MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2015 ME 165 Docket: Kno

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- 358 Argued : April 9, 2015 Decided: December 31 , 2015 Panel: SAUFLEY, C.J., and ALEXANDER , MEAD, GORMAN, and JABAR , JJ.

DARLENE F. EDWARDS et al.

v. CYNTHIA S. BLACKMAN et al.
JABAR, J. [¶1] Darlene F. Edwards and Lewis M. Edwards III appeal from a judgment entered in the Superior Court (Knox County, Hjelm, J. ) concluding , inter alia, that (1) a 1986 dedication and its acceptance by the Town of Owls Head created a public easement over the way and cul

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- sac loc ated on the Edwardses’ property; and (2) a 1924 conveyance created an easement over the beach located on the Edwardses’ property, benefiting the property current ly owned by Cynthia S. Blackman; her brother, Eliot A. Scott; and their parents, Nathalie M. Scott and Willis A. Scott Jr

. ( collectively, the Scotts). The Edwardses argue that the court erred in finding that their predecessor intended to create a public easement over the way and cul

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- sac, and in concluding that the dedication petition sufficiently described the property. The Edwardses also contend that any beach easement2 rights created by the 1924 conveyance neither burden their property nor benefit the property owned by the Scotts

. [¶ 2 ] We reject these contentions and affirm the judgment in its entirety.
I. BACKGROUND [¶ 3 ] The following facts were found by the court and are supported by the evidence presented at trial

. See Testa’s, Inc. v. Coopersmith , 2014 ME 137, ¶ 2,
105 A.3d 1037. The Scotts jointly own inlan d property located at 34 Cooper s Beach Road in Owls Head. 1 The Edwardses jointly own waterfront property located at 70 Coopers Beach Road , near the Scotts’ property . From Cooper s Beach Road a way extends across th e Edwardses’ property, terminating in a cul

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- sac that is located partly on the Edwardses’ property and partly on the property of the abutting landowner, the Arthur Titcomb Living Trust (Titcomb). 2
A. The 1924 Conveyance [¶ 4 ] The properties now owned by the Scotts and the Edwardses formerly were included in a tract of land owned by Cora E. Perry. In 1924, Perry conveyed a portion of her tract to Ensign Otis. Perry’s deed to Otis described the property

1 Although Eliot Scott’s wife, Constance Scott, was named as a defendant, there is no evidence that she has a record ownership interest in the property located at 34 Coopers Beach Road, and she does not claim any interest in either the way and cul

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- sac o r the land above the high

- water mark on the Edwardses’ property. Because Constance’s interests differ from the interests of the other individual defendants, references to “the Scotts” herein do not include her.

2 Titcomb is not a party to this action; its rights to use the way and cul

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- sac are not in issue here.3 conveyed b y reference to a plan of Cooper s Beach “made by A.D. Blackin[]ton in 1882” ( the Blackinton Plan). Otis’s deed also granted the “privileges of all streets laid out on said plan and the free use of the beach for bathing and boating purposes.” Otis’s deed did not describe the location of “the be ach,” nor did the Blackinton Plan label or otherwise designate the location of a particular beach area. [¶ 5 ] Th e Scotts’ property at 34 Cooper s Beach Road includes some of the land that Perry conveyed to Otis in 1924, and some land that was not involve d in that 1924 conveyance. The Scotts’ deed to 34 Cooper s Beach Road expressly conveys only a single easement providing “a right

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- way over the Cooper s Beach Road” to the property ; it does not mention any beach rights. [¶ 6 ] At the time of her 1924 conv eyance to Otis, Perry’s holdings included the waterfront property that is now owned by the Edwardses. The Blackinton Plan depicts a waterfront lot, numbered 24, contiguous to the Edwardses’ property. These adjacent properties have differently described w aterfront boundaries. The deeds in the Edwardses’ chain of title describe their property’s waterfront boundary in a manner that locates that boundary at the low

- wate r mark. The deeds in the chain of title for the land corresponding to lot 24 describe that lot’s waterfront boundary in a manner that locates that boundary at the high

- water mark.4 B. The 1986 Dedication and Acceptance [¶ 7 ] From 1973 to 1986, the Town of Owls Head ( the Town) hired contractors to sand and snowplow Coo per s Beac h Road, which was then a private road composed of four separate branches. During this period, the Town included
in i ts winter maintenance of Cooper s Beach Road the way and cul

