FINDINGS AND ORDER FOR ENTRY OF JUDGMENT

This matter came before the Court for a bench trial on June 23 and 24, 2022. Plaintiffs were self-represented, and Defendants were represented by Attorney Brian Winchester. The Court took testimony from five witnesses: Patricia Hart, Gerald Lacrosse, Bruce Densmore, Roberta Pratt Lovely, and Steve Marson. The Court admitted five exhibits from Plaintiffs, twenty-six exhibits from Defendants, and one joint exhibit. After the close of evidence, the parties submitted closing arguments in writing, the last of which was received August 9, 2022. Both Plaintiffs' written Closing Argument and Rebuttal contained attachments that were not admitted as exhibits at trial. Defendants have brought two post-trial Motions to Strike those attachments.

Plaintiffs brought this action against Defendants asserting three counts. Count I seeks a declaratory judgment. Two surveys, referred to as the Wood and Morin surveys, were attached to the Complaint. Plaintiffs sought a declaration that Defendants' land is only as depicted on the Wood and Morin surveys and that the common boundary between Plaintiffs' and Defendants' land is as it appears on the Wood and Morin surveys. Count II alleges trespass, and Count III alleges unjust enrichment.

The Court has reviewed the evidence presented at trial and the parties' written submissions, and it issues the following Findings and Order for Entry of Judgment.

PENDING MOTIONS

At the outset, the Court considers the two Motions to Strike filed by Defendants related to the Plaintiffs' closing arguments. The first Motion dated August 1, 2022 requests the Court strike the attachments to Plaintiffs' first written argument. The second Motion from August 18, 2022, requests the Court strike the attachments to Plaintiffs' Rebuttal and requests compensation for attorney fees expended by Defendants in bringing the two Motions to Strike. Plaintiffs object to this second Motion on the grounds that they were not aware at the time of the hearing that Defendants were arguing a theory of adverse possession.

Defendants initially raised the affirmative defense of adverse possession in their Answer to Plaintiffs' Complaint, and the theory was specifically referenced and discussed both by Defendants and by the Court during trial. The Court finds that Plaintiffs had sufficient notice of the adverse possession argument. To the extent the attachments to Plaintiffs' July 14 Closing Argument and August 9 Rebuttal were not admitted as evidence at trial, the Court strikes them from the record and has not considered them in issuing this Order. The Court is not, however, convinced that Plaintiffs' attachment of exhibits justifies an award of attorney fees to Defendants and declines to award attorney fees.

Also pending is an unopposed Motion for Enlargement of Time to file Plaintiffs' Rebuttal, submitted by letter to the Court on August 8, 2022. The Court grants the requested enlargement of three days and finds Plaintiffs' Rebuttal, originally due August 8 and submitted August 9, was timely.

FINDINGS OF FACT

Plaintiffs and Defendants dispute ownership and the boundaries of a parcel of land on the banks of the Kennebec River in Gardiner, Maine. The disputed parcel sits between Riverview Road on its west and the Kennebec River on its east. On the north is another residential lot. On the south side is a nine-slip marina called Westerlund's Landing owned and operated by Defendants. The marina is on waterfront land that is bordered along the river by a seawall. It is unclear to the Court whether that seawall extends onto the disputed parcel. Farther from the banks of the river, across Riverview Road, are other lots, several of which have been owned by the same families for decades. The neighborhood is one in which residents generally know and are familiar with each other.

Plaintiffs Beverly and Gerald Lacrosse are a married couple who live in New Jersey. In 1987 they bought a house on Riverview Road in Gardiner, which they have been renting out to tenants in the years since. They believe that their land includes the disputed waterfront parcel on the Kennebec. Between tenants, they have occasionally travelled up to Maine to make improvements on the home. Because of a very difficult family circumstance they were never able to reside in it. Defendants Bruce Densmore and Steven Marson are siblings and Gardiner residents who have been running Westerlund's Landing on the banks of the Kennebec, next to and on the disputed parcel, since approximately 1996. Before 1996, Stanley Westerlund owned the land and maintained the boat launch. Mr. Westerlund sold the marina to Defendants in 2003.

