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Kilmartin v. Barbuto

Superior Court of Rhode Island

September 4, 2014

PETER F. KILMARTIN, Attorney General of The State of Rhode Island, Plaintiff
v.
JOAN M. BARBUTO; LYNNE D. KAESMANN; WILLIAM H. ANDERSON; SUSAN BRANDT; JOANN HARRINGTON; CLARENCE G. BROWN; JUDITH W. BROWN; JOHN B. STELLITANO, Trustee of The John Bruno Stellitano Living Trust; JAMES M. TOBIN; JOSHUA M. VOCATURA; HATTIE G. VOCATURA TRUST; NICHOLAS P. JAREM; SANDRA L. JAREM; MICMAYS, LLC; JOAN A. CARR; JOHN C. MAFFE, JR.; PATRICIA JEAN SHANNON; STEPHANIE E. IMMEL; JEANNE E. SHANNON; and JOSEPH M. SHANNON, Defendants AND DUNES PARK, INC., DONNA PIRIE, MARGARET ANDREO, JANE L. TAYLOR, DAVID K. McGILL, MIRIAM B. McGILL, TIMOTHY F. SHAY, BRIAN P. SHAY, and JUSTIN T. SHAY, JEFFREY A. FEIBELMAN, TRUSTEE OF THE 627 REALTY TRUST, Defendant Intervenors

Washington County Superior Court

For Plaintiff Michael L. Rubin, Esq.; Gregory S. Schultz, Esq.

For Defendant Justin T. Shay, Esq.; William R. Landry, Esq.; Patricia A. Buckley, Esq

DECISION

STERN, J.

More than one hundred (100) years ago, five owners of beachfront property in the Misquamicut Beach area of Westerly, Rhode Island filed and recorded a plat map with the Town of Westerly. During the past century there has been an on-again, off-again dispute about the intent of the owners to dedicate a portion of the beach for use by the general public. The issue of the legal status of a portion of the beach became active again when members of the community complained that things such as fences and no-trespassing signs were being put on the beach by the adjacent homeowners.

Attorney General Peter F. Kilmartin (Attorney General), acting on behalf of the State of Rhode Island (State), has brought suit against certain homeowners (Homeowners) on Misquamicut Beach. At issue in this case is an approximately two-mile long stretch of land running east to west and bordering the shore of the Atlantic Ocean and extending approximately 80-120 feet landward (northward) from the sea (Disputed Area or Beach Area). The Attorney General claims that in 1909, the original owners of the Disputed Area (Plattors) recorded in the Town of Westerly Land Evidence Records a subdivision plat (1909 Plat) by which the Plattors made an offer of an easement across the Disputed Area to the general public.[1] The Attorney General seeks from this Court a declaratory judgment pursuant to the Uniform Declaratory Judgment Act (UDJA) permanently enjoining the Homeowners from interfering with the public's right to use the Disputed Area as a public easement, including the erection of fences traversing the Disputed Area from Homeowners' individual lot lines south to the Atlantic Ocean shore.

The Homeowners contend that the public does not have any easement rights over the Disputed Area. The Homeowners deny that the Plattors ever dedicated to the public an easement over the Disputed Area because, in the first place, the Plattors did not have the power to offer the Disputed Area to the public as an easement through dedication; and second, because even if the Plattors did have the power to make an offer of dedication, the Attorney General cannot show that the Plattors ever intended to make an offer of dedication to the public.

The Court conducted part one of, potentially, a two-part bench trial over eleven hearing days between April 1 and April 25, 2014. Both sides have submitted briefs in support of their positions, and the Court has heard extensive oral arguments from the litigants. It is the Court's task to determine whether the creators of the 1909 Plat effectively offered the Disputed Area to the public through dedication as an easement.[2]

I

Procedural History

On September 18, 2012, the Attorney General filed suit against seven property owners along Atlantic Avenue in Westerly, Rhode Island. In his original complaint, the Attorney General alleged eight counts against these original Defendants, including public nuisance; purpresture; private nuisance; trespass; and unlawful use of easement against the State as owner of the parcel. The State sought to vindicate what it asserted was the dedication of an easement across the Disputed Area in favor of the State and/or the public, and requested a preliminary and permanent injunction enjoining the Defendants from interfering with the State and the public's right to use the easement. The Attorney General asserted his authority to bring an action against the original Defendants pursuant to statutory and common law authority to maintain actions to abate public nuisances and purprestures; and pursuant to State's position as owner, in fee, of certain lots depicted on the 1909 Plat. On November 30, 2012, over the State's objection, this Court granted the original Defendants' motion to require joinder of persons needed for a just adjudication, and ordered the State to provide notice of the suit to neighboring landowners. Eventually, the number of defendants represented in this litigation was extended, by court order, to the current group of twenty-one.

