HARPSWELL

Testimony spanning more than eight generations of Cedar Beach users played a significant role in the legal victory of a nonprofit group against private landowners who sought to bar public use of Cedar Beach Road in Harpswell.

“Time degrades the evidence in these cases,” said David Bertoni of Brann & Isaacson, attorney to Cedar Beach/Cedar Island Supporters who were plaintiffs in the beach access case. “We were looking at testimony going back to the 1940s and ’50s.”

Superior Court Justice Nancy Mills presided over the case between plaintiffs CB/CIS and the defendants Charles and Sally Abrahamson and Betsy Atkins’s company Gables Real Estate, LLC. The case went to trial in May and a judgment was filed Monday ruling in CB/CIS’s favor.

“We’re elated,” said CB/CIS president Mike Helfgott in a phone interview with The Times Record on Tuesday. “To get from where we started two and a half years ago to where we are now took an awful lot.

“We always felt we had the right position, but we knew we were moving into a headwind a little bit because there were some groups from whom we weren’t getting support,” he added. “But recently we have had a fantastic wind at our back and by that I mean our supporters, volunteers, the board and people who donated their hard earned money.”

Nearly $200,000 has been donated to CB/CIS to pursue public access to Cedar Beach, said Helfgott, who added that within a few hours of the ruling he had been contacted with thanks and congratulations by hundreds of Harpswell residents and supporters.

An appeal is anticipated by CB/CIS, said Bertoni, which was confirmed by Christian Chandler of Curtis Thaxter, the attorney representing Atkins’s company Gables Real Estate, the official owner of Cedar Beach Road.

“We’re obviously disappointed in the ruling,” said Chandler. “We believe that the court made a number of errors and we will be appealing it at the law court.”

Chandler said that as the Abrahamsons no longer have an interest in the road, which they sold to Gables Real Estate in June, it is likely that an appeal will be brought solely by the real estate company.

“The decision really does have fairly broad implications and calls into question some long-standing Maine law,” said Chandler, who disputed the court’s decision that the actions taken by property owners of Cedar Beach Road were insufficient as a means of barring public access.

Means of barring access, according to testimony, included a chain that crossed the road inhibiting vehicle traffic. At one point “two six-foot chain link pieces of fence” were erected in the road, the ruling stated, which were “mowed down by a pick-up truck within days.”

“The court found that those actions were not sufficient and we believe that they were,” said Chandler.

“There is no decision that doesn’t have issues that could be raised on appeal, but none jump out to me,” said Bertoni. “It’s fact based and the court gives great deference to the facts that are found by a trial judge.”

The testimony and historical documents provided “clear evidence” that prior owners of Cedar Beach Road had not given the public permission to use the road, said Bertoni, but had not legitimately prohibited public use. Public use under these conditions must be proven to have continued over a period of at least 20 years for a public prescriptive easement to be established.

“We were able to get testimony that permission didn’t exist, and that puts you in an entirely different frame,” said Bertoni. “We are fortunate that these islanders have long, healthy lives. It’s hard to make a case on the recollections of grandparents handed down — we had the live actors.”

Since the Maine Superior Court ruled in favor of private landowner in the public access lawsuit over Goose Rocks Beach in Kennebunkport, Bertoni said, public opinion has been that a prescriptive easement is “impossible to get.”

The Goose Rocks ruling is currently under reconsideration, Bertoni said, and he noted that Cedar Beach serves as a reminder that it is possible to preserve public access to natural resources.

The case of Cedar Beach Road “hits that sweet spot where the owner both doesn’t want the public to use the road,” said Bertoni, “and doesn’t do the things necessary to stop the public.

“If the owners had put up a sign, that would have been enough to have prevented a prescriptive easement,” he said.

According the the court’s findings regarding the property, Cedar Beach Road was owned by Dr. Eugene McCarty beginning in 1926, and was purchased by his niece Julia Sturtevant and her husband in 1959, two years after McCarty’s death in 1957. In 1961, the parcel was transferred to Sturtevant and her daughter Meredith Starbranch.

Harry Starbranch Sr., husband to Meredith Starbranch, testified that his mother-in-law, Sturtevant, and his wife had been “concerned about the public’s use of the road” in 1961 and had discussed posting a sign.

Bertoni said that a signed affidavit from Meredith Starbranch, admitted in the case as exhibit 78, affirmed that the property was posted in 1962. Starbranch’s testimony, however, stated that he and his wife were in Texas in 1962 and did not visit the property. He further stated that he could not recall seeing signs posted on the road.

“Ms. Starbranch had no personal knowledge of the posting described in her affidavit,” said Justice Mills in the ruling. “Ms. Starbranch was in Texas during the entire year of 1962. The information that appears in the affidavit was transmitted from Ms. Sturtevant.”

A footnote in the ruling further states that “In hindsight, after research, the court concludes exhibit 78 should not have been admitted,” and though it was admitted, the court gave no weight to it.

“It was inconsistent with all the other testimony,” said Bertoni, “and it was quite clear that if a sign had gone up, there would have been public uproar.

“There’s a culture out there on Bailey Island — a quintessential Maine culture — that we share these resources,” said Bertoni. “We’re hardworking people and these resources are the beautiful part of life, and we share them.”

Bertoni said that CB/CIS would have preferred to have resolved the issues in a settlement agreement, as had been reached with Jonathan and Rachel Aspatore regarding the footpath that leads from Cedar Beach Road to the beach area.

“It’s in the settlement process that you can come up with rules that allow the owners of the land to give some control,” said Bertoni, noting that the Aspatore easement prohibited dogs, fires, littering and more. “When you’re a landowner and you go to trial, if you lose, you’ve lost control. These cases should settle; it’s unfortunate that this one didn’t.”

rgargiulo@timesrecord.com