When Plaintiffs first purchased their land in Gardiner in 1987, the disputed parcel was a "natural area" that was not landscaped. In 1998, the City of Gardiner held a Planning Board meeting and issued a permit for an expansion of the seawall along the river. Mr. Lacrosse was not aware of this proceeding. He did, however, receive notice in 2005 that the Planning Board would hold another meeting, where it would decide whether Defendants could expand their marina by adding additional docks. Mr. Lacrosse travelled to Maine and attended that meeting. At the meeting, he objected to the expansion, stating that he owned some of the land that was involved with the marina. In response, Mr. Densmore refuted Mr. Lacrosse's claim of title to the disputed parcel. The Planning Board approved the expansion.

In 2015, Mr. Lacrosse wrote Defendants a letter asking them to stop trespassing on the disputed parcel, which he alleged was his property. At some point before bringing suit in 2020, Mr. Lacrosse made an offer to sell his house and land to Defendants. Defendants did not respond to either of these communications.

Roberta Pratt Lovely, daughter of Mr. Robert Pratt, is an individual currently living nearby on Riverview Road. She grew up in the house directly across Riverview Road from the marina from 1960 to the mid-1980s when she moved away for a period of years. Her father, Mr. Pratt, owned what is now the marina property before Mr. Westerlund owned it. During Ms. Lovely's childhood and adolescence, her father, who was a harbormaster, kept a boat landing with several docks in the river on the waterfront parcel. The vegetation on the waterfront parcel, including the disputed portion, was overgrown, and a gravel driveway came in from Riverview Road down to a wharf area on the property. He allowed people to use the land to launch boats into the river. He sold the marina to Mr. Westerlund in 1977. At some point thereafter, Mr. Westerlund put up a sign identifying the property as a marina called Westerlund's Landing. Defendants still maintain a sign that identifies the property as Westerlund's Landing, and the sign advises visitors, "Remember, this is private property so respect it."

Defendants began working with Mr. Westerlund to run the marina around 1996. Since then, Defendants (and previously, Mr. Westerlund) have allowed locals to store and launch boats, and to access the frozen river in the off-season. Plaintiffs were aware of individuals using the disputed parcel to launch boats since shortly after they purchased their land in 1987. Although Mr. Densmore and Mr. Marson did not purchase the marina from Mr. Westerlund until 2003, by 1998 they had permission from Mr. Westerlund to independently manage the land and run the marina. Since then, Mr. Densmore and Mr. Marson have understood the marina to include the disputed parcel. While the marina was owned by Mr. Westerlund and managed by Defendants, Mr. Densmore, with Mr. Westerlund's consent, put up gates, fences, and rope to control who could enter the property. The intent was to keep the public out so that they would not misuse the property. At least some of these structures that mark boundaries and discourage entry remain there, including a log fence.

Since gaining control of the marina, Defendants have put significant work into the property: they have rebuilt the original dock to the low water mark; built new docks from lumber; manicured the property so that it was no longer overgrown and seeded it; installed the fence made from logs; and installed a cement-based flagpole. They have rebuilt portions of the seawall at least twice and have purchased machinery and supplies, including a backhoe and an excavator to take the docks in and out, a chain-sawmill, lumber, rebar, and other hardware. In total, Defendants have put over $75,000 into the marina. Many of these improvements and investments extended onto the disputed parcel, including the regular landscaping.

In the summers, Mr. Densmore has lived on a boat that he docks in the river just beside the marina. For tax purposes, the City of Gardiner considers the disputed parcel a part of the parcel owned by Defendants, and therefore, the Defendants have been paying taxes on the disputed area. Mr. Westerlund also paid taxes on the disputed parcel.

