Bouffard v. The Inh. of the Town of Waterboro

• Court: Superior Court of Maine
• Decided: March 12, 2014
• Docket: YORre-12-56
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CNILACTION YORK, ss. DOCKET NO. ~-1)-56 I. , PAP··· ,'/o t<- ,:$V 12_,./~

ROGER M. BOUFFARD and LIONEL A. BOUFFARD,

Plaintiffs

v. ORDER AND JUDGMENT (TITLE TO REAL ESTATE AFFECTED)

THE INHABITANTS OF THE TOWN OF WATERBORO,

Defendant

1. THE PARTIES

The plaintiffs are Roger M. Bouffard of Arundel, Maine, and Lionel A. Bouffard

of Saco, Maine. They were represented by David R. Ordway of Smith & Elliott, P.A. of

Saco, Maine.

The Defendant is The Inhabitants of the Town of Waterboro represented by

Natalie L. Burns of Jensen Baird Gardner & Henry of Portland, Maine.

2. DOCKET NUMBER

The docket number is RE-12-56.

3. NOTICE

All parties have received notice of the proceedings in accordance with the

applicable provisions of the Maine Rules of Civil Procedure. 4. THE REAL ESTATE INVOLVED

The plainttifs are the owners of real estate in Waterboro, Maine, easterly of State

Highway number 5 and bordering Ossipee Lake. The property is described in a deed

of August 6, 2010 from Charles H. Burgess, which is recorded at Book 15912, Page 855.

The defendant Gwns adjoining real estate called Gobeil Park described in a deed

from the State of Maine of October 7, 1981 recorded at Book 2859, Page 283 and

described in the deed of Gladys Wiggins of June 18, 1982 recorded at Book 2943, Page

233.

The disputed parcel is roughly depicted by the area shown with crossed lines in

the attached exhibit A.

THE DISPUTE

The dispute, as do many involving land near water, involves legitimate

competing claims to use a too scarce resource. Roger Bouffard, with his father,

purchased the property in August of 2010. The property is adjacent to the Town's boat

launching, swimming and picnicking area. The area is pop~ar and has heavy use.

Too many boats and trailers are compressed into a too small area resulting in frequent

interference with Mr. Bouffard's access to his property. He suffered a serious back

injury, must walk with crutches and finds it difficult to walk longer distances. The

practical problem is that too many people use too little space. The legal issues involve

a variety of statutes or legal doctrines surrounding the discontinuance, relocation or

abandonment of older roads.

The plaintilis have filed a four-count complaint concerning the land between the

easterly sideline of the current location of State Highway 114 and the plainttifs' cottage

lot. • Count I sought a declaratory judgment and to quiet title to that land. Count II

sought a similar declaration pursuant to 14 M.R.S. §§5961 - et seq. Count III sought

similar relief pursuant to the quiet title procedures at 14 M.R.S. §§6651- et seq. The

2 final count is brought as a real action pursuant to 14 M.R.S. §§6701 - et seq. The case

has been tried without a jury and has been briefed.

The dispute involves the area immediately in front of Mr. Bouffard's cottage.

Mr. Bouffard understandably believes that the area should be for his use, but it is often

blocked by people using the nearby public land.

The parties have agreed the original location of what became Route 114 was laid

out by the York County Commissioners in 1778 when Maine was still part of

Massachusetts. At some point no later than 1952 the State of Maine took over the

ownership and maintenance of this portion of Route 114. Between 1952 and 1958 the

State relocated this portion of then Route 114, which is now known as Route 5. The

State operated a rest area to the south of the Bouffard property since about 1966. That

property was transferred to the Town in 1981 and 1982. The Town has maintained

that area, now known as Gobeil Park, since late 1981. It is south of a brook.

In 1992 the Town discontinued that portion of Route 5, formerly 114, north of the

brook. That area is roughly equal to the westerly half of former Route 114. The order

of discontinuance was not well crafted.

Both parties have cited the brief Law Court opinion of City of Rockland v. Johnson,

267 A.2d 382 (Me. 1970). That case also involved a lake and a former state highway.

In Johnson a small portion of the road was no longer used following a discontinuance.

Fences were put up and through traffic became impossible. A beach and recreation

area was established.

The key difference between Johnson and the current Bouffard case is found at

page 385 of Johnson where the Law Court stated, "When the part of old Route # 17 with

which we are here concerned was discontinued as a through highway and was

relocated, there resulted an abandonment." Since the fee was never owned by the

public the sole right to pass and repass was lost. However, in our case there was no

3 "discontinuance as a through highway." The use of the road remained. The public

continued to use the area as it had before to get to and from Gobeil Park. A public

easement remains.

Additionally, pursuant to 23 M.R.S. §3026 a public easement is retained

following a discontinuance. I need not consider whether the discontinuance was

proper in all details as the time to challenge it has long expired.

The Town has argued in the alternative that the public has acquired an easement

by prescription. It is not necessary to reach that argument. There are disputes as to

what portion of the land was used by its owners and the public, during which periods

and whether there was full, partial or no acquiescence.

While the public has an easement, Mr. Bouffard has a legitimate grievance. Any

actions that the Town can take to lessen the inconvenience for Mr. Bouffard would be

proper.

The entry is:

Judgment for the defendant on the complaint. There is a public easement over the area formerly part of Route 114 that is north of the stream. That easement includes the right of passage and the right to briefly park solely for the purpose of tying down boats.

The defendant shall record an attested copy of this judgment and pay the appropriate recording fees.

Dated: March 12, 2014 Paul A. Fritzsche Justice, Superior Court

The appeal period has expired without action or final judgment has been entered after remand following appeal.

Date: Clerk

4 ATTORNEY FOR PLAINTIFFS; DAVIDRORDWAY SMITH & ELLIOTT, PA 199 MAIN STREET PO BOX 1179 SACO ME 04072

THOMAS WELCH BERGEN & PARKIN SON LLC 62 PORTLAND ROAD, SUITE 25 KENNEBUNK ME 04043

ATTORNEY FOR DEFENDANT : NATALIE BURNS KENNETH COLE JENSEN BAIRD GARDNER HENRY IOFREE STREET PO BOX4510 PORTLAND ME 04112