By DALE P. FAULKNER
Sun Staff Writer
WARWICK — The lawyer for the Misquamicut property owners who are being sued by the state for allegedly failing to allow public access to the beach in front of their homes was scheduled to start his case this morning.
On Thursday, Associate Justice Brian Stern asked the lawyer, William Landry, to begin his case today, saying he was reserving judgment on Landry’s motion for dismissal of the case based on Landry’s contention that lawyers for State Attorney General Peter Kilmartin, who filed the original lawsuit against seven property owners, failed to meet the burden of proof required by their original complaint during the first seven days of the trial in Kent County Superior Court.
The state claims that five owners banded together in 1909 to market their holdings on both sides of Atlantic Avenue, from the current location of Misquamicut State Beach to the Weekapaug Breachway. To ensure the back lots, on the north (non-ocean facing) side of the street had value similar to the ones on the other side of the street, the five owners dedicated the entire 2½-mile-long beach area as public, the state contends.
Much of the case rests on what can be gleaned from a 1909 plat or map showing the subdivided land. The intent of the original owners — the Winnapaug Co., William and Alzada Saunders, A.B. and Mary Crafts, Harris Chapman, and Albert and Melissa Langworthy — is evident from studying the plat they filed in Westerly Town Hall in the land evidence records, the state claims. Landry argues that the 1909 map and other documents cited by the state, fail to establish the owners’ intent to declare the beach open to either the general public or the rear lot owners. He also argues there is no evidence that the town or the state ever accepted the beach as public.
In his motion for dismissal of the case, Landry said Assistant Attorney General Michael Rubin and Special Assistant Attorney General Gregory Schultz failed to prove that the five signers of the 1909 subdivision plat were the only owners of the land in question.
“The state has not attempted to prove that those individuals owned the beach,” Landry said.
According to Landry, some of the disputed land was sold prior to 1909. Additionally, Landry said that contrary to the state’s contention that the five signers of the 1909 plat sold their land with reference to the 1909 plat, two of the signers, Chapman and the Saunders, sold some of the land with reference to plats from 1901 and 1912.
“There are two key gaps in the [state’s] case after they’ve exhausted their witnesses and their exhibits and we believe it renders their case unsustainable and we shouldn’t have to present a case at this point,” Landry said.
Rubin, the lead lawyer in the case for the state, acknowledged some of the land was sold prior to the 1909 plat but said that regardless of those sales there is evidence that the signers to the 1909 plat sold their land in a way that resulted in a largely unbroken beach area comprised of about 172 lots. The 172-lot area was broken, Rubin said, by one area that was sold prior to the 1909 plat, but documents connected to that sale make reference to the 1909 plat as being anticipated. The other lot was described as being a size consistent with the 1909 plat, Rubin said.
While not conceding that the beach area was broken and thereby not subject to the state’s contention that the beach area was dedicated as public, Rubin said the state’s case would still stand since the central issue is whether the back lot owners were intended to be given access to the entire beach. A prospective back lot buyer should not be expected to search the titles of every lot set out in the 1909 plat to determine if a few owners strayed from the original intent of the plat, Rubin said.
“This notion that every single lot on this plat had to be available for sale in 1909 doesn’t really make sense from a practical point of view,” Rubin said.
“As long as these owners had control of the area in front of the lots that we’re contesting, then we’ve met our burden and I think we have,” Rubin continued.
The Saunders sold some their land in 1908. Those sales, Rubin said, are outlined in a 1908 plat that depicts an unbroken line running the length of the building lots on the south side of Atlantic Avenue. A similar line on the 1909 plat is drawn as undulating, leading Landry to say it was meant to show the natural, uneven break between the land and the sandy beach but not denoting an intent by the original owners to separate the beach from the rest of the property.
“So much for the foot of the bank as a natural boundary and not a man made one,” Rubin said of the defendant’s reliance on the 1908 plat.
Kilmartin filed the lawsuit because the defendants were aggressive in their efforts to keep people off of the beach in front of their homes, Rubin said.
“This action was brought over signs and fences and, while I don’t want to escalate any level of friction, some degree of harassment,” Rubin said.
Stern acknowledged that Landry made his motion for dismissal at the appropriate point in the trial since the state had essentially concluded its portion of what is set down to be a two-phase trial. He also said that with the exhibit list now at 225 documents he had not yet had time to review all of the papers in the case.
Westerly Town Engineer Paul LeBlanc, who was subpoenaed to testify by the state, said that while the 1909 plat appeared to depict building lots ending at the area where the land meets the beach, he was surprised the drafter of the plat had not made a notation on the plat to make the boundary more clear.
“On the other hand, if the intent was to have the ocean serve as the boundary, the lines would have been extended to the water. It’s open to interpretation,” LeBlanc said.
Maps showing the town’s public water system also show the building lots ending where the land gives way to the beach, LeBlanc said. Under cross examination by Landry, LeBlanc said the water department maps were not intended to certify property boundaries. He also said it was unclear who had created the maps or what their credentials were.
Janet Freedman, a coastal geologist with the state Coastal Resource Management Council, testified Thursday that a photograph believed to be from 1913 showing a number of people disembarking from a trolley appears to have been taken in the vicinity of what is now Westerly Town Beach, area in dispute in the case. The state contends the photograph is evidence that the disputed beach area was once used widely by the public. Under cross examination by Landry, Freedman said that if her calculation on the location of the area shown in the photograph was off by about 600 feet, the people shown in the photograph might have been gathered at a public pavilion that existed in the area at the time.
The original defendants are Joan M. Barbuto, Lynne D. Kaesmann, Joann Harrington, Clarence G. and Judith W. Brown, 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. Some of the lots have shared ownership. The following property owners joined the case as intervenors: Dunes Park Inc., Donna Pirie, Margaret Andreo, Janet Taylor, David McGill, Miriam McGill, Timothy Shay, Brian Shay, and Justin Shea, and Jeffrey Feibelman.