Opinion
Civil Action RE-2011-056
06-26-2017
HELEN RIVAS ROSE and NATHANIEL P. MERRILL, Plaintiffs, v. WILLIAM PARSONS, JR., et als., Defendants, and LLEWELLYN P. H. ALDEN, et als., Parties-in-Interest.
ATTORNEY FOR PLAINTIFF: ALAN SHEPARD ALANE SHEPARD & READ. ATTORNEY FOR DEFENDANTS: KELLY MCDONALD MURRAY PLUMB & MURRAY.
ATTORNEY FOR PLAINTIFF: ALAN SHEPARD ALANE SHEPARD & READ.
ATTORNEY FOR DEFENDANTS: KELLY MCDONALD MURRAY PLUMB & MURRAY.
ORDER ON POST-JUDGMENT MOTIONS
WAYNE R. DOUGLAS, JUSTICE, MAINE SUPERIOR COURT
Following entry of final judgment, certain parties timely filed post-judgment motions. Plaintiff's motion requests that the court reconsider its conclusion concerning the scope and purpose of the easements in Road A and Road H. Defendants' motion seeks reconsideration of the court's ruling that the Farm Lot easement in Road A was not abandoned through adverse possession, and also requests additional findings of fact related to that issue. Their motion further seeks correction of a misstated fact. In response to Plaintiff's motion, Defendants also asked the court to "explicitly address the limits of the relief requested by Plaintiff in this action." (Def.s' Opp. to Pl's Mot. to Recons. at 1.)
Plaintiff Helen Rivas Rose; Defendants William Parsons, Jr., William C. Parsons, Charles B. Parsons, Louise P. Larry, Louise Parsons Pietsch (Louise Parsons Smith in complaint), David L. Weld, Jr., Christopher P. Weld, Ashley Taylor, Rudolph Hutz, Elizabeth Hutz, Thomas K. Liversidge, Jr., as Trustee of Beach Property Realty Trust, Kathryn A. Burns (Katherine A. Burns in complaint), Michael A. Greeley, Jackayla, LLC, Anne Ferguson (Ann Ferguson in complaint), Matthew Miller, Stacey Miller, Ben Miller, Ali Giacomin, Llewelyn Parsons Smith, Sarah S. Gerritz, Abigail A.S. Davis, G. Putnam Smith, Jr., Sarah P. Currie (Bonnie Curry in the complaint); and Party-in-Interest Horace P. Liversidge, II.
Plaintiff's Motion for Reconsideration
Plaintiff requests that the court reconsider its ruling on the scope of the Farm Lot's easements with regard to use of the beaches, and urges a conclusion that the easements include implied rights of general, recreational use of Crescent Surf Beach "within Road H" and Parsons Beach "within the confines of the areas between Lot C and CC on the 1915 Plan." (Pl's Mot. for Recons. at 10.)
The Law Court cases Plaintiff cites-Sleeper v. Loring, Flaherty v. Muther, and Badger v. Hill-do not hold or imply that a right-of-way easement to a body of water per se grants a dominant estate rights of use to the beach, land, or water. See Sleeper v. Loring, 2013 ME 112, ¶¶ 18-20, 83 A.3d 769; Flaherty v. Muther, 2011 ME 32, ¶¶ 56-57, 17 A.3d 640; Badger, 404 A.2d 222, 226 (Me. 1979). Rather, all three cases make clear the grantor's intent determines an easement's scope and purpose, and where deed language is ambiguous or incomplete, then resort to extrinsic evidence is appropriate to divine the intent. Id. The language of the 1916 deeds, the incorporated 1915 Plan, and pertinent extrinsic record evidence were the basis of the court's determinations of the scope of rights within the easements, the purposes of the easements, and the boundaries and location of the two roads. See Rose v. Parsons, No. RE-11-056, 2017 Me. Super. LEXIS 5, *45-48 (Jan. 12, 2017). For the reasons noted therein, the record evidence as a whole does not support Plaintiff's desired conclusions.
The cases Plaintiff cites from other jurisdictions are distinguishable or otherwise unpersuasive as a basis for establishing implied use rights in the face of existing Maine precedent.
