YORK — Town Manager Stephen Burns isn’t a fan of mystery.
He’s spent months sorting through old deeds and maps to catalog each piece of town property – from parks to beaches to fire stations – to make sure there’s no uncertainty about who owns what and what it should be used for.
But now York and and neighboring Kittery are mired in mystery about the true location of the border between the two oldest towns in Maine. Is the border a straight line? Or is it meandering?
That will be for a court to decide.
The dispute about the border – established in 1652 by decree from the Massachusetts Bay Colony under threat of force by an armed militia – was perhaps inevitable. Maps drawn by each town in 1794 show the border in slightly different spots, but no one thought much of it until two years ago when a local developer bought land that straddles the town line, wherever it may be. A survey of the property commissioned by the developer showed the boundary was 333 feet south of where the towns thought it was. That’s a distance longer than a football field.
York officials think the developer’s survey might show the true straight-line border, but down in Kittery, folks aren’t so sure. The border that has been acknowledged for hundreds of years weaves slightly from Eliot to Brave Boat Harbor.
The unusual situation has prompted lighthearted discussion of a “border war” between the two otherwise friendly towns. In York, town leaders have mentioned building a wall on the southern border, while Kittery residents have joked about marching a militia northward.
“We’re having a little fun with it, but at the same time it’s a serious thing,” Burns said. “Municipal government is responsible for what happens within its borders, so you ought to know where the borders are.”
The land in question is largely wooded but sits in an area along Route 1 where new businesses and housing have been built in recent years. If the border is moved, it wouldn’t affect anyone’s property ownership, but it would affect where people pay taxes, vote, go to school and which town maintains the cemetery, Burns said. It is unclear how many property owners could be impacted.
York officials think history is on their side and will base their argument in court on a 1992 decision that set the boundary between York and Eliot, which was once part of Kittery.
Kittery officials believe the current border is the proper one and has been since the founding of the two communities, said Town Manager Kendra Amaral. Elected officials in Kittery have indicated they believe York is launching a “dubious” legal challenge that could create potential ill will between friends and neighbors.
“In any event, the Town of Kittery will vigorously protect and defend her borders against any and all claims now, or in the future,” Town Council Chairwoman Judith Spiller wrote in a letter to York selectmen.
A LONG HISTORY
Kittery, notable for its long tradition of shipbuilding and commerce, is the oldest incorporated town in Maine. Before English settlers arrived in what is now Kittery in 1623, the area was known to Native Americans as Amiciskeag, according to a town history written by D. Allan Kerr and shared on the town website.
Kittery originally included the areas that are now Eliot, Berwick, North Berwick and South Berwick. The town was incorporated in 1647, some 173 years before Maine became a state.
Europeans first settled in the area now known as York in 1624 and called it Agamenticus, the Abenaki name for the York River. By 1638, European settlers had changed the name to Bristol but soon it was called Gorgeana for Sir Ferdinando Gorges, who had been given the colony by King Charles I and envisioned a city arising from the wilderness.
Edwin Churchill, an Augusta historian and retired chief curator of the Maine State Museum, said the two towns had somewhat different cultures in that era, despite their close proximity. Kittery had been influenced more by the English, while York had stronger ties to Boston, he said.
Emerson Baker, a history professor from York whose expertise is in 1600s Maine, said by the 1650s, Kittery and Agamenticus were frontier settlements at the edge of the wilderness. Home to a few hundred European settlers, each town had houses clustered along the ocean and rivers. There were few roads in the area, and most people either fished or harvested lumber.
In November 1652, commissioners from the Massachusetts Bay Colony arrived in Kittery, intent on annexing the area of the Province of Maine up to modern-day Cape Porpoise. Their arrival may have been welcomed by some, but others resisted the takeover, Churchill said.
“They more or less came up with holstered guns,” Churchill said. “They came up determined they were going to take it over and probably were willing, if need be, to use some sort of force. They were pretty aggressive.”
On Nov. 20, 1652, 42 inhabitants of Kittery signed a declaration acknowledging they were subject to the Government of Massachusetts Bay.
