Opinion
CV-RE-15-105
08-17-2017
NATHANIEL WARREN-WHITE, et al., Plaintiffs/Counterclaim Defendants, v. MARTINA SULLIVAN, Defendants/Counterclaim Plaintiff
Plaintiffs-Michael Vaillancourt, Esq. Defendant-Andrew Sparks, Esq. and Bruce McGlauflin, Esq.
Plaintiffs-Michael Vaillancourt, Esq. Defendant-Andrew Sparks, Esq. and Bruce McGlauflin, Esq.
FINDINGS AND DECISION
Lance E. Walker, Justice Maine Superior Court.
Hearing was held over the course of two days on the complaint and counterclaim. The parties were present with counsel. Counsel completed post-trial briefing by April 1, 2017.
I. FACTS
The plaintiffs, Nathaniel and Elizabeth Warren-White, and the defendant, Martina Sullivan, own abutting parcels of property in Freeport. This action centers on the location of a common boundary line that delineates the southern side of the Warren-White's property and the northern side of Sullivan's property; the parties each claim ownership to an area of land that lies between the boundary lines that they separately promote, referred to as the "abandoned road". The parties agree that under Maine law, each party owns to the centerline of the abandoned road, unless Plaintiff can establish title acquired to some part or the entire southerly portion of that land through adverse possession . Accordingly, the parties seek a declaratory judgment establishing the location of that boundary line. Additionally, the Warren-Whites claim that they have acquired title to the disputed area of land through adverse possession. For the reasons set out below, the court concludes that the Warren-Whites have established ownership by adverse possession. As a result of the rights the Warren-Whites have acquired in this way, the court further concludes that proof of adverse possession gives the Warren-Whites title to the property.
Plaintiff also claims Title by Acquiescence, which the court does not reach in light of its conclusion regarding Plaintiffs' claim of adverse possession.
Sullivan acquired title to property known as 104 South Freeport Road, in Freeport, Maine on or about June 5, 1998. The Warren-Whites acquired title to three parcels of real property known as 17 Church Road in Freeport, Maine on or about October 21, 2005. Prior to purchasing their property, the Plaintiffs observed that the boundary line shared with the Sullivan property extended along a line between two large maple trees, and along an old stockade fence that ran a partial distance on the same line between the two trees. That line is also notable by reference to wire and wooden fence remnants and lilac bushes. This was well supported by the weight of the most credible testimony of Plaintiffs, Barker, and Flynn. This line is consistent with the southerly boundary line of the "Abandoned Road" as depicted on the Parker survey or what the parties have referred to as the "Shared Boundary Line". In October 2005, lawn, flower gardens, landscaping trees, apple trees and other plantings, beds, a brush pile and the stockade fence were sited along the Warren-White side of the Shared Boundary Line. The driveway accessing the Plaintiffs' property, which was built in the late 1970s, ran along their side of the Shared Boundary Line, all of which formed the basis for the Plaintiffs to reasonably believe that was, in fact, their boundary line.
By contrast, Ms. Sullivan had not formed any belief to the contrary. In fact, the evidence at trial conclusively demonstrated that she and her immediate predecessor in interest also believed that her northerly property line was the Shared Boundary Line.
II. ANALYSIS
A. Adverse Possession
In order to establish ownership of property on the basis of a claim of adverse possession, the claimants must prove that their use of her land was, over a period of at least twenty years, actual, open, visible, notorious, hostile, under a claim of right, continuous and exclusive. Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME 111, P6, 733 A.2d, 984, 989. Proof of these elements is by a preponderance of the evidence. Id., P3, 733 A.2d at 988.
The prior owner of the Warren-White property, Inga-Lil Kunkle built the residence and the driveway in 1977 and 1978. The lawn was installed on the property soon after the home was constructed. Kunkle and her agents openly used and maintained the property up to the Shared Boundary Line from the late 1970s until 2005 by mowing and raking the lawn, trimming and maintaining the trees and other plantings, maintaining a brush pile, using the driveway to access the property and plowing the driveway. Sullivan's predecessor in title, Sharon and Jeff Flynn gardened up to, but did not exercise any dominion beyond the old stockade fence and other fence remnants situated along the Shared Boundary Line. Flynn would occasionally seek permission from Kunkle to use the southerly side of the stockade fence for gardening. Sullivan did not use or maintain any of the property within the Abandoned Road with the exception of the small section of property to the south of the easterly end of the old stockade fence.
