BELFAST — Justice Robert Murray said in an Oct. 28 court order that Jeffrey Mabee and Judith Grace do not own the disputed intertidal land in front of a neighboring property two lots north of theirs. The flats are where Nordic Aquafarms wants to lay intake and outfall pipes for its land-based fish farm.

However, Murray also found that historic deeds prove Mabee and Grace own the intertidal land in front of the upland property immediately north of theirs owned by Donald Schweikert. The couple had claimed they own the intertidal land in front of three upland properties north of theirs.

Mabee and Grace brought the suit against Janet and Richard Eckrote, who formerly owned the upland property in front of the intertidal zone where Nordic wants to lay its pipes. The Eckrotes entered into an easement agreement with Nordic so the company could place its pipes in the intertidal area. The upland property has since been bought by Nordic and donated to the city of Belfast.

Murray’s decision essentially came down to the interpretation of one phrase and ambiguity in historic deeds for the property. Harriet Hartley owned all lots in question in the 1940s before she parceled off her land in sales. Mabee and Grace claimed that wording in historic deeds indicated that they owned the land, primarily the phrase “along high water mark.”

One of the historic deeds is from Hartley to Fred Poor, who was Janet Eckrote’s father and owned the land before she did.

Mabee and Grace’s surveyor, Donald Richards, interpreted “along high water mark” to mean that the high water mark showed a boundary line from a point in a brook to another point in a gully, creating a boundary that excluded the flats from the conveyance to Poor. Nordic’s surveyor, John Dorsky, interpreted the language to mean the flats were included in the deed.

Murray agreed with Dorsky’s interpretation of the phrase, saying that it would have to include the preposition “by” or “to” to indicate that the high water mark was meant to be a boundary excluding the intertidal flats. He found that the intertidal land was conveyed to Poor by Hartley along with the upland property.

In Maine and Massachusetts, intertidal land can be privately owned and severed from an upland property. The Colonial Ordinance dictates that unless otherwise stated in a deed, the flats in front of an upland property are to be conveyed with the upland lot.

Murray also found the Poor deed to be ambiguous. In cases where the grantor uses ambiguous wording in drafting a deed, the ambiguities must be resolved in favor of the grantee, he said.

Poor built a cabin, which had a deck that extended into the intertidal area, on the lot before he acquired the land from Hartley. Murray thought the cabin having a deck that extended into the intertidal zone was also proof that Hartley meant to convey the flats to Poor along with the upland property.

Hartley placed a covenant on the Poor deed that barred Poor from using the land for a for-profit or commercial business. But Murray found it unclear whether Hartley meant to restrict Poor’s successors with the covenant also. He found that the covenant could not be enforced against Poor’s successors.

Mabee and Grace entered into a conservation easement encompassing the upland lots the couple claimed to own with local conservation group Upstream Watch, which was later transferred to the Friends of Harriet L. Hartley Conservation Area.

Murray said that easement was not enforceable on the intertidal area in front of the former Eckrote lot, where Nordic wants to lay its pipes, or in the intertidal area in front of the upland lot just north of the Eckrotes, which Mabee and Grace also claimed to own.

The ruling removes a major obstacle to Nordic’s project. The company issued a press release stating its support for Murray’s decision. It also said it looks forward to settling the lawsuit against the city regarding the city’s eminent domain action to take the intertidal land in August. It is likely that this decision will affect that case.

“We are very pleased with both the win on every property count and with the court’s unassailable reasoning in this extremely clear decision,” Nordic President Erik Heim said.

Belfast Mayor Eric Sanders said in an email that he supported the decision and hoped that it would allow the project to move forward. City attorney Kristen Collins said in an email that the decision means the city owns the intertidal land and the conservation easement does not legally exist.

Mabee and Grace et al have already indicated they will appeal the judge’s decision. A statement issued by the Friends of Harriet L. Hartley Conservation Area days after the ruling stated the group’s disappointment in Murray’s decision. The organization said some of the judge’s conclusions are “incorrect as a matter of law.”

“We always assumed that the judge’s ruling on Phase I of the case would be appealed — that we would either defend it if the ruling went in our favor or contest it if the ruling did not,” the group stated. “We are at that point in the litigation now.”

Phase two of the case will take place later, where the rest of the claims by plaintiffs and defendants will be addressed. Mabee and Grace’s attorney, Kim Ervin Tucker, did not respond to requests for comment before publication.