At trial on June 23-24, 2022, Plaintiffs and Defendants admitted deeds showing competing chains of title. Plaintiffs' assert that their chain of title (Pls.' Ex. 1) goes back continuously to a deed executed in 1922, with John Anderson as grantor and William Metzler as grantee. In this chain of title, the deeds do contain consistent descriptions of what may be the disputed parcel. Defendants' chain of title (Defs.' Ex. 1) contains a deed from Alice Lawrence to Robert Pratt, without an indication of how Alice Lawrence obtained title. Defendants' chain goes back to an 1883 deed from Stanford to four brothers of the Lawrence family. Many of the deeds in Defendants' chain of title do not describe anything that appears to be the disputed parcel. Instead, Defendants argued that the parcel probably came from a holding of the Lawrence Brothers who owned other parcels nearby. The Court does not find Defendants have proven that fact.

CONCLUSIONS OF LAW

At the outset it must be noted that no counterclaim was filed by Defendants in the nature of a quiet title action. They have, however, asserted the affirmative defense of adverse possession which the Court will consider.

While the deeds in the Plaintiffs' chain of title do more consistently describe the disputed parcel than the descriptions in the Defendants' chain of title, the Court nevertheless concludes that Plaintiffs have not met their burden to show they have valid title to the disputed parcel or that they own the property as depicted in the Wood and Morin surveys. As a result of this failure, all three of their claims fail.

First, Plaintiffs' chain of title is not sufficient to establish their ownership of the disputed parcel. While the deeds do represent a continuous chain of title with reference to a piece of land that could be the disputed parcel, the deeds only go back to 1922. Plaintiffs have not shown on this record that the grantor in that transaction, John Anderson, had valid title to the land. Second, no survey evidence showing the boundaries of the disputed parcel was presented, so on the record before it the Court cannot define the boundaries of the disputed parcel or find that the description in Plaintiffs' deeds refers to the disputed parcel. Simply put, insufficient evidence of the bounds of the parcel was admitted at trial.

Plaintiffs' claim also fails because Defendants have successfully proven their affirmative defense of adverse possession by a preponderance of the evidence. To succeed on an adverse possession claim, a party must prove each of the following by a preponderance of the evidence: "possession and use of the property was (1) actual; (2) open; (3) visible; (4) notorious; (5) hostile; (6) under a claim of right; (7) continuous; (8) exclusive; and (9) for a duration exceeding the twenty-year limitations period." Grondin v. Hanscom, 2014 ME 148, ¶ 13, 106 A.3d 1150 (quoting Weinstein v. Hurlbert, 2012 ME 84, ¶ 9, 45 A.3d 743). Possession and use by a claimant must satisfy each of these elements simultaneously for at least twenty years. Harvey v. Furrow, 2014 ME 149, ¶ 17, 107 A.3d 604 (citing Striefel v. Charles-Keyt-Leaman P'ship, 1999 ME 111, ¶ 18, 733 A.2d 984). A court considers whether the elements of adverse possession are met "in the light of and nature of the land, the uses to which it can be put, its surroundings, and various other circumstances." Wood v. Bell, 2006 ME 98, ¶ 12, 902 A.2d 843 (citing Striefel, 1999 ME 111, ¶ 6, 733 A.2d 984).

Actual possession means "physical occupancy or control over property." Harvey v. Furrow, 2014 ME 149, ¶ 12,107 A.3d 604 (quoting BLACK'S LAW DICTIONARY 1282 (9th ed. 2009)). Actual possession is "established when the evidence shows an actual use and enjoyment of the property that is in kind and degree the same as the use and enjoyment to be expected of the average owner of such property." Emerson v. Me. Rural Missions Ass'n, Inc., 560 A.2d 1, 2 (Me. 1989), overruled on other grounds by Dombkowski v. Ferland, 2006 ME 24, 893 A.2d 599. The disputed parcel sits between Riverview Road and the Kennebec River, and it adjoins with the land that Mr. Westerlund sold Defendants in 2003. It is bounded on the north by another property line that is not in dispute. Since at least 1998, Defendants and Defendants' predecessor-in-title Mr. Westerlund have been using the whole disputed waterfront parcel as part of Westerlund's Landing. They have occupied and controlled the disputed property by maintaining it so that it functions as part of the marina. They have also invested significant time and resources in the property, running the marina and making improvements that extend onto the disputed parcel. The Court concludes that the element of actual possession is met.