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- sac located on the Edwardses’ property. After learning that it was not allo wed to expend public funds to maintain private roads, the Town announced its intent to cease plowing priva te roads at the end of the 1985 to 1986 winter season. [¶ 8 ] In 1986, twenty

- two individuals signed a two

- page petition proposing that the Town acc e pt the dedication of “Cooper s Beach Road” as a public easement. The petition’s first page identified its signatories as “owners of property consisting of Cooper s Beach Road.” The petition’s second page identified a different group of signatories as “abut t ing property owners on Cooper s Beach Road.” Five individuals signed the first page and seventeen signed the second. [¶ 9 ] In 1986, John McLoon owned the property that is now owned by the Edwardses. When the dedication petition was circulating, a Town o fficial spoke with McLoon about the petition’s purpose and consequences. The official told McLoon that if the road were accepted as a public easement, the Town would continue to plow and sand it, and others would be allowed to use it. The official5 explai ned that McLoon would need to sign the petition if he wanted the road to be dedicated, and McLoon signed the petition’s second page. 3 [¶ 1 0 ] In August 1986, the Town held a special meeting to vote on the acceptance of multiple public easement roads, and vo ters accepted the dedication of public easements over ten private roads, including Cooper s Beach Road. Since that vote, the Town has treated the way and cul

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- sac located on the Edwardses’ property in the same manner that it has treated all parts of the network of roads that were form erly collectively called Cooper s Beach Road. [¶1 1 ] The record also supports the following facts, which were found by the court in an order entered on May 7, 2013. [¶1 2 ] In 1996, the Town voted to a pprove the 1986 acceptance of a public easement over Cooper s Beach Road. Available at the 1996 meeting were tax maps that a selectman had “marked to de pict the location of the Cooper’ s Beach Road dedication based on his understanding of the 1986 acceptance.” One of thes e maps

was a dmitted as an exhibit at trial and shows a hand

- drawn line (beginning at lot 57) that runs the length of Cooper s Beach Road and extend s over the way and cul

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- sac located on the Edwardses’ property (lot 67)

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3 Titcomb’s predecessor

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- title did not sign any part of the petition.

4 At trial, Darlene Edwards and her title expert both testified that the Town’s tax map shows the Edwardses’ propert y at lot 67, the Titcomb property at lot 68, and the Scotts’ property at lot 58

- 2.6 [¶1 3 ] To assist the reader, we include a black and white copy of that tax map below.

C. Procedural History [¶1 4 ] In November 2011, the Edwardses sued the Scotts and the Town, seeking a declaratory judgment that the Scotts have no right to use and the Town has no inter est in the Ed wardses’ property. The Scotts counterclaimed, asserting rights to the way and beach located on the Edwardses’ property by virtue of7 prescriptive and deeded easements and common law rights to the intertidal zone. The Town did not file a counterclaim but c ontested the Edwardses’ claim that it had not acquired a public easement over the way and cul

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- sac located on the Edwardses’ property. [¶1 5 ] In October 2012, the Edwardses moved for summary judgment on their claims against the Town, arguing that the 1 986 dedication petition had not describe d the location of the dedicated property with enough specificity to satisfy 23 M.R.S. § 3025 (2014) , which sets out the process by which property is dedicated and accepted for highway purpos es . In an order entered o n May 7, 2013, the court ruled that, although the northern terminus of the road remained to be determined, the description of the dedicated way as “Cooper s Beach Road” was sufficient to meet the statutory standard for an acceptance. [¶1 6 ] The court held a six

- day bench trial in December 2013 and January 2014. In its post

- trial brief, the Town argued that the Edwardses’ challenge to the validity of the dedication was barred by, among other things, the thirty

- day limitations period for re view of governmental action contained in
M.R. Civ. P. 80B(b). In its judgment, entered on July 30, 2014, the court reached the merits of the dedication issue , reasoning that the Rule 80B deadline would only apply if the dedication had “ aggrieved ” the Edwa rdses’ predecessor by creating a n easement over the way and cul