In Toms v. Settipane, a Connecticut Superior Court case, one chain of title granted an express right to use the beach and a second title chain granted "a right of way over a footpath to the beach on Long Island Sound." 317 A.2d 467, 471-72 (Conn. 1973). The court held that the right of way in the latter deed included use of the entire beach, based on extrinsic evidence of use at the time the easement was created. Compare id. with Flaherty v. Muther, 2011 ME 32, ¶¶ 56-57, 17 A.3d 640. Moreover, even if Connecticut law implies such a right when an easement is ambiguous or silent without any supporting extrinsic evidence, Maine law does not; there must be sufficient evidence, extrinsic or otherwise, to establish that the grantor so intended. Id. The Massachusetts Appeals Court case of Murphy v. Olsen did not involve implied beach use rights but rather rights that were expressly set out in the deeds. 826 N.E.2d 249 (Mass. 2005). And, although the Massachusetts Supreme Judicial Court in Anderson v. DeVries held that back-lot owners' right-of-way to the beach implied recreational use rights in the beach, this conclusion was based both on extrinsic evidence of historical use particular to the case as well as upon a finding of "prior vested rights" because "[t]he chief inducement for the purchase of [the back lots] was the right to use the beach for swimming, bathing, and sun bathing." 93 N.E.2d 251, 253 (Mass. 1950).
Finally, Plaintiff states she is "seeking the ability to simply walk down the beach/' and thus also requests that the court "conclude that the beach access in this case includes recreational rights ... to walk the beaches in their entirety." (Pl's Mot. for Recons. at 5, 10.) Defendants' reply memorandum contends that Plaintiffs are estopped from seeking any rights outside the boundaries of Road A and Road H because other beachfront lot owners were not joined in the action, and because earlier pleadings, rulings, and representations in the case reflect that Plaintiffs were not seeking use rights beyond the confines of the easement boundaries. (Def.s' Opp. to Pl's Mot. to Recons.) Defendants seek clarification on this issue.
In response to Defendants' March 2011 motion to dismiss for failure to join necessary parties, Plaintiffs responded that they "are only asserting rights to get to the beach, and to utilize certain portions of the beach which are extensions of Roads 'A' and 'H'." (Pl.s' Opp. to Motion to Dismiss at 5.). The court (Fritzsche, J.) denied the motion stating, "[i]t is not necessary to join the remaining beachfront owners as the dispute is primarily about the use of 'Road H' and Road A.'" (Order signed June 8, 2011).
Plaintiffs' second amended complaint claimed rights to use the roads and pathways depicted in the 1915 Plan, along with "access and use of the beach within these pathways, " and sought a declaration of rights to use said roads, including access and use of the beach within the right of ways . . . ." (2nd Am. Compl. Summary of the Claim, ¶¶ 19, 30, Demand for Judgment) (emphasis added)).
The judgment concludes that the rights-of-way in Road A and Road H extend to the low water mark of the Atlantic Ocean. This provides a right of access to the intertidal zone of the beach in question. It is not the intent of the judgment that exercise of the use rights articulated therein be confined within the physical boundaries of the easements themselves. Rather, once the intertidal zone of Parsons Beach or Crescent Surf Beach is reached via the right-of-way, the easement holder has the right to use the intertidal zone up and down each respective beach for any purpose so long as it is consistent with a fee owner's acquiescence, see Flaherty v. Muther, 2011 ME 32, ¶ 56, 17 A.3d 640, and also has any and all public use rights recognized under Maine law. See McGarvey v. Whittredge, 2011 ME 97, ¶ 28, 28 A.3d 620; Bell v. Town of Wells, 57 A.2d 168, 173 (Me. 1989); Marshall v. Walker, 93 Me. 532, 536-37, 45 A. 497, 498 (1900). These limited use rights in the intertidal zone of the beaches are not inconsistent with legal rights of beachfront lot owners, whether or not a party to this action. Flaherty, 2011 ME 32, ¶ 56, 17 A.3d 640.
Defendants' Partial Motion to Alter or Amend Judgment
1. Adverse Possession
Defendants contend that the court did not adequately address their adverse possession claim with respect to Road A. They request the court make additional findings of fact on the basis of the existing record and conclude the Farm Lot's easement in Road A has been terminated by adverse possession.
The court did consider their adverse possession claim as an alternative ground for proving abandonment, and concluded that Defendants had not proven each and every required element of their claim. Rose, 2017 Me. Super. LEXIS 5, at *40-44. While there may have been sufficient evidence at trial to satisfy some of the adverse possession elements, Defendants did not meet their burden of proving all elements required to establish their claim.
