MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019	ME	151

Docket: Yor-18-251

Argued: May	15,	2019

Decided: October	3,	2019

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	JABAR,	and	HUMPHREY,	JJ.

ROBERT	F.	ALMEDER	et	al.	

v.

TOWN	OF	KENNEBUNKPORT	et	al.

HUMPHREY,	J.

[¶1]		Goose	Rocks	Beach	is	a coastal section	of	Kennebunkport	stretching	

approximately	two	miles	along	the	Atlantic	Ocean and consisting	of	the	beach1

and	upland areas.	 Robert	F.	Almeder and	twenty-two	other	owners	of	property	

in	 this	 area2 appeal	 from	 a	 judgment	 entered	 by	 the	 Superior	 Court	 (York	

County,	Douglas, J.)	after	a	bench	trial	determining	that	the	seaward	boundary	

of	 each	 of	their	 respective	 properties	 does	 not	 reach the	 beach,	 sometimes	

 1		In	our	case	law,	“beach”	is	defined	as	the	land	lying	between	the	high	and	low	water	marks,	see	

infra	¶	8,	and	we	use	the	word	with	that	definition	in	mind.		However,	when	referring	to	the	general	

Goose	 Rocks	 Beach	 area,	which	includes	land	 that	is	 not	in	 dispute,	we	 use	 the	 capitalized	word	

“Beach.”

2		This	is	the	second	appeal	involving	these	parties	regarding	the	disputed	portions	of	Goose	Rocks	

Beach.		By	agreement,	the	trial	court	bifurcated	the	issues, first	deciding	only	claims	related	to	the	

use	 of	 those	 portions	 of	 the	 Beach, and	 the	 parties	 appealed	 that	 decision.	 	 Almeder	 v.	 Town	 of	

Kennebunkport,	2014 ME 139,	106	A.3d	1099	(Almeder	I).		In	Almeder	I,	we	referred	to	Almeder	and	

the	other	plaintiffs fronting	the	beach	as	“the	Beachfront	Owners,”	and	for	clarity	we	will	continue	

that	reference	in	this	decision.
2

referred	to	as	the	wet	sand,	in	front	of	their	property,	or	the	dry	sand	seaward	

of	the	“seawall.”		In	this	appeal,	which	is	complicated	by	a	voluminous	historical	

record,	 we	 consider	 whether the	 Beachfront	 Owners	 or	 the	 Town	 of	

Kennebunkport	holds title	to	the	disputed	portions	of	the	Beach.

I.		BACKGROUND

A. Procedural	History

[¶2]		The	ownership	of	property	at	Goose	Rocks	Beach	has	long	been	in	

dispute.		See Almeder	v.	Town	of	Kennebunkport,	2014	ME	139,	106	A.3d	1099

(Almeder	I).		In	October	2009,	the	Beachfront	Owners	filed	a	complaint	against	

the	Town	of	Kennebunkport and	anyone	else	who	claimed	any	title	or	right	to	

use	the	area	of	the	Beach	in	front	of	their	properties.		The	Beachfront	Owners	

sought	a	declaratory	judgment	that	each	of	 their parcels includes	land	 to	 the	

mean	 low	 water	 mark—subject	 to	 the	 rights	 of	 the	 public	 to	 fish,	 fowl,	 and	

navigate	 in	 the	 intertidal	 zone3—and	 to	 quiet	 title	 to	 their	 claimed	 beach	

property.		The	Town	answered	and	pleaded	nine	counterclaims,	asserting	its	

title	to	the	beach	and	the	dry	sand	above	it, and	that	it	and	the	public	at	large	

have the	right	to	use	those	areas.		

 3		Infra	¶	8.
3

[¶3]	 	 From	 there,	 the	 case	 burgeoned.	 	 The	 State	 was	 permitted	 to	

intervene	as	a	defendant;	in	its	answer,	the	State	asserted	the	public’s	right	to	

use	 the	 beach	 pursuant	 to	 the	 public	 trust	 doctrine.	 	 Other	 parties	 who	

intervened	 or	 attempted	 to	 intervene	 and	 counterclaim	 included	 a	 group	 of	

roughly	200	owners	of	other	property	located	in	the	Town’s	Goose	Rocks	Beach	

Zone,	not	directly	on	the	water (the	Backlot	Owners);	the	Surfrider	Foundation,	

a	nonprofit	organization	whose	members	use	the	beach;	and	several	members	

of	the	general	public	who	claimed	frequent	use	of	the beach.		The	parties	then	

began	a	period	of	significant	motion	practice	consisting	of	dozens	of	competing	

motions	to	dismiss	and	for	summary	judgment,	culminating	in	several	partial	

dismissals	 and	 summary	 judgments.	 	 By	 agreement,	 the	 court	 scheduled	 a	

bifurcated	trial	on	the	remaining	claims	in	which	the	court	would	first	address	

only	the	use-related	claims,	and	then	any	claims	related	to	deeds	or	title.			

[¶4]		In	August	and	September	2012,	the	court	(York	County,	Brennan, J.)	

conducted	 a	 twelve-day	 bench	 trial	 on	 the	 use	 claims—i.e.,	 prescription,	

custom,	and	the	public	trust	doctrine—and	determined	that	(1) “the	Town,	the	

Backlot	Owners,	and	the	public	enjoy	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,”	 and	 (2) “the	 State	 had	
4

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	ocean-based	activities.”		Almeder	I,	2014	ME	139,	¶	12,	106	A.3d	1099	

(quotation	marks	omitted).		The	Beachfront	Owners	timely	appealed.			

[¶5]		We	vacated	the	judgment	and	remanded	the	matter	for	the	Superior	

Court	to	“conduct	proceedings	and	issue	a	decision	on	the	remaining	pending	

causes	of	action	that	were	the	subject	of	the	second	portion	of	the	bifurcated	

trial,”	and,	if	the	Town	so	elects,	to	“determine	the	boundaries	of	each	specific	

Beachfront	Owner’s	parcel	[and]	reanalyze	the	evidence	already	in	the	record	

on	 a	 parcel-by-parcel	 basis	 to	 determine	 if	 the	 Town	 met	 its	 burden	 of	

establishing	 the	 elements	 of	 a	 public	 prescriptive	 easement	 as	 to	 each	

particular	parcel.”		Id. ¶ 37.

[¶6]	 	 In	 November	 and	 December	 2016,	 the	 Superior	 Court	 held	 an	

eleven-day	bench	trial	on	the	parties’	title	claims	at	which	experts	for	both	the	

Beachfront	Owners	 and	 the	 Town	 testified	 and	 the	 parties	 presented	 nearly	

700	 exhibits.4	 	 By	 judgment	 dated	 April	 6,	 2018,	 the	 court	 (York	 County,	

 4	 	 Consideration	 of	 the	 remaining	 use-based	 claims—the	 Town’s	 counterclaims	 for	 adverse	

possession,	 acquiescence,	 prescription,	 dedication	 and	 acceptance,	 public	 easement,	 and	 implied	

quasi-easement—was	deferred	by	agreement.		These	claims	were	ultimately	mooted	by	the	court’s	

determination	that	the	Town	established	title	to	the	beach and	portions	of	the	dry	sand	landward	of	

the	beach.				
5

Douglas,	J.)	determined	that	only	one	Beachfront	Owner	(Temerlin)	established	

title	to	a	portion	of	the	beach,	and	concluded	that	the	Town	holds	title—derived	

from	the	original	Town	proprietors’	ownership	of	common	land5—to	the	dry	

sand	and	beach in	front	of	the	remaining	twenty-two	properties	in	dispute.		The	

Beachfront	Owners	timely	appealed.6			

B. Factual	Findings	

[¶7]	 	 The	 court	 made	 the	 following	 findings,	 which	 are	 supported	 by	

competent	record	evidence.			

 5		The	proprietors	were	

the	original	grantees	or	purchasers	of	a	tract	of	land,	usually	a	township,	which	they	

and	their	heirs,	assigns,	or	successors,	together	with	those	whom	they	chose	to	admit	

to	their	number,	held	in	common	ownership.	 They	enjoyed	the	absolute	ownership	

and exclusive	 control	 over	 such	 tract	 or	 tracts	 of	land	 granted	 to	 them	 and	were	

responsible	collectively	for	the	improvement	of	the	new	plantation.	More	specifically,	

they	were	responsible	for	inducing	and	enlisting	settlers	and	new	comers,	for	locating	

home	lots	and	dwelling	houses,	for	building	highways	and	streets	.	.	.	. In	other	words,	

they	 constituted	 the	 nucleus	 of	 the	 newly	 settled	 community	 and	 at	 first	 they	

controlled	the	whole	machinery	of	the	town's	life,	both	political	and	economic.

Eaton	v.	Town	of	Wells,	2000	ME	176,	¶	15,	760	A.2d	232	(quoting	Roy	H.	Akagi,	Ph.D.,	The	Town	

Proprietors	of	the	New	England	Colonies	at	3	(1924)).		See	also	Green	v.	Putnam,	62	Mass.	(8 Cush.)	

21,	25	(1851)	(“In	the	early	period	of	our	colonial	history,	large	tracts	of	land	.	.	.	were	from	time	to	

time	granted	by	the	provincial	government	to	individuals,	constituting	a	proprietary,	who	organized	

themselves	under	 the	colonial	laws,	kept	records	of	 their	proceedings,	managed	and	divided	their	

property,	and	disposed	of	it	by	votes	of	a	majority	duly	recorded	on	their	books	of	record.”).

