Key questions in Popham Beach lawsuit will head to trial

Clark Hill, 46, 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

Two families suing each other over the right to access a Phippsburg neighborhood beach are going to trial after a judge rejected one party’s request to end the case in their favor by declaring the contested property a “common area” for the subdivision.

The Hill and Tappen families both own cottages in the Popham Beach Estates Subdivision and have been in a legal battle for more than two years.

The Hill family had hoped to end it all this spring by asking Superior Court Justice Thomas McKeon to rule that the beachfront area in front of their homes is a common area that belongs to the subdivision.

But McKeon said in a ruling Wednesday that Richard and Sheila Tappen’s claims that they bought about 3.5 acres of land from another neighbor, who is now deceased, merit a trial.

The Hills did score a partial victory, however. McKeon said they have a right to use a footpath from their cottage to access the beach, and they do not have to remove decades-old additions to their cottage that now cross over the disputed land.

The case is one of several legal battles involving beach access but only applies to the residents of the subdivision where both families own their seasonal properties. The Hills argued last year that they think the case could have larger implications for beach ownership throughout Maine.

The Tappens purchased about 3.5 acres of land in 2021 through a “release deed,” which allows a person to sell any interest they have in a piece of land without definitively knowing what that interest is.

Shortly afterward, they said the Hills were trespassing and sued them over it in April 2022. The Hills sued the Tappens back, arguing they had their own rights to the property.

The Hills have argued the release deed is meaningless and that the area in question has always been considered common land because of how it was labeled in early subdivision maps, dating back to the 1890s.

McKeon wrote there were “general disputes of material fact” between the two sides.

He said he will schedule a pretrial hearing for May, during which the attorneys will decide which parts of the case will be argued in front of a jury and which parts can be handled separately in a bench trial.

Benjamin Ford, the Hills’ attorney, said in an email Thursday afternoon that the Hills look forward to presenting their case to a jury.

“We are confident that anyone who looks at the original map will come to the same conclusion that anyone who walks on this beach comes to today: No trespassing signs do not belong on Popham Beach, they did not in 1893 and they do not today,” Ford wrote.

The Tappens’ attorney, Glenn Israel, did not respond to an email Thursday afternoon. In March, he said such a verdict would set a dangerous precedent for property owners and developers.

“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 at the hearing.