On May 14, 2013, the original Defendants and the Defendant Intervenors filed with this Court a motion for summary judgment. This Court heard oral arguments from both sides on their respective cross-motions for summary judgment. The Attorney General's position was that, as a matter of law, the Plat and the Indenture (Indenture) demonstrate the clear intent to dedicate the disputed parcel to the public. The Homeowners argued that the Plat, as a matter of law, did not demonstrate the clear intent to dedicate the disputed parcel to the public. The Court, finding that there were material issues of fact, denied both sides' motions for summary judgment via a bench decision. The Court further entered a scheduling order under Rule 16 that provided for factual and expert discovery, including depositions. The parties prepared for trial.

Prior to the trial date, the parties amended the scheduling order and agreed on the parameters of a two-part, non-jury trial. The parties agreed that two issues would be addressed during this trial. First, during Phase I, the parties would litigate the issue of whether or not the five owners who became parties to the 1909 Plat caused to be extended, to the general public, by virtue of the 1909 Plat, an easement across the Disputed Area. If the Court found that, indeed, those five owners did offer to the general public easement rights across their property, the question for the Court during Phase II of the trial would be whether or not the general public had accepted the offer of an incipient dedication. The Court would then make a determination as to whether to exercise its jurisdiction under the UDJA and grant the injunctive and declaratory relief demanded by the Attorney General.

Over the course of eleven hearing days, beginning on April 1, 2014, this Court conducted Phase I of the trial. The State's burden during this phase was to demonstrate that the 1909 Plat clearly and unambiguously manifested the Plattors' intent to dedicate an easement to the general public across the Disputed Area. In support of its case, the State presented seven witnesses and over 200 documented exhibits. Mr. Alfred Thibodeau, a Rhode Island title attorney, was called to testify about his analysis of the 1909 Plat and the Indenture, and expressed his opinion, as an expert, that the Plattors intended to convey public rights in the right of way corridors extending from Atlantic Avenue to the Beach, and in the Beach Area itself. Mr. Alfred DiOrio, a Rhode Island licensed surveyor, next testified about the markings that the creator of the 1909 Plat used on that document, and about surveys that were published for a number of state, local, and private entities between 1909 and the present day. The Director of the Rhode Island Coastal Resources Management Council (CRMC), Mr. Grover Fugate, was the next witness for the State and offered testimony about how his agency has interpreted the public rights over the right of way corridors depicted on the 1909 Plat. Next for the State was Professor Steven Corey, a social historian from Columbia College in Chicago, who specializes in environmental and urban history, including the process of urbanization. Professor Corey testified about research that he conducted on behalf of the State with respect to the development of the Misquamicut Beach area in the early part of the twentieth century, and expressed that, in his view, the developers of what was then known as the Pleasant View beach community (Pleasant View) conceived the Beach Area as a single continuous beach. Professor Corey's testimony suggested that the developers of Pleasant View—some of whom included signatories to the 1909 Plat and the Indenture—wanted the entire Beach Area to be public as part of their overall scheme to develop the community for profit. Mr. David Thompson, the Westerly Town Assessor, testified about the Town of Westerly's assessment of taxes based on the publicly-recorded property limits of lot owners along Atlantic Avenue. The State then called Ms. Janet Freedman, a coastal geologist with CRMC, who testified about the topography of the Disputed Area and its evolving boundaries, both as they stand presently and as they were estimated to have been in the past. Finally, Mr. Paul LeBlanc, an engineer for the Town of Westerly, was called by the State for his expert opinion as to whether the 1909 Plat was nebulous with respect to depicting the southern boundary of the lots on the southern side of Atlantic Avenue.

The Homeowners countered with three witnesses and more than two hundred documented exhibits. First, the Homeowners called Mr. Joseph Priestly, who, like Mr. Thibodeau, is also a Rhode Island title attorney. Mr. Priestly's extensive testimony centered on his interpretation of the 1909 Plat and the Indenture, and his opinion that the Homeowners' boundary lines extended all the way to the Atlantic Ocean, and not to the "Line of Foot of Bank" depicted on the 1909 Plat. Next for the Homeowners was Mr. Nathan Lauder, also a land surveyor, to counter the testimony of Mr. DiOrio. Finally, the Homeowners called Mr. Richard Strause, an engineer and land surveyor from Connecticut, who testified about his interpretation of the 1909 Plat.

Following testimony, the parties procured transcripts of the eleven days of testimony, and drafted and submitted post-trial briefs summarizing their positions on the facts and law. The parties also submitted rebuttal briefs. The Court held oral argument from the parties. After carefully considering the merits of the two sides' positions, the Court renders the following decision.

