Delogu, Orlando E.

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Ocean and Coastal Law JournalVolume 6 | Number 1 Article 102001Eaton v. Town Of Wells: A Critical CommentOrlando E. DeloguUniversity of Maine School of LawFollow this and additional works at: http://digitalcommons.mainelaw.maine.edu/ocljThis Recent Developments is brought to you for free and open access by the Journals at University of Maine School of Law Digital Commons. It hasbeen accepted for inclusion in Ocean and Coastal Law Journal by an authorized administrator of University of Maine School of Law Digital Commons.For more information, please contact mdecrow@maine.edu.Recommended CitationOrlando E. Delogu, Eaton v. Town Of Wells: A Critical Comment, 6 Ocean & Coastal L.J. (2001).Available at: http://digitalcommons.mainelaw.maine.edu/oclj/vol6/iss1/10EATON v. TOWN OF WELLS:A CRITICAL COMMENTOrlando E. Delogu*When the highest court of any jurisdiction loses its courage or itscompass, the larger interests of justice are seldom well served. This isprecisely what happened here. The Eaton1 case which began in late 1997involved the claimed right of Mr. Eaton to ownership of some 2,200 linearfeet of dry sand and intertidal land area adjacent to some 44 beachfront lotsin the Town of Wells.2 Arising from his asserted ownership of these areas,Mr. Eaton also sought to limit the public's use of these dry sand andintertidal land areas to those uses (fishing, fowling, and navigation)outlined a decade ago in the now famous Moody Beach cases? The Townof Wells, however, also claimed to have record title to the areas in questionand/or to have acquired title by adverse possession. The Town also arguedthat with respect to the question of public use rights the Moody Beachcases were not controlling-that, unlike Moody Beach, a broadened rangeof public use rights reaching back almost 100 years (including strolling,sunbathing, picnicking, swimming, and other recreational beachfrontactivities) could be shown to have existed here. The town was prepared toargue that this broadened range of public uses, on and within the particular* Professor of Law, University of Maine School of Law; B.S., 1960 University of Utah;M.S., 1963, J.D., 1966, University of Wisconsin.1. See Eaton v. Town of Wells, 760 A.2d 232 (Me. 2000). The State of Maine, throughthe Office of the Attorney General, was an intervener in this case for the limited purpose ofraising anew public trust issues decided adversely to the State's (and the public's) interestin Bell v. Town of Wells, 557 A.2d 168 (Me. 1989). See Eaton v. Town of Wells, 760 A.2dat 236.2. See Eaton v. Town of Wells, 760 A.2d at 237. No competing claims with respect toany of the 44 beachfront lots were raised or decided in this case. See id.3. See Bell v. Town of Wells, 510 A.2d 509 (Me. 1986) [hereinafter Bell I]; Bell v. Townof Wells, 557 A.2d 168 (Me. 1989) [hereinafter Bell II]. Issues surrounding these caseswere addressed in a symposium issue of the Maine Law Review, 42 ME. L REV. 1-158,(1990); see also, Alison Rieser, Public Trust, Public Use, and Just Compensation, 42 ME.L.REv. 5 (1990); Orlando Delogu, Intellectual Indifference-Intellectual Dishonesty: TheColonial Ordinance, The Equal Footing Doctrine, and the Maine Law Court, 42 ME. L.REV. 43 (1990).225OCEAN AND COASTAL LAW JOURNAL [Vol. 6:225areas in question, had long ago ripened into a right by prescription-a rightheld by the general public and the town.' The Superior Court in its October20, 1999 Decision and Judgment expressly held that: "[t]he Town of Wellsis an appropriate party to assert the public's right to [a prescriptive]easement over the property in question.",5After lengthy preliminary proceedings the lower court held a bifurcatedtrial in late 1999 that separated questions of title from questions concerningthe scope of the public's use rights.6 On the title issue, the lower court, inan Order dated September 20, 1999 and in Findings of Fact and Conclu-sions of Law dated September 26, 1999 found that Eaton's claim of titlewas superior to, and better founded than the claims of the town. The MaineSupreme Judicial Court sitting as the Law Court subsequently agreed.They concluded: "[T]he [lower] court did not err in its interpretation of thedeeds and its conclusion that they conveyed the subject premises [to theEaton's predecessor's in title]."7 The town's theory of ownership was byno means frivolous, but both courts found that it was not as fully supportedby the evidence as it needed to be in order to prevail.As to the scope of the public's use rights in these dry sand andintertidal land areas, the lower court agreed with the town-the facts herewere unlike those in Moody Beach. Moreover, the lower court did not feelitself bound by the Superior Court's findings in Bell lI-not only were theunderlying facts different, but the evidentiary showings with respect toprescriptive uses (and rights gained therefrom) were significantly