April 7, 2014 09:09AM
By DALE P. FAULKNER
Sun Staff Writer
WARWICK — While the 1909 map depicting building lots along a 2½ mile stretch of Atlantic Avenue in Westerly clearly shows the lots ending at the spot where the land gives way to the sandy beach, deeds for the lots make the picture murky by referring to the Atlantic Ocean as the property boundary, a licensed land surveyor testified Thursday.
Alfred DiOrio, called as a witness for the state in Attorney General Peter Kilmartin’s lawsuit against about 16 owners of property that stretches from the Westerly Town Beach to Weekapaug Breachway, said “to me that represents that the drafter of this plan fully intended that those lot lines terminate at the line of the bank.”
DiOrio, who lives and works in Hopkinton, said he could not offer an opinion on the legal status of the beach and whether it should be considered public because of the ambiguity raised by the deeds.
The lawsuit contends the original owners of the property intended the entire beach area in the 2½ mile stretch to be established for public use, primarily as a means to increase the value of land they owned on the north (non-ocean) side of Atlantic Avenue. Starting in about 1970, the state argues, some modern-day owners of the property filed land evidence records that effectively and improperly elongated their property to the water or to the mean high tide mark and began erecting fences and signs to keep people off the beach in front of their homes. A victory for the state could mean the area is established permanently as available for public use.
An indenture, or contract, signed by the original owners and filed in the town of Westerly’s municipal land records moments after the 1909 plat, or map, was recorded, said the owners confirmed that the map depicted a “true and correct” survey of their property, DiOrio said during the third day of the trial in Kent County Superior Court.
“It tells me they had a pretty good idea of what the plan [map] was representing,” DiOrio said. “I don’t think they would make this statement ... if they felt that the lines were not indicative of their intention.”
In addition to studying the area in his role as expert witness for the state, DiOrio said he had previously been hired by the Rhode Island Saltwater Anglers Association to develop a report on the area. The association filed complaints with Kilmartin’s office and other state agencies claiming the property owners were improperly blocking access to the area.
DiOrio also testified that his research showed that some surveyors produced documents that redrew the lines of the 1909 map to depict building lots that extended to the ocean.
Under questioning by William Landry, the lawyer who represents most of the defendants, DiOrio acknowledged that he was not rendering a definitive opinion on the exact location of the property owners’ property boundaries.
Alfred Thibodeau, a Cumberland lawyer who is also serving as an expert witness for the state, completed his testimony Thursday. He said that while the map and indenture are clear and do not contradict each other, some of the deeds create ambiguity through references to the ocean as the original property owners’ property boundary.
The trial was scheduled to resume this morning with testimony from Grover Fugate, executive director of the Rhode Island Coastal Resources Management Council. DiOrio is expected to complete his testimony today and undergo cross examination by Landry.