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- sac
. See 23 M.R.S. § 3029 (2014) (allowing any8 person “aggrieved” by an act of the municipal legislative body in a dedication proceeding to bring an appeal to the Superior Court pursuant t o M.R. Civ. P. 80B). [¶1 7 ] On the merits of the dedication issue, the court found that, at the time of the dedication, Cooper s Beach Road had included the way and cul

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- sac located on the Edwardses’ property, and that the Edwardses’ predecessor, McLoon, had intended to dedicate the disputed way to public use. Reiterating its earlier ruling as to the dedication’s statutory sufficiency, the court concluded that the Town had acquired, by dedication and acceptance, a public easement over the way and cul

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- sac located on the Edwardses’ property. 5 [¶1 8 ] On the merits of the Scotts’ beach easement claims, the court found that Perry had intended to grant Otis an easement over the beach that is now owned by the Edwardses, and determined that the benefits of that easement had become appurtenant to Otis’s land and run with that land through its division and partial incorporation into the property that is now owned by the Scotts. Based on this

5 In light of its conclusion that the Town had acquired a public easement over the Edwardses’ way and cul

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- sac by dedication and acceptance , the court did not consider whether the Town or the Scotts also hold pres criptive easements over the way and cul

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- sac, or whether the Scotts hold a deeded easement over the way and cul

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- sac. Because Titcomb was not a party, the court was careful not to determine the Town’s righ ts, if any, to the part of the cul

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- sac located on Titcomb’s property. See Laux v. Harrington , 2012 ME 18, ¶¶ 24

- 25, 38 A.3d 318 (concluding that although the court mentioned non - parties’ properties in discussing the factual issue of an easement’s cours e, the court’s formal declaration of the easement’s location properly referred only to the parties’ properties).9 analysis, the court ruled that the Scotts hold record easement right s to use the Edwardses’ intertidal beach area “for bathing and boating purposes

. ” 6 [¶ 1 9 ] The Edwardses timely moved for additional findings and t he court denied the motion. The Edwardses then appealed, challenging the court’s determinations as to the va lidity and location of both the public easement claimed by the Town and the beach easement claimed by the Scotts.
II. DISCUSSION
A. Status of the Way and Cul

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- sac 1. Validity of the Dedication Process [¶ 20 ] We begin our analysis of the status of the way and cul

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- sac by considering the operative legal consequences of the Town’s vote to accept a de dicated public easement over “Cooper s Beach Road.” 7 The Edwardses challenge the court’s conclusion that the 1986 petition specifically described the location of the dedicated property as required by 23 M.R.S. § 3025. The Town contends that the Edwardses’ challenge to the dedication’s statutory sufficienc y is time

- barred by M.R. Civ. P. 80B. We review the interpretation of statutes and the

6 The court also concluded that the Scotts do not have prescriptive rights to use the Edwardses’ beach, but that they do have the right to u se the Edwardses’ beach to the extent allowed by Maine common law. Neither the Scotts nor the Edwardses challenge these conclusions on appeal.

7 Pursuant to 23 M.R.S. § 3025 (2014), “Unless specifically provided by the municipality, title to property ac cepted for highway purposes after December 31, 1976 shall be in fee simple.” Here, the minutes for the special meeting held by the Town of Owls Head on August 19, 1986, reflect that the Town specifically voted to accept the dedication of a public easement over Coopers Beach Road, rather than fee simple title to the road.10 Maine Rules of Civil Procedure de novo as a matter of law. Gorham v. Androscoggin C ty. , 2011 ME 63, ¶ 9, 21 A.3d 115; J.A. Rapaport Family L.P. v. City of Brewer , 2005 ME 89, ¶ 4, 877 A.2d 1077. [¶ 2 1 ] Title 23 M.R.S. § 3025 imposes descriptive requirements 8 on a dedication for “highway purposes,” which purposes are defined to include “use as a town way [ 9 ] and those things incidental to the . . . maintenance . . . of t own ways,” 23 M.R.S. § 3021(1) (2014). A dedication for highway purposes must be formally manifested by a writing or subdivision plot plan that describes the property to be dedicated for public use. 23 M.R.S. § 3025. When a dedication is manifested in w riting, the writing must specifically describe the location and the property interest that is the subject of the dedicatory offer. Id. Municipal acceptance of a dedication may be accomplished by an affirmative vote on an article in a town meeting warrant

. Vachon v. Town of Lisbon , 295 A.2d 255,
260 (Me. 1972). A person aggrieved by a municipality’s acceptance of a

8 With added emphasis, 23 M.R.S. § 3025 provides in relevant part: No property or interests therein may be dedicated for highway purposes unless the owner of such property or interest ha s filed with the municipal officers a petition

. . . or other writing specifically describing the property or interest and its location , and stating that the owner voluntarily offers to transfer such interests to the municipality without claim for damages, or has filed in the registry of deeds an approved subdivision plot plan which describes property to be appropriated for public use.