Two days later, the commissioners traveled northeast to Gorgeana, where inhabitants had assembled at the house of Nicholas Davis. By the end of the day, they had taken the same oath as those in Kittery. The town was reincorporated as York, named for York, England, one of the last Royalist strongholds taken by the Puritans in the English Civil Wars, Baker said.
Under the Articles of Submission signed in 1652, Massachusetts Bay Colony ordered the towns to set up up their borders, Churchill said.
Spiller, the Kittery town councilor, noted in her letter that the boundaries set forth by the Articles of Submission presented an alternate line to the one that had been used previously.
“It is important to note that this particular boundary was established through aggression, imposed by decree from the Massachusetts Bay Colony,” she wrote. “Rife with arbitrary limitations set for and enforced by armed militia, it reflected neither the established property lines of the times nor those before or after it.”
In 1794, Massachusetts insisted that each town create a map because many towns were in disputes over their boundaries. The maps created that year of York and Kittery clearly showed some disagreement, Baker said.
“At the time, no one was living along this property line that is now in dispute,” he said. “We’re talking about an area of York and Kittery that was reasonably remote and isolated. Even if there was a dispute over those boundaries, there weren’t many people there to worry about it.”
It is rare that disputes about municipal borders in Maine end up in court, according to the Maine Municipal Association. But they are bound to pop up occasionally in a state where town lines were set hundreds of years ago.
Robert Yarumian, a professional land surveyor and owner of Maine Boundary Consultants in Buxton, said many of those early boundaries were marked with stone walls, trees or granite markers that have long since disappeared. Surveyors marking early boundaries may have thought they were on the same track and the discrepancies don’t come to light for generations.
Maine law used to require neighboring towns to perambulate, or walk their boundaries, every 10 years. In the last century that practice became rare, and in the 1980s, the requirement was taken off the books, Yarumian said.
It is up to the Legislature to set municipal boundaries, Yarumian said. When a controversy over a municipal border arises, either town involved can file a complaint in Superior Court requesting the line be run. State statute requires three commissioners be appointed by the court to review the line, establish temporary markers and report the new boundary to the court.
“Whatever they bless is the wine,” Burns said.
Churchill said the process to determine the York-Kittery border likely will require commissioners to go back to Colonial records for each town and Massachusetts. Burns believes the process will also include reviewing information from the last time York had a disputed border.
In 1992, a commission established by York County Superior Court had to set the boundary between York and Eliot, which was known as the second parish of Kittery until it was incorporated as a town in 1810. The uncertainty about that border was variable and uncertain even before the Articles of Submission set the boundary, according to the commission, which determined the border was a straight line.
DEVELOPER IN LIMBO
The uncertainty over the York-Kittery border has left local developer Duane Jellison in limbo, according to York officials.
Jellison bought a parcel of land on Route 1 that includes a farmhouse and planned to develop the property, possibly with a residential subdivision.
“We thought the land was half in York and half in Kittery. Basically, we had the survey work done and we have a stamped plan indicating where the boundary is, which is not where you think it is,” Jellison told the York Weekly in 2018. “The real line is now three-quarters in York, one quarter in Kittery.”
Jellison did not respond to interview requests from the Portland Press Herald.
Jellison approached York town officials in 2018 to apply for a permit to build a garage on part of the property his surveyor had determined was York. But York officials said they couldn’t issue the permit because they thought that area was in Kittery.
The disputed area between the current border and the one from the new survey includes about 300 feet of footage on Route 1 north of Landmark Hill Lane. The area includes residential parcels, two cell towers and a cemetery.
The York Board of Selectmen began talking about the disputed area back in late 2018, after Jellison’s permit was denied. They agreed at the time to reach out to Kittery to see if the towns could identify the proper straight-line border or acknowledge the contested boundary so the issue could be settled by the court.
The Kittery board declined, prompting the York selectmen to vote last month to move forward with a lawsuit. Burns said he has not yet met with the attorney who will handle the lawsuit and does not know when the complaint will be filed.
“This is really the last mystery we have,” Burns said. “I don’t care if (the border) moves, I don’t care if it doesn’t move. Let’s just settle it,and then it’s not a mystery.”