One of the two families suing each other over the right to access a neighborhood beach is asking a judge to end the long-running legal battle and declare the contested property a “common area” for the subdivision.

But for a judge to make that decision, the facts would have to be indisputable – something Superior Court Justice Thomas McKeon struggled with Monday while he spent an hour squinting at old, ambiguous maps of the Popham Beach Estates subdivision in Phippsburg.

“How can I find as a matter of law … that this blotch on this map is a common area where everyone has a right to use an easement, while it’s ambiguous?” McKeon said.

McKeon said he expects to make a decision “sooner rather than later.” If he rules against the motion, the case is headed for trial.

RULING COULD SET PRECEDENT

Richard and Sheila Tappen sued their neighbors, the Hill family, in Sagadahoc County Superior Court in April 2022 after buying about 3.5 acres of land from another neighbor that March. They said the Hills were trespassing on their property by using it to access the beach.

The disputed property includes roughly 3 acres of sandy beachfront in front of both cottages, which are separated by two vacant lots.

It also includes some property that the Hills’ deck and walking path encroach on, but the Tappens’ attorney said in court that they don’t have the evidence to force the Hills to remove the structure because it has been there for more than 40 years.

The Hill family says the Tappens don’t have any ownership claim and therefore have no right to restrict other subdivision residents from accessing this land. They argue that subdivision maps from the 1880s, 1890s and 1920s have always treated it as a “common area,” where neighborhood roadways dead end, “providing direct access to the unallocated land for all property owners within the Popham Beach Estates subdivision.”

“If a person can wake up in the morning and post a ‘no trespassing’ sign on a beach that a family has been playing on or recreating on for three generations, then what’s to stop somebody else from doing that any other day?” Benjamin Ford, the Hills’ lawyer, said on Monday.

If it was a designated common area, then why wasn’t it labeled as such, the Tappens’ attorney, Glenn Israel, asked the court.

Israel said just because the land was “blank” doesn’t mean it was for common use. The developer still owned it, he said.

“I think it would be very dangerous to make that the new law of the land and that every time a developer leaves a blank space on a subdivision plan, it loses control of that space forever,” Israel said.

STILL UNCLEAR WHO OWNS WHAT

The Tappens said they bought the rights to the land in question through a “release deed” signed by Mary McNamara, who is now deceased.

A release deed allows someone to sell any interest they have in a piece of land even without definitely knowing what that interest is, so it was unclear when the Tappens sued what they actually owned. The question was one McKeon returned to several times during Monday’s hearing.

The Tappens originally said they owned the beachfront from the dunes to the low-water mark. One of their attorneys told the Press Herald last year that the family was suing the Hills in part because they wanted to protect the dunes from further erosion. But a new expert witness for the Tappens says they only own the wet sand area in front of the dunes, from the high-water mark to the low-water mark, called the intertidal zone.

The Tappens said they don’t object to people using that area for fishing, fowling and navigating, which Maine’s highest court said the public has a right to do in intertidal zones, even when they’re privately owned.

Ford said the Tappens are moving the goalposts.

“We spent two years litigating this case, we spent all kinds of money with them saying ‘You’re trespassing’ and us saying ‘No we’re not,’ ” Ford said. “What are we supposed to do when we go to trial? What is the Tappens’ claim here? Why do the boundaries keep shifting?”

Israel said that the Tappens’ base claim hasn’t changed – his clients don’t want the Hills trespassing on property they own, and they disagree with the Hills that the property belongs to the entire subdivision.

Israel also pointed out that some maps show that the dune area belongs to other property owners, who aren’t involved in this case.

“They’re trespassing – just on someone else’s property,” Israel said.

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