9 “Town way” is defined as, among other things, an “area or strip of land designated and held by a municipality for the passage and use of the general public by motor vehicle.” 23 M.R.S. § 3021(3) (2014).11 dedication may appeal to the Superior Court pursuant to Rule 80B. See 23 M.R.S. § 3029. Because section 3029 contains no time limit, an app eal from an acceptance accomplished by vote must be brought within thirty days after the vote.
See M.R. Civ. P. 80B(b)

. [¶ 22 ] The record here demonstrates that the Town held a meeting in August 1986, during which residents accepted by vote a public easem ent over “Cooper s Beach Road.” Any person aggrieved by the Town’s acceptance of the dedication had thirty days from the date of the vote within which to appeal. The deadline for appealing the Town’s acceptance thus expired in September 1986. [¶ 23 ] The Edwardses contend that their claims are timely because they seek declaratory relief as to the location of the Town’s easement over Cooper s Beach Road. However, the Edwardses also plainly challenge the description of the proposed dedication as incon sistent with statutory requirements. “Such challenges are the essence of matters that must be brought pursuant to Rule 80B to question whether the particular action of a municipal[ity] . . . is consistent with the requirements of law.” Sold, Inc. v. Town of Gorham , 2005 ME 24, ¶ 13,
868 A.2d 172. Rule 80B is the sole means for seeking Superior Court review of the legality of an act by a municipal body, “whether such review is specifically authorized by statute or is otherwise available by law.” Id. (quo tation marks12 omitted). Moreover, “a declaratory judgment action cannot be used to revive a [Rule 80B claim] that is otherwise barred by the passage of time.” Id. ¶ 10. [ ¶ 24 ] Because no appeal was taken within the time prescribed by Rule 80B, the validity of the 1986 dedication cannot be challenged now. See Whalen v. Town of Livermore , 588 A.2d 319, 321 n.3 (Me. 1991) ; Goucher v. Hanson , 537 A.2d 1142, 11 42

- 43 (Me. 1988); T own of Fayette v. Manter , 528 A.2d 887,
889 (Me. 1987)

. The Town’s votes must therefore “be presumed to have the operative consequences apparently intended” : to ac cept an easement over “Cooper s Beach Road

. ” Manter , 528 A.2d at 889; see also Goucher , 537 A.2d at 1143.
2. Location of the Public Easement 10 [¶ 25 ] The Edwardses next challenge the court’s conclusion that the Town’s easement extends over the way and cul

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- sac located on their property. They argue that the dedication petition plainly demons trates McLoon’s intent to grant an easement over only the part of the road “abutting” his prope rty, and that the court erred by considering evidence of McLoon’s intent extrinsic to the petition. [¶ 26 ] To prove a dedication, it must be clearly shown that t he grantor intended to dedicate the property at issue for a public purpose. Town of Kittery v.
MacKenzie , 2001 ME 170, ¶ 10, 785 A.2d 1251. The construction of a petition to

10 Though the Edwardses are time

- barred from challenging the validity of the dedicatory description on statutory grounds, Rule 80B does not bar the Edwardses’ argument that that description was not intended to include the way and cul