A claimant asserting fee ownership by adverse possession must prove actual, open, visible, notorious, hostile, continuous, and exclusive possession of the subject property under a claim of right to that property for a period of over 20 years. Harvey v. Furrow, 2014 ME 149, ¶ 11, 107 A.3d 604, see also Rose, 2017 Me. Super. LEXIS 5, at *44. These same nine elements comprise the substantive standard applicable to an adverse possession claim brought by a servient estate owner to extinguish a private easement over the servient estate. D'Angelo v. McNutt, 2005 ME 31, ¶ 13, 868 A.2d 239. In pressing their adverse possession claim, Defendants rely upon D'Angelo not only because it provides the applicable standard for establishing adverse possession but also because the "acts of dominion" found to be sufficient to extinguish a private easement right in that case are very similar to the actions taken by the Liversidges in this case. Despite its similarities, D'Angelo is not squarely on point and therefore does not compel the same result in this case.
D'Angelo did not involve a sole claim of extinguishment of a private easement by adverse possession. The plaintiffs, the D'Angelos, owned property abutting both sides a 30-foot wide strip of property known as "Maine Avenue." Id. ¶¶ 1, 3. The defendants, the McNutts, were fee owners of Maine Avenue. Id. ¶ 4. The plaintiffs asserted fee ownership in Maine Avenue by adverse possession and prevailed on that claim. Id. The Law Court rejected defendants' alternate contention that even if plaintiffs established ownership of Maine Avenue by adverse possession, defendants retained a private easement therein. Id. ¶ 12. Without further analysis and seemingly without applying a heightened burden of proof to the abandonment by adverse possession claim, the Court found the same "acts of dominion" that were sufficient to establish a fee interest by adverse possession under the preponderance standard were also sufficient to extinguish a private easement. Id. ¶ 13.
In the instant case, however, the Liversidges are the rightful owners and possessors of the servient estate. In light of this distinction, and the heightened clear and convincing burden of proof associated with abandonment claims, see Gravison v. Fisher, 2016 ME 35, ¶ 52, 134 A.3d 857; Canadian Nat'l Ry. v. Sprague, 609 A.2d 1175, 1179 (Me. 1992), Defendants have not met their burden of proving the Liversidges' possession and use was actual, visible, and/or exclusive.
Neither party cited a Maine Law Court decision addressing this precise issue. Courts in other jurisdictions employ a sharp focus in evaluating the elements of adverse possession in cases involving the servient estate owner's attempt to extinguish a private easement; and they require that the acts of dominion be sufficiently inconsistent and irreconcilable with the exercise of the easement rights. See, e.g., Matoush v. Lovingood, 177 P.3d 1262, 1270 (Colo. 2008) (only "incompatible or irreconcilable use" with easement holder's authorized rights sufficient to extinguish easement by adverse possession); Smith v. Muellner, 283 Conn. 510, 518, 932 A.2d 382, 390 (2007) (dominion over servient estate insufficient; acts of a servient owner must be "distinctly adverse" to easement rights); Mueller v. Hoblyn, 887 P.2d 500, 507 (Wyo. 1994) ("use of the servient estate made during the period of adverse possession [must be] sufficiently hostile and inconsistent with the use permitted by the easement"); Titcomb v. Anthony, 126 N.H. 434, 437-38, 492 A.2d 1373, 1375-76 (1985) (use of land by servient tenant must be "incompatible or irreconcilable with" easement rights); New England Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153, 158-59, 177 N.E. 97, 99 (1931) (occupation of land by servient tenant must be "irreconcilable with the rights of the dominant tenant" to extinguish easement). This view is consistent with Maine's elevated burden of proof required in claims of abandonment of an easement, one basis for which can be adverse possession. See Gravison, 2016 ME 35, ¶ 52, 134 A.3d 857 (claim must be proven "by clear and convincing evidence, establishing each fact to a high degree of probability.").
Possession is "actual" when the property is in the "immediate occupancy and physical control" of the party claiming adverse possession. Striefel, 1999 ME 111, ¶ 9, 733 A.2d 984. The purpose of this requirement is to give the owner against whom adverse possession is being claimed "notice of the extent of the trespass." Id. (emphasis in original). Whether possession is "actual" depends upon "the nature and location of the property, the potential uses of the property, and the kind and degree of use and enjoyment to be expected of the average owner of such property." Id.
Possession is "visible" when the possession and use of the property is "capable of being seen by persons who may view the premises." Id. ¶ 11. The purpose of this requirement is to provide the party whose rights are being challenged "with adequate notice that a trespass is occurring, and that the owner's property rights are in jeopardy." Id.
