To demonstrate that he possesses property under a claim of right, a party must prove that he "is in possession as owner, with intent to claim the land as [his] own, and not in recognition of or subordination to the record title owner." Dombkowski v. Ferland , 2006 ME 24, ¶ 12, 893 A.2d 599 (alteration omitted) (quotation marks omitted).[¶ 16] Dupuis argues that he proved that he treated the property wholly as his own through the evidence presented at trial detailing his use of and improvements to the property.

[¶ 11] "Adverse possession presents a mixed question of law and fact." Dombkowski v. Ferland, 2006 ME 24, ¶ 28, 893 A.2d 599, 606 (quoting Striefel v. Charles-Keyt-Leaman P'ship, 1999 ME 111, ¶ 7, 733 A.2d 984, 989). "[W]hether the necessary facts exist is for the trier of fact, but whether those facts constitute adverse possession is an issue of law for the court to decide." Id.

[¶ 9] To address the Manalios' final argument, a party claiming title through adverse possession must show that "his possession and use of the property for a twenty-year period was actual, open, visible, notorious, hostile, under a claim of right, continuous, and exclusive." Dombkowski v. Ferland, 2006 ME 24, ¶ 10, 893 A.2d 599, 602. Similar requirements must be met for the creation of a prescriptive easement. See Sandmaier v. TahoeDev. Group, Inc., 2005 ME 126, 115, 887 A.2d 517, 518.

As a preliminary matter, Plaintiff asserts two separate counts asserting title by adverse possession: (Count II) common law adverse possession; and (Count III) statutory adverse possession. The Law Court has informed litigants that "[a]lthough we recognize that statements in our opinions may have allowed the inference that there are two separate claims for adverse possession . . . there is only one claim - the common law claim as amended by the Legislature."Dombkowski v. Ferland, 2006 ME 24, ¶ 19, 893 A.2d 599 (internal citation omitted). Because a separate statutory claim for adverse possession does not exist, Count III must be dismissed.

“Actual possession and use exists when the land is in the immediate occupancy and physical control of the adverse possession claimant,” Striefel, 1999 ME 111, ¶ 9, 733 A.2d 984 (quotation marks omitted), and 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. Here, the trial court found that part of Harvey's garage is on the disputed triangle, that Jack Jensen established and maintained a lawn, garden, and fruit trees, and that he maintained a road to the lake over the disputed property, which he and his family traversed on a regular basis.

Generally, these are cases upholding a decision of the trial court and are based on the standard of review. See Dombkowski v. Ferland, 2006 ME 24, ¶¶ 30-31, 893 A.2d 599 (applying "credible-evidence" standard); Davy v. Trs. of Protestant Episcopal Church, 231 N.W. 83, 85 (Mich. 1930) (facts "warranted" the finding of adverse possession).

As such, [we] must give due regard to the trier of fact's determinations on credibility, weight[,] and significance of evidence." Dombkowski v. Ferland, 2006 ME 24, ¶ 28, 893 A.2d 599, 606 (alterations in original) (quotation marks omitted). [¶ 13] The dispute in this case focuses on whether the Bells' possession and use of the disputed parcel was "hostile" and "under a claim of right.

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.

[¶33] In the context of adverse possession, "'[h]ostile' simply 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." Dombkowski v. Ferland, 2006 ME 24, ¶ 12, 893 A.2d 599 (quotation marks omitted). Hostile activities by a possessor must be undertaken to dispossess the true owner of property rights.

To establish title through adverse possession, a party must prove by a preponderance of the evidence that the party's use and possession of the subject property was (1) actual, (2) open, (3) visible, (4) notorious, (5) hostile, (6) under claim of right, (7) continuous, (8) exclusive, and (9) of a duration of at least twenty years. Dombkowski v. Ferland , 2006 ME 24, ¶ 10, 893 A.2d 599. [¶ 22] At the outset, we recognize the long-standing doctrine in Maine that the intertidal zone, or wet sand area, is subject to a public easement for fishing, fowling, and navigation.