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- sac.13 dedicate an easement is ordinarily a matter of law. See Testa’s, Inc. , 2014 ME 137, ¶ 11, 105 A.3d 1037. However, if the petition is ambiguous, its construction is a question of fact. See id . If the language o f the petition is susceptible to more than one interpretation, it “must be read in the light of the circumstances surroundi ng its execution to effectuate its main end.” Callahan v. Ganneston Park Dev. Corp. , 245 A.2d 274, 276 (Me. 1968) (quotation marks omitted). In such cases, “[t]he meaning to be discovered and applied is that which each party had reason to know would be g iven to the words by the other party.” Id.
at 277 (quotation marks omitted). We will uphold the court’s determination regarding the parties’ intent unless it is clearly erroneous. Anchors v. Manter , 1998 ME 152, ¶ 16, 714 A.2d 134. [¶ 27 ] Here, the second page of the petition states, “We the undersigned, abutting property ow ners on Cooper s Beach Road, are in agreeme nt with having the Town of Owl’ s Head accept the road as a public easement, without claim for damages.” McLoon’s signature under this la nguage clearly demonstrates that he intended to grant the Town an easemen t over “Cooper s Beach Road.” However, this language does not indicate the parties’ understanding as to the road’s location on the face of the earth. The significance that the partie s would have attached to the term “abutter” and their understanding as to whether the road included the way and cul

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- sac cannot be determined by reading the petition in the abstract.14 Contrary to the Edwardses’ contention, the petition is ambiguous and t he court did not err in considering extrinsic evidence. [¶ 28 ] Competent evidence supports the court’s findings that (1) the Town had historical ly snowplowed and sanded Cooper s Beach Road up to and including the way and cul

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- sac; (2) the petition was ci rculated after the Town announced its intent to cease maintaining private roads; and (3) McLoon was aware of the Town’s announcement and understood that by signing the petition he could secure the continued provision of Town plowing, but would give up the right to exclude others. The record also supports the court’s finding that, at the time of the dedication, the Town used the disputed way in the same manner that it used the entire road network that was form erly collectively called Cooper s Beach Road. [¶ 2 9 ] That the road was dedicated to secure continued snowplowing by the Town and that the way and cul

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- sac had historically benefited from those services suggests that the way and cul

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- sac were to be included in the dedication. That McLoon signed the p etition with awareness of the dedication’s purpose and consequences indicates that he intended to give up privacy in the way and cul

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- sac in exchange for the continued benefit of having the Town snowplow those areas. That the Town used the disputed way in a manner indistinguishable from its use of other parts of the Coo per s Beach Road network also supports a15 determination that the Town understood that Cooper s Beach Road included the disputed way. [¶ 30 ] In sum, there was ample evidence to support the c ourt’s finding that, at the time of the dedication, McLoon and the Town both understood “Cooper s Beach Road” to include the way and cul

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- sac
. 11 Though the record also contains conflicting evidence, the court did not clearly err in finding that McLoon int ended to grant the Town an easement over the way and cul

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- sac, and that the northern terminus of the public easement over “Cooper s Beach Road” therefore includes the way and cul

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- sac located on the Edwardses’ property. See D’Angelo v. McNutt , 2005 ME 31, ¶ 6, 868 A.2d 239 (“[T]he trial court’s

. . . findings of fact [are] reviewed for clear error and will be affirmed if there is competent evidence in the record to support the finding[s] even if the evidence might support alternative findings of fact.” (alteration omitted) (quotation marks omitted) )

. [¶ 3 1 ] Because the statutory validity of the dedicatory description is no longer open to challenge, the only issue is the location of the dedicated property. Discerning no error in the court’s interpretati on of the dedication petition, we

11 This conclusion as to the Town’s understanding of the location of Coopers Beach Road is further supported by the tax map made availa ble at the 1996 meeting, which is displayed supra ¶ 13. The record supports the court’s finding that that tax map had been marked by a selectman “ to de pict the location of the Cooper’ s Beach Road dedication based on his understanding of the 1986 acceptanc e.” The map depicts a hand

- drawn li ne running the length of Cooper s Beach Road and extending over the way and cul

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- sac located on the Edwardses’ property.16 affirm the conclusion that the 1986 dedication created a public easement that extends over the way and cul

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- sac located on the Edwardses’ land

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B. Status of the Edwardses’ Beach [¶ 32 ] The Edwardses c ontest the court’s determination that Cora Perry intended to grant Ensign Otis an easement over the beach located on their property. They challenge the court’s conclusion that the beach easement passed through subsequent transfers of Otis’s estate as an appurte nance. The y also contend that the beach easement, even if it were appurtenant and even if it included their beach, is not enforceable against them because they acquired their property wit hout notice of the encumbrance. Because the Edwardses failed to pre sent their contentions regarding lack of notice to the trial court, we do not consider this issue on appeal. 13
1

. Construction of Perry’s 1924 Deed to Otis [¶ 33 ] We begin our analysis of the status of the Edwardses’ beach by addressing the operative legal consequences of Perry’s 1924 deed to Otis. We review the construction of deeds “de novo as a question of law.” Tarason v.

