Landmark Decision

Gerald Petruccelli and Bruce McGlauflin won an important appeal in the Maine Supreme Judicial Court in Britton v. Department of Conservation, 2009 ME 60, ___ A2d. __. The case was argued before the Court by Gerald Petruccelli on May 21st and the Decision was issued on June 18, 2009, authored by Justice Gorman. Gerald Petruccelli and Bruce McGlauflin represent the Plaintiffs who own land along a river in Maine and are asserting their riparian rights to have free access to navigable water along the full length of their 105 feet of river frontage. The Defendants maintain a wharf that blocks access along 66 feet the frontage. The Maine Department of Conservation granted a lease to the Defendants authorizing use of the State’s submerged lands to secure the wharf. The Decision clarifies the scope of authority granted to the Department of Conservation under the Submerged Lands Act as authorizing it “to reasonably interfere with a coastal property owner’s riparian rights in order to protect the public’s rights to fishing, fowling, and navigation,” but not “to infringe upon one riparian owner’s rights in order to allow an abutting riparian owner to operate a commercial enterprise. The Decision reaffirms that riparian owners have rights of access along their entire frontage and also holds that the Wharves and Weirs Act, a seldom used law dating back to the early 1800’s, remains good law. The Act prohibits the construction or maintenance of a wharf or weir in the front of another’s waterfront property without consent and authorizes a $50 per day penalty for each offense. The Decision held that each day a wharf or weir is maintained in violation of the Act is a separate offense. The decision vacates a Superior Court trial judgment for the Defendants and remands the case back to the Superior Court to resolve two issues that were not addressed in the trial judgment — the defenses of laches and “coming to the nuisance.