of law, to support the result and if they are supported by the evidence in the

record.” Theberge v. Theberge, 2010 ME 132, ¶ 17, 9 A.3d 809 (quotation marks

omitted).

                                III. DISCUSSION

      [¶6] It is well established that the public may acquire an easement by

prescription, and that “[t]he requirements for the creation of a public way by

prescriptive use parallel those for the creation of a prescriptive easement.”

Stickney v. City of Saco, 2001 ME 69, ¶ 16, 770 A.2d 592. As the party claiming

the creation of a public way by prescription, the Town has the burden of proving
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“continuous use for at least 20 years under a claim of right adverse to the owner,

with his knowledge and acquiescence, or a use so open, notorious, visible, and

uninterrupted that knowledge and acquiescence will be presumed.” Shadan v.

Town of Skowhegan, 1997 ME 187, ¶ 6, 700 A.2d 245 (quoting Town of

Manchester v. Augusta Country Club, 477 A.2d 1124, 1130 (Me. 1984)). In

addition to proving the elements of a prescriptive easement, the Town bears an

additional burden to prove that “the use of the road [was] by people who are

inseparable from the public generally . . . .” See Stickney, 2001 ME 69, ¶ 18,

770 A.2d 592.

      [¶7]   The trial court expressly found that the Town failed to prove

continuous use for the prescriptive period: “[T]he evidence of use demonstrated by

the Town of Steuben was at best fragmented in terms of time and duration.” The

trial record includes the testimony of Pauline and Paul West, both of whom have

extensive knowledge of the history and use of the property.         It has been in

Pauline’s family for many decades and her memory of its use extends back more

than six decades. She testified that no road existed between the northeast corner of

her lot and the beach until the mid-1960s. Prior to that time, the stretch between

the corner and the beach was covered with alders.

      [¶8] Both Paul and Pauline West testified that there were separate and

significant periods of time in the decades between the 1960s and the 1990s when
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the road was not used in any way. The Wests did not limit their testimony to

non-fishermen; their testimony was that no use was made. The Town offered

considerable evidence to the contrary, but the court’s findings are entitled to

deference on appeal as long as evidence exists in the record to support them. See

Theberge, 2010 ME 132, ¶ 17, 9 A.3d 809.1

        [¶9]     The Town argues that the court failed to consider the Town’s

maintenance of the road in its continuous use analysis.                         Although there was

testimony regarding snow removal by the Town, there was no testimony about how

often the road was plowed and inconsistent evidence concerning what portion of

the road was plowed. Testimony concerning other maintenance on the road was

similarly inconsistent. Even if public maintenance did occur, that fact alone does

not mandate a finding of a public way. See Town of Manchester, 477 A.2d at

1130-31 (stating that although the town performed maintenance on a road it did not

acquire a right-of-way by prescription). At best, the testimony established that the

Town’s maintenance of the road was “minor and sporadic,” which is insufficient to


   1
       The trial court’s initial decision appears to commingle the “continuous use” issue with the
“inseparable from the public generally” issue because the court’s original order seems to have excluded
use by the commercial fishermen from its consideration of the prescriptive period. However, in its
findings of fact of February 9, 2012, the court states, inter alia: “The Court finds as a fact that the
evidence of use demonstrated by the Town of Steuben was at best fragmented in terms of time and
duration and that the users were separable from the general public of Steuben citizens,” thus confirming
that the court considered the two issues separately. Both the original and additional findings are reviewed
to determine whether there is evidence in the record to support them. See Theberge v. Theberge,
2010 ME 132, ¶ 17, 9 A.3d 809. Any ambiguity in the court’s original findings was clarified in its
additional findings of fact.
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persuade us to conclude that the court erred in failing to find that the maintenance

was continuous. See Comber v. Plantation of Dennistown, 398 A.2d 376, 378

(Me. 1979). The record does not support the Town’s assertion that the trial court

failed to consider the evidence concerning the Town’s efforts at maintaining the

road; indeed, the evidence is fully congruous with the trial court’s findings.

      [¶10] Because we conclude that the trial court’s findings are supported by

the evidentiary record, and based on these findings the Town failed to sustain its

burden to prove continuous use of the road for the required period, we affirm the

judgment of the trial court.

      The entry is:

                      Judgment affirmed.



On the briefs:

      William H. Dale, Esq., and Mark A. Bower, Esq., Jensen Baird Gardner &
      Henry, Portland, for appellant Town of Steuben

      Eric N. Columber, Esq., Roy, Beardsley, Williams & Granger, LLC,
      Ellsworth, for appellee Bayberry Cove Childrens’ Land Trust

      Stephen W. Hanscom, Esq., Crandall, Hanscom & Collins, P.A., Rockland,
      for appellees Paul West and Pauline West
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At oral argument:

        William H. Dale, Esq., for appellant Town of Steuben

        Eric N. Columber, Esq., for appellee Bayberry Cove Childrens’ Land Trust

        Stephen W. Hanscom, Esq., for appellees Paul West and Pauline West



Washington County Superior Court docket number CV-2011-17
FOR CLERK REFERENCE ONLY
