The Law Court in 2015 decided that neither custom or prescriptive use gave the Town of Kennebunkport title to intertidal lands on Goose Rocks Beach. It remanded the case back to the Superior Court to determine whether the Town’s unresolved claim of title to these lands, derived from original deeds promulgated by Massachusetts legislative enactments in the settlement of areas adjacent to Goose Rocks Beach (now a part of Kennebunkport), was valid. After hearings involving the search of historical records and submission of briefs by the parties, the Superior Court handed down an exhaustive 274 page opinion which concluded that the Town (in fact) held title to the intertidal lands abutting 22 of the 23 plaintiffs/upland property owners who had initiated these proceedings. The court held that original deeds to these properties did not include intertidal lands; that grants to founding settlers consistently ran from the seawall, or mean high, landward. The court held that title to lands never granted out by the founding proprietors of the town is held by their governmental successors, the town of Kennebunkport. This holding is fully supported by research study #4 included in chapter 9 of Maine’s Beaches are Public Property. It is worth noting that all of the independent research studies examined in chapter 9 (though focused on different settlements within Maine) evidence the same fact pattern. Massachusetts settlement Acts did not include intertidal lands in deeds to founding settlers–these lands were essential to provide lateral passage; they were retained in common ownership. Today, title to these lands (except for relatively small areas needed, suitable and actually filled for “wharfing out” purposes) is held by governmental successors in interest, i.e., towns and/or the State in trust for public.
Orlando Delogu joined the University of Maine School of Law in 1966 and served as a full-time member of the faculty for 40 years and as emeritus professor of law for 11 years. He helped found the Maine Civil Liberties Union and seved on the Board of Environmental Protection, the Portland City Council, and the Portland Planning Board.
