STATE OF MAINE SUPERIOR COURT SAGADAHOC, SS. CIVIL ACTION Docket No. CV-2015-15
PAUL BROWN and ) CHARLOTTE BROWN, ) Plaintiffs, ) ) ) v. ) FINDINGS OF FACT AND ) CONCLUSIONS OF LAW ) STEVEN PERRY, ) Defendant, ) ) ) V. ) ) ) LORA PERRY, CHRIS ) ENEMARK, JASON RIGGS, ) and NANCY RIGGS, ) Parties in Interest. )
A bench trial was held in this matter on July 5 and July 7, 2016, concerning a right of way in Ge rgetown, M ine ov -r the southern portion of former Lot 2, now owned by Defendant Steven and Party in Inter st ora Perry, giving ace ss to Webber Road to f rm r Lot 7 of the Robinh od Trust Subdivision, now 0W11ed by Plaintiffs Paul and Charl tt Brown and Parties in Inter st Jason and Nancy Riggs. The court also conducted a view of th prop · rty in dispute on July 5, 2017. Durin.g the trial, the court heard testimony from th parties and fr m Charles Collins,. a contracto and the Road Commissioner for the Town of Georgetown. Dtrring the trial, Stev n and Lora Perry withdrew the crossclaims that had been brought against Chris En mark and Jason and Nancy Riggs.
Based on the evidence presented at trial and the legal arguments made by the parties, the court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. The property rights at issue in this matter concern Lots 2 and 7 in the Robinhood Trust Subdivision Plan approv d by th Town 0£ Georgetown Planning Board on January 28, 1982. The riginal subdivision map i record din the Sagadahoc County R gistry of De ds in Plan B k 19, Page 12 (D fend.ants' Exhibit 19) and further describ din a Revision Plan recorded in the Sagadahoc County Registry of Deeds in Plan Book 20, Page 35 (Defendants' Exhibit 20; Plaintiffs' Exhibit 1.)
1 2. Lot 2 of the Robinhood Trust Subdivision Plan is bisected by a strip of land designat d on the plan as "50' R/W." It is described by a surveyed centerline. There is currently a traveled way that exists within the right of way designated on the Subdivision Plan.
3. Steven and Lora Perry and Chris Enemark, collectively and separately, are the current owners of the property described as Lot 2 on the Subdivision Plan.
4. Lot 2 is currently two lots divided by the cent rline of the sh·ip designated on the Subdivision Plan as "50' R/W." Both Enemark (north rly portion) and Perry (southern portion) have houses on their r spective properties that they occupy as their residences. either currently uses the traveled way as th primary access to their h me .
5. Paul and Charlotte Brown and Jason and Nancy Riggs, collectively and separately, are the current own rs of the pr operty described as Lot 7 on the Subdivision Plan.
6. Lot 7 is cunently four lots. The Riggs occupy a home on ne of the lots. The Browns own a ren tal.home on another lot. Two lots are currently vacant. The only access to the four lots is the travelled way that exists within the right of way designated on the Subdivision Plan.
7. The Defendants conceded at trial that the Browns and the Riggs have a valid right of way across their property. All that is in dispute is whether the right of way is a deeded or prescriptive easeme.nt and the extent of the easem nt r ights.
8. In reviewing the Robinhood Trust Subdivision Plan as a whole and when considering the vidence p resented at trial, it is apparent to the court that the designa ted "50' R/W" that bis cts Lot 2 w as inten d d by the Robinhood Tru st to b reserv d as a right of w ay to allow access to Lot 7. Without the designa ted right of way, Lot 7 w uld h ave been landlocked .
9. The strip of land bise ting Lot 2 is designated on the plan as "50' R/W" is one of the ways laid out in the R binhood Trust Subdivision Plan.
10. At the time of the creation of the subdivision, there was an old woods road in the ap proximate location of the right of way designated in the Robinhood Trust Subdivision Plan. Glenn Baldwin, the p redece s r in title to the Perrys, used this road as a driveway to the house he built on th southern. portion of Lot 2. The road was later extended to Lot 7 by Neil Kinney, a former owner of the south -rn potion of Lot 7, predecessor in title to the Browns.
11. When the errys purchased their property in 1986, they used the existing road to access their horn as Baldwin had done.
12. Th - road, as originally u sed and later extended, became the travelled portion of the r ight of way at issue in this case.
2 13. The road currently varies in width from 9 to 12 feet and is generally flush with the surrounding terrain.
14. As originally exis ted, a portion of the travelled way from Webber Road veered off and out of the 50-foot strip d · signated in the Subdivision Plan.