6		The	Temerlin	property	is	not	at	issue	in	this	appeal.		The	court	concluded	that	the	Temerlins	

established	title	to	the	beach in	front	of	their	property,	and	the	Town	does	not	appeal this	ruling.		
6

1. Physical	Features	of	the Disputed	Area	of	the Beach

[¶8]		The	disputed	area	in	 this	case	consists	 of	 the	intertidal	zone	 and	

upland areas on	the	seaward	side	of	the	Beachfront	Owners’ properties.		Before	

unpeeling	 the	complex	layers	of	 this	appeal	any	 further,	an	understanding	of	

the	following	features	of	the	Beach	may	provide	some	clarity	to	the	discussion:

• “beach”	and	“shore.”		These	terms	are	treated	synonymously	and	refer	to	

the	“land	lying	between	the	lines	of	the	high	water	and	low	water	over	which	

the	tide	ebbs	and	flows.”7		Hodge	v. Boothby,	48	Me.	68,	71	(1861) (defining	

beach);	 see	 also Hodgdon	 v.	 Campbell,	 411	 A.2d	 667,	 672	 (Me.	 1980)	

(defining	 shore	 as	 “the	 ground	 between	 the	 ordinary	 high	 and	low	water	

mark”)	 (quotation	 marks	 omitted).	 	 The	 “beach,”	 “shore,”	 and	 “intertidal	

zone,” defined	below, all	have	 their	landward	boundary	at	 the	high	water	

line.	 However,	unlike	the	“intertidal	zone,”	the	most	seaward	boundary	of	

the	beach	is	 the	mean	low	watermark;	it	does	 not	include	 the	 alternative	

“100	rods”	measurement	element	of	the	intertidal	zone.

• “intertidal	zone,”	also	known	as	“wet	sand.”		As	 the	name	suggests,	 the	

intertidal	 zone	 consists	 of	 the	 shore	 and	 flats	 affected	 by	 tides,	 and	 thus	

includes	all	of	the	area	“between	the	mean	high	watermark	and	either	100	

rods	 seaward	 from	 the	 high	 watermark	 or	 the	 mean	 low	 watermark,	

whichever	 is	 closer	 to	 the	 mean	 high	 watermark.”	 	 Flaherty	 v.	 Muther,	

2011 ME	 32,	 ¶	 1	 n.2,	 17	 A.3d	 640 (quotation	 marks	 omitted);	 see	 also	

McGarvey	v.	Whittredge,	2011	ME	97,	¶	13,	28 A.3d 620;	Littlefield	v.	Maxwell,	

31 Me. 134,	139	(1850).

• “upland,”	 which	 may	 include	 areas	 of dry	 sand,	 is	 the	 land	“above	 the	

mean	 high	 watermark”—that	 is,	 landward	 of	 the	 beach.	 	 Flaherty,	

2011 ME 32,	¶	2	n.3,	17	A.3d	640.

 7		This	land	between	the	“high	water	and	low	water	over	which	the	tide	ebbs	and	flows,”	Hodge	v.	

Boothby,	48	Me.	68,	71	(1861),	is	also	often	referred	to	as	the	tidal	flats	or	wet	sand.		See Hodgdon	v.	

Campbell,	411	A.2d	667,	672	(Me.	1980).
7

• “submerged	 land.”	 	 This	 is	 land	 located	 “below	 the	 mean	 low-water	

mark.” McGarvey, 2011	ME	97,	¶	13,	28	A.3d	620.		The	dispute	in	this	case	

does	not	include	submerged	land;	it	is	defined here	merely	to	make	that	fact	

clear.

[¶9]	 	An	 additional	 feature	is	 also	important	 to	 this	discussion.		In	 the	

Goose	Rocks	Beach	area,	landward	of	the	mean	high	water	mark,	the	land	rises	

in	 elevation,	 and	 then	 descends	 to	 a	 lower	 elevation	 where	 the	 Beachfront	

Owners’	residences	stand.		This	feature	is	a	natural	seawall	that	runs	along	a	

course	 that	 is	 generally	 in	 line	 with	 that	 of	 the	 manmade	 seawalls	 in	 many	

sections	 of	 the	 Beach.	 	 The	 Beach	 has	 110	 waterfront	 lots,	 twenty-three	 of	

which	are	owned	by	the	Beachfront	Owners.		

2. History	of	Land	Transactions	in	the	Kennebunkport	Area

[¶10]	 	 Original	 ownership	 of land	 in	 New	 England	 derived	 from	 royal	

charters	issued	by	the	Crown	between	1620	and	1639.		In	1639,	Charles	I	issued	

the	Charter	of	the	Province	of	Maine,	which	granted	to	Sir	Ferdinando	Gorges	

territory	including	land	from	the	Piscataqua	River	“along	the	sea	coast”	to	the	

Kennebec	river,	and	inland	to	a	depth	of	120	miles	(the	Gorges	Patent).		During	

this	period,	 parcels	 of	land	in	 the	 Province	 of	Maine	were	 transferred	in	 the	

form	 of	leases	 or	 outright	 grants	 to	individuals	who	 settled	 the	land.	 	 These	

settlements	were	 organized	 slowly	into	individual	 townships—including	 the	
8

Town	of	Cape	Porpus,	which	was	incorporated	in	1653	under	Massachusetts	

authority.8		See 3	Mass.	Col.	Rec.	333-39.		

[¶11]	 	 In	 the	 mid-seventeenth	 century,	 the	Massachusetts	 Bay	 Colony,	

acting	 through	 the	General	Court,	enacted	a	series	of	laws	affecting	property	

grants	in	the	colony—including	the	western	portion	of	Maine	to	which	it	had	

laid	claim—and	decreed	that	the	inhabitants	of	towns	in	this	area	were	free	to	

govern	their	own	affairs	and	dispose	of	“common	lands”	within	the	towns.		See,

e.g.,	 1	 Mass.	 Col.	 Rec.	 172.	 	 With	 this	 authority	 granted	 to	 them	 by	

Massachusetts,	 the	 early	 settlers	 of	 Cape	 Porpus	 collectively	 governed	 the	

settlement	and	oversaw	the	grant	of	unclaimed	land	within	the	bounds	of	the	

township	after	its	incorporation.		During	the	early	years	of	the	township,	public	

grants	 of	 common	 lands	 were	 made	 by	 vote	 at	 town	 meetings,	 which	 were	

recorded	in	the	Kennebunkport	Clerks’ Record.		

[¶12]		In	the	1670s	and	1680s, towns	throughout	the	colony—including	

Cape	Porpus—were	abandoned	and	resettled	following	King	Philip’s	War.		At	

the	same	time,	the	new	monarchy in	England	was	preparing	to	reassert	its	claim	

to	 the	 colonial	 territories.	 	 This	 led	 to	 uncertainty	 with	 regard	 to	 land	

ownership	 and	 resulted	 in	 a	 1677	 decision	 in	 England,	 which	 declared	 the	

 8		Cape	Porpus	was	renamed	Arundel	in	1719	and	later	became	the	Town	of	Kennebunkport.	
9

Gorges	 Patent	 to	 be	 the	 sole,	 legitimate	 claim	 to	 the	 Province	 of	 Maine	 and	

reaffirmed	 the	 claims	 of	 the	 successors-in-interest to	 the	 Gorges	 Patent.	 	 In	

March	1678,	to	reclaim	the	Province	of	Maine,	Massachusetts	orchestrated	the	

purchase	of	the	Gorges	Patent	through	its	agent,	John	Usher,	who	transferred	

those	 rights	 to	 the	 colony.	 	 In	 1681,	 to	 resolve	 any	 remaining	 uncertainty	

regarding	 ownership	 of	 those	 lands,	 Massachusetts	 appointed	 Deputy	

Governor	 Thomas	Danforth,	 Esq.,	 as	 President	 of	 the	 Province	 of	Maine	 and,	

among	 other	 things,	 authorized	 him	 to	 issue	 “indentures”	 to	 confirm	 title	 to	

lands.		5	Mass.	Col.	Rec.	309.		

[¶13]	 	 In	 1684,	 Danforth	 issued	 indentures	 pertaining	 to	 land	 in	 five	

towns	in	the	Province	of	Maine—Cape	Porpus,	North	Yarmouth,	Scarborough,	

Falmouth,	and	York.9		Relevant	here,	the	indenture pertaining	to	the	Town	of	

Cape	Porpus	(the	Danforth	Deed)	provided	that	Danforth	did	

clearly	and	absolutely	give,	grant,	and	confirm .	.	.		All	that	Tract	or	

parcell of	 Land	 within	 the	 Township	 of	 Cape	 Porpus	 in	 said	

Province	according	to	the	Bounds	&	Limitts	of	the	said	Township	

to	 them	 formerly	granted	by	Sir	 Ferdinando	Gorges	Knight	or	by	

any	of	his	Agents	or	by	the	General	Assembly	of	the	Massachusetts.		

(Emphasis	added.)		The	Danforth	Deed	named	three	grantees—John	Barret Sr,	

John	Burrington,	and	John	Badson—as	“Trustees	on	the	behalf	and	for	the	sole	

 9		These	five	indentures	were	identical	except	with	regard	to	the	named	grantees	and	the	property	

described.			
10

use	and	benefit	of	the	Inhabitants	of	the	Town	of	Cape	Porpus,”	and	included	

the	 beach in	 the	 area	 now	 known	 as	 Goose	 Rocks	 Beach,	 which	 was	 not	

previously	granted	out.		There	is	no	evidence	that	Massachusetts	granted	out	

any	land	in	Cape	Porpus	after	the	Danforth	Deed.			

[¶14]		Records	of	land	 transactions	in	 the	years	immediately	 following	

the	Danforth	Deed	are	scarce.		To	clarify	ownership	throughout	the	colony,	the	

General	 Court	 established	 the	 Eastern	 Claims	 process	 by	 which	 inhabitants	

could	register	their	land	claims	and	confirm	their	titles;	those	who	failed	to	do	

so	within	 the	stated	 time	risked	losing their	claims.		 In	addition,	by	an	Act	of	

1692-93,	the	General	Court	formally	granted	to	Town proprietors	the	authority	

to	“manage,	improve,	divide	or	dispose	of”	the	“undivided	and	common	lands	

in	each	Town.”		Mass.	St.	1692-93,	c.	28.		This	confirmed	the	formal	role	of	the	

Town	proprietary10 as	the	entity	responsible	for	granting	and	confirming	tracts	

of	land.			