II

Facts and Arguments

A

The State's Position

The Attorney General claims that the five parties to the 1909 Plat made an offer of dedication of an easement across the Disputed Area when they recorded, simultaneously, the 1909 Plat and the accompanying Indenture in the Town of Westerly Land Evidence Records on July 1, 1909. The Attorney General claims that this purported offer of public dedication was subsequently accepted through public use over the course of ensuing generations.[3] The Attorney General contends that the 1909 Plat and the Indenture together, clearly and unambiguously manifest the Plattors' intention to dedicate an easement to the public over the Disputed Area as part of an overall scheme to open up Pleasant View to tourism and commercial enterprise. The State points out that the signatories to the 1909 Plat and the Indenture were land developers and entrepreneurs—motivated, in their own words, by developing for sale and profit the land around the Beach Area for commercial gain and to advance their business interests for which dedication of a beach to the general public was of utmost importance.[4]

The State further argues that should the Court find that the Plattors' intentions with respect to the Beach Area are ambiguously described by the markings on the 1909 Plat and the words on the Indenture, the Court should rely on the extrinsic evidence presented at trial to find in the State's favor. The Attorney General argues that the property descriptions contained in the deeds to the original lot owners; the descriptions contained in deeds allotted to subsequent property owners; certain tax assessor plats; and maps commissioned by the CRMC, other state agencies, and private surveyors over the course of the last hundred years, are sufficient to elucidate these ambiguities and reflect the Plattors' intention to create an incipient dedication of the Beach Area in favor of the general public at the time they recorded the 1909 Plat and the Indenture.

B

The Homeowners' Position

The Homeowners reject the Attorney General's contentions on three different levels. First, the Homeowners argue that the parties to the 1909 Plat did not have the power to dedicate an easement across the Disputed Area to the public through the 1909 Plat because, in fact, not all of the parties that owned an interest in the Disputed Area were parties to the 1909 Plat. The Homeowners argue the Plattors could not have dedicated, collectively, a portion of land that did not actually belong to them. Second, the Homeowners argue that the Plattors did not dedicate an easement to the general public across the Disputed Area because the evidence shows that it was never their intention to dedicate an easement over the Disputed Area to the public. The Homeowners claim that, instead, it was the Plattors' intention to provide, at most, limited private easement rights over the Beach Area only to the future owners of the subdivided lots depicted on the 1909 Plat. Finally, the Homeowners argue that even if the Plattors may have had a general intent to dedicate the beach to the public, evidence adduced at trial is insufficient to show that the Plattors intended to use the 1909 Plat as an instrument for affecting an offer of dedication to the public. The Homeowners contend that the 1909 Plat does not clearly and unambiguously manifest an intention by the Plattors to dedicate an easement to the public over the Beach Area.[5]The Homeowners also argue that even if the Court construes the Plat and the Indenture as a single, unitary instrument, these documents together do not clearly and unambiguously manifest an intention by the Plattors to dedicate an easement over the Beach Area.[6] Moreover, the Homeowners argue, even if the Court finds ambiguity with respect to the Plattors' intentions regarding an easement over the Beach Area as manifested through the 1909 Plat on its own or the 1909 Plat and the Indenture together, the parol evidence submitted for the Court's consideration resolves the ambiguity in the Homeowners' favor: the Plattors did not intend to dedicate an easement over the Beach Area to the general public.

III

Declaratory Judgment Standard

The law requires there to be a "justifiable controversy between a plaintiff and a defendant" in order for the Court to exercise its power under UDJA. Berberian v. Travisono, 114 R.I. 269, 332 A.2d 121 (1975). This is because the UDJA does not authorize the Court to give an advisory opinion based on hypothetical facts which are not in existence or may never come into being. Id. See also Lamb v. Perry, 101 R.I. 538, 225 A.2d 521 (1967) (Supreme Court holds that the UDJA is not intended to serve as a forum for determining abstract questions or rendering advisory opinions); N & M Props., LLC v. Town of W. Warwick, 964 A.2d 1141 (R.I. 2009) (trial court lacked jurisdiction to entertain a claim under the UDJA where the plaintiff lacked standing, so there was no justiciable controversy between the parties); Pascale v. Capaldi, 95 R.I. 513, 188 A.2d 378 (1963) (petitioner was not qualified to bring a taxpayer suit under the UDJA, having no standing). Compare Pellegrino v. R.I. Ethics Comm'n, 788 A.2d 1119 (R.I. 2002) (public officers involved in a lawsuit against the state Ethics Commission were entitled to have their legal rights and duties determined judicially in an action for a declaratory judgment under the UDJA). Thus, a plaintiff seeking declaratory relief under the UDJA must show evidence of a personal stake in the outcome, as well as entitlement to actual and articulable relief. McKenna v. Williams, 874 A.2d 217, 226-27 (R.I. 2005). A justiciable controversy contains a plaintiff who has standing to pursue an action, "that is to say, a plaintiff who has suffered an 'injury in fact.'" Meyer v. City of Newport, 844 A.2d 148, 151 (R.I. 2004) (quoting Rhode Island Ophthalmological Soc. v. Cannon, 113 R.I. 16, 22, 317 A.2d 124, 128 (1974)). Such an "injury" is characterized as "an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not 'conjectural' or 'hypothetical.'" Meyer, 844 A.2d ...


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