differentin the two cases; thus the two lower court holdings are not inconsistent withone another-they simply reach opposite results based on these differentfactual settings and evidentiary showings.' The lower court went on tohold that the town had amply demonstrated a pattern of use sufficient "[t]oestablish on behalf of the general public and the Town of Wells a [prescrip-tive] right to use the subject premises, both the dry sand and the intertidalzone, for general recreational purposes, including but not limited tobathing, sunbathing, picnicking and walking, and beach maintenance."9Regarding this aspect of the case, the Law Court agreed with the lowercourt on each of these points. They noted:4. See Eaton v. Town of Wells, RE-97-203 at 10 (Me. Super. Ct., York Cty., Oct. 20,1999) (Kravchuk, C.J.).5. Id. The Superior Court went onto cite several Maine Law Court cases supporting thisview.6. See Eaton v. Town of Wells, 760 A.2d at 236.7. Id. at 242.8. See Eaton v. Town of Wells, RE-97-203 at 7-9 & n.2.9. Id. at 20.226Eaton v. Town of Wells: A Critical Comment[A]lithough the trial court in the Moody Beach case may havereached a different conclusion based on the facts of that case, thetrial court in this case is not bound by the trial court in anothercase. The determination is a factual issue and the court looks tothe evidence presented in the case before it. Contrary to theEatons' contention, the court had ample evidence in this case.10The Law Court went on to note:[T]he [lower] court did not err in finding that the Town provedevery element of a prescriptive easement. Because we affirm thecourt's judgment concerning the public's and the Town's right touse the property through prescriptive easement, we need notaddress the alternative theory of dedication .... [W]e need notreach the State's contention that we expand the public trustdoctrine established in Bell v. Town of Wells."And with a simple "judgment affirmed" the Law Court majority concludedits opinion. A patient and skillful trial court was sustained in its dispositionof both the property rights issues and the public use rights issues presentedin this case. The property rights dimension of the case was and remainsunremarkable. The lower court andthe Law Court relied on settled cases,settled reasoning, as well as rules of law with respect to adverse possessionand rules of deed construction of long standing. The better claim of titlewas ultimately sustained. But the public use rights dimension of this casewas not resolved by recourse to the settled wisdom of the past. On thecontrary, the town's theory of the case (with respect to this issue) and thelower court's legal reasoning was bound by and shaped by a single case,Bell II, a case barely ten years old handed down by a sharply.divided LawCourt, a case that many have come to believe is badly flawed, andincorrectly decided, the very case the Eaton majority (in a surfeit ofjudicialrestraint) refused to reach or reexamine in its closing line of reasoningnoted above. 2 Some might argue that the town's success on its prescriptiverights theory precluded the Law Court from addressing its prior holding inBell Il-this is little more than the elevation of form over substance, adogged adherence to a general principle even when such adherence makesthe rule of law and the Law Court look foolish (to say nothing of the futureproblems which Bell II will continue to create). Moreover, there are soundlegal theories, theories embraced by this and predecessor Law Courts that10. Eaton v. Town of Wells, 760 A.2d at 244.11. Id. at 246, 248.12. See Eaton v. Town of Wells, 760 A.2d at 248.2001]228 OCEAN AND COASTAL LAW JOURNAL [Vol. 6:225would have allowed the larger questions raised in Bell II to bereexamined.13 Everyone associated with this case, plaintiffs, defendants,the State as intervener, and the lower court knew that Bell II loomed overthese proceedings like a 900 pound gorilla. The plaintiff's entire public usetheory (limitation of public uses to fishing, fowling, and navigation) derivesfrom Bell II. Every witness and every scrap of historical evidence,including defendant's whole approach to vindicating a broader range ofpublic use rights, was driven by Bell H and the lower court knew it waswithout power to reexamine Bell H. It was bound by the principles of staredecisis-if public use rights in the foreshore were to be vindicated,defendant's alternative theory would have to be sustained. Given thesefacts, the Law Court's decision not to reach Bell H was unnecessary,unwise and unfortunate at best; it was an abdication of responsibility atworst. 