[¶15]	 	 In	 June	 1719,	 Cape	 Porpus	was	 renamed	 Arundel.	 	 Around	 this	

time,	 the	 proprietors	 began	 to	 meet	 formally	 and	 conduct	 business	 at town	

meetings.		The	Clerks’ Record	during	this	period reflects	two	types	of	meetings:	

(1)	 “general,”	 or	 “legal,”	 town	 meetings,	 and	 (2)	 meetings	 of	 “proprietors,	

 10		See	supra	note	5.
11

freeholders	and	inhabitants.”		In	these	meetings,	the	proprietors	made	grants	

of	common	and	undivided	land	in	 the	 town	and	confirmed	 prior	land	grants	

through	layouts.11		The	proprietors	officially	separated	their	functions	from	the	

town	 in	 1726	 and	 began	 to	 conduct	 their	 own	 meetings	 and	 keep	 separate	

records	 (Proprietors’ Record);	 however,	 Town	 officials	 continued	 to	 oversee	

activities	 on	 common	 lands	 such	 as	 building	 and	 repairing	 public	 ways	 and	

surveying	lots.			

[¶16]		Around	1785,	the	proprietors	still	held	some	undivided	common	

lands	in	Arundel.		Although	there	is	no	record	reflecting	the	formal	dissolution	

of	 the	Town	 proprietary or	 a	 final	 accounting	 of	 the	 lands	 it granted	 out	 or	

confirmed,	there	is	evidence	that	the	proprietors	began	to	wrap	up	their	affairs	

around	 this	 time.		The	 final	entry	made	by	Thomas	Perkins,	 the	Clerk	 for	 the	

proprietors,	was	 recorded	 on	 April	 3,	 1790.	 The	 next	 entry	in	 the	 record	is	

dated	six	years	later	and	is	signed	by	William	Smith,	the	Clerk	of	the	Town—

the	Town	conducted	a	meeting	on	April	4,	1796,	to	resolve	ownership	of	“the	

Pines,”	a	portion	of	the	upland	sections	of	the	western	and	middle	portions	of	

the	Beach	that	was	known	by	this	name.		

 11		Land	 relevant	 to	 this	case	was	laid	 out	by	 town	lot	layers	and	 recorded—e.g.,	 the	Downing	

layout	in	1720;	the	Jeffrey	layout	in	1727;	and	the	Emmons	layout	in	1777.		Neither	the Clerks’ Record	

nor	the	Proprietors’ Record	reflects a	grant	or	layout	of	land	referencing	or	consisting	of	the	beach	

itself.		
12

3. Sources	of	Title	to	the	Beachfront	Owners’	Properties

[¶17]	 	 Based	 on	 geographical	 location	 and	 historical	 ownership,	 the	

Beachfront	Owners’	properties	can	be	grouped	into	three	sections:	the	Western	

Section,	the	Middle	Section,	and	the	Eastern	Section.		

a. The	Western	Section

[¶18]	 	 The	 Almeder,	 Coughlin,	 Celi,	 GRB	 Holdings,	 Flynn,	 and	 Cooper	

properties	are	within	the	Western	Section	of	the	Beach.		These	properties	were	

part	of	subdivisions	created	in	the	early	twentieth	century	by	Warren	Emmons,	

Ivory	Emmons,	and	George	Piper.		Prior	to	the	twentieth	century,	this	area	was	

sparsely-settled	marshland	likely	held	and	granted	out	by	the	proprietors.		

[¶19]		Title	to	properties	in	this	section	of	the	Beach	traces	back	to	land	

laid	out	in	1777	to	John	Emmons	based	on	a	1730	grant	to	Humphrey	Dearing	

and/or	land	held	by	Eliakim	Emmons.		This	layout	was	likely	based	on	a	grant	

of	common	land	from	the	proprietors.		The	1777	layout	describes	the	boundary	

of the	conveyed	property	as	“[b]eginning	at	a	Pitch	Pine	Tree	.	.	.	then	South	west	

.	.	.	then	South	East	to	the	sea	wall then	North	East	by	the	sea	wall .	.	.	then	Nor

West	to	the	Bounds	mentioned.”12		This	land,	on	the	face	of	the	earth,	was	located	

 12		The	original	deeds	do	not	use	bold	or	italic	font;	however,	we	do	so	here	(as	did	the	trial	court)	

for	emphasis.		
13

between	the	marshes	and	the	beach.		Through	a	series	of	deeds,	the	land	was	

transferred	and	subdivided	until	it	came	into	its	present-day	ownership.		

b. The	Middle	Section

[¶20]	 	 The	 Gerrish,	 Vandervoorn,	 Gray,	 Rice,	 and	 O’Connor/Leahey	

properties	are	 situated	in	 the	Middle	Section	 of	 the	Beach.		This	 section	was	

primarily	 marshland	 and	 pine	 groves—the	 Pines—with	 a	 large	 open	 area	

towards	the	eastern	side	known	as	“the	opening.”		The	dry	sand	portion	of	this	

section	is	narrow	and	 the	high	water	line	is	closest	 to	 the	upland	lots	in	 this	

section	of	the	Beach.		The	properties	in	this	section	were	originally	part	of	land	

owned	 and	 subdivided	 by	 Mary	 (Littlefield)	 Potter	 in	 the	 late	 nineteenth	

century.	 	 The	 parties	 dispute	 the	 chain	 of	 title	 prior	 to	 this	 subdivision;	

regardless,	on	April 5, 1881,	the	land	was	transferred	to	Mary	Potter.		This	deed	

conveying	 land,	 including	 the	 “piece	 of	 Marsh”	 known	 as	 the	 “Beach	 Lot,”	

described	the	parcel	as follows:

One	 lot	 situate[d]	 near	 Goose	 Rocks	 in	 said	 Kennebunkport and	

being	a	part	of	the	tract	known	as	the	pines	.	.	.	 Beginning	at	John	

Emmon’s	 corner	 and	 running	 thence	 to	 and	 including	 the	 sea	

wall,	and	thence	by	the	sea-wall	to	land	of	Owen	Burnham .	.	.	.	

This	lot	was	between	the	marsh	road	and	the	natural	seawall.		Mary	Potter	then	

conveyed	portions	 of	 this	land	in	1881	 and	1882	before	she	subdivided	and	
14

conveyed	 the	 remaining	 land,	 which	 was	 eventually	 transferred	 to	 the	

present-day	owners.		

c. The	Eastern	Section

[¶21]		The	Zagoren,	Gallant,	Hastings,	Sherman/Kinney,	Forrest/Julian,	

Raines,	 Josselyn-Rose,	 Sandifer,	 Lencki,	 Scribner,	 Asplundh,	 and	 Temerlin	

properties	 are	 located	 along	 the	 eastern	 half	 of	 the	 Beach.	 	 All	 of	 these	

properties,	 except	 the	 Temerlin	 property,	 were	 part	 of	 the	 land	 of	 George	

Jeffrey,	acquired	in	the	mid-seventeenth	century.		Eight	of	the	properties	derive	

from	a	portion	of	Jeffrey’s	land	acquired	and	subdivided	by	Benjamin	Fuller	and	

Orlando	Dow	(Fuller/Dow)	in	the	late	nineteenth	century.		The	oldest	known	

deed	to	this	land,	from 1648,	described	the	property	as	follows:

to	 begine	 at	 the	 south	 west	 side	 of	 the	 little	 River	 betwixt	 Cape	

Porpus,	&	Saco;	&	ye	easternmost	River	towards	Saco	to	begine	at

the	 poynt of	 the	 groave	 of	 pine trees	 neare	 unto	 ye	 sea	

& adjoyning	unto	the	sd River,	&	 from	thence	to	runne	upon	a	

streightline	to	the	sea	banke	southwest,	&	from thence	southwest	

towards	Cape	porpus	.	.	.	.	

As	 in	 other	 sections	 of	 the	 Beach,	 the	 Eastern	 Section	 has	 a	 natural	 seawall	

separating	the	upland	from	the beach	above	the	high	water	line.			

4. The	Court’s	Conclusions

[¶22]	 	 After	 reviewing	 each	 of	 the	 Beachfront	 Owners’	 twenty-three	

properties,	the	court	concluded	that	all	but	one	(Temerlin)	failed	to	establish	
15

title	to	the	beach.		The	court	determined	that	the	seaward boundary	of	these	

twenty-two	 properties	 was	 the	 seawall,	 a	 natural	 and/or	 manmade	 feature	

landward	of	the	intertidal	zone	of	the	Beach.		It	finally	concluded	that	the	Town	

had	established	title	to	the	land	“extending	seaward	from	the	seawall	or	seawall	

vegetation	line	to	the	mean	low	water	mark	of	the	Atlantic	Ocean,”	and	that	the	

Town’s	ownership	stems	from	the	proprietors’	interest	in	the	common	lands—

including	the	beach—which	passed	to	the	Town	“by	operation	of	law”	when	the	

proprietors	 ceased	 operations	 without	 granting	 the	 property	 to	 any	 other	

owner.			

II.		DISCUSSION

[¶23]		On	appeal,	 the	Beachfront	Owners	argue	 that	 the	court	erred	in	

relying	on	the	testimony	of	the	Town’s	expert	surveyor	and	in	determining	that	

the	Town	holds	title	to	the	intertidal	zone	and	a	portion	of	the	adjacent	upland	

of	Goose	Rocks	Beach.		

