The opinion of the court was delivered by: Lanphear, J.
In this action, Plaintiff, Rhode Island Mobile Sportsfishermen, Inc. ("RIMS") seeks access over the Defendant's property to a vacant parcel of land. In its second amended complaint, RIMS claims a permanent right of access and a prescriptive easement. RIMS claims it and its predecessors in title have crossed over the Defendant's beachfront for decades. This action was tried before the Court, jury waived.
The Quonochontaug Beach is a two-mile long barrier beach extending along the coasts of Westerly and Charlestown. It fronts on the Atlantic Ocean to its south. To the north of the beach peninsula is the Quonochontaug Pond. The only land access to the easternmost tip of the peninsula is along a sand trail running the entire length of the beach. As its name implies, the trail is not improved. The trail has existed for decades and has shifted somewhat through the years, particularly where it is exposed to the ocean.
Almost the entire peninsula, and all the ocean frontage, is owned by the Nope's Island Conservation Association, Inc. ("Nope's"). The easternmost mile of the sand trail has limited vegetation and is completely on property owned by Nope's. At the easternmost point of the peninsula, three parcels lie along Quonochontaug Pond: At the end of the peninsula is a lot owned by RIMS. To its west is property owned by Marshall Anderson, containing the only structure on the peninsula. Lot 82 is to the west of the Anderson property.
On April 13, 1999, RIMS acquired Lot 82 or "the Crandall Lot" from John Crandall, who received it from his mother's estate. The deed describes the property but does not describe access to the property. The deed is "subject to covenants, easements, restrictions and other matters of record if any, to the extent the same are in force and effect." The Crandall Lot is on the north side of the peninsula. It is undeveloped*fn1 and the northern portion of the lot is marshy.
A creek, approximately 40 feet in length, separated the Crandall Lot from the remainder of the peninsula since the 1930s. The creek was shallow and of different depths through the years. Because the beach area and the creek change constantly in the tidal environment, the creek is now silted to become dry, but it washes out during substantial coastal storms. The creek has filled in significantly over the last 20 years.
The Crandall Lot was purchased by the Crandall family in 1929, though the original and successive deeds for the parcel do not describe a right to access the parcel, or the metes and bounds description.*fn2 The Crandall Lot is not adjacent to the sand trail. At its closest point, the parcel is separated from the trail by the creek and about 15 feet of Nope's property. The more commonly used access point to the Crandall Lot travels about 40 feet over Nope's property to the sand trail. The use of the Crandall Lot has been limited through the decades. The Crandall family used the lot for quahogging, bathing, duck hunting and trapping. Until the 1980s the Crandalls accessed the lot less than ten times per year. In the 1980s Stephen Crandall shellfished and hunted regularly on the lot. At one time he installed a duck blind on the parcel. Through the 1990s, the Crandalls again used the property less frequently, though a yearly clambake was held on the site. The Crandall family was never told that they could not drive to their property from the sand trail. They did so, openly, for over 70 years.
The Crandalls drove onto the property occasionally, depending on the condition of the creek, and routinely used the sand trail to access the area. Usually, the Crandalls' use of the property was not noticeable, given the tranquility of the area through most of the year. There were some exceptions, such as a yearly clambake, held in the summer.
RIMS promotes access to the shoreline for fishing and bathing, and allows the general public to use its property. When the lot was conveyed to RIMS in 1999, RIMS intended and commenced a more intensive use of the Crandall Lot. Members of RIMS regularly drove vehicles from the sand trail over the Nope's Island land and onto the Crandall Lot, particularly during the summer months. Nope's immediately objected, recorded a notice of intent to dispute adverse possession in July 2000, and commenced the instant litigation. Undaunted, RIMS continued to use the Crandall Lot and drive vehicles onto it.
Nope's is dedicated to conserving the barrier beach. Working with the Quonochontaug Conservation Commission, Nope's posts regulations and guidelines for the use of the property near the access area to the trail. Vehicle use and parking is limited to the sand trail itself. Permanent signs were placed along the trail describing the limited use, but the signs promptly disappeared. Nope's allows the barrier beach to be used by the public. Nope's allows foot traffic over its dunes.
Presentation of Witness Testimony
James Milardo, the president of RIMS, was the first witness. The Court found his testimony consistent and credible but the Court questions his knowledge of the historical use of the Crandall Lot. Clearly, he was committed to the success of RIMS in the instant litigation.
John Crandall, born in 1928, described his family's use of the property through the decades. The Court found his testimony highly credible, consistent and responsive. Although advanced in age, he was thoughtful, earnest and helpful to the Court. His son Stephen Crandall, age 42, also described his family's use of the lot, but his testimony was dedicated to the RIMS case. He was clear and well-spoken but evasive and vague in his answers concerning when the creek was a wash, how often he used the property and who had been to the Crandall Lot. He was inconsistent concerning when he used a vehicle on the Crandall Lot, and when he could access the Crandall Lot by vehicle, but the remainder of his testimony was fairly credible.
Donald Jackson surveyed the property for RIMS. He described his survey and the difficulty in completing it. It was challenging to ascertain what facts were derived from title records, from the site, from his survey revisions, or from prior surveyors. The Court had no reason to question his credibility given that his survey was consistent with the survey completed for Nope's.
Henry Heminway, a past officer of Nope's, was highly credible and helpful. He described the changing appearance of the Crandall Lot and his knowledge of the use. As both a member of Nope's and a fisherman, he was uncomfortable with having to choose sides but recognized his obligation to reveal what he observed. He was consistent and thoughtful in his testimony and therefore very credible.
Nathan Lauder testified concerning his survey of the property for Nope's. Mr. Lauder was also credible and explained his survey in detail. The Court was again left to question what information was received from what sources.
Richard Hosp also testified for Nope's as an officer and a board member for many years. Mr. Hosp owns a home across the pond (north of the parcel), so the Crandall Lot is visible from his property. Mr. Hosp was precise, thoughtful and consistent in his answers, though committed to the Nope's case. Mr. Hosp was helpful, but the Court questions the extent of his knowledge concerning the historical use of the property.
Donald Wakeman was an officer of Nope's who dealt directly with the controversy concerning RIMS. He described the use of the parcels, the alleged harm to the beach and the desire of several local organizations to conserve the beach. While the Court found him fairly credible, he was very prepared and became hostile on cross-examination, anxious only to assert his own legal theory of the case.
Barbara Engel also testified. As an officer for Nope's, she decided how signs were posted and described the environmental impact. She was highly credible and thoughtful and her testimony was never significantly disputed.
The second amended complaint of September 2010 is concise. It does not list separate counts but describes the term "prescriptive easement" in paragraph 15. Nope's therefore refutes that RIMS has either obtained adverse possession over its property or a prescriptive easement. In RIMS's post-trial memorandum, it ...