Jacqueline Weaver

Town, Landowner at Odds in Steuben Property Dispute

Jacqueline Weaver
Residents who maintain that Wharf Road in Steuben is a town road stand on granite steps the town recently installed leading from the road to the beach. From left are Colene and Barry Flaherty, Melody Johnson and Roy Palmer.

STEUBEN — The fight over who owns Wharf Road could be happening in any Maine town where residents have grown accustomed to using what is, or what they believe to be, a public way.

In this case pending in Washington County Superior Court the town asserts that Wharf Road on the end of Roger’s Point is town-owned and has been for more than a century.

However, a landowner on the dirt road, Edward Atkinson of Boston, purchased his property in 1983 and argues it is a private road.

“This case involves a number of strong emotions by a number of people,” said attorney Eric Columber of Roy, Beardsley, Williams & Granger in Ellsworth, who represents the Bayberry Cove Children’s Land Trust, which is the entity Atkinson formed in 1990.

Columber said Atkinson’s “No Trespassing” signs were torn down and there have been “verbal threats to burn his house down.”

At one point Columber secured a temporary injunction to bar the town from Wharf Road after workers bulldozed natural vegetation and rearranged rock, or “riprap” on the side of the road; excavated in preparation for a new parking area, and added stone steps to the beach.

Mark Bower, an attorney with Jensen Baird Gardner & Henry in Portland, is representing Steuben.

“That’s a town road and always has been,” Bower said. “It was laid out as a town road back in the 1800s. The town is not asking for anything other than to maintain the status quo.”

As a secondary argument, Bower maintains the town has gained access via a prescriptive easement, which is implied after continuous use by the public for at least 20 years.

Columber said even if the deeds are correct, they don’t give the public access to the beach.

Local residents appeared before selectmen in the spring in support of fighting to establish Wharf Road as a town road.

At that meeting were Colene and Barry Flaherty, who say the Wharf Road was always called, “Down Doc Barrows,” after the name of the former owner of Atkinson’s property.

The Flahertys readily provide photos showing picnics and family gatherings on the sandy beach, a rarity along Maine’s largely rocky shoreline.

They and other residents were upset by a Washington County Superior Court ruling in February that the abutting town landing is private property.

That parcel is owned by both Paul West and Atkinson. The town is appealing the ruling in state Supreme Court.

“It’s like a déjà vu,” said Melody Johnson of the latest controversy.

Her brother-in-law owns property that overlooks the town landing and which has been in the family for about 60 years.

She and her husband, Paul Johnson, had a bonfire on the town landing beach the night before their wedding 33 years ago.

Roy Palmer moved to Maine from Southbury, Conn., in 1986 and said he is worried about the loss of shoreline for future generations.

“What is going to be left for my children and grandchildren?” Palmer said.

Maine law requires that parties in a civil action first try to come to a meeting of the minds in mediation.

Columber said Atkinson has offered to give the town $75,000 to purchase shore access and has pledged another $50,000 if the town matches it.

“There is a lot of room for discussion here,” he said.

Prescriptive Easement

A prescriptive easement—or right of way—may be acquired if the use is long, in most cases, 20 years; continuous; adverse to the owner; open and notorious, according to Orlando Delogu, professor of law, emeritus, at the University of Maine School of Law.

“Prescriptive rights are hard to acquire,” Delogu said. “If you ask me for permission that will never ripen into a prescriptive right. You can’t just wake up in 2012 and say we’ve been using it, it’s ours. You have to be ready to prove it.”

He said proof could be in the form of people speaking or writing about the how they have utilized the right of way; photographs; town records and other evidence of use.

Delogu said the courts also expect landowners to assert their right of ownership.

“What we say to a person who owns property is you have a duty to defend your property if it is trespassed upon.”

For more of the latest news, pick up a copy of The Ellsworth American.

Jacqueline Weaver

Jacqueline Weaver

Reporter at The Ellsworth American
Jacqueline's beat covers the eastern Hancock County towns of Lamoine through Gouldsboro as well as Steuben in Washington County. She was a reporter for the New York Times, United Press International and Reuters before moving to Maine. She also publicized medical research at Yale School of Medicine and scientific findings at Yale University for nine years.[email protected]
Jacqueline Weaver

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