A. Expert	Testimony

[¶24]		The	Beachfront	Owners	challenge	the	relevance	and	reliability	of	

the	 testimony	of	 the	Town’s	expert,	a	surveyor.		They	argue	 that	it	was	clear	

error	 for	 the	 court	 to	 rely	 on	 the	 surveyor’s	 testimony	 because	 he	 testified	

about	matters	beyond	 the	scope	of	his	expertise,	used	an	unsupportable	and	
16

unreliable	 methodology	 to	 identify	 the	 seawall,	 and	 reached	 conclusions	

regarding	 the	 location	 of	 the	 seawall	 that	 were	 inconsistent	 with	 the	

understanding	 and	intent	 of	 the	 original	 property	 owners	who	 executed	 the	

deeds	using	that	term.		“We	review	a court’s	foundational	finding	that	expert	

testimony	 is	 sufficiently	 reliable	 for	 clear	 error.”	 	 See State	 v.	 Maine,	

2017 ME 25,	¶	16,	155	A.3d	871	(quotation	marks	omitted).			

[¶25]		In	this	case,	there	is	no	doubt	that	the	surveyor’s	testimony	was	

relevant.	 He	testified	extensively	about	 the	layout	of	Goose	Rocks	Beach,	the	

deeds	and	other	documents	specific	to	the	Beachfront	Owners’	properties,	and	

the	location	of	the	specified	boundaries	on	the	face	of	the	earth.		This	testimony	

clearly	 satisfies	 the	 standards	 of	 M.R.	 Evid.	 401.	 	 Furthermore,	 the	 court’s	

conclusion	that	the	surveyor	was	qualified	to	testify	as	an	expert	and	give	his	

opinion—regarding	matters	other	than	legal	conclusions—is	well	supported	by	

the	record:	he	has	been	licensed	in	Maine	since	1986;	has	expertise	surveying	

and	 consulting	 as	 a	 boundary	 expert	 with	 a	 focus	 on	 water	 boundaries;	 has	

conducted	lectures	and	presentations	on	such	topics;	has	experience	working	

with	and	producing	historical	maps;	and	has	received	national	recognition	for	

his	 work.	 	 See	 M.R.	 Evid.	 702.	 	 Moreover,	 the	 surveyor’s	 testimony	 and	 the	

exhibits	he	produced	were	based	on	his	years	of	experience	and	the	techniques	
17

common	to	his	profession	that	he	applied	to	the	specific	facts	of	this	case.		See

Searles v. Fleetwood Homes of Pa., Inc., 2005 ME 94, ¶¶ 23, 28, 878 A.2d 509.		

Therefore,	 the	 court	 did	 not	 err	 in	 relying	 on	 the	 testimony	 of	 the	 Town’s	

expert.		Id. ¶	29;	M.R.	Evid.	702.		

B. The	Beachfront	Owners’	Title	Claims

[¶26]		The	Beachfront	Owners	argue	that	the	court	erred	in	concluding	

that	 they	 did	 not	 establish	 title	 to	 the	beach	in	 front	 of	 their	 residences.	 	 In	

particular,	 they	 assert	 that	 the	 court	 (1)	 ignored	 Law	 Court	 precedent	

concerning	the	interpretation	of	ancient	deeds	and	historical	records,	(2)	erred	

in	 interpreting	 the	 term	 “seawall,”	 and	 (3)	 erroneously	 concluded that	 the	

seawall	is	the	seaward	boundary	of	their	properties.		We	review	de	novo	“[t]he	

interpretation	of	a	deed	and	the	intent	of	the	parties	who	created	it,	including	

whether	the	deed	contains	an	ambiguity.”		Sleeper	v.	Loring,	2013	ME	112,	¶	10,	

83	A.3d	769.		If	language	in	a	deed	is	ambiguous,	a	court	may	“consider	extrinsic	

evidence	to	determine	the	intent	of	the	parties,”	including	“the	circumstances	

existing	 at	 the	 time	 of	 the	 making	 of	 the	 deed	 or	 the	 contemporaneous	

construction	 of	 the	 deed	by	 the grantee	 or	grantor.”		Matteson	v.	Batchelder,	

2011	ME	134,	¶	16,	32	A.3d	1059	(quotation	marks	omitted).		In	the	absence	of	

extrinsic	evidence,	“the	intent	of	the	parties	should	be	ascertained	by	resort	to	
18

the	rules	of	construction	of	deeds,	such	as	the	familiar	rule	that	boundaries	are	

established	in	descending	order	of	control	by	monuments,	courses,	distances	

and	 quantity.”	 	 Id. (quotation	 marks	 omitted).	 	 Finally,	 we	 review	 a	 court’s	

factual	determination	of	the	location	of	property	boundaries	on	the	face	of	the	

earth	for	clear	error.		Grondin	v.	Hanscom,	2014	ME	148,	¶	8,	106	A.3d	1150.

1. Ancient	Deeds	and	Historical	Documents

[¶27]		The	Beachfront	Owners	first	argue	that	the	court	ignored	binding	

precedent	regarding	the	interpretation	of	ancient	deeds	and	historical	records	

and	 disregarded	 longstanding	 principles	 forgiving	 defects	 in	 ancient	 deeds.		

They	 argue	 that	 the	 court’s	 approach	 established	 an	 “impossible	 burden	 of	

proof”—which	they,	and	many	other	property	owners	in	Maine,	are	unable	to	

meet—and	 will	 disrupt	 the	 title	 search	 process	 in	 Maine.	 	 In	 short,	 the	

Beachfront	Owners	argue	that	the	court	erred	in	holding	the	ancient	deeds	to	

modern	 interpretation	 standards,	 thereby	 disrupting	 decades	 of	 modern	

ownership.			

[¶28]	 	 At	 the	 heart	 of	 this issue	 is	 the	 inherent	 tension	 between	 two	

principles	of	deed	construction:	a	grantor	may	not	convey	more	than	what	he	

or	she	owns,	see Eaton	v.	Town	of	Wells,	2000	ME	176,	¶	19,	760	A.2d	232,	and

“much	 is	 to	 be	 presumed	 in	 favor	 of	 ancient	 deeds,	 if	 accompanied	 by	
19

possession,”	Hill	 v.	 Lord,	 48 Me.	 83,	 94	 (1861).	 	 Contrary	 to	 the	 Beachfront	

Owners’	 argument,	 nothing	 in	 the	 court’s	 approach	 to	 this	 case	 or	 its	

articulation	of	the	applicable	principles	of	deed	construction	misconstrues	the	

law	 or	 disrupts	 the way	 title	 searches	 are	 conducted	 in	 Maine.13	 	The	 court	

properly	understood	that	the	interpretation	of	a	deed	is	a	question	of	law	and	

that	 its	 role	 was	 to	 apply	 the	 relevant	 principles	 of	 deed	 construction	 and	

construe	the	language	of	the	deed	to	give	effect	to	the	expressed	intention	of	

the	parties.		See Eaton,	2000	ME	176,	¶	19,	760	A.2d	232;	McLellan	v.	McFadden,	

95	A.	1025,	1028	(Me.	1915).		Most	importantly,	the	court	recognized	that	an	

owner	 of	 upland	 oceanfront	 property	 presumptively	 owns	 to	 the	 low	 water	

mark	when	a	grant	of	the	property	includes	a	reference	or	call	to	the	water,	see	

Commonwealth	 v.	 Roxbury, 75	 Mass.	 (9	 Gray)	 451,	 498	 (1857);	 Storer	 v.	

Freeman,	 6	 Mass.	 435,	 438-39	 (1810),	 and	 applied	 this	 principle	 to	 each	

Beachfront	 Owners’	 chain	 of	 title.	 	 In	 doing	 so,	 the	 court	 did	 not,	 as	 the	

Beachfront	 Owners	 argue,	 resurrect	 ancient	 deeds	 to	 disrupt	 modern	

 13		Although	the	Beachfront	Owners	argue	that	the	court	should	not	look	past	the	“resting	deed”

for	 each	 property—the	most	 recent	warranty	 deed	 to	 the	 property	 recorded	 at	least	forty	 years	

before	the	title	search	or	the	most	recent	quitclaim	deed	recorded	at	least	sixty	years	before	the	title	

search—title	standards	do	not	establish	ownership;	they	are	simply	a	benchmark	for	whether	title	is	

marketable.		Dowling	v.	Salewski,	2007	ME	78,	¶	16,	926	A.2d	193.		
20

ownership,	but, instead, meticulously	reviewed	each	Beachfront	Owner’s	title	

chain	to	determine	the	boundaries	of	each	property.			

2. Seawall	

[¶29]		The	Beachfront	Owners	next	argue	that	the	court	erred	in	defining	

the	 term	 “seawall,” although	 the	 owners	 differ	 among	 themselves	 on	 the	

reasons.		Almeder	and	 the	majority	 of	 the	Beachfront	Owners	argue	 that	 the	

court	 erred	 when	 it	 applied	 a	 universal definition	 to	 the	 term	 “seawall” and	

failed	to	assess	each	deed’s	specific	language	to	discern	the	grantor’s	intent	in	

using	the	term.		In	contrast,	the	O’Connor/Leahey	owners	argue	that	the	term	

“seawall”	 has	 a	 singular	 definition	 that	 includes	 “at	 least all	 the	 dry	 sand	

between	 the	 upland	 running	 to	 the	 mean	 high-water	 line	 or	 the	 beach,”	

suggesting	that	the	seaward	boundary	includes	the	beach.		(Emphasis	added.)		

[¶30]		When	considering	the	nature	and	location	of	the	seawall,	the	court	

concluded	 that	 “there	is	no	universally	accepted	legal	definition”	 of	 the	 term	

“seawall,”	 but	 that	 the	 term	 is	 “likely	 used	 in	 reference	 to	 a	 corresponding	

physical	feature	on	the	face	of	the	earth	that	acts	as	a	barrier	or	wall—either	

man-made	or	naturally	occurring—that	acts	to	impede	the	flow	of	the	sea.”		The	

court	found	that	there	had	been	and	continues	to	be	such	an	elevated	feature	

along	the	length	of	the	upland	lots above the	high	water	mark.		
21

[¶31]		Although	we	have	had	the	occasion	to	define	many	geographical	

features	of	a	beach,14 we	have	not	explicitly	defined	the	term	“seawall” and	take	

this	opportunity	to	do	so.		As	we	have	previously	described,	the	terms	“beach,”	

“shore,” and	 “wet	 sand,” which	 are	 treated	 synonymously,	 refer	 to	 the	 “land	

lying	between	 the	lines	of	 the	high	water	and	low	water	over	which	 the	 tide	

ebbs	 and	 flows.”	 	 Hodge,	 48	 Me.	 at	 71 (defining	 beach);	 see	 also Hodgdon,	

411 A.2d	at 672	(defining	shore	as	“the	ground	between	the	ordinary	high	and	

low	 water	 mark”)	 (quotation	 marks	 omitted).	 	 Landward	 of	 the	 high	 water	

mark,	 there	 is	 often	 a	 natural	 and/or	 manmade	 embankment.	 	 See,	 e.g.,

Littlefield	v.	Littlefield,	28	Me.	180,	186	(1848).		The	beach does	not	include this	

embankment.		See	Hodge, 48	Me.	at	 71;	Littlefield,	28	Me.	 at	186-87;	Cutts	v.	

