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Kilmartin v. Barbuto

Supreme Court of Rhode Island

May 2, 2017

Peter F. Kilmartin, Attorney General of the State of Rhode Island
v.
Joan M. Barbuto, et al.

         Appeal from Superior Court Washington County WC 12-579

          For State: Michael L. Rubin Gregory S. Schultz

          For Defendants: William R. Landry, Esq. Matthew J. Landry, Esq.

          For Defendant Intervenors: Justin T. Shay, Esq. Leah L. Miraldi, Esq. Patricia A. Buckley, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          Gilbert V. Indeglia Justice

         "By the sea, by the sea, by the beautiful sea, You and I, you and I, oh! how happy we'll be * * * ."[1]

         In the instant case, we are tasked with determining who has the right to be "by the beautiful sea, " specifically, whether the public has rights in a more than two-mile stretch of beach in the Misquamicut area of Westerly, Rhode Island (the disputed area). Peter F. Kilmartin, the Attorney General of the State of Rhode Island (the state), appeals from the entry of final judgment, following a bench trial, in favor of the defendants and the defendant-intervenors (defendants).[2] The state asserted that in 1909, the landowners (Plattors) of the beach property dedicated the disputed beach area to the public through the recordation of a Plat and Indenture. The state brought suit against the current beachfront landowners in the disputed area and sought injunctive relief to stop them from preventing public access to this beach area. On appeal, in addition to the state and defendants, Save the Bay and the Surfrider Foundation, [3] Pleasant View North Homeowners, [4] and the Rhode Island Coastal Resources Management Council (CRMC) and the Town of Westerly filed helpful briefs as amici curiae. We note, in particular, that the CRMC and the Town of Westerly express concern with the trial justice's suggestion that the marked rights of way on the Plat do not enable access to the shore.

         After reviewing the record and considering the parties' written submissions and oral arguments, we affirm the judgment of the Superior Court.

         I

         Facts and Travel

         A

         The 1909 Plat and Indenture

         In July of 1909, owners of beachfront property in Westerly, Rhode Island, filed and recorded a plat map (1909 Plat or Plat) that divided that property.[5] The 1909 Plat, entitled "PLAN OF PLEASANT VIEW BEACH LOTS, " was signed by the Plattors, the original five sets of property owners: the Winnapaug Company; William and Alzada Saunders; A.B. and Mary Stark Crafts; Harris Chapman; and Albert and Melissa Langworthy. The 1909 Plat shows multiple lots that are separated by dashed lines, easterly and westerly, and are bounded by Atlantic Avenue on the north.

         While the northerly, easterly, and westerly lot boundaries are undisputed, the properties' southerly limit is contested. Running below the lots, to the south, is an undulating line labeled the "line of foot of bank." Below the line of foot of bank lies an area labeled "Beach, " the disputed area at the center of this litigation.[6] Notably, the beach area is not divided by the dashed lines that demark the lots' easterly and westerly boundaries, and the dashed lines do not run through the line of foot of bank. Below the beach area lies the "Atlantic Ocean, " which is separated from the beach area by multiple undulating lines. In addition to the many lots, the Plattors also carved out nine rights of way, marked as such on the plat, which run from Atlantic Avenue to the beach area.

         Along with the 1909 Plat, the Plattors prepared, signed, and recorded an Indenture. In pertinent part, the Indenture states:

"Wherein the several parties to this instrument either own or have interests in certain land situated in Westerly between the Winnapaug road on the West, and the Bridge over the Breach on the East, the highway known as Atlantic Avenue on the North and the ocean on the South all as shown and platted on a survey and plan attached hereto * * * and the several parties desire and intend to develop and sell their several properties for building lots in cooperation * * * ."

         In the Indenture, the Plattors also discuss the rights of way: "[T]he spaces indicated on said plan as a public walk or right of way will be set apart and kept open and are dedicated as a public walk and right of way from said highway to the Beach * * * ."

