Maine’s highest court will decide a long-running dispute between two families fighting over access to a neighborhood beach where they have vacation homes.

The Hill and Tappen families have been in court since 2022 over access to a beach in the Phippsburg subdivision where they live seasonally, Popham Beach Estates. The Tappens sued the Hills to stop them and their renters from accessing beachfront property that Richard Tappen claimed to have acquired through a release deed.

The Hills then brought a counterclaim against the Tappens, arguing the neighborhood beach was fair game.

A trial court judge partially decided the case in November, ruling that the Hill family could access the beach for recreation. The Hills own six properties in the neighborhood, including five rental cottages that are not directly on the beach. They have argued that they have been using an established footpath that leads to the beach for years.

In his ruling, Superior Court Justice Thomas McKeon declined to decide what the actual boundary is surrounding the beachfront land that is at the center of the debate.

The Tappens appealed and, on Wednesday, their attorney Glenn Israel argued during a hearing before the Maine Supreme Judicial Court that McKeon was wrong to rule in favor of the Hills. Israel said the Hills had failed to meet their burden to prove their case.

“The trial court should have ruled that, absent evidence to the contrary, when a subdivision plan refers to a ‘beach’ in the state of Maine, it means the area between the high tide and the low tide mark, a settled legal definition in the state since the 1800s,” Israel said.

In Maine, anyone has the right to use the intertidal zone on any beach so long as it’s for “fishing, fowling and navigating,” according to a colonial-era ordinance that has consistently been upheld by the high court.

The Tappens have previously argued that they believe the Hills are trespassing on their land. One of their attorneys said in 2023 that Richard Tappen was concerned about protecting dunes on the property from erosion.

McKeon ruled that the Hills have a recreational right, through an “implied easement,” because it seemed developers in the 1890s intended the beach to be a common area, based on maps the developers had drawn and the existence of paths in the neighborhood leading to the beach.

Israel argued McKeon’s decision on the recreational easement went beyond what the Hills could prove in court and that the subdivision maps weren’t clear cut.

There’s no deadline for the high court to reach a decision on McKeon’s ruling. Justices are still considering a broader lawsuit, which was argued last fall, that seeks to expand Maine’s beach law to include “recreation.”

Chief Justice Valerie Stanfill on Wednesday disagreed with the argument that McKeon’s decision to grant a “recreational easement” was incomplete. Stanfill said McKeon considered various maps “which show a large beach,” and that the subdivision itself is called “(Popham) Beach Estates.”

“The clear intent of the developer was to develop a set of vacation homes,” Stanfill said. “I don’t understand how that flips the burden of proof.”

Popham Beach Estates was established in the late 19th century, consisting mostly of summer homes.

Benjamin Ford, an attorney who represents the Hills, has argued that the subdivision plans suggest the area was always intended to be a common area. He argued that the Hill family has used the beach and the footpath for so long that they’re entitled to an “implied” easement.

Ford argued Wednesday the Tappens could have asked McKeon to reconsider or clarify his ruling if they believed the judge’s decision was inconsistent.

He said there was “plenty of evidence” to support McKeon’s ruling, “that the purpose of this development was for recreational purposes.”

Editor’s note: This story was updated on Sept. 11 to correct information about the Hill family’s response to the lawsuit.