Hussey,	15	Me.	237,	241	(1839)	(land	above	the	high	water	mark	and	within	the	

seawall	is	not	the	beach).		This	embankment	is	the	seawall.		See Hodge, 48	Me.	

at	71;	Littlefield,	28	Me.	at	186;	Cutts,	15	Me.	at	241.

[¶32]		The	term	“seawall,” therefore, refers	to an	elevated	area	of	land	or	

an	embankment	situated	landward	of	the	beach that,	as	aptly	described	by	the	

trial	court,	is	a	“physical	feature	on	the	face	of	the	earth	that	acts	as	a	barrier	or	

wall—either	man-made	or	naturally	occurring—that	acts	to	impede the	flow	of	

 14 See supra	¶ 8.
22

the	 sea.”	 	 The	 seawall	 does	 not	 extend	 seaward	 past	 the	 high	 water	 mark.		

Determining	the	exact	location	of	the	seawall	on	the	face	of	the	earth	in	relation	

to	 a	 parcel	 of	land	 requires	 a	 case-specific	inquiry	 based	 on	 the	language	in	

individual	deeds	and	the	physical	features	of	the	land in	question.		

[¶33]		Addressing	first O’Connor/Leahey’s contention,	the	court	did	not	

err	as	a	matter	of	law	in	rejecting	their	singular	definition	of	seawall—“unless	

specifically	described	otherwise	in	a	deed,	[the	seawall]	is	at	least all	the	dry	

sand	between	 the	upland	 running	 to	 the	mean	high	water	line	 or the	beach”

(emphasis	added), and	possibly	all	or	some	portion	of	the	beach—which	has	no	

basis	in	 our	 precedent.	 	We	 have	consistently	described the	 seawall	 as	lying	

somewhere	in	the	area	between the	uplands	and	the	mean	high	water	line	(i.e.,

somewhere	 on the	 dry	 sand),	 see Sweeney	 v.	 Town	 of	 Old	 Orchard	 Beach,	

644 A.2d	483,	483	(Me.	1994);	Hodge, 48	Me.	at	71; Littlefield,	28	Me.	at	186;

Cutts,	15	Me.	at	241, and	have	 not	held—and	 firmly	 reject—that	 the	 seawall	

necessarily includes	all	of	the	dry	sand	or	any	portion	of	the	intertidal	zone.		

[¶34]	 	 Second,	 contrary	 to	 the	 argument	 of	 Almeder	 and	 the	 other	

owners,	 the	court	did	not	disregard	 the	 specific	language	 of	each	Beachfront	

Owner’s	title	chain	or	apply	an	erroneous	universal	definition	of	“seawall.”		This	

argument	mischaracterizes	the	court’s	analysis.		The	court	searched	each	title	
23

chain	for	references	to	the	seawall	and	then	assessed	the	location	of	the	seawall	

on	 the	 face	 of	 the	 earth	 by	 applying	 our	 descriptions	 of	 the	 seawall	 to	 the	

specific language	of	each	deed.		After	reviewing	each	chain,	the	court	concluded	

that	 the	 Beachfront	 Owners’	 titles	 did	 not	 include	 “land	 seaward	 of	 the	

[seawall],	including	without	limitation	the	dry	sand	portion	and	intertidal	zone	

of	 Goose	 Rocks	 Beach,”	 see	 supra ¶ 21,	 and	 located	 that	 seawall	 boundary	

landward	 of	 the	 dry	 sand	 at	 either	 a	 natural	 or	 manmade	 embankment.		

Therefore,	because	the	court’s	interpretation	of	the	term	“seawall”	accords	with	

the	word’s	use	contemporaneous	with	the	drafting	of	the	Beachfront	Owners’	

foundational	deeds,	reflects	our	general	descriptions	of	this	monument,	and	is	

specifically	applied to	each	individual	deed,	the	court	did	not	err	in	interpreting	

the	term	“seawall.”		

3. Seaward	Boundaries	

[¶35]	 	 Finally,	 the	 Beachfront	 Owners	 argue	 that	 the	 court	 erred	 in	

concluding	that	the	seawall	is	the	seaward	boundary	of	each	of	their	properties.		

Specifically,	they	argue	that	(1)	absent	clear	evidence	to	the	contrary,	the	beach

is	conveyed	as	an	“appendance”	to	the	uplands;	(2)	evidence	of	several	decades	

of	 record	 title	 to	 the	 beach defeats	 evidence	 that	 prior	 grantors	 may	 have	

intended	 to	 exclude	 the	 beach,	 see	 generally Dunton	 v.	 Parker,	 97	 Me.	 461,	
24

54 A. 1115	(1903),	and	(3)	the	lack	of	evidence	of	a	separate	chain	of	title	to	the	

beach suggests	that	their	properties	extend	to	the	low	water	mark.			

[¶36]	 	 The	 court’s	 determination	 that	 the	 seawall	 is	 the	 seaward	

boundary	of	each	property	was	based	upon	a	meticulous	review	of	older	deeds	

and	 the	 plans	 incorporated	 therein	 that	 lay	 out	 various	 parcels.	 	 The	 court	

traced	the	title	to	each	property	back	to	the early	18th	century	and	concluded	

that	 the	grants	in	 these	deeds	extended	only to	 the	seawall	and could	not	be	

altered	 by	 calls	 to	 the	water	included	in	 deeds	 drafted	 decades	 or	 centuries

later.		After	reviewing	these	same	deeds,	we	determine,	for	two	reasons, that	

the	 court	 did	 not	 err	 in	 concluding,	 from	 the	 deeds,	 that	 the	 seawall	 is	 the	

seaward	boundary	of	each	property	or,	factually,	in	locating	this	boundary	on	

the	face	of	the	earth.		

[¶37]	 	 First,	 the	 beach	 did	 not	 pass	 as	 an	 appendance	 to	 the	 upland	

properties	at	issue	in	this	case.		As	the	court	correctly	summarized,	the	owner	

of	upland	oceanfront	property	presumptively	owns	to	the	low	water	mark	by	

operation	of	the	Colonial	Ordinance	of	1641.		Roxbury,	75	Mass.	(9	Gray)	at	498;	

Storer,	6	Mass	at	438-39.		Because	the	beach may	be	conveyed	separately	from	

the	 upland,	 an	 owner	 only	 benefits	 from	 this	 presumption	 where	 a	 grant	 of	

property	specifically	includes	a	call	to	the	water.		Storer,	6	Mass	at	439	(“This	
25

rule	applies	only	in	cases	where	the	grantor,	seised	of	the	upland	and	flats,	in	

conveying	his	land,	bounds	the	land	sold	on	the	sea	or	salt	water,	or	describes	

other	boundaries	of	equivalent	meaning,	without	any	reservation	of	the	flats.”).		

Terms	such	as	“Atlantic	Ocean,”	“ocean,”	“cove,”	“sea,”	or	“river”	are	calls	to	the	

water	that	trigger	the	presumption,	Bell	v.	Wells,	557	A.2d	168,	172	(Me.	1989);	

Ogunquit	 Beach	 Dist.	 v.	 Perkins, 21	 A.2d	 660,	 663	 (Me.	 1941).	 However,	

language	limiting	a	grant	“to”	or	“by”	the	shore,	beach,	bank,	or	sea shore may	

defeat	the	presumption.		See Hodgdon, 411	A.2d	at	672	(“As	a	monument,	the	

shore	 limits	 the	 grant	 to	 the	 high-water	 mark.”);	 Whitmore	 v.	 Brown,	

100 Me. 410,	414,	61 A. 485,	487	 (1905);	Lapish	v.	President	 of	Bangor	Bank,	

8 Me.	85,	89-90	(1831);	Storer, 6 Mass.	at	438-39.

[¶38]		The	court	correctly	concluded	that	the	Beachfront	Owners	do	not	

benefit	from	the	Colonial	Ordinance	presumption	because	their	source	deeds	

do	not	include	a	call	to	the	water	or	even	to	the	shore.		As	an	example,	parcels	

in	the	Western	Section	of	the	Beach	trace	back	to land	owned	by	John	Emmons.		

In	a	1777	layout,	the	land	was	described	as	“Beginning	at	a	Pitch	Pine	Tree	.	.	.	

then	South	East	to	the	sea	wall then	North	East	by	the	sea	wall .	.	.	.”		When	this	

same	land	was	subdivided,	each	subdivision	described	the	seaward	boundary	

as	the	seawall	or the	top	of	the	bank,	similarly	defeating	any	presumption	that	
26

the	upland	owners	were	granted	title	to	the	beach.		Storer, 6 Mass.	at	439-40.		

The	 foundational	 deeds	 and	 incorporated	 plans	 in	 the	 other	 title	 chains	

similarly	destroy	any	presumption	that	the	Beachfront	Owners	own	to	the	low	

water	mark.		 In	most	 of	 the	 title	chains,	language	 referencing	 the	water	was	

added	to	later	deeds;	these	late	additions	do	not	resurrect	the	presumption	of	

ownership	to	the	low	water	mark.		See	Eaton,	2000	ME	176,	¶ 19,	760	A.2d	232	

(noting	that	“a	person	can	convey	only	what	is	conveyed	into	them”).

[¶39]		Second,	the	Beachfront	Owners’	argument	that	evidence	of	several	

decades	 of	 record	 title	 to	 the	 intertidal	 zone	 defeats	 evidence	 that	 prior	

grantors	may	have	intended	to	exclude	the	intertidal	zone	is	unpersuasive.		The	

Beachfront	 Owners	 point	 to	 our	 decision	 in	 Dunton	 v.	 Parker, 97	 Me.	 461,

54 A. 1115 (1903),	to	support	their	position.		In	Dunton,	we	relied	on	language	

in	 later	 deeds	 describing	 the	 boundaries	 of	 a	 property	 to	 conclude	 that	 the	

property	owner’s	land	included	the	“shore.”		97	Me.	at	465-66,	54	A.	at	1117.		