15. In 2011, Steven Perry constructed at his own expense his own, separate driveway from Webber Road to his home on his property outside of th so~foot d signed right of way. Si.nee the 2011 construction, ·the Perrys no longer use the right of way as th primary access to their hom.e. The Perrys now mak only occasional use of the road locat din the right of way and no evidence was presented that suggests that patte1n of use is likely to chang .
16. Steven Perry als arrang d at hi own expense for the relocation of the b ginning portion of the travelled way for Lot 7 so that it would be wh lly within th 50-foot 1ight of way. This was done without the consent of the other parties to this action.
17. Though the Plaintiffs claim that the rel cation of the beginning portion of the travelled way degraded the utility of the trav lled way, the court declines to make such a finding. Th ugh the current condition of th relocated travelled way is not in good c ndition, the evidence pr s nted is unclear as to th condition of and utility of the relocated travel d way when it was first consh"ucted. Th court is unable to find that the r locat d portion of th travel way has not deteriorated in the five years since it was constructed, as claimed by the D fendants, due to use, snow plowing, and lack of maintenance.
18. Evidence at trial establishes a long history of conflict between Steven Peny and other parties to thi action over the use and i1uprovement of th right of way. Steven Perry has consistently r sisted improvements being made to the right of way and has thr atened action to imped the use of the right of way. He has also placed bj cts in the right of way that th c urt concludes were intended t interfer with the use of the right of way including boulders dug up during the relocation of the beginning portion of tbe b.·av lled way and a snowplow. He has also resisted the removal of ·trees, stumps, and ledge that interfere with travel over the right of way and has resisted the removal of a cut off teleph ne poll that is located at the edge of the travelled way.
19. Steven P •rry's aggressiv behavjor over the years, and his comments at trial, establish tl,at he is likely to continue to attempt to imp de the use of the right of way if n t enjoined from doing s by this c urt.
20. Th r curr ntly exists a canvas shed and fence within the right of way. These objects were placed in the right of way by Steven Perry. Based on the evidence presented at trial, the court concludes that these objects do not interfere with the use or
3 maintenance of the right of way. In fact, the fence likely reduces the likelihood of future conflict between the parties 1•
CONCLUSIONS OF LAW
1. The 50-foot right of way at issue in this case is one of the ways laid out in the Robinhood Trust Subdivision Plan, which is recorded in the Sagadahoc County Registry of Deeds. Pursuant to 23 M.R.S. § 3031(2), all own rs of land shown in th Robinhood Tntst Subdivision Plan have acquired a privat right-of-way over the way that is at issue in this case.
2. The Law Court's holding in Brown vs.
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STATE OF MAINE SUPERIOR COURT SAGADAHOC, SS. CIVIL ACTION Docket No. CV-2015-15
PAUL BROWN and ) CHARLOTTE BROWN, ) Plaintiffs, ) ) ) v. ) FINDINGS OF FACT AND ) CONCLUSIONS OF LAW ) STEVEN PERRY, ) Defendant, ) ) ) V. ) ) ) LORA PERRY, CHRIS ) ENEMARK, JASON RIGGS, ) and NANCY RIGGS, ) Parties in Interest. )
A bench trial was held in this matter on July 5 and July 7, 2016, concerning a right of way in Ge rgetown, M ine ov -r the southern portion of former Lot 2, now owned by Defendant Steven and Party in Inter st ora Perry, giving ace ss to Webber Road to f rm r Lot 7 of the Robinh od Trust Subdivision, now 0W11ed by Plaintiffs Paul and Charl tt Brown and Parties in Inter st Jason and Nancy Riggs. The court also conducted a view of th prop · rty in dispute on July 5, 2017. Durin.g the trial, the court heard testimony from th parties and fr m Charles Collins,. a contracto and the Road Commissioner for the Town of Georgetown. Dtrring the trial, Stev n and Lora Perry withdrew the crossclaims that had been brought against Chris En mark and Jason and Nancy Riggs.
Based on the evidence presented at trial and the legal arguments made by the parties, the court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. The property rights at issue in this matter concern Lots 2 and 7 in the Robinhood Trust Subdivision Plan approv d by th Town 0£ Georgetown Planning Board on January 28, 1982. The riginal subdivision map i record din the Sagadahoc County R gistry of De ds in Plan B k 19, Page 12 (D fend.ants' Exhibit 19) and further describ din a Revision Plan recorded in the Sagadahoc County Registry of Deeds in Plan Book 20, Page 35 (Defendants' Exhibit 20; Plaintiffs' Exhibit 1.)