         B Travel

         On October 2, 2012, in an amended complaint, the Attorney General, as "trustee of the public beach, " brought an action in the Washington County Superior Court asserting that the Plattors dedicated the disputed area to the public through the 1909 Plat. In its amended eight-count complaint against the beachfront landowners, the Attorney General alleged public nuisance, purpresture, private nuisance, trespass, and unreasonable use of easement. The state sought to enjoin the landowners from preventing public access to the beach area.[7]

         On November 2, 2012, defendants moved pursuant to Rule 19 of the Superior Court Rules of Civil Procedure to dismiss the state's complaint for its failure to join persons needed for a just adjudication, or, alternatively, to require joinder of those persons. On November 30, 2012, the trial justice ordered the state to notify all landowners in the disputed area, as depicted on the 1909 Plat, and he allowed such landowners to intervene in the action.

         The defendants answered and sought a declaration that they were the true property owners of the disputed area, with respect to their individual lots. The defendants also brought a counterclaim and asserted that: They owned their property through adverse possession; they acquired their property pursuant to G.L. 1956 § 34-13.1-2 of the Marketable Record Title Act; the state is liable for slander of title; and the state's conduct constituted a temporary taking of defendant's property in violation of the constitutions of the United States and the State of Rhode Island.[8]

          The defendants moved for summary judgment, and the state filed a cross-motion for summary judgment and a motion for summary judgment on defendant-intervenors' counterclaim to quiet title. The trial justice heard the parties' arguments, and, on September 25, 2013, denied the three summary-judgment motions. The trial justice determined that there was a genuine issue of material fact with respect to whether the Plattors intended a public dedication. Further, he concluded that "[t]he nature and volume of the pertinent evidence offered by plaintiff and defendants necessitate[d] a factual determination by the trial justice."

         C Trial

         On April 1, 2014, a lengthy bench trial commenced before the same trial justice. The parties agreed to a bifurcated format; phase one of the trial focused on whether the original 1909 Plattors intended to dedicate the disputed area to the public, and, if the trial justice found that the Plattors did intend to dedicate, the parties would reach phase two of the trial, which would address whether the public accepted the Plattors' offer of dedication.[9] Over the course of phase one of the trial, the state presented seven witnesses and introduced over 200 documents; defendants presented three witnesses and also introduced over 200 documents. Below we summarize the relevant testimony adduced at trial.

         The state first called Alfred G. Thibodeau, an attorney licensed in Rhode Island, whose primary practice area was real estate conveyances and title searches. Thibodeau testified that he reviewed the 1909 Plat. He stated that the 1909 Plat demonstrated that the owners were trying to achieve a common-development scheme because the plat was a composite plan by five separate owners, when each property owner could have instead developed their lots on separate plans. Thibodeau said that it was necessary to review the Indenture to understand the Plat. When asked whether he deemed the line of foot of bank to be a representation of a natural feature or a boundary, he responded that it was a boundary because the dashed lines separating the lots run to and stop at the line of foot of bank.

         Thibodeau interpreted the Indenture's language that the rights of way run from Atlantic Avenue "to the Beach" as a right of way granting public beach access and use. "Otherwise, " Thibodeau stated, "whats [sic] the point of getting people up to the line at the beach * * * ." He opined that the 1909 Plat and Indenture "create[] public rights in the rights of way and on the beach, and it also creates private rights to any purchases of individual lots to the rights of way and the beach." Thibodeau suggested that, even without the Indenture, the Plat still illustrated a public dedication because it showed "the beach as a separate area on the [P]lat with access to it."

         Alfred DiOrio, a professional land surveyor, testified next. DiOrio stated that he was familiar with the 1909 Plat as he had completed multiple surveys in the Atlantic Avenue area. He described the plat: There are lines indicating Atlantic Avenue; at the southerly limits of Atlantic Avenue, there is a series of beach lots; and continuing southerly, there is line work termed "line of bank and line of foot of bank." DiOrio detailed the line of foot of bank as "an irregular undulating line that runs southerly of the beach lots." Further south on the 1909 Plat, DiOrio testified, there is "an open area identified as beach" and then line work that signifies "the edge of a water body, " specifically the Atlantic Ocean. He noted that the 1909 Plat lacked a legend indicating the meaning of the various line types utilized.

