GOULDSBORO, Maine — A couple that lost a lawsuit they filed against their neighbors over access to a nearby beach is appealing their case to the Maine Supreme Judicial Court.
The Surfrider Foundation — a national nonprofit group that advocates for protecting public access to the shore, for conserving coastline from development, and for protecting ocean and water resources — is supporting Robert and Deborah Swan in their lawsuit against their neighbors.
The Swans, who live seasonally in the local village of Corea, filed the suit in 2015 after the neighbors told them they could no longer cross their land to access a beach on the southeast side of Crowley’s Island. The neighbors — Roberta Lochte-Jones, Beth Parks and Joan Quintal — have indicated in court documents that there are no easements on their property that allow the Swans or anyone else to walk across their land, though at times they have granted the Swans and others permission to access the beach on a case-by-case basis.
In 2013, Parks sent the Swans a certified letter forbidding them from walking across their properties to get to the shore.
The Swans argued that for decades Robert Swan’s family and the public have used Jenny’s Lane, where the homes are located, to get to and from the beach and that this historic use gives them a legal right to get to the beach by walking across their neighbors’ land.
The Swans lost their case last fall in Hancock County Superior Court.
Attempts this week to contact the Swans’ attorney, Andy Slater of Ellsworth, were unsuccessful.
The neighbors’ attorney, Anthony Beardsley of Ellsworth, said Friday he expects the appeal to end in the same result.
“We feel confident the Maine supreme court will uphold the trial judge’s decision regarding the right-of-way issues,” Beardsley said.
The Surfrider Foundation was denied intervenor status at the Superior Court level but has been granted permission by the state supreme court to file an amicus brief in the appeal.
According to attorney Mathew Todaro, who is representing the foundation in the Swans’ case, the lower court erred in its decision because it did not consider the historic use of Jenny’s Lane, focusing instead on the lack of a written easement that explicitly grants permission to abutters and the public to cross the neighbors’ land.
The historical record shows that owners of the adjacent properties had taken steps to control or limit foot traffic across their land parcels to and from the beach, he said, which bolsters the Swans’ argument that the public had established a prescriptive or unwritten easement over several decades across the neighboring properties.
“[The Superior Court] took a look at what happened very, very recently,” Todaro said Tuesday.
The Surfrider Foundation has taken an interest in the case, he said, because the Swans’ interest in the matter mirrors that of the public. If the Swans can get the courts to establish that an easement over the neighboring properties exists, then the public will benefit from that ruling.
Todaro said the Swans’ case is similar to other well-publicized lawsuits in Maine over who has a right to use certain beaches. But, he added, it is not identical to the Goose Rocks Beach case in Kennebunkport, which may be the best-known of those other cases.
In that case, the issue is over whether the public has a right to use Goose Rocks Beach, he said. The Gouldsboro case is not about whether the Swans or the public can use the Crowley Island beach; it’s about whether they can cross the adjacent landowners’ properties to get to the beach.
There is existing public access to the beach across a privately owned parcel near the eastern end of Crowley Island, but that access is not protected by an easement. That owner has classified the land as open space and granted the public access across it for tax benefits, according to people familiar with the Swans’ case, but can revoke that access at any time.
Written responses to the foundation’s brief, which was filed March 22, are due in a few weeks, Todaro said. When oral arguments might be heard in the appeal have not yet been determined, he added.