Clark Hill, 46, stands on a pathway that leads to his family’s cottage on Popham Beach. Hill says the family has used the path for decades and views it as a common area. His neighbors, the Tappens, say they bought the rights to the land and want the Hills to stop using it or sign an agreement. Ben McCanna/Staff Photographer
A family that has enjoyed easy access to Popham Beach since the 1940s says it now is being told to keep off.
Members of the Hill family said that for as long as they can remember, they have used a footpath from their grandparents’ cottage. That was until April 2021, when they got a letter from their neighbors Richard and Sheila Tappen.
“It has come to our attention that you and/or your guests, tenants, or invitees, have been crossing the property and/or using the beach,” the letter states. “Kindly cease and desist from all further use of this property and kindly instruct your tenants and guests to do the same.”
The Hills thought it was a common area, that no one owned it. Everyone in the Popham Beach Estates subdivision uses the beach, said Clark Hill, whose family owns and rents out six properties in the area, though only one is on the beach.
“The whole point is that the beach was part of the development,” Hill said, standing outside the cottage his grandparents built. “As long as you’re not walking over someone’s deck or throwing trash in their yard … and you are not bothering anyone, you have the right to get to the beach, sit on the beach and enjoy it.”
The Tappen family has owned a beachfront cottage in the neighborhood for nearly as long as the Hills. It’s a few hundred feet from the Hills, separated by two vacant lots.
But in 2021 they purchased the rights to another 3.5 acres: a small, triangular-shaped piece of land immediately beside the Hills’ beachfront cottage, and nearly 3 acres of beach and dunes that stretch from the Tappen cottage eastward to the Hills.
On that sliver of land next to their cottage, the Hills have over the years built a boardwalk, a deck, a ramp, and a shed. The Tappens want it all gone. Their attorney says they want to protect the dunes from further erosion.
The Tappens, whose cottage is on the left, say they bought the rights to the beach and dunes that stretch in front of their property, past two vacant lots and the Hill family cottage, on the right. Ben McCanna/Staff Photographer
The Tappens did not respond to a voicemail seeking an interview about the lawsuit. A family member at the Popham Beach cottage Tuesday declined to speak with a reporter.
Attorneys for the families exchanged letters for months before the Tappens filed a lawsuit against the Hills seeking to have the court confirm they own the property and order the Hills to stop using it.
The parties have tried to settle out of court, meeting twice for mediation, in November 2022 and January 2023. Those talks were unsuccessful and both sides say they’re prepared for trial. But a court date has not been scheduled, and a court backlog means it may not be for some time.
So the Hills are now pushing the case into the public eye, arguing it could have large implications for beach ownership. Some experts say this particular dispute may only cover beachfront subdivisions like this one, with areas long understood to be common.
COMMON LAND?
This is far from the first land dispute in Maine involving beachfront property. The issue has been litigated for years, each case delving into a range of issues, including colonial-era laws, sidelines, and deeds dating back more than a hundred years. In one of the most recent cases, the Maine Supreme Judicial Court upheld that the town of Kennebunkport, not 23 private landowners, owned a 2-mile stretch of waterfront at Goose Rocks Beach.
The Tappens bought the rights to the land from Mary McNamara for $15,000 in March 2021 through a “release deed,” according to Phippsburg tax records. And their attorney said they pay taxes on the land. But it’s unclear what actual interest McNamara had in the land. A release deed allows someone to sell any interest they have in a piece of land even without definitely knowing what that interest is.
The Hills’ attorney, Ben Ford, said that if a court agrees the Tappens own the land, other areas long considered common could be sold
“If it turns out that this area that Mr. Tappen claims to have purchased if it turns out that’s not a common area, that means the McNamara family can then sell the undivided and unallocated parts of the subdivision, which includes the dunes of Popham Beach,” Ford said on Tuesday.
The Hill family and their attorneys argue that neither McNamara nor the Tappens have the right to restrict access to the beach. Their main defense, Ford said, is that subdivision maps from the 1880s, 1890s, and 1920s treat the beach as a common area. It’s where neighborhood roadways dead end, “providing direct access to the unallocated land for all property owners within the Popham Beach Estates subdivision,” Ford wrote in court records.
Robert Yarumian, a land surveyor who has acted as an expert witness in similar cases, said it’s not unusual for deeds to be at odds with other records and state law.
“A deed is one thing. And ownership, and where the true boundary lies, are a different thing,” Yarumian said. He questioned why other landowners in the subdivision and the town of Phippsburg haven’t gotten involved.
The Tappens’ attorney, David Soley, pushed back on the idea that there was a larger issue at stake. He said there were still several access points to the beach beyond what the Tappens say they own, and the neighborhood is half a mile from Popham Beach State Park, which anyone can visit.
The Tappen’s home on Popham Beach. Ben McCanna/Staff Photographer
“This is just two private property owners in an old subdivision fighting over private property rights,” he said.
Soley said the Tappens were sold the land at a discounted rate “with the understanding that they’d protect the property and its dunes.”
The Tappens have tried to put up dune fences to protect the land, which Soley said: “seem to have a way of disappearing and falling down.”
“The reason they’re trying to protect the dunes, and trying to make sure people keep off the dunes, is because there’s tremendous erosion going on in this area,” he said.
Clark Hill said the fence only causes more damage.
PRESCRIPTIVE EASEMENT
The Hills also argue they have a “prescriptive easement,” because they’ve used the property for so long that they and everyone else in the neighborhood are entitled to access regardless of who owns the rights.
John Duff, a professor of environmental law and policy at the University of Massachusetts Boston, has followed many public access cases and helped write a 2016 report for the University of Maine Sea Grant College Program on public shoreline access in Maine. Duff said he wasn’t following the case but said the prescriptive easement argument has come up in other cases he’s observed.
“It seems as though for a long period the Maine Supreme Judicial Court was sympathetic to prescriptive easements,” Duff said. But lately, those cases have been harder to win, he said.
To combat the prescriptive easement claim, he said the Tappens could argue that even though they or the previous property owners didn’t do anything to prevent people like the Hills from accessing the land in the past, there was always a presumption the Hills had permission and could only use the land with that permission.
Anthony Moffa, a professor overseeing the environmental and oceans law certificate program at the University of Maine School of Law, said he wasn’t aware of the specifics behind the Tappens’ complaint, but said the case might hold more precedent for the future of common areas in a neighborhood than for the future of public beach access.
A bit of fencing along the dunes at Popham Beach. The Tappen’s attorney said the family wants to protect the dunes from erosion, but the fence keeps disappearing or falling. Ben McCanna/Staff Photographer
“This is not a unique arrangement in the state of Maine,” Moffa said. Many people live in communities, coastal and others, where there’s a private road or a beach or a dock that everyone shares.
“Depending on how a court concludes, it could do so in a way that changes the analysis for other communities that have other common areas,” he said.
HARASSMENT AND MISSING FENCES
For now, the families continue to live at their properties, at least part-time, and the Hills continue to rent out their cottages when they’re not there.
The Hills say the Tappens harass their guests and renters and they advise everyone who visits to steer clear of the Tappen home.
Clark Hill said the Tappens have asked them to pay $5,000 for each of their properties to have access to the beach – and sign an agreement acknowledging that Tappens own the property.
Soley, the Tappens’ attorney, said the Tappens don’t care about the money – they only want the Hills to agree to a set of conditions restricting their impact on the dunes.
On Tuesday, Hill said that the situation has been stressful. He’s made a lot of friends at Popham Beach and has great family memories there.
“I want that for my kids,” Hill said. “I look at my little ones at night and think, this man is trying to take away that experience.”
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