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Trial begins: Evidence presented on Misquamicut beach access

WARWICK — Lawyers in a case that could result in much more of the Misquamicut area beach being declared open to the public made opening remarks during the first day of a trial Tuesday in Kent County Superior Court.

The two sides outlined their positions in a lawsuit that was originally filed in September 2012 by the state Attorney General’s Office. The state claims that the owners of what was once known as Pleasant View Beach declared the entire beach area as open to the public and to owners of property in the development in 1909, when they recorded a subdivision plat or map that created dozens of building lots.

The defendants, most of whom are represented by William Landry, a Providence lawyer, claim that they own the beach area between the mean high tide mark and the dunes. They also claim that the Pleasant View Beach property owners could not have legally given the public access rights to the beach because they “did not own it nor did they have the power to convey rights for the beach,” Landry said.

Assistant Attorney General Michael Rubin argued that the map that was recorded in the town’s land evidence records depicts the beach as “an unbroken” area, clearly distinguished from the building lots and paths or rights of way from Atlantic Avenue to the beach. While intuition might lead one to question why the landowners would choose to give the public access to the beach, Rubin urged reliance on the 1909 plat.

“However difficult and cantankerous it may be, we have to rely on the record even if it leads to a result that maybe doesn’t sit well with some,” Rubin said.

The basis of the state’s position is a belief that the owners of the Pleasant View Beach property established the entire beach area as being open to the public as a means to increase the value of the land they were selling on both the ocean side and the inland side of Atlantic Avenue.

Rubin said that when R.W. Perkins, an official with two banks and the head of a trolley company, deeded a portion of the land depicted in the 1909 plat, he described the property as running to the ocean but “subject to beach rights as per plan and that is as eloquent a statement of the attorney general’s position as I can find. If it’s good enough for R.W. Perkins it’s good enough for the attorney general.”

Landry said he would introduce evidence to show that others, aside from the five property owners cited by Rubin, also had rights to the beach area. “The beach was not and is not a separate unbroken space,” Landry argued.

Furthermore, Landry said, two of the five Pleasant View owners sold parts of their property without referring to the 1909 plat in documents recording the sales.

Justin Shay, a lawyer representing himself and his brothers, Timothy and Brian Shay, said the beach property in question was considered private for more than 100 years. He argued that the attorney general, in an earlier case, had helped to establish the area below the mean high tide mark as the only one available for public use. Additionally, Shay said, many of the deeds for properties in the disputed area describe the properties as being bounded by the ocean, not the start of the beach. Shays called the state’s case a “recent contrivance based on speculation and guesswork.”

Rubin explored the history of a particular lot, at 465 Atlantic Ave., in Westerly, now owned by Clarence Brown. He and his wife, Judith, are defendants in the case. Rubin elicited testimony from Alfred Thibodeau, a Cumberland lawyer who specializes in real estate conveyance and title work, who said that the Browns eventually transferred ownership of the property from themselves as a couple to Clarence Brown. Thibodeau said that records of the change in ownership also appeared to change the length of the Brown lot, from originally extending only to the start of the beach area in question to farther out to the water’s edge.

Under a related line of questioning, Thibodeau, who has more than 50 years of experience performing title searches, testified that the original 1909 plat “creates public rights to rights of way and the beach.”

If he were asked to provide an opinion to a hypothetical buyer of 465 Atlantic Ave., Thibodeau said he would advise his client that he could not guarantee privacy or exclusive rights to the beach because he believed other property owners in the area had rights to use the beach and that the public might have the same rights.

The trial has been broken into two phases. The first phase is expected to last about two weeks. The second phase, if determined to be necessary, is planned for May.

The defendants, in addition to the Shays and the Browns, are: Joan M. Barbuto, Lynne D. Kaesmann, and Joann Harrington, John B. Stellitano, James M. Tobin, Joshua M. Vocatura, Nicholas P. Jarem, Sandra L. Jarem, Mickmays LLC, Joan A. Carr, John C. Maffe Jr., Patricia Jean Shannon, Stephanie E. Immel, Jeanne E. Shannon, and Joseph M. Shannon, and Jeffrey Feibelman. Some of the lots have shared ownership.

The case is being heard by Associate Justice Brian P. Stern.

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