Almeder v. Town of Kennebunkport, No. Yor-12-599, 2014 Me. LEXIS 17 (Feb. 4, 2014)

(twenty-nine beachfront property owners filed an action against a town and others, seeking to quiet title to their beachfront properties up to the mean low-water mark, subject only to the public rights of usage in the intertidal property; the trial court determined that the town, the backlot owners (who had intervened), and the public enjoyed a public prescriptive easement as well as an easement by custom to engage in general recreational activities on both the wet and dry sand portions of the entire beach; the trial court also found that the State of Maine (which had intervened) had established, pursuant to the public trust doctrine, that the public's right to fish, fowl, and navigate included the right to cross the intertidal zone of the Beach to engage in all "ocean-based" activities; on appeal, the court vacated the order, ruling first that the backlot owners were not proper parties to the lawsuit because they had no interest in the property beyond that of general members of the public; the town had failed, as a matter of law, to rebut the presumption of permission in favor of the property owners that would negate a finding of adversity necessary to establish a prescriptive public easement; noting that it had never recognized an easement by custom as a viable cause of action in Maine, the court also vacated the lower court’s granting of the easement by custom; finally, the court found that the trial court’s determination that the public had a right to engage in ocean-based activities under the public trust doctrine was premature).