Possession is "exclusive" when the adverse possessor is "not sharing the disputed property with the true owner or public at large." Id. ¶ 17. To establish exclusivity, the adverse possessor must show "'an exclusive domination over the land and an appropriation of it for his own use and benefit, and not for another.'" Id. ¶ 17 n.10 (quoting BLACK'S LAW DICTIONARY 565 (6th ed. 1990)).
The record is clear that the Liversidges have possessed and used their property continuously since the early 1980s. Over the years they have made numerous changes and improvements to the land, some of which directly or indirectly affect the pathway across their property where Road A is depicted in the 1915 Plan. With respect to the question of whether their possession and use is sufficient to satisfy the foregoing elements, however, the test in these circumstances is not merely whether they used the property as average owners would or even whether they have made changes to the property that would impact the pathway of Road A as delineated in the 1915 Plan. Rather, it is whether their use and possession as lawful owners of the property was, in fact, inconsistent and irreconcilable with use of the easement. For several reasons, Defendants did not carry their burden.
For example, the Liversidges replaced the old white gate at the intersection of Road A and Road B on the 1915 Plan with a new gate, and then later with a chain. Rose, 2017 Me. Super. LEXIS 5, at *26. The court also made the following findings: the original gate was intended to prevent vehicle traffic, not the foot traffic of family members; the new gate and chain likewise would not have kept one from walking down that way; the Liversidges did "considerable landscaping and other work on their property on the land underlying Road A;" "[t]hey planted trees on the eastern boundary of the segment of Road A between Lots 12 and CC on the 1951 Plan;" they built a new driveway; they "planted a rose garden on or near a section of Road A between Lots CC and 21 on the Plan;" they "placed granite blocks on their property;" "[t]hey planted an arbor in [the same] location;" "[t]hey built a shed near, but not on, Road A;" and they "built an addition to their house, the corner of which . . . just barely" encroached upon a portion of Road A. Id. at 26-27.
First, despite the changes and improvements over the years, after considering all the evidence the court found "[n]one of the improvements would act as a physical barrier preventing foot passage over where Road A is depicted; although to follow that course today puts one squarely on the Liversidge property." Id.
Second, the 1916 deeds establishing the dominant and servient estates granted the servient estate owners the right to relocate easements across their properties. The original grantors did not intend for the actual locations of the rights-of-way on the face of the earth as depicted in the 1915 Plan to be fixed or immutable. This affords considerable flexibility to the servient estate owners to make changes in their properties without jeopardizing the rights-of-way guaranteed by the easements. These deed provisions, in the court's view, require an even clearer showing that the Liversidges' possession and use of their property was inconsistent and irreconcilable with continued use of an easement over Road A or a reasonable alternative pathway over the servient estate. From the court's viewing of the property and from the trial evidence, it is clear that Plaintiffs could traverse Road A, and other alternative pathways, across the Liversidges' property by foot to reach the beach.
2. Correction of Date
The judgment found: "In 1984, [the Plaintiffs] sent written notice to Kin and Sandra Liversidge as well as owners of servient lots on the 1915 Plan, to give notice of their intent to 'contest the extinguishment of all easements and rights of way.'" Rose, 2017 Me. Super. LEXIS 5, at *28 (emphasis added). It also recites: "Beginning shortly after Kin and Sandra Liversidge took up permanent residence at Parsons Beach around 1980, Plaintiffs gave express, written notice on more than one occasion of their intent not to abandon Road A." Id. at *43 (emphasis added). Defendants are correct that the evidence at trial established that, although the notice bore a date of 1984, it was not mailed until 1990. (Joint Ex. 27 at 2, 30 at 1). Defendants' motion will be granted to correct the date, and the court will issue an amended judgment to so reflect.
Order
In accordance with the foregoing, the court hereby orders:
1. Plaintiff's Morion for Reconsideration is DENIED.
2. Defendants' Partial Motion to Alter or Amend Judgment is GRANTED IN PART and the Memorandum of Decision and Final Judgment dated January 12, 2017, is amended as follows: (a) the year "1984" on page 20, line 6 of the judgment is amended to "1990, " and (b) the sentence on page 31, line 11-13 is amended as follows: "Beginning shortly After Kin and Sandra Liversidge took up permanent residence at Parsons Beach around 1980, Plaintiffs gave express, written notice on more than one occasion of their intent not to abandon Road A." An amended final judgment shall issue reflecting the foregoing amendments.
3. In all other respects, Defendants' motion is DENIED.
The clerk may incorporate this Order on Post-Judgment Motions by reference on the docket by reference under M.R. Civ. P. 79(a).
SO ORDERED.