14That the Eaton case turned out well from the standpoint of sustaininga broadened range of public use rights in this particular 2200 linear feet offoreshore must be regarded as little more than a fortuity-skillful lawyeringby the town's attorney, a sympathetic lower court judge, a handful ofancients who lived long enough to offer favorable testimony, some uniquehistorical data that was admitted into evidence, and some town actionsattested to on the record that suggested a broadened range of public uses fora long enough period of time to ripen into a prescriptive right. Public userights in the foreshore should not be made to turn on such a randomalignment of fortuities. But because Bell H remains the law and dictateshow towns and lower courts must proceed, that is precisely what willcontinue to happen. The public will have to continue fighting for abroadened range of use rights in foreshore areas in town after town, athousand yards of beach here, a few hundred feet there. Essentially thesame case will be tried over and over. Some will succeed where theevidence of a wider range of public uses sustaining a prescriptive right iscompelling and/or where the trial court is sympathetic. Other cases willfail because records will be lost, the evidence will not be as strong, or adifferent trial courtjudge will demand a higher evidentiary standard. Whata waste of time and resources; what a disservice to the bench, the bar,towns, the public, and shore owners alike. And what will we be left13. See notes 15-23 infra and accompanying text.14. In other societal settings we do not allow a limited success, the product of goodfortune or a happy accident, to deflect us from coming to grips with larger underlyingissues-for instance, the cancer patient who for the moment is spared does not deter us fromcontinuing to look for a cure for the disease, and the fact that a victim of a drunk driversurvives a horrendous crash does not deter us from insisting that drunk driving, the rootproblem, be dealt with.Eaton v. Town of Wells: A Critical Commentwith-a checkerboard rule of law with respect to public use rights fromKittery to Eastport.All of this grows out of the fact that it is only the Law Court that cancorrect its own arguably incorrect prior pronouncements-it is only theLaw Court that can reexamine Bell II. To say that it could have, and shouldhave done so in the Eaton case, would in this writer's view be an under-statement. But unfortunately, only one member of the Law Court, JusticeSaufley, in a concurring opinion, would have reached this larger issue. Shebluntly states: "I would overrule Bell v. Town of Wells." (Citation omitt-ed) 5 Quoting liberally from the dissenting opinion in that case and addingher own views that the majority reasoning in that case was "clearlyflawed,"' 6 she goes on to argue that the Eaton majority should not slavishlyadhere to past precedents that are clearly wrong, particularly precedentsthat are of relatively recent origin and thus have not become settled law.Instead, such cases should be overruled, their debris and misinformationcleared away, and then, armed with a more correct rule of law (herepresumably, arule of law that would sustain state-wide the broadened rangeof foreshore public use rights found in Eaton), we would be in a far betterposition than the one we are in now to advance public interests and to sortout conflicts between shore owners and the public when they arise. 7This intelligent course urged by one member of the Law Court is notan abdication of the principles of stare decisis orjudicial activism run wild.On the contrary, it is both "[c]ommon sense and sound judicial policy.... ."s Moreover, as Justice Saufley points out, prior, and quite recent,Maine case law suggests the appropriateness of this very course of conduct.Justice Saufley cites to us three relatively recent Maine cases that havediscussed settings in which stare decisis, or adherence to a prior holding ofthe court, can and should be abandoned. 19 Myrick v. James is perhaps the15. Eaton v. Town of Wells, 760 A.2d at 248.16. Id. at249.17. See id. at 249-50.18. id. at 250.19. See id at 249-50, citing Adams v. Buffalo Forge Co., 443 A.2d 932 (Me. 1982)(revisiting and overturning prior holdings of the court with respect to privity in productsliability cases); Myrick v. James, 444 A.2d 987 (Me. 1982) (revisiting and overturning priorholdings of the court with respect to when the statute of limitations commences to run inforeign object malpractice cases); Shaw v. Jendzejec, 717 A.2d 367 (Me. 1998) (revisitingand adhering to prior holdings of the court with respect to wrongful death actions broughtby parents of a stillborn fetus, but doing so in a context that cites and fully subscribes to therationale of the Myrick Court). Adams and Myrick both engage in a discussion of staredecisis that is well worth reading and seems fully applicable to the issues raised in Eaton.At one point the Adams court notes: "Whether the doctrine [of stare decisis] should beapplied or avoided is a decision which rests in the discretion of the court. That discretion2001] 229230 OCEAN AND COASTAL LAW JOURNAL [Vol. 6:225most interesting and useful of these cases because the Law Court in thatcase attempts to lay out some guidelines as to when