Possession and use that are open, visible, and notorious are "without attempted concealment," "capable of being seen by persons who may view the premises," and "known to some who might reasonably be expected to communicate their knowledge to an owner maintaining a reasonable degree of supervision over his property." Striefel, 1999 ME 111, ¶ 11, 733 A.2d 984. Notorious possession and use are "so conspicuous that [they] are generally known and talked of by the public or the people in the neighborhood." Id. ¶ 11 n.6 (citing Black's Law Dictionary 1063 (6th ed. 1990)). Since 1996, Defendants and for a time Mr. Westerlund have operated Westerlund's Landing and advertised it for boatowners to launch and store boats. The disputed parcel is not differentiated from the rest of the property nor used in secret. Defendants, in their own capacity since 2003 and before that with the consent of Mr. Westerlund, have regularly landscaped the whole property, including the disputed portion. The neighbors, including Ms. Lovely, are familiar with Westerlund's Landing and with the activities of Mr. Densmore and Mr. Marson on the land. Neighbors knew Mr. Westerlund and were familiar with his operation of a marina on the property. Boatowners regularly use Westerlund's Landing in the summer, and occasionally individuals use Westerlund's Landing to access the river when it is frozen. The two Planning Board proceedings further publicized the marina and the improvements made there. The Court concludes that Defendants have met their burden to prove these three elements.

Hostile possession "means that the possessor does not have the true owner's permission to be on the land, and has nothing to do with demonstrating a heated controversy or a manifestation of ill will, or that the claimant was in any sense an enemy of the owner of the servient estate." Id. ¶ 13 (quoting Glidden v. Belden, 684 A.2d 1306, 1318 n. 19 (Me. 1996)). In this case, it is not clear that anyone holds a valid title to the property. See DiVeto v. Kjellgren, 2004 ME 133, 861 A.2d 618. The Court finds Defendants' use is without permission, controversy, or ill will, and it concludes that this element is met.

For the use and possession to be under a claim of right, the claimant must be "in possession as owner, with intent to claim the land as [their] own, and not in recognition of or subordination to [a] record title holder." Wood v. Bell, 2006 ME 98, ¶ 13, 902 A.2d 843 (quoting Dombkowski v. Ferland, 2006 ME 24, ¶ 12, 893 A.2d 599). Exclusive possession and use "means that the possessor is not sharing the disputed property with the true owner or public at large." Striefel, 1999 ME 111, ¶ 17, 733 A.2d 984. Defendants believe that they rightfully own the disputed parcel, having acquired it from Mr. Westerlund by deed, who treated the disputed property as his own and a part of the marina. Mr. Densmore has also publicly stated that he owns the property and Plaintiffs do not. The Defendants and Mr. Westerlund paid taxes on the parcel. At least since 1998, Defendants have taken steps to control who accessed the property, including by setting up ropes, gates, and fences. The Court concludes these two elements are met.

Continuous means "occurring without interruption." Id. (citing BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 213 (2d ed. 1995)). Since at least 1998, the marina has been operating on the disputed parcel with the above elements met. The Court concludes Defendants have shown by a preponderance of the evidence that each element has been met for over twenty years, and the twenty-year requirement would have been met in 2018.

In sum, the Court concludes that Plaintiffs failed to carry their burden of persuasion on their three counts for reasons stated. In addition, Defendants did carry their burden on the affirmative defense of adverse possession. Therefore, the Court finds for the Defendants on each of the three counts in the Complaint. Because Defendants did not file a counterclaim in this case their relief is limited to a finding that they have proven the affirmative defense of adverse possession as to Plaintiffs.

The entry will be:

Defendants' Motions to Strike are GRANTED. Plaintiffs' Motion to Enlarge is GRANTED. Judgment is entered FOR DEFENDANTS on all counts of Plaintiffs' Complaint.

The Clerk is requested to enter this Order on the docket for this case by incorporating it by reference. M.R. Civ. P. 79(a).