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May 29, 2020 Articles

Thinking Historically during Litigation: A Case Study

Two Maine Supreme Court cases illustrate that history matters, and real estate litigators should take heed.

By Andrew M. Toft

At trial, attorneys introduce evidence of past events, telling a story to persuade fact finders about how the law should be applied to those past events. While practitioners may not think about it, evidence in a case in which title to real property is contested is often a history lesson, consisting of documents recorded in the local real property records, and the historical uses of the property at issue. In adverse possession and prescriptive easement cases, practitioners immediately know that they must delve into not only real property records, but also facts that will show how and by whom the property was used across many years, the precise number of which will depend on the jurisdiction’s prescriptive period.

The relevance of history, and the necessity for real estate lawyers to sometimes think historically as they prepare and present a case, are illustrated by two opinions from the Maine Supreme Judicial Court, Almeder v. Town of Kennebunkport, 2014 ME 139, 106 A.3d 1099 (2014) (Almeder I), and Almeder v. Town of Kennebunkport, 2019 ME 151, 217 A.3d 1111 (2019) (Almeder II). In both opinions, the court looked back to the royal charters issued by the Crown between 1620 and 1639, the latter of which was the Charter of the Province of Maine issued by Charles I a decade before his beheading for high treason. The Almeder II decision also references King Philip’s War (1675–1678) and its effect on the historical title to the beach area in Kennebunkport at issue in Almeder I and Almeder II. Both opinions illustrate that, while real estate litigators often focus on the language of the documents in the chain of title, ignoring related history is done at our own peril.

In October 2009, Robert F. Almeder and 28 other owners of property adjoining Goose Rocks Beach in Kennebunkport (referred to here as “the beachfront owners”) filed litigation in Superior Court against the Town of Kennebunkport and all others who claimed any title or right to use Goose Rocks Beach. More specifically, each of the beachfront owners sought (1) a declaratory judgment affirming his or her ownership and exclusive right to use that portion of the beach abutting his or her parcel down to the mean low-water mark, “subject only to the public rights of usage in the Intertidal Property established by the Colonial Ordinance of 1647,” and (2) to quiet title to his or her claimed portion of the beach. The town filed counterclaims; 200 property owners located near but not directly on the beach (referred to here as “the backlot owners”) intervened and filed counterclaims; and the State of Maine intervened to represent the public’s interests, but did not assert any causes of action of its own.

The case was bifurcated with the use-related claims to be tried first and title-related claims later—a procedural choice that appears to have been improvidently made, considering how the title claims were eventually decided, as discussed below. The first part of the case was tried over two weeks in 2012, with 63 witnesses called. The Trial Court reviewed the use of the beach from colonial times to the early twenty-first century. The Trial Court determined that the town, the backlot owners, and the public had a prescriptive easement and an easement by custom to engage in general recreational activities over and on the entire beach.

In Almeder I, the Maine Supreme Judicial Court vacated all the relief granted to the town, the backlot owners, and the public and remanded the case to the Superior Court for trial of the title-related claims, first; and potential retrial of the land-use issues, second, if the town sought to relitigate its prescriptive easement claims on the correct legal standard—the Trial Court had erroneously failed to analyze the prescriptive claims on a beach parcel by parcel basis, as required under Maine law. The court held that the backlot owners had been improperly joined and vacated the order permitting them to intervene, as they had no legally cognizable interest in the outcome of the litigation that was different than that of the general public, who were represented by the town and the state.

Following remand, the remaining parties’ title claims were tried in an eleven-day bench trial in late 2016. Nearly 700 exhibits were presented. The Trial Court determined that only one of the beachfront owners established title to a portion of the beach, and concluded that the town held title to the dry sand and beach in front of the remaining 22 properties in dispute. The Trial Court’s decision was affirmed in Almeder II. The Almeder II opinion starts with an explanation of the different terms that apply to different areas on what most would simply call a “beach.” The court next reviewed the history of land transactions in the Kennebunkport area starting in 1620, and then analyzed the sources of title to the plaintiffs’ properties. The opinion includes a detailed discussion of Kennebunkport’s title claims to the disputed portion of the upland and the beach, before concluding that the Town of Kennebunkport holds legal title to the disputed portions of the beach for the benefit of the public.

Not many lawsuits involving real property require consideration of nearly 400 years of history. However, Almeder I and Almeder II exemplify cases in which history, not just recorded documents, but history, was critical to establishing which party holds legal title to a disputed beach. Almeder II reads as though the judge or judges who drafted the opinion enjoyed researching and writing it, in no small measure because of the profound materiality of the colonial history of the geographic area to the ultimate disposition of the case. It is often difficult to breathe life into the facts presented at trial. Perhaps history can sometimes be used to place in context and explain the otherwise often bland phrasing of title documents, to better engage the fact finder and better advocate for a client’s position. Almeder I and Almeder II prove that history matters, and real estate litigators should take heed.

Andrew M. Toft is of counsel with Hoffman Nies Dave & Meyer in Greenwood Village, Colorado.

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