stare decisis should beabandoned. While acknowledging that other factors may also exist andcome into play in particular settings, a five-factor set of guidelines is laidout,' which, if found to exist, would suggest the appropriateness of,perhaps even the need to abandon the prior precedent(s). Justice Saufleysummarizes the five guidelines in a footnote of her concurring opinion, 1but more importantly, she concludes that the five guidelines are met in theEaton case. Moreover, she does not see the Bell or Eaton cases as unique;in her view "[s]uch disputes are not likely to be rare. Maine has approxi-mately 3480 miles (5600 kilometers) of coastline .... The potential formultiple disputes, for continuing uncertainty, and for extensive litigationis obvious. 22 She goes on as follows: "[T]hus, we should acknowledge theproblems created by our holding in Bell before landowners and the publicare forced through years of uncertainty and unworkable restrictionsfounded upon a faulty legal analysis."'23must be exercised with a view to whether adherence to past error or departure fromprecedent constitutes the greater evil to be suffered." Adams v. Buffalo Forge Co., 443 A.2dat 935 (citations omitted). In avoiding unjust results and undue hardships seemingly dictatedby stare decisis, the Myrick court expresses a preference for distinguishing a prior precedentof the court, but "[w]here that technique cannot be invoked with integrity.. ." Myrick v.James, 444 A.2d at 1000, the court would abandon "[a] precedent that is no longer worthyof application ..... Id. at 1001.20. See Myrick v. James, 444 A.2d at 1000.21. See Eaton v. Town of Wells, 760 A.2d at 249-50 n.9: "There are a number ofguiding principles that are called into play when the Court is deciding whether stare decisisshould be applied or avoided. A prior decision may be overruled when: (1) the court isconvinced that the rule of the prior decision operates harshly, unjustly and erratically toproduce, in its case-by-case application, results that are not consonant with prevailing, well-established conceptions of fundamental fairness and rationally-based justice, (2) thatconviction is buttressed by more than the commitment of the individual justices to their merepersonal preferences, that is, by the substantial erosion of the concepts and authorities uponwhich the former rule is founded and that erosion is exemplified by disapproval of thoseconceptions and authorities in the better-considered recent cases and in authoritativescholarly writings, (3) the former rule is the creation of the court itself in the legitimateperformance of its function in filling the interstices of statutory language by interpretationand construction of vague, indefinite and generic statutory terms, (4) the Legislature has not,subsequent to the court's articulation of the former rule, established by its own definitive andlegitimate pronouncement either specific acceptance, rejection or revision of the former ruleas articulated by the court, and (5) the court can avoid the most severe impact of anoverruling decision upon reliance interests that may have come into being during theexistence of the former rule by creatively shaping the temporal effect of the new rulearticulated by the holding of the overruling case." Id.22. Id. at 249.23. Id.Eaton v. Town of Wells: A Critical CommentWhat more can, or need, be said? The majority in Eaton did not accedeto Justice Saufley's urging. An opportunity to revisit and almost certainlycorrect a relatively recent Law Court decision, Bell II, that at least threemembers of the present court have said was incorrectly decidedP has beenlost. Public use rights in the foreshore will continue to be circumscribedby the crabbed holding in Bell II. Towns and shoreland property ownersas well as members of the public seeking to use the foreshore will proceedhaltingly and uncertainly into the future wondering when, and if, the lawin this area of shared rights will ever be clarified, and what form futureclarifications may take. The irony of Eaton is complete when onerecognizes that the majority opinion in this case was authored by JusticeWathen, the same Justice Wathen who barely eleven years ago in hisdissenting opinion in Bell II gave us the sound reasoning that JusticeSaufley (and one suspects a majority of the court had they taken theopportunity) would readily embrace today. But alas, the courage of the pasthas been replaced by the timidity of the present-Maine, our judicialsystem, and the rule of law is the poorer for it.24. See Bell v. Town of Wells, 557 A.2d 168, 180 (Me. 1989) (Wathan, J. and Clifford,J., dissenting); Eaton v. Town of Wells, 760 A.2d at 249 (Saufley, J., concurring).20011232 OCEAN AND COASTAL LAW JOURNAL [Vol. 6:225

Eaton v. Town Of Wells: A Critical Comment

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Eaton v. Town Of Wells: A Critical Comment

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