Through the entirety of Plaintiffs' ownership of their property until the present dispute arose in 2015, Plaintiffs' contractors and tenants all used and maintained the property up to the Shared Boundary Line. The overwhelming credible testimony supporting this conclusion was supplied by Plaintiffs, Curtis, Montgomery and Joyce. Although Plaintiffs spent several years sailing around the world, they spend considerable time back at their Freeport residence during each of those years. Moreover, the evidence supports that the historical dominion and control of the disputed property continued to be exercised during that time. The fortuity that recent photographs depict overgrowth in the abandoned road area is of no moment to the analysis. The evidence demonstrates that Plaintiffs stopped tending to the disputed area when tensions arose between them and Sullivan. Moreover, Sullivan's own testimony offered to counter the overwhelming testimony supporting a finding of adverse possession was not convincing, to say the very least of what might be said of it. She argues that Plaintiffs never actually used any portion of the abandoned road, which is a claim that is substantially undermined by her testimony that she could not see over the growth to make any such observations. The Plaintiffs' driveway is in the abandoned road area, which Sullivan surely must have observed in use by Plaintiffs.
These findings demonstrate that the Warren-Whites (and their predecessors) occupancy of the disputed area was actual: they controlled the land in fact, and they did so in a way that has been consistent with the nature and potential use of the property. See Striefel, 1999 ME 111, P9, 733 A.2d at 989. This is revealed in their ongoing use of the property and their dominion over the property. The overt and actual use of the property by the Plaintiffs -- and the complete absence of any comparable conduct by Defendant or her predecessors in interest result-- in the conclusion that the Warren-Whites have actually possessed the property in a way that is sufficient to establish this element of their claim for adverse possession.
The Warren-Whites, and predecessors in interest, used the property in an open, visible and notorious way. They did not attempt to conceal their use of the properly, and their use was sufficient to provide any other person with notice that a claim of ownership based on any record title was in jeopardy. See Striefel, 1999 ME 111, P11, 733 A.2d at 991. Additionally, the Plaintiffs' use of the property was hostile because they did not seek or obtain permission of any other person to use and occupy the land. See id., P13, 733 A.2d at 991. The testimony that Mrs. White sought permission from Sullivan to trim some vines in 2011 does nothing to undermine the court's conclusion. Plaintiffs explained that they discussed some vines that their contractors had cut due to the fact that they had grown over the Shared Boundary Line onto Plaintiffs' property. Plaintiffs recalled that the contractors may have mistakenly cut vines that were across the Shared Boundary Line on the Sullivan properly but in any case never asked permission to to trim vines that originated on the Sullivan property but that were encroaching on the Warren-White properly. The foregoing findings regarding the dominion of the disputed property by Plaintiffs' predecessors in interest support this conclusion for the relevant time period. Sullivan also argues that the type of use put to the disputed properly by Plaintiffs is not sufficient to put the title owner on notice of adversity. The cases to which Sullivan cite are inapposite. Moreover, it is the sum total of all of the uses described herein that clearly provided notice to Sullivan. Moreover, the contention that the disputed properly was a tangle of vines an weeds is as overwrought as it is inconsistent with the evidence the court found to be most credible; to wit, the testimony of Plaintiffs, Ms. Barker, and Ms. Flynn, among others. All testified convincingly that while the southerly portion of the Shared Boundary Line, the Sullivan propery, was a tangle of vegetation, the property to the north of that line was completely and continuously maintained to include gardens, ornamental trees, shrubs, ground cover, lilac hedges, lawn, brush pile. To the extent there is any overgrowth in the abandoned road area, the court finds based on the credible testimony that this was the result of the Plaintiffs laudably having stopped maintaining the property in the disputed area after Sullivan started to erect flagging tape, stakes, landscaping trees, and saw horses on their driveway and down the southerly portion of their property. The court finds that based comfortably on the weight of the credible testimony, the constellation of all of the regularly maintained and manicured property and similar uses delineated the property adversely possessed, sufficient to have put the true title holder on notice.
