The ownership dispute over intertidal land where Nordic Aquafarms wants to place pipelines for its proposed fish farm wrapped up three days in court June 24. Both sides have since issued statements indicating they are confident they will prevail.

The long-awaited civil trial began June 22 before Justice Robert Murray in Waldo County Superior Court, with plaintiffs Jeffrey Mabee and Judith Grace making their case about why they think they own the intertidal land in front of the upland property of their  neighbors Janet and Richard Eckrote on Penobscot Bay.

The parties now have three weeks to file closing arguments in the lawsuit, and then two more weeks to file rebuttals to those closing arguments, after which Murray will consider it.

The lawsuit centers on an easement that the Eckrotes granted to Nordic Aquafarms allowing the company to place its intake and outfall pipes in the mudflats adjacent to their property. Mabee and Grace claim they are the rightful owners of those mudflats. Other parties implicated in the suit are Upstream Watch, Friends of Harriet L. Hartley Conservation Area, Donald and Wendy Schweikert, who own the property between Mabee and Grace and the Eckrotes, and Lyndon Morgan, who owns the property on the upland side of the Eckrotes.

Upstream Watch attorney David Perkins argued in court that wording in historic deeds conveyed by Harriet Hartley, who owned all the properties involved in the case in the 1940s, severs the mudflats from several upland properties north of Mabee and Grace’s land and shows that the couple own the intertidal land in front of those properties.

Defendants’ attornies Melissa Hewey and David Kallin argued that the words used in the historic deeds can have multiple meanings, and that the historic deeds for the Eckrotes’ property convey the mudflats to them.

The trial hinged on testimony from two surveyors, Donald R. Richards of Rockport, hired by Mabee and Grace, and James Dorsky of Gartley and Dorsky Engineering and Surveying, Damariscotta, engaged by Nordic. Their surveys conflict as to who owns the intertidal land in front of the Eckrotes’ property.

The Poor Deed
The meaning of the phrase “along high water mark” was discussed at length by both surveyors during the trial. The term is found in the historic deed conveying what is now the Eckrote property from Hartley to Fred Poor to describe the waterfront boundary.

Richards testified that the phrase is used generally to sever the upland property from the adjacent mudflats when a deed is conveyed. The two surveyors agreed that the term can be used both to convey and to sever the mudflats from the adjacent upland on a property.

Donald Richards testifies about his survey of Jeffrey Mabee and Judith Grace’s property in Waldo County Superior Court June 24.

Dorsky admitted to believing for the first 25 years of his surveying career that the phrase was used in a deed generally to exclude the mudflats, but said he changed his opinion in recent years after reading court decisions that found the phrase to be a “call to the water” unless used with a preposition such as “to” or “by.” The phrase is only meant to sever the mudflats when used with a preposition, he said. The deed that conveyed the property from Hartley to Poor in 1946 does not use the phrase with any prepositions; therefore, he believes the term was meant to convey the flats in the deed.

The Baxter Deed
In a historic deed, Hartley conveyed two upland lots, one now owned by Mabee and Grace, and one now owned by Donald and Wendy Schweikert, to Ernest and Pauline Baxter with the mudflats in front of the respective lots. Richards argued that wording in that deed also includes mudflats to the north in front of two upland lots, one now owned by Janet and Richard Eckrote and one now owned by Lyndon Morgan.

He used magnetic north to determine the boundaries of the property based on wording in the deed, which places a boundary along the two northern lots’ shorefronts, he said.

Dorsky said the wording used in the Baxter deed does not describe mudflats in front of the properties now owned by the Eckrotes and Morgan, but that it describes the northern boundary across the mudflats going out toward the water in front of the upland properties now owned by Mabee and Grace and the Schweikerts. He used Route 1 as the direction in which he oriented north, west, south and east to determine the property boundaries, which he said is the same orientation used in the deed language.

The will and orphaned parcels
Dorsky said sometimes a seller can unintentionally sever the mudflats from an upland property when drafting a deed, depending on the language used. He thinks Hartley intended to convey the mudflats with the land when she sold it to Poor.