Although	this	language	did	not	appear	in	all	of	the	deeds	in	the	title	chain,	we	

concluded	that	the	property	extended	to	and	included	the	shore	because	early	

deeds	 “unquestionably	 included	 the	 shore,”	 and	 the	 owners—and	 their	

predecessors—maintained	 “exclusive	 and	 uninterrupted	 possession	 of	 the	
27

shore”	for	nearly	three	decades.		Id. at	465,	470,	54	A.	at	1117,	1119.		Dunton is	

not	dispositive	in	this	case.

[¶40]	 	 Unlike	 the	 property	 owners	 in	Dunton,	 the	 Beachfront	 Owners’	

chains	of	title	trace	back	centuries	to	deeds	that	clearly exclude	the	beach by	

referencing	the	seawall or	bank.		Moreover,	the	Beachfront	Owners	conceded	

that	they	have	not	retained	exclusive	and	uninterrupted	possession	of	the	land

seaward	 of	 the	 high water	 mark,	 and	 there	 is	 no	 evidence	 that	 their	

predecessors-in-interest	ever	exclusively	used	the	beach.		Therefore,	there	was	

no	basis	 on	which	 the	court	could	have	concluded	 that	modern	 deeds	in	 the	

Beachfront	 Owners’	 chains	 of	 title	 overcome	 the	 express	 intent	 of	 historical	

grantors	to	convey	land	only	to	the	seawall.		

[¶41]		 Furthermore,	 the	Beachfront	Owners’	argument	 that	 the	lack	 of	

evidence	of	a	separate	chain	of	 title	 to	 the	intertidal	zone suggests	 that	 their	

properties	extend	to	the	low	water	mark	is	without	merit	because	the	specific	

language	in	 the	Beachfront	Owners’	 titles	identifies	 the	seaward	boundary	of	

each	property	as	the	seawall.

[¶42]		In	sum,	the	court	understood	and	applied	the	correct	principles	of	

deed	construction,	navigated	the	difficulties	of	piecing	together	ancient	deeds	

and	layouts,	considered	and	ruled	out	the	Colonial	Ordinance	presumption,	and	
28

did	not	err	in	interpreting	the	seaward	boundaries	of the Beachfront	Owners’

properties	or	in	locating	those	boundaries	on	the	face	of	the	earth.		

C. The	Town’s	Title	Claims

[¶43]	 	 Finally,	 the	 Beachfront	 Owners	 argue that	 the	 court	 erred	 in	

finding	that	the	Town	established	title	to	the	disputed	portions	of	the	upland	

and	 the	 beach.	 	 They	 first	 contend	 that	 the	 Danforth	 Deed	 did	 not	 vest	 fee	

ownership	of	all	land	in	Kennebunkport	in	the	proprietors.		In	the	alternative,	

they	 argue	 that	 any	 property	 interest	 that	 was	 conveyed	 to	 the	 proprietors	

through	the	Danforth	Deed	did	not	vest	in	the	Town	by	“operation	of	law”	or	

otherwise.	 	 We	 agree	 with	 the	 Beachfront	 Owners,	 and	 the	 court,	 that	 the	

Danforth	 Deed	 was	 not	 a	 direct	 conveyance	 to	 the	 Town	 in	 its	 corporate	

capacity	and,	therefore,	does	not,	on	its	own,	give	the	Town	title	to	the	disputed	

property,	 including	 the	 beach.	 We	 disagree,	 however,	 with	 the	 Beachfront	

Owners’	 argument	 that	 the	Town	does	not	 today	 own	 the	 disputed	property	

and	affirm	the	court’s	judgment	recognizing	the	Town’s	claim	to	the	portions	of	

Goose	Rocks	Beach	seaward	of	the	seawall.		

1. Historical	Land	Ownership

[¶44]		“[F]rom	the	earliest	time[,]	towns	have	been	in	the	habit	of	holding	

and	 disposing	 of	 real	 estate.”	 	 Commonwealth	 v.	 Wilder,	 127	 Mass.	 1,	 3	
29

(Mass. 1879).		As	early	as	1636,	the	Massachusetts	General	Court	empowered	

towns	“to	grant	land	within	their	limits	for	public	uses,	with	power	by	vote	to	

divide	them	among	their	inhabitants,	subject	to	the	paramount	authority	of	the	

General	Court,	which	reserved	to	itself	and	habitually	expressed	the	power	to	

grant	lands	so	held	by	a	town.”		Id.;	see	1	Mass.	Col.	Rec.	172;	Rogers	v.	Goodwin,	

2	Mass.	475,	477	(Mass.	1807).		“Lands	within	the	limits	of	a	town,	which	had	

not	 been	 granted	 by	 the	 government	 of	the	 Colony	 either	 to	 the	 town	 or	 to	

individuals,	were	not	held	by	 the	 town	 as	its	 absolute	 property,	as	a	private	

person	might	hold	them,	but,	by	virtue	of	its	establishment	and	existence	as	a	

municipal	corporation,	 for	 public	uses.”	 	Lynn	v.	Nahant,	113	Mass.	433,	448	

(1873).		The	General	Court	authorized	the	freemen	of	every	town	“to	dispose	of	

their	owne	lands	&	woods,	with	all	the	privileges	&	appurtenances	of	the	said	

townes,	to	grant	lotts,	&	make	such	orders	as	may	concern	the	well	ordering	of	

their	 owne	 townes”	 and	 to	 choose	 their	 own	 town	 officers,	 surveyors	 and	

constables,	create	local	laws,	and	enact	penalties	for	the	breach	of	these	orders.		

See 1	Mass.	Col.	Rec.	172;	Lynn,	113	Mass.	at	448;	Rogers,	2	Mass	at	477.	

[¶45]	 	 In	 an	 effort	 to	 encourage	 the	 settlement	 and	 population	 of	 the	

colony,	Massachusetts	also	exercised	its	residual	authority	to	grant	land	within	
30

townships,	see	Lynn,	113	Mass.	at	448,	and	granted	portions	of	undivided	land	

to	groups	of	individuals	(i.e., proprietors).15		

[¶46]	 	 The	 proprietary was	 an	 entity	 separate	 from	 the	 Town	 and	

authorized	by	 statute	in	 the	early	1690s	 to	divide	commonly held	undivided	

land.	 See Mass.	St.	1692-93,	c.	28;	Green	v.	Putnam,	62	Mass.	(8 Cush.)	21,	25	

(1851).		This	statute	authorizing	the	proprietary	to	“order,	improve,	or	divide”	

the	common	and	undivided	lands	in	 the	Town	did	not	itself	vest	 title	 to	such	

land	in	the	proprietors.		Id.		Any	ownership	or	other	interest	of	the	proprietors	

in	such	land	came	from other	sources,	including	grants	from	the	Massachusetts	

General	Court,	agents	of	the	colony	(e.g., Thomas	Danforth),	or	from	the	towns.		

The	proprietary	was	a	“quasi	corporate,”	but	temporary,	body	that	was	always	

“intended	 to	 die.”	 	 Bates	 v.	 Cohasset,	 182 N.E.	 284,	 287	 (Mass.	 1932).	 	 The	

proprietaries were	“formed	for	the	purpose	of	dividing	the	common	lands	and,	

that	having	been	accomplished,	of	passing	out	of	existence.”		Id.		They	existed	

and	were	created	“solely	for	the	convenience	of	the	tenants	in	common	in	the	

management	and	division	of	their	lands,”	id.,	and	were	extinguished	by	statute.		

See Mass.	St.	1790,	c.	40.16

 15		Supra	note	5.

16		Mass.	St.	1790,	c.	40	provides	in	relevant	part,	
31

[¶47]		With	respect	to	the	Province	of	Maine	specifically,	Massachusetts	

authorized	commissions	to	encourage	the	settlement	of	towns	in	remote	areas,	

resulting	 in	 1653	 in	 the	 incorporation	 of	 the	 Township	 of	 Cape	 Porpus	 and	

several	 other	 towns.	 	 See 3	 Mass.	 Col.	 Rec.	 338-39.	 	 Massachusetts	 later	

authorized	Danforth,	who	had	been	elected	President	of	the	Province	of	Maine,	

see 5	Mass.	Col.	Rec.	309,	to	make	large	grants	of	land	within	the	boundaries	of	

these	 townships	 on	 its	 behalf.	 	 During	 this	 period,	 many	 colonial	 towns,	

although	authorized	by	statute	to	manage	their	own	affairs,	possessed	“limited	

corporate	characteristics”	and	had	yet	to	develop	municipal	identities	separate	

from	 the	 inhabitants	 who	 lived	 within	 their	 geographic	 boarders.	 Bates,	

182 N.E.	 at 286. Under	 these	 historical	 circumstances,	 grants	 to	 or	 for	 the	

benefit	 of	 the	 inhabitants	 were	 common,	 as	 was	 the	 case	 with	 the	 Danforth	

Deed	in	this	matter.		See id.		

2. The	Danforth	Deed	

 

And	 be	 it	 further	 enacted	 by	 the	 authority	 aforesaid,	 that	 where,	 after	 such	 final	

division	of	any	lands	or	other	real	estate,	which	have	been,	or	shall	have	been	held	as	

a	proprietary,	the	proprietors	making	such	division	have	ordered	&	delivered,	or	shall	

order	and	deliver	the	record	of	their	proprietary	into	the	custody	of	the	town	Clerk,	

in	which	such	land	or	other	real	estate,	or	part	thereof,	may	lay	.	.	.	.	

