On April 26, 2013 the case filed by Rye resident Robert Jesurum came up for a hearing on a preliminary injunction before Judge Marguerite Wageling of the Rockingham Superior Court. Mr. Jesurum is sought an injunction returning public access to the parking lot at Sanders Poynt, as well as an injunction against the Rye Building Inspector to prohibit the issuance of any more building permits in the area. The Judge took the matter under advisement and will rule later. She did not ask any questions.
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Attorney McEachern argued that until last October, access to Little Harbor Beach across Sanders Poynt was available. In connection with a purchase in January 2012 of the adjacent property by a trust controlled by Bill Binnie, a survey was done. The survey indicates that the high water mark extends into the State right of way for Wentworth Rd. The State owns the land from the high water mark to the low water mark in trust for the public, he said. He suggested that the public is entitled to access because the Wentworth-by-the-Sea Country Club (“WBTSCC”) does not own a continuous strip of land between the road and the beach.
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Benjamin King, attorney for the WBTSCC argued that the fence was necessitated by abuse of the property, including dog feces left behind and interference with golf play. Injunctions are intended to preserve the status quo, he said. In this case, the requested injunction would require the WBTSCC to tear down the fence. In addition, for a prescriptive easement, 20 years of continuous use, without permission, is needed. In this case, the WBTSCC had granted permission for use of the land. Mr. King emphasized that both the Rye Board of Selectmen and the Rye Zoning Board of Adjustment had declined jurisdiction to determine whether prescriptive rights existed. He argued that the Town never established a parking lot at Sanders Poynt, notwithstanding the Town signs erected there.
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Michael Donovan, attorney for the Town of Rye called the attention of the Court to the provision on the building permit stating that the Town did not acknowledge that there were no public prescriptive rights to the area. He also referred to a photograph provided by Mr. Jesurum and argued that, at least beginning in 1995, there was some recognition by the Board of Selectmen that there was a parking lot there.
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The attorney for the State argued that the Court had no authority to compel the Attorney General to participate in the litigation.  Attorney McEachern took strong exception to this position, stating that the Attorney General was failing to do his job, and asserting that the matter might need to be decided by this court or a higher court. He expressed hope that the new Attorney General, not yet sworn in, would reexamine the issue and reach a different decision.
 Additional Backround information:
1) Bob Jesurum, a Rye resident near Sanders Poynt has filed a suit against the Wentworth-by-the-Sea Country Club (WBTSCC), asking the Superior Court to determine that the public has prescriptive rights (i.e. a right to use another’s land) to access Sanders Poynt and the beach on the other side of it. Sanders Poynt is located in Rye, just before the bridge to New Castle. The Town of Rye and the State of New Hampshire were also named as defendants, as was Bill Binnie, a Town resident who, through a trust, owns the adjacent land.
2) Responding to the suit, the Town of Rye has joined on Mr. Jesurum’s side and has agreed to allow the Town’s Building Inspector to be enjoined from issuing further building permits at the site (last year, the Building Inspector issued a permit for a fence blocking off the parking area at Sanders Poynt). It is also arguing that the WBTSCC is bound by a 1995 agreement with the Planning Board that the view at the location not be blocked.
3) The case comes before the Superior Court on Friday, April 26, 9:00 a.m. at Rockingham Superior Court in Brentwood, for a hearing on the presentation of lawyers’ evidence and on the requested injunction. See sanderspoint.org for details.
4) The Town of Rye has filed an accompanying action (a cross claim) seeking to force the WBTSCC to submit a revised site plan for the location, given the change resulting from the fence.
5) The State, through the Attorney General (AG), is asking to be dismissed from the suit, asserting that it cannot be forced to assert prescriptive rights on behalf of the public.
6) The WBTSCC is opposing both Mr. Jesurum’s suit and the Town’s cross claim. WBTSCC asserts that there are no prescriptive rights because, during its ownership since 1994, it has allowed access by its permission and has regularly blocked access. They assert that the AG has no standing to protect the rights of the public. They also assert that Jesurum is claiming that he may “traverse the land, and that the public may leave litter and dog droppings in his wake