         DiOrio discussed the several boundaries shown on the 1909 Plat, the first being Atlantic Avenue, which is "shown in a bold or continuous line type, continuing southerly." Demarking the easterly and westerly beach lot boundaries is "a dashed line type." He noted that the dashed lines that separate the beach lots extend from Atlantic Avenue but stop at the line of foot of bank and do not extend beyond that line towards the Atlantic Ocean. DiOrio testified that this demonstrates that the Plattors "fully intended that those lot lines terminate at the line of the bank." He noted, however, that this opinion was based solely on the 1909 Plat, without considering deeds or other evidence of the Plattors' intent. DiOrio stated that he reviewed many deeds arising out of the Plat, and he testified that "as soon as the deeds start to talk about being bounded southerly by * * * the sea, the ocean, the Atlantic Ocean, now we have an ambiguity * * * . * * * We have a bounding description that clearly calls for the Atlantic Ocean as the southerly boundary."

         Grover Fugate, the executive director of the CRMC, testified next. Fugate said that during his time at the CRMC, he had supervised over 20, 000 permits and thousands of enforcement proceedings. Fugate noted that the Division of Harbors and Rivers (DHR), the agency responsible for overseeing the area below the mean high water mark, [10] existed prior to the CRMC's creation, which then absorbed the DHR's powers.

         In his testimony, Fugate discussed a 1969 letter from the then-chief of the DHR to defendant, Clarence Brown, regarding defendant's application to the DHR to erect a fence. In the letter, the DHR chief stated that the fence could be built to the mean high water mark but reminded Brown that the waters were within the public domain and therefore must be kept open and accessible. Fugate explained this response, however, by stating that the DHR did not concern itself with anything above the mean high water mark, over which it lacked jurisdiction. Rather, the DHR, in accordance with the Rhode Island Constitution, [11] was concerned only with public property below the mean high water mark. Fugate testified that "[t]he general assumption is * * * that anything above the mean high water mark was probably in some sort of private property without going and doing a title investigation that would be sort of the general assumption." He further noted that, regardless, the DHR chief lacked authority to determine the property's boundary.

         The state next called Steven Corey, a history professor and department chair at Columbia College of Chicago. Corey described himself as a social historian who specialized in environmental history and urban history.[12] He testified that he examined the history of Pleasant View, the area now called Misquamicut, wherein the disputed area lies. Specifically, Corey stated that he researched Pleasant View's development as a summer beach colony between the 1890s and 1920s. For this research, Corey reviewed local history collections and Westerly land records, including the 1909 Plat.

         Corey discussed a trolley that arrived in Pleasant View in 1912. He testified that the trolley traveled along Atlantic Avenue to the Weekapaug breachway, the disputed area's easternmost boundary, to bring people to Misquamicut for day excursions, such as beach visits. He discussed the trolley company's incentive for ridership: "[B]y extending the railway line, they were certainly hoping * * * to have people taking day excursions to Pleasant View and going and enjoying the beach at Pleasant View." Corey noted that the Winnapaug Company, one of the Plattors, "was part of the trolley company in terms of holdings." With respect to the property developers' perception of the beach, Corey noted that "[i]t's clear that the promoter * * * and the realtor and those who [were] promoting the beach [saw] that as one continuous beach." He testified that the Plattors viewed the beach as "one whole continuous beach;" and, in support, he explained that the Plattors planned to build an oceanfront boardwalk.

         Next, David Thompson, tax assessor for the Town of Westerly, testified. As tax assessor, Thompson maintained responsibility for valuing real estate, personal property, and vehicles, and for maintaining and updating the town's tax assessor's plat maps. Thompson was shown a tax map of the Atlantic Avenue area that was recorded in the 1940s or 1950s and testified that it depicted the southerly boundary as "the line above the mean high tide line, " which equates with the line of foot of bank. With respect to the ...


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