The defense used a will Hartley drafted that describes land in Maine that she wanted to leave to relatives after her death. From her description of that land, Dorsky said she was conveying the intertidal area with those properties. The defense said the will is proof that she wanted to convey the mudflats when she sold the land to Poor. The plaintiffs were quick to point out that Hartley sold all of her land in Maine before her death and she did not leave any of her Maine land to family members when she died.

Release deeds
Dorsky initially thought there was a question as to who owned that intertidal parcel. He did several initial drafts of the Eckrotes’ survey where he labeled the intertidal area as being owned by the Eckrotes on some drafts and owned by Nordic and descendants of Hartley on other drafts. The final draft of the survey found that ownership of the intertidal land is unclear with a note stating that ownership belongs to either the Eckrotes or Hartley heirs and Nordic.

James Dorsky looks at drafts of surveys he produced for Janet and Richard Eckrote in Waldo County Superior Court June 24. Kendra Caruso

Nordic hired a company to do a search for heirs of Hartley; the plaintiffs raised questions as to whether it was conducted through Ancestry.com. Once they were located, the heirs signed release deeds that allow Nordic to use any land they may have inherited from Hartley, giving Nordic possible rights of title to the land.

When pushed by Perkins, Dorsky admitted to determining that Nordic might have title rights to the intertidal land based in part on those release deeds, which were unrecorded; Hartley’s heirs’ names were redacted on the documents at the time he was developing his survey.

Dorsky said when there is a question about rights to an intertidal area or if the wording on a deed is ambiguous as to who owns the flats,  ownership is given to the upland owners.

In his deposition before the trial, Dorsky stated that he was not sure which party owned the mudflats, but at the trial his opinion was that the flats are owned by the Eckrotes. He said his new understanding of the phrase “along high water mark” and the ambiguity around who owns the flats has solidified that opinion.

Determining the mouth of a river
The two surveyors disagreed about how to determine the mouth of a tidally influenced river or stream. Richards drew a clear line to determine the mouth of the Little River; however, Dorsky said the mouth of a tidally influenced river or stream changes as the tide goes in and out. They agreed that water in a tidal river below the low water mark is owned by the state, but Richards said the runoff, which tends to fan out into small streams of water over the intertidal area beyond the mouth of a river, is not owned by the state. Richards argued that the mouth of the Little River is a fixed point because it is also used in the legislative document as a landmark describing the boundaries of Belfast and Northport.

Intertidal use
Mabee and Janet Eckrote both testified to using the intertidal area in front of the Eckrotes’ upland property. Neither had ever kicked anyone off the intertidal area, they said, but both testified to using the area to walk upon and moor boats.

Eckrote, whose parents were previous property owners Fred and Phyllis Poor, testified to the ways her family has used the intertidal area since she was a child. Her family had fires on the beach, stored boats in the area and children played on a large rock in the intertidal area.

Janet Eckrote testifies to her family’s historic use of the intertidal land in front of her upland property in Waldo County Superior Court June 24. Kendra Caruso

The family also had a rustic cabin on the water’s edge with a porch that extended into the mudflats that would be surrounded by water at high tide, she said. Her counsel submitted family photos of them using the area as she described it to prove that it was a commonly held belief that her family owned the intertidal area and they expressed ownership of the land through their use of it.

Both sides confident
Nordic issued a statement saying the company is confident Murray will rule in the Eckrotes’ and the company’s favor. “Nordic is confident that its position is supported not only by common sense, but by the decisions of the Maine Supreme Judicial Court and that when a decision in this case is rendered, it will prevail.”

Mabee and Grace’s attorney, Kim Ervin Tucker, issued a comment by email to The Republican Journal saying the plaintiffs are glad to finally make their case to Murray. She said the case is important to all who live and work in that area of the bay.

“We are grateful to all those who have supported Jeffrey and Judith and the Friends of Harriet L. Hartley Conservation Area, as well as Upstream Watch, in bringing the litigation to defend Jeffrey and Judith’s ownership rights and to preserve this fragile estuary from industrialization by people from away and a foreign corporation who have shown no respect for our environment or the property rights of these long-time Belfast residents,” she said.

After plaintiffs rested their case on the second day, Nordic lawyers asked the judge to side with the defendants, arguing that the plaintiffs did not establish statutory claim to the land while making their case. It is a quiet title claim, which establishes a party’s title to real property.  Murray is taking the defendants’ motion under consideration and could issue a decision on it later.