In 1989, the Maine Law Court issued a landmark decision regarding the ownership of the land between the mean high-water mark and the mean low-water mark (the intertidal zone) in a case entitled Bell v. Town of Wells.1 This decision was controlled, in part, by the 1986 decision in the same case. Bell I was decided following an appeal by the plaintiff-landowners from the lower court decision dismissing Counts I and II of their Complaint as “barred by sovereign immunity.” The lower court found that “the State has an interest in Moody Beach and in that sense it has title,” but the Law Court, in overruling the lower court, declined to find that there was a public trust in the intertidal zone. Instead, the court found that plaintiffs owned the property in fee simple and that if there were any trustees of the public easement, it was the owners of the property subject to the easement. In finding that the State was not an indispensable party to plaintiff's quiet title action and declaratory judgment claims, the court found that the Colonial Ordinance of 1647 was part of the common law of Massachusetts, which “must be regarded as incorporated into the common law of Maine.” The elaborate historical arguments raised by the Town played little or no role in the Bell II decision. However, because so many historical facts have been taken out of context and the historical record is so compelling, not as legal precedent but as the historical background for the development of Massachusetts and Maine common law, this Article will review the history of the Ordinance. This Article will not analyze the evidentiary value and appropriateness of historical evidence. The use of history as evidence or merely to provide a context presents some very difficult questions regarding the reliability of the evidence and the use of secondary sources. Clearly, the Law Court in Bell I took judicial notice of the history of the Colonial Ordinance as cited in previous cases interpreting the Colonial Ordinance. What is missing, however, especially in the dissent, is any review of the findings by the lower court on the historical evidence and the significance of those findings in Bell II. The majority in Bell II did not appear to rely on the historical evidence from the Superior Court, but looked to developed common law as precedence.

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