The Plaintiffs and their predecessors in interest used and occupied the property under a claim of right, that is, without a recognition of or subordination to the rights of others. SeeStriefel, 1999 ME 111, P14, 733 A.2d at 991-92. At all times since they acquired their property the Plaintiffs have believed that they own the disputed area, and they have maintained that view. Significantly to the court, so too has Ms. Sullivan and her predecessors in interest. This satisfies the common law element of a "claim of right." And the statutory formulation of an adverse possession claim under 14 M.R.S.A. § 810-A does not require proof of a claim of right, see Dombkowski, 2006 ME 24, PP24.
Next, because of the factual circumstances noted above, the Warren-White's use of the property has been continuous for at least twenty years, and it has been exclusive.
B. Nuisance, Trespass, Punitive Damages
Although Ms. Sullivan's conduct over the disputed land has been course and loutish, the Plaintiffs have not me their burden in establishing that such conduct satisfies the claim of nuisance. This is particularly true, especially under the circumstances, as it relates to the element of the tort which requires the interference that resulted and the physical harm, if any, from that interference to be substantial. The substantial interference requirement is to satisfy the need for a showing that the land is reduced in value because of the defendant's conduct. The evidence simply fails to support such a conclusion. Judgment on count 6 in favor of defendant.
Plaintiffs did not plead statutory trespass, and no evidence to support the elements of such a claim was presented even if the court liberally applied the notice pleading standard along with evidence offered that the parties conducted discovery in a fashion which contemplated such a claim. However, Plaintiffs have established by a preponderance that Sullivan is liable for common law trespass, she having clearly intended to be on the land without consent. In fact, Sullivan entered the Plaintiffs' property and placed wooden stakes in the lawn; removed a large fallen apple tree limb by dragging it across the Plaintiffs' lawn and walking through their lily garden; erected a barrier of plastic cones, potted plants and flagging tape across Plaintiffs' driveway. Sullivan also entered the Plaintiffs' property to reset the position of shrubs and plants; plant three arbor vitae trees; place sawhorses on Plaintiffs' driveway; plant fiberglass poles; hang "no trespassing" signs at Plaintiffs' driveway entrance; adorn Plaintiffs driveway with blue flagging tape thereby restricting Plaintiffs' access to a substantial portion of their property. Judgment on Count 7 in favor of plaintiffs and damages in the amount of $2, 000.00.
Punitive damages are reserved for conduct either actually motivated by ill will or which is so outrageous that malice is implied. The burden is by clear and convincing evidence. Sullivan's conduct was ill-advised but was not, by clear and convincing evidence, motivated by actual malice and such conduct while boorish, is not sufficiently so to rise to implied malice.
The entry shall be:
On counts 1, 3, 4, and 7 of the complaint, judgment is entered for the plaintiffs. The court concludes that, through adverse possession, Nathaniel Warren-White and Elizabeth Warren-White have acquired title up to the southerly side of the abandoned road, described as the Shared Boundary Line. The plaintiffs shall submit a proposed judgment, conforming to statutory requirements governing the form of such a judgment. When the proposed judgment is filed, counsel for the defendant shall advise the clerk whether opposing counsel agrees with the form of the proposed judgment. Damages of $2, 000.00 as to count 7.
On counts 6, 8, and 9 of the complaint, judgment is entered for defendant.
Count 2 of the complaint, judgment is entered for the defendant. Count 5 of the complaint is dismissed as moot.
As to count 2 preliminary and permanent injunction, Plaintiffs failed to demonstrate that Plaintiffs' conduct caused irreparable injury. The court does not reach count 5, easement by prescription in light judgment on the adverse possession claim.
On counts 1-3 of the counterclaim, judgment for the counterclaim defendants (the plaintiffs).
The plaintiffs are awarded their costs of court.
The judgments ordered herein shall not become final until the court issues the judgment to be submitted by the plaintiffs.
The Clerk is directed to enter this Order on the civil docket by reference pursuant to Maine Rule of Civil Procedure 79(a).