"He said, he said." Which Surveyor Got It Right?

On Tuesday, June 22nd FHLH took the legal battle against Nordic Aquafarms (NAF) into the courtroom. The plaintiffs - homeowners Mabee/Grace and FHLH - put their case first. Early in Day 1 of the 3-day trial it became clear that the crux of the contest was one question: Which surveyor will Judge Robert Murray believe?

If Murray accepts FHLH surveyor Don Richards’ testimony as the most credible interpretation of the chain of property deeds stretching back to 1946, then the intertidal mudflats beyond the shoreline of Janet Eckrote’s small “camp” belong to Jeffrey and Judith and are protected by the conservation easement the couple granted to FHLH. On the other hand, if Murray decides that NAF surveyor James Dorsky’s novel theories about ownership are more substantial, then Janet Eckrote owns the mudflats, the Eckrote-NAF easement is a legitimate assertion of “title, right, or interest,” and construction of the company’s three pipelines can proceed.

Surveyor Richards is a recognized authority on surveying whose interpretive techniques have been published in law journals as well as having been accepted as an authority by the Maine Law Court on a number of occasions.  Richards buttressed his explanation of Harriet Hartley’s sales with the written descriptions in the various deeds and a step-by-step recounting of how he drew the property lines in his survey. At the end of Day 2 cross-examination by NAF lawyer David Kallin, Richards told FHLH Vice President Janie Phillips: “If I didn’t really believe the truth was on our side, I wouldn’t be here.”

Surveyor Dorsky has worked on shoreline surveying cases but has never qualified as an expert in formal court proceedings. His original surveys for NAF marked the mudflats as unclear but possibly retained by Harriet Hartley. Dorsky’s initial written opinion changed seven times – at least once at the direct suggestion of NAF lawyers. He testified that the mudflats were either: (a) “orphaned” and passed to Hartley’s heirs or (b) always included in the chain of deeds as part of the Eckrote parcel and therefore owned by Eckrote. In court, he finally settled on the Eckrotes and NAF.

Each side attempted to undermine the credibility of the other side’s surveyor. Each side raised pointed objections any time they felt their surveyor was being unfairly questioned during cross-examination. Judge Murray ordered all parties to present their closing arguments – written, not oral – by July 14th; exchange those arguments; and then respond – again, in writing – by July 24th. Murray did not announce when he will hand down a decision. It could be a months-long wait.

Stay tuned.