Provided	nevertheless,	that	the	proprietors	aforesaid	shall	not	continue	to	act	in	their	

corporate	capacity	 for	more	 than	ten	years	after	 the	 final	division	of	their	lands	or	

other	real	estate	.	.	.	.	
32

[¶48]		Because	it	determined	that	the	language	of	the	Danforth	Deed	was	

ambiguous,	the	trial	court	relied	on	extrinsic	evidence	of	the	historical	context	

in	which	 the	Danforth	Deed	was	drafted	 to	conclude	 that	 this	document	was	

intended	 to	 “confirm	 the	 validity	 of	 prior	 grants”	 made	 during	 a	 period	 of	

political	instability	and “enable	 further	 grants	and	confirmations	 of	common	

and	undivided	land”	within	Cape	Porpus.		The	court	further	concluded	that	this	

indenture	was	not	a	grant	to	the	Town	itself	because	it	specifically	granted	the	

land	 to	 three	individuals	as	 trustees	 for	 the	inhabitants	 of	Cape	Porpus.		We	

agree,	and	explain as	follows.		

a. Nature	of	the	Grant

[¶49]	 	 The	 plain	language	 of	 the	Danforth	Deed	 provides	 that	 Thomas	

Danforth,	 “by	 the	 Govenour	 &	 Company	 of	 the	 Massachusetts	 Colony,”	 was	

“fully	 Authorized	 &	 impowered	 to	 make	 Legal	 confirmation	 unto	 the	

Inhabitants	 of	 the	 above	 said	 Province	 of	 Mayne	 and	 all	 their	 Lands	 or	

properties	 to	 them	 justly	 appertaining	 or	 belonging	 within	 the	 Limitts	 or	

Bounds	of	the	said	Province	[of	Maine].”		Acting	on	behalf of	the	Massachusetts	

Colony,	Danforth	“fully	clearly	&	absolutely	g[a]ve	grant[ed]	& confirm[ed]” to	

“John	Barret	Sen	John	Burrington	&	John	Badson	Trustees	on	the	Behalf	and	for	

the	sole	use	and	benefit	of	the	Inhabitants	of	the	Town	of	Cape	Porpus .	.	.	.	 All	
33

that	Tract	or	parcell of	Land	within	the	Township	of	Cape	Porpus.”		(Emphasis	

added.)		In	so	doing,	Danforth	confirmed	land	already	granted	out	and granted	

the	remaining	common	and	undivided	land	that	had	not	yet	been	conveyed.		Cf.

Litchfield	v.	Inhabitants	of	Scituate,	136 Mass.	39,	41-43	(1883).		However,	the	

Beachfront	Owners	are	correct	that	this	deed	was	not	a	conveyance	of	land	at	

that	time	to	the	Town outright.		

[¶50]		The	historical	context	in	which	the	Danforth	Deed	was	drafted,	as

outlined	 by	 the	 court	 and	 supported	 by	 competent	 evidence	 in	 the	 record,	

supports	 this	 interpretation.	 	 Throughout	 the	 early	 history	 of	 the	 colony,	

political	 turmoil	 in	 England	 coupled	 with	 sparse	 record	 keeping	 and	 the	

difficulties	inherent	in	establishing	early	settlements	undermined	the	security	

of	individual	titles.		See	supra ¶¶	12-14.		Massachusetts	attempted	to	remedy	

this	uncertainty	in	part	by	granting	towns	the	authority	to	divide	and	manage	

their	 own	 lands	 by	 vote	 of	 the	 freemen,	 see 1	 Mass.	 Col.	 Rec.	 172;	 Lynn,

113 Mass.	 at	 448;	 Springfield	 v.	 Miller,	 12	 Mass.	 415,	 416	 (1815),	 by	

commissioning	 agents	 to	 travel	 to	 the	 Province	 of	 Maine	 to	 encourage	 the	

formal	incorporation	 of	 townships,	see, e.g.,	3	Mass.	Col.	Rec.	332-39,	 and	by	

acquiring	the	Gorges	Patent	through	its	agent	John	Usher.		Massachusetts	also	

confirmed	titles	and	granted	common	and	undivided	land	through	specific	acts	
34

of	the	General	Court,	the	Eastern	Claims	Process,	and	grants	from	agents	such	

as	Danforth	 that	 resulted	in	 the	 establishment	 of	 proprietaries,	 as	 discussed	

above.		See, e.g.,	5	Mass.	Col.	Rec.	9-12.			

[¶51]		It	is	clear	that,	throughout	this	period, Massachusetts	endeavored	

to	settle	remote	areas	of	the	colony	and	convey	land	it	had	acquired	through	

Usher	 to	 individuals	 and	 townships.	 	 In	 doing	 so,	 it	 frequently	 identified	

individuals	 or	 groups	 of	 individuals	 (proprietors)	 who	 were	 responsible	 for	

managing	and	dividing	common	lands.		In	light	of	these	circumstances,	which	

are	supported	by	competent	evidence	in	the	historical	record	of	this	case,	the	

trial	 court	 did	 not	 err	 in	 concluding	 that	 the	 Danforth	 Deed	 both	 confirmed	

existing	 ownership	 and	granted	common	and	undivided	lands.		Cf.	Litchfield,

136	Mass.	at	41-43.

b. Grant	to	the	Trustees

[¶52]		As	the	court	correctly	determined,	and	as	the	plain	language	of	the	

deed	reflects,	Danforth	granted	legal	title	to	the	land	in	Cape	Porpus	to	three	

individuals—Barret,	Burrington,	and	Badson—as	 trustees	 for	 the	inhabitants	

of	 the	Town.	 	They	were	not	agents	 or	 officials	 of	 the	Town.		Although	 their	

interest	in	the	land	was	unusual	by	modern	standards,	grants	of	this	kind—to	

individuals	to	hold	as	tenants	in	common	for	the	benefit	of	the	inhabitants	of	a	
35

town,	rather	than	to	the	town	outright—were	typical	during	this	era,	see	Bates,	

182	 N.E.	 at	 286,	 and	 are	 consistent	 with	 the	 historical	 intent	 of	 the	

Massachusetts	Colony	to	settle	the	land	and	transition	to	the	towns	and	their	

inhabitants	 the	 authority	 to	 manage	 local	 affairs.	 	 Barret,	 Burrington,	 and	

Badson	 held	 the	 common	 and undivided	 lands	 in	 Cape	 Porpus not	 as	 their	

absolute	property, as	a	private	person	might	hold	them,	but	“on	the	[b]ehalf	and	

for	the	sole	use	and	benefit	of	the	Inhabitants	of	the	Town.”		These	individuals	

were	among	the	first	town	proprietors	who	would	later	oversee	grants	of	the	

common	 and	 undivided	 land	 within	 Cape	 Porpus	 as	 authorized	 by	 statute.		

Mass.	St.	1692-93,	c.	28.		

3. Transfer	to	the	Town

[¶53]	 	 The	 Beachfront	 Owners	 argue	 that,	 even	 if	 the	 Danforth	 Deed	

effectively	granted	the	common	and	undivided	land	in	Cape	Porpus	to	Barret,	

Burrington,	and	Badson,	any	interest	retained	by	them	did	not	transfer	to	the	

Town.	 	 In	 so	 arguing,	 they	 rely	 primarily	 on	 Eaton	 v.	 Town	 of	 Wells,	

2000 ME 176,	 ¶¶ 17,	 26,	 760	 A.2d	 232, to	 support	 their	 contention	 that	 the	

court	erred	in	concluding	that	title	to	the	beach and	dry	sand	portion	of	Goose	

Rocks	Beach	transferred	to	the	Town	in	the	absence	of	an	express	grant. Their	

reliance	on	Eaton is,	however, misplaced.		
36

[¶54]		In	Eaton,	we	considered	an	appeal	from	a	judgment	granting	the	

public	 and	 the	 Town	 of	 Wells	 an	 easement	 over	 a	 portion	 of	 Wells	 Beach.		

2000 ME	176,	¶	1,	760	A.2d	232.		In	that	case,	Wells	argued	that	it	held	record	

title	 to	 the	 dry	 sand	 and	 intertidal	 zone	 through	 a	 grant	 from	 Ferdinando	

Gorges	 to	 the	 original	 Wells	 proprietors	 because,	 “as	 the	 feudal	 concept	 of	

property	ownership	gave	way	to	fee	ownership,	this	grant	of	authority	.	.	.	had	

the	effect	of	conveying	fee	title	to	the	land	described	to	the	Town	of	Wells.”		Id.

¶	11	(quotation	marks	omitted).		 In	short,	Wells	argued	 that	 the	grant	 to	 the	

proprietors	was	 the	equivalent	of	a	grant	 to	Wells	itself.		Id.		We	determined	

that	 this	argument	was	unpersuasive	because	(1)	 there	had	been	no	express	

grant	 of	 the	 disputed	 land	 from	 the	 proprietors	 to	 the	 Town	 of	 Wells	 and	

(2) this	 same	 land	 was	 explicitly	 and	 specifically	 granted	 to	 the	

predecessors-in-interest	 of	 the	 plaintiff	 property	 owners.	 	Id. ¶¶	 17,	 26.	 	 In	

contrast,	here,	the	Beachfront	Owners	cannot	show	that	they	hold	title	to	the	

disputed	property	because	their	grants	extend	only	to	the	seawall.		Moreover,	

the	 Town	 of	 Kennebunkport,	 unlike	 the	 Town	 of	 Wells,	 does	 not	 claim	

ownership	 of	 the	disputed	areas	 of	Goose	Rocks	Beach	based	 on	 the	general	

notion	 that	 the	 transition	 from	 a	 feudal	 property	 system	 to	 a	 system	 of	 fee	
37

ownership	necessarily	means	that	land	held	by	the	proprietors	was	held	by	the	

Town.		

[¶55]	 	 In	 this	 case,	 contrary	 to	 the	 Beachfront	 Owners’	 argument,	 the	

court	did	not	err	in	determining	that	the	historical	circumstances	of	this	case—

specific	 to	 the	 anomalies	 of	 the	 settlement	 of	 Cape	 Porpus—were	 sufficient	

evidence	of	the	transfer	of	title	to	the	Beach	in	the	absence	of	a	specific	grant	

from	the	proprietors.		

