Bell v. Town of Wells
1989 Me. LEXIS 68, 557 A.2d 168 (1989)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A state statute that purports to grant the public a general right to use privately-owned intertidal land for recreation constitutes an unconstitutional taking of private property for public use without just compensation. Public rights in such lands are limited by the common law, derived from the Colonial Ordinance of 1641-47, to fishing, fowling, and navigation, and uses incidental thereto.
Facts:
- Edward B. Bell and other plaintiffs own oceanfront lots at Moody Beach in Wells, Maine.
- The deeds for their lots establish that their properties are bounded by the Atlantic Ocean, which under Maine law means their fee simple ownership extends to the intertidal zone (the land between the high and low tide marks).
- Moody Beach, which is about a mile long, has a wide intertidal zone and a strip of dry sand.
- Over the years, the public has used Moody Beach for various recreational activities, but testimony at trial regarding the historical extent and nature of this use was conflicting.
- The trial court found as a matter of fact that the only open and continuous public use for the 20 years preceding the lawsuit was the habit of strolling along the length of the beach.
- The Town of Wells owns three lots that it uses to provide public access to the beach.
- Adjacent to Moody Beach is Ogunquit Beach, which the Village of Ogunquit acquired by eminent domain in 1925 to serve as a public beach.
Procedural Posture:
- Edward B. Bell and other landowners filed a quiet title action in the Maine Superior Court (York County) against the Town of Wells and others.
- The Superior Court initially dismissed the action, holding that the State was an indispensable party and the suit was barred by sovereign immunity.
- On a first appeal (Bell I), the Maine Supreme Judicial Court vacated the dismissal, holding that the landowners held fee title to the intertidal land, and remanded the case for a trial on the merits.
- While the case was pending, the Maine Legislature enacted the Public Trust in Intertidal Land Act, purporting to grant the public recreational rights in intertidal lands.
- Following a four-week bench trial, the Superior Court entered judgment in favor of the plaintiff landowners.
- The Superior Court declared the Public Trust in Intertidal Land Act unconstitutional and found the evidence insufficient to establish a public easement by local custom.
- The Town of Wells and the State (defendants-appellants) appealed the Superior Court's judgment to the Maine Supreme Judicial Court.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does Maine's Public Trust in Intertidal Land Act, which grants the public a right to use privately-owned intertidal lands for general recreation, constitute an unconstitutional taking of private property without just compensation in violation of the Maine and U.S. Constitutions?
Opinions:
Majority - McKusick, C.J.
Yes. The Public Trust in Intertidal Land Act constitutes an unconstitutional taking of private property without just compensation. Maine property law, derived from the Colonial Ordinance of 1641-47, establishes that upland owners hold fee simple title to the adjacent intertidal lands. This private ownership is subject to a public easement, but that easement is limited to fishing, fowling, and navigation, and uses reasonably incidental thereto. The court, following its own precedent and persuasive authority from Massachusetts, rejected the argument that these uses could be expanded by judicial interpretation to include general recreation like bathing or sunbathing. The Act, by declaring a new, unlimited public right to use this private land for 'recreation,' authorizes a 'permanent physical occupation' by the public. Such a physical invasion constitutes a per se taking of property under both the Maine and U.S. Constitutions. Because the Act provides no mechanism for just compensation to the property owners for this taking, it is unconstitutional on its face.
Dissenting - Wathen, J.
No. The Public Trust in Intertidal Land Act is constitutional because it is merely a declaration of public rights that already exist under an evolving common law. The majority erroneously concludes that the Colonial Ordinance is the exclusive source of all public rights, ignoring pre-existing common law rights. The genius of the common law is its ability to adapt to changing societal needs. The historic uses of fishing, fowling, and navigation have evolved to include recreational aspects, and other recreational uses like bathing and walking are a natural extension of these rights and are no more burdensome on the landowner. Therefore, the Act does not 'take' a new property right but merely confirms and codifies the public's existing, evolving recreational rights, making it a constitutional exercise of legislative power.
Analysis:
This decision solidifies a private property-centric view of intertidal land rights in Maine, firmly rejecting the 'evolving public trust' doctrine for these specific lands. It establishes that the scope of the public's easement is fixed by the historical terms of the Colonial Ordinance: fishing, fowling, and navigation. The ruling clarifies that any legislative attempt to expand public access for general recreation on these privately-owned lands is not a valid exercise of police power but a physical taking requiring just compensation. This precedent significantly constrains legislative efforts to increase public beach access in Maine and Massachusetts and forces municipalities or the state to use purchase or eminent domain to acquire broader recreational rights.
