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Eaton v. Town of Wells, footnotes.

FOOTNOTES******************************** {1} . The Eatons also appeal from the court's order denying summary judgment in their favor on their complaint and the Town's counterclaim. We need not be address these issues because the court considered the claims on the merits at an evidentiary trial. See Monopoly, Inc. v. Aldrich, 683 A.2d 506, 510 (Me. 1996); Bigney v. Blanchard, 430 A.2d 839, 842-43 (Me. 1981). {2} . The Eatons' argument that the court's grant of easements by prescription constituted an unconstitutional taking is not addressed because the Eatons voluntarily dismissed their count relating to constitutional claims. Therefore, the argument is not preserved for appellate review. See O'Halloran v. Oechslie, 402 A.2d 67, 69 n.1 (Me. 1979). {3} . The Kennebec Proprietors owned lands which now encompass Vassalboro (from which Sidney came) and China (formerly Harlem). In 1771, Vassalboro became a town pursuant to the Acts and Resolves of the Province of Massachusetts Bay. See Alma Pierce Robbins, The History of Vassalborough, Maine 13 (1971). In 1792 Sidney, formerly part of the Town of Vassalboro, was incorporated as a town. See Town of Sidney, Excerpt from Kingsbury's History of Kennebec County (1892). In 1796, Jones Plantation was incorporated as a town named Harlem, which later became China, pursuant to an act of the Massachusetts legislature approved by the governor in 1796. See Marion T. Van Strien, China, Maine: Bicentennial History 3, 14 (1975). The Kennebec Proprietors dissolved between 1815 and 1822, in part because towns were being incorporated. Gordon E. Kershaw, The Kennebeck Proprietors 1749-1775 at 285, 293-95. (1975). {4} . There were three Jonathan Littlefields, and Mr. Boyle distinguished them as follows: The husband of Elizabeth Storer Littlefield was Jonathan I. The brother of Samuel Storer Littlefield and Clement Littlefield was Jonathan II, and the son of Clement Littlefield was Jonathan III. {5} . The court found for purposes of prescriptive easement that the Town's routine beach maintenance has continued since at least the 1960s. Therefore, title could have ripened between 1980 and 1989. Further, because the court said "at least" and found that the Town began its routine beach maintenance, i.e. cleaning the beach, hiring police officers and lifeguards, and advertising, in the 1950s and even before, title could have ripened in the 1970s or before as well. {6} . The carrying of a gun under these circumstances must be directly related to the activity of "fowling." {7} . According to the Maine Department of Conservation's Maine Geological Survey, The coast of Maine has 5600 kilometers (3480 miles) of tidally-influenced shoreline and is the third longest in the United States. There are about 3500 islands included in the shoreline length. Mapping has estimated that about 2% of the coast (120 km or 75 miles) has beaches. About half of this distance is made up of sandy beaches and the other half is made up of coarser gravel and boulder beaches. The latter category is commonly pocket beaches, of which there are over 200 pocket barrier beaches that front coastal wetlands. Most large sandy beaches occur along the southern coast between Kittery and Cape Elizabeth, south of Portland. A few miles of sandy beaches also occur in midcoast Maine near the mouth of the Kennebec River. Maine Department of Conservation, Maine Geological Survey, at nrimc/mgs/marine/marine.htm. {8} . 1995 Almanac 495 (48th ed. 1995). {9} . There are a number of guiding principles that are called into play when the Court is deciding whether stare decisis should be applied or avoided. A prior decision may be overruled when: (1) the court is convinced that the rule of the prior decision operates harshly, unjustly and erratically to produce, in its case-by-case application, results that are not consonant with prevailing, well-established conceptions of fundamental fairness and rationally-based justice, (2) that conviction is buttressed by more than the commitment of the individual justices to their mere personal policy preferences, that is, by the substantial erosion of the concepts and authorities upon which the former rule is founded and that erosion is exemplified by disapproval of those conceptions and authorities in the better- considered recent cases and in authoritative scholarly writings, (3) the former rule is the creation of the court itself in the legitimate performance of its function in filling the interstices of statutory language by interpretation and construction of vague, indefinite and generic statutory terms, (4) the Legislature has not, subsequent to the court's articulation of the former rule, established by its own definitive and legitimate pronouncement either specific acceptance, rejection or revision of the former rule as articulated by the court, and (5) the court can avoid the most severe impact of an overruling decision upon reliance interests that may have come into being during the existence of the former rule by creatively shaping the temporal effect of the new rule articulated by the holding of the overruling case. Shaw v. Jendzejec, 1998 ME 208, ¶ 9, 717 A.2d 267, 371 (quoting Myrick v. James, 444 A.2d 987, 1000 (Me. 1982)). {10} . 12 M.R.S.A. §§ 571-573 (1994).

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