[¶56]	 	Barret,	 Burrington,	 and	 Badson,	 like	 other	 colonial	 proprietors,	

were	empowered	by	the	Massachusetts	Colony	to	“order,	improve,	or	divide”	

the	undivided	or	common	lands	in	the	Town.		Mass.	St.	1692-93,	c. 28.		They	and	

other	Town	proprietors	held	formal	meetings	beginning	in	1726	and	continued	

in	 their	 official	 capacity	 until	 the	 proprietary dissolved	 and	 the	 proprietors	

transferred their	records	to	the	Town	Clerk	pursuant	to	statute.		See Mass.	St.	

1790,	c.	40.		As	the	trial	court	found,	the	record	does	not	contain	a	specific	deed	

or	grant	by	vote	or	other	means	by	the	proprietors	concerning	any	remaining	

common	land,	including	the	strip	of	oceanfront	property	at	issue	in	this	case.		

The	 proprietors,	 identified	 by	 this	 time	 in	 the	 records	 as	 the	 “Arundel	
38

Proprietors,”	simply	“pass[ed]	out	of	existence”	and	relinquished	their	record	

book	to	the	Town	Clerk.		Bates,	182 N.E.	at	287.17		

[¶57]		In	this	case,	we	are	reminded	once	again	of	the	inherent	difficulties	

in	tracing	title	to	colonial	origins.		As	the	Massachusetts	Supreme	Judicial	Court	

opined	in	1948 when	considering	similarly	complex	and	voluminous	historical	

records,	

[t]echnical	refinements	and	common	law	distinctions	as	to	title	are	

not	 to	be	given	 too	much	weight	in	determining	 the	origin	of	 the	

ownership	 of	 [land],	 depending	 as	 they	 do	 upon	 events	 which	

occurred	more	 than	 three	centuries	 ago	during	 the	incipient	and	

formative	stages	 of	a	 young	settlement	 striving	 to	 organize	itself	

into	a	permanent	political	subdivision;	and	whether	the	ownership	

was	in	the	town	or	in	its	inhabitants,	the	latter,	in	those	early	days,	

as	owners	or	as	 freemen,	controlled	 the	property,	its	 title	and	its	

use.	 .	 .	 . There	 is	 great	 difficulty	 in	 applying	 the	 strict	 rules	 of	

common	 law	 conveyancing,	 to	 the	 early	 acts	 and	 votes	 of	

proprietors,	 towns	 and	 parishes,	 in	 the	 colony	 and	 province	 of	

Massachusetts,	 without	 danger	 of	 producing	 some	 confusion	 of	

rights;	 and	 the	 fact	 probably	 was,	 that	 towns,	 parishes	 and	

proprietors,	often	consisted	so	nearly	of	the	same	individuals,	that	

a	grant	or	appropriation	of	one	of	these	bodies	to	another	was	little	

more	than	an	appropriation	by	themselves	in	one	capacity,	to	the	

use	of	themselves	in	another;	from	which	it	probably	followed,	that	

less	attention	was	paid	to	such	acts,	than	if	they	had	been	acts	of	

alienation	to	strangers.	

 17		Although	it	is	possible	that	some	proprietaries in	Maine	existed	well	into	the	nineteenth	and	

twentieth	 centuries,	 see,	 e.g.,	 R.S.	 ch.	 85	 (1840);	 R.S.	 ch.	 54	 §§	 20-30	 (1954),	 the	 Cape	 Porpus	

proprietary	dissolved	in	the	late	eighteenth	century.		
39

Lowell v.	Boston,	322	Mass.	709, 720-21 (1948)	 (citations	and	quotation	marks	

omitted).		

[¶58]		Despite	the	lack	of	a	specific	accounting	of	the	remaining	common	

and	undivided	land	or	a	grant	concerning	the	same,	there	is	no	doubt	that	the	

Beachfront	Owners	in	this	case	have	not	established	ownership	of	the	Beach.		It	

is	also	clear	from	the	Proprietors’ Record	and	from	the	deeds	in	the	record	of	

this	 case	 that	 the	 ownership	 interest	 in	 the	 disputed	 beach and	 dry	 sand	

portions	 of	 Goose	 Rocks	 Beach	 had	 not	 been	 transferred	 to	 any	 of	 the	

Beachfront	 Owners’	 predecessors-in-interest.	 	 It	 is	 equally	 clear	 from	 the	

record,	 the	 historical	 context,	 and	 the	 early	 colonial	 statutes that	 title	 to	 the	

disputed	portions	 of	 the	Beach	was	never	 transferred	into	any	 other	private	

hands.	 	 Ownership	 of	 the	 Beach	 passed	 from	 the	 Crown	 to	 the	 colony	 of	

Massachusetts;	 and	 then	 from	 Massachusetts,	 through	 Danforth,	 to	 the	

proprietors	Barret,	Burrington,	and	Badson,	where	it	was	retained	in	trust	by	

them	for	the	benefit	of	the	Inhabitants	of	Cape	Porpus.		The	historical	record	

suggests,	as	the	trial	court	found,	that	this	property	remained	in	trust	for	the	

benefit	of	the	Inhabitants	of	the	Town	until	the	proprietary dissolved	in	the	late	

eighteenth	century.		See Mass.	St. 1790,	c.	40.		The	dissolution	of	the	proprietary	

by	statute	effectively	terminated	the	trust,	its	purpose	to	establish	a	group	of	
40

individuals	 to	settle	and	organize	 the	Town	 for	the	benefit	of	 the	 Inhabitants	

having	been	accomplished.		Id.

[¶59]		 Few	courts	 have	been	 tasked,	 as	we	 are	 now,	with	determining	

who	 takes	 title	 to	 land	 once	 held	 but	 never	 granted	 out	 by	 the	 proprietors;	

however,	 the	 discussions	 in	 cases	 that	 have	 had	 to	 consider	 the	 question	

support	the	Town’s	claim	to	the	disputed	property.		See Lynn,	113	Mass.	at	448

(“The	 lands	 within	 the	 limits	 of	 a	 town,	 which	 had	 not	 been	 granted	 by	 the	

government	of	the	Colony	either	to	the	town	or	to	individuals,	were	not	held	by	

the	town	as	its	absolute	property,	as	a	private	person	might	hold	them,	but,	by	

virtue	of	its	establishment	and	existence	as	a	municipal	corporation,	for	public	

uses,	with	power	by	vote	of	the	freemen	of	the	town	to	divide	them	among	its

inhabitants .	 .	 .	 .”);	Bates,	182	N.E.	at	288	 (quoting	 favorably	 the	land	court’s	

findings:	“If	title	did	remain	in	the	proprietors,	then	the	land	not	having	been	

set	off	or	granted	to	any	individual,	but	being	held	for	public	purposes,	the	title	

would	 vest	 in	 the	 town	 by	 virtue	 of	 its	 establishment	 and	 existence	 as	 a	

municipal	corporation.”)	(quotation	marks	omitted);	Talbot	v.	Little	Compton,	

160	A.	466,	469	(R.I.	1932)	(discussing	land	 that	was	at	one	point	under	 the	

jurisdiction	of	the	Plymouth	Colony,	“If	the	original	proprietors	did	not	allot	the	

land	in	question,	we	think	it	was	their	intention	and	the	intention	of	the	Colony	
41

that	the	town	should	succeed	to	all	their	rights	therein.”);	see	also 3	Tiffany,	Law	

of	Real	Property § 934	(3d	ed.	1939)	(stating	that,	as	colonial	towns	developed,	

common	lands	not	granted	out	by	the	proprietary	came	to	be	“regarded	as	the	

property	of	the	town,	rather	than	that	of	the	proprietors	or	their	descendants”).

[¶60]	 	 Therefore,	 on	 the	 record	 before	 us,	 and	 in	 the	 absence	 of	 any	

evidence	 suggesting	 that	 the	 disputed	 land	 was	 conveyed	 into	 private	

ownership,	 we	 affirm	 the	 holding	 of	 the	 trial	 court	 that	 in	 the	 unique	

circumstances	 of	 this	 case,	 legal	 title	 to	 the	 disputed	 land	 seaward	 of	 the	

seawall,	 including	 the	 beach,	 is	 held	 by	 the	 Town	 of	 Kennebunkport	 for	 the	

benefit	of	the	public.

The	entry	is:

Judgment	affirmed.
42

Sidney	 St.	 F.	 Thaxter,	 Esq.,	 David	 P.	 Silk,	 Esq.,	 and	 Benjamin	 M.	 Leoni,	 Esq.

(orally),	Curtis	Thaxter	LLC,	Portland,	for	appellants	Robert	F.	Almeder	et	al.

Gordon	 R.	 Smith,	 Esq. (orally),	 and	 Keith	 E.	 Glidden,	 Esq.,	 Verrill Dana,	 LLP,	

Portland,	and	Christopher	E.	Pazar,	Esq.,	Drummond	&	Drummond,	Portland,	

for	appellants	Terrence	O’Connor	and	Joan	Leahey

David	M.	Kallin,	Esq. (orally),	Melissa	A.	Hewey,	Esq.,	and	Amy	K.	Tchao,	Esq.,	

Drummond	Woodsum,	Portland,	for	appellee	Town	of	Kennebunkport

Aaron	M.	Frey,	Attorney	General, and Lauren	E.	Parker,	Asst.	Atty.	Gen. (orally),	

Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Gerald	 F.	 Petruccelli,	 Esq.,	 Petruccelli,	 Martin	 &	 Haddow,	 LLP,	 Portland,	 for	

appellee neighboring	landowners

Adam	Steinman,	Esq., Cape	Elizabeth,	for	appellee	Surfrider	Foundation

Sandra	L.	Guay,	Esq.,	Woodman	Edmands	Danylik	Austin	Smith	&	Jacques,	P.A.,	

Biddeford,	for	amicus	curiae	North	American	Kelp

David	A.	Soley,	Esq.,	Glenn	Israel,	Esq.,	and	James	G.	Monteleone,	Esq.,	Bernstein	

Shur,	Portland,	for	amici	curiae	Susan	D.	Howe	and	John	D.	Howe

Orlando	E.	Delogu,	amicus	curiae	pro	se

York	County	Superior	Court	docket	number	RE-2009-111

FOR	CLERK	REFERENCE	ONLY