12 In light of our conclusion that the Town acquired a public easement over the way and cul

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- sa c by dedication and acceptance, we do not address the Town’s alternative claim that it acquired a public easement over the way and cul

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- sac by prescription.

13 Both before and after trial, the Edwardses argued that the Scotts’ predecessors

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- title had not transferred any beach rights to the Scotts, and that even if the Scotts had acquired such rights, the beach area subject to that encumbrance was not located on the Edwardses’ property. The first time that the Edwardses raised lack of notice as a disc rete issue regarding the beach easement’s viability was on appeal in their reply brief. We will not review this case on a theory different from that on which it was tried in the trial court. See Teel v. Colson , 396 A.2d 529, 534 (Me. 1979).17 Wesson Realty, LLC , 2012 ME 47, ¶ 18, 40 A.3d 1005. In construing deeds, we strive to “determine the intentions of the parties to t he deed as expressed in the instrument.” Reed v. A.C. McLoon & Co. , 311 A.2d 548, 551 (Me. 1973). [¶ 34 ] A deed may create an easement “by grant, express or implied, where the grantor benefits the conveyed land with an easement over land retained by th e grantor.” O’Connell v. Larkin , 532 A.2d 1039, 1042 (Me. 1987). An easement is created by express grant in a deed when the deed’s explicit language evidences the grantor’s intent to create an easement for the benefit of the grantee. See Reed , 311 A.2d at 551. When a deed conveys lots by reference to a plan depicting features designed to increase the lots’ value, the law may imply an easement in those features in order to secure to the grantee “those benefits, the promise of which, it is reasonable to i nfer, has induced [him] to buy portions of a tract laid out on the plan indicated.” Arnold v. Boulay , 147 Me. 116, 121 , 83 A.2d 574, 577 ( 1951) (quotation marks omitted). [¶ 35 ] Perry’s deed to Otis conveyed three lots, described as (1) “lot No. 12 on pl an of [Cooper s] Beach made by A.D. Bla ckinton,” (2) “lot No. 13 on the [same] plan,” and (3) “the triangular strip shown on the [same] plan.” After describing the property conveyed, the deed also granted the “privileges of all streets laid out on said pla n and the free use of the beach for bathing and boating purposes.” Though the 1924 deed conveyed property by reference to a plan18 depicting an intertidal area, the deed did not give rise to a beach easement by implication. By explicitly granting Otis beac h rights, Perry created an express easement appurtenant to the lots that she conveyed to Otis. See ALC Dev. Corp. v. Walker , 2002 ME 11, ¶ 14, 787 A.2d 770 (“Whenever possible an easement should be fairly construed to be appurtenant to the land of the per son for whose use the easement is created.”).
2. Succession of the Beach Easement as an Appurtenance [¶ 36 ] The Edwardses challenge the court’s conclusion that Otis’s beach easement passed through subsequent transfers of Otis’s estate as an appurtenanc e thereof, survived the division of that estate, and today be nefits the Scotts’ property. [¶ 37 ] An appurtenant easement is created to benefit a dominant estate and generally passes with that estate, id. , regardless of whether the easement is expressly me ntioned in later conveyances of the dominant estate, Cole v. Bradbury , 86 Me. 380, 384, 29 A. 1097, 1098 (1894), and regardless of whether later conveyances divide the dominant estate, Restatement (Third) of Property: Servitudes § 5.7 ( Am. Law Inst. 2000); see also Cleaves v. Braman , 103 Me. 154, 161, 68 A. 857, 860 (1907). However, an appurtenant easement can be terminated by an act of the dominant owner demonstrating a clear intention to extinguish the
easement. Great Cove Boat Club v. Bureau of Pub. Lands , 672 A.2d 91, 94 (Me. 1996). Except as limited by the terms of an easement’s creation or transfer ,19 the dominant owner can apportion appurtenant benef its to some parts of the estate and extinguish those benefits as to other parts. Restatement (First ) of Property § 488 cmt. a ( Am. Law Inst. 1944). The effectiveness of an extinguishment depends upon a finding of the dominant owner’s intent. Great Cove Boat Club , 672 A.2d at 94. [¶ 38 ] The Edwardses contend that the Scotts’ grantors intended to apport ion their beach rights to the property that they retained, and to extinguish those rights as to the property that they conveyed to the Scotts. They argue that this intent is demonstrated by the Scotts’ deed. That deed (1) conveys a portion of Otis’s esta te and land that wa s not included in Otis’s estate, (2) grants an expr ess easement of
access, and (3) is silent as to the beach. We are unpersuaded. Neither the express access easement nor the division of Otis’s estate manifests a clear intention to exti nguish the beach easement. Though the admixture of a part of Otis’s estate and property not included in Otis’s estate might suggest an intention to extinguish appurtenances of Otis’s estate, the court did not err in determining, in the absence of other in dicia of intent, that the Scotts’ grantors did not extinguish the easement. Cf. id. at 95 (concluding that an instrument evidenced an intent to extinguish an easement when the instrument’s terms were inconsistent with the easement’s continued existence).20 3

. Location of the Beach Easement [¶ 39 ] The Edwardses finally contend that the court erred in its location of the beach easement and in its determination that that easement burdens their property. Specifically, the Edwardses argue that Otis’s deed is ambiguous as to the precise location of “ the beach,” and that the court erred by disregarding extrinsic evidence that Perry intended to burd en only the beach in front of lot 24 as depicted on the Blackinton Plan. [¶ 4 0 ] Here, the 1924 deed conveys the “privileges of all streets laid out on [the Blackinton Plan] and the free use of the beach for bathing and boating purposes.” The deed expressly refers to the plan for the purpose of locating an easement over particular streets and, in the same sentence, grants use of “the beach.” This language i ndicates that Perry intended to designate the location of the beach by reference to the Blackinton Plan, which depicts an intertidal area without labels or limitations. The record establishes that the Edwardses’ beach was included in the intertidal area s hown on the plan, and that Perry owned the Edwardses’ beach at the time of her 1924 conveyance to Otis. [¶ 41 ] Considering the plain meaning of the deed’s language and the plan’s illustration, we conclude that those documents are not ambiguous as to the location of “the beach.” When construed in conjunction with the plan’s unrestricted depiction of an intertidal area, the deed’s reference to “the beach” has a plain and21 obvious meaning: to grant rights to the intertidal area depicted on the plan. In view of these consistent and clear indications as to the location of “the beach,” the court did not err in disregarding extrinsic evidence of Perry’s intent, or in concluding that “the beach” easement includes the Edwardses’ intertidal area. [¶ 42 ] The court correctly determined that the beach easement passed with the portion of Otis’s estate that is now included in the Scotts’ property, and correctly construed Otis’s deed to grant rights over the intertidal area located on the Edwardses’ property. We therefo re uphold the court’s conclusion that the Scotts have a right to use the Edwardses’ beach for “bathing and boating purposes.” The entry is: Judgment affirmed.

On the briefs: David A. Soley, Esq., and Glenn Israel, Esq., Bernstein Shur, Portland, for appellants Darlene F. Edwards and Lewis M. Edwards III William H. Dale, Esq., and Mark A. Bower, Esq., Jensen Baird Gardner & Henry, Portland, for appellee Town of Owls Head Judy A.S. Metcalf, Esq., and Ryan P. Dumais, Esq., Eaton Peabody , Brunswick, for appellees Cynthia S. Blackman, Nathalie M. Scott, Willis A. Scott Jr., Eliot A. Scott, and Constance M. Scott22 At oral argument: David A. Soley, Esq., for appellants Darlene F. Edwards and Lewis M. Edwards III William H. Dale, Esq., for appellee Town of Owls Head Judy A.S. Metcalf, Esq., for appellees Cynthia S. Blackman, Nathalie M. Scott, Willis A. Scott Jr., Eliot A. Scott, and Constance M. Scott

Knox County Superior Court docket number RE

- 2011

- 47 F OR C LERK R EFERENCE O NLY