1 2. Lot 2 of the Robinhood Trust Subdivision Plan is bisected by a strip of land designat d on the plan as "50' R/W." It is described by a surveyed centerline. There is currently a traveled way that exists within the right of way designated on the Subdivision Plan.
3. Steven and Lora Perry and Chris Enemark, collectively and separately, are the current owners of the property described as Lot 2 on the Subdivision Plan.
4. Lot 2 is currently two lots divided by the cent rline of the sh·ip designated on the Subdivision Plan as "50' R/W." Both Enemark (north rly portion) and Perry (southern portion) have houses on their r spective properties that they occupy as their residences. either currently uses the traveled way as th primary access to their h me .
5. Paul and Charlotte Brown and Jason and Nancy Riggs, collectively and separately, are the current own rs of the pr operty described as Lot 7 on the Subdivision Plan.
6. Lot 7 is cunently four lots. The Riggs occupy a home on ne of the lots. The Browns own a ren tal.home on another lot. Two lots are currently vacant. The only access to the four lots is the travelled way that exists within the right of way designated on the Subdivision Plan.
7. The Defendants conceded at trial that the Browns and the Riggs have a valid right of way across their property. All that is in dispute is whether the right of way is a deeded or prescriptive easeme.nt and the extent of the easem nt r ights.
8. In reviewing the Robinhood Trust Subdivision Plan as a whole and when considering the vidence p resented at trial, it is apparent to the court that the designa ted "50' R/W" that bis cts Lot 2 w as inten d d by the Robinhood Tru st to b reserv d as a right of w ay to allow access to Lot 7. Without the designa ted right of way, Lot 7 w uld h ave been landlocked .
9. The strip of land bise ting Lot 2 is designated on the plan as "50' R/W" is one of the ways laid out in the R binhood Trust Subdivision Plan.
10. At the time of the creation of the subdivision, there was an old woods road in the ap proximate location of the right of way designated in the Robinhood Trust Subdivision Plan. Glenn Baldwin, the p redece s r in title to the Perrys, used this road as a driveway to the house he built on th southern. portion of Lot 2. The road was later extended to Lot 7 by Neil Kinney, a former owner of the south -rn potion of Lot 7, predecessor in title to the Browns.
11. When the errys purchased their property in 1986, they used the existing road to access their horn as Baldwin had done.
12. Th - road, as originally u sed and later extended, became the travelled portion of the r ight of way at issue in this case.
2 13. The road currently varies in width from 9 to 12 feet and is generally flush with the surrounding terrain.
14. As originally exis ted, a portion of the travelled way from Webber Road veered off and out of the 50-foot strip d · signated in the Subdivision Plan.
15. In 2011, Steven Perry constructed at his own expense his own, separate driveway from Webber Road to his home on his property outside of th so~foot d signed right of way. Si.nee the 2011 construction, ·the Perrys no longer use the right of way as th primary access to their hom.e. The Perrys now mak only occasional use of the road locat din the right of way and no evidence was presented that suggests that patte1n of use is likely to chang .
16. Steven Perry als arrang d at hi own expense for the relocation of the b ginning portion of the travelled way for Lot 7 so that it would be wh lly within th 50-foot 1ight of way. This was done without the consent of the other parties to this action.
17. Though the Plaintiffs claim that the rel cation of the beginning portion of the travelled way degraded the utility of the trav lled way, the court declines to make such a finding. Th ugh the current condition of th relocated travelled way is not in good c ndition, the evidence pr s nted is unclear as to th condition of and utility of the relocated travel d way when it was first consh"ucted. Th court is unable to find that the r locat d portion of th travel way has not deteriorated in the five years since it was constructed, as claimed by the D fendants, due to use, snow plowing, and lack of maintenance.
18. Evidence at trial establishes a long history of conflict between Steven Peny and other parties to thi action over the use and i1uprovement of th right of way. Steven Perry has consistently r sisted improvements being made to the right of way and has thr atened action to imped the use of the right of way. He has also placed bj cts in the right of way that th c urt concludes were intended t interfer with the use of the right of way including boulders dug up during the relocation of the beginning portion of tbe b.·av lled way and a snowplow. He has also resisted the removal of ·trees, stumps, and ledge that interfere with travel over the right of way and has resisted the removal of a cut off teleph ne poll that is located at the edge of the travelled way.
19. Steven P •rry's aggressiv behavjor over the years, and his comments at trial, establish tl,at he is likely to continue to attempt to imp de the use of the right of way if n t enjoined from doing s by this c urt.
20. Th r curr ntly exists a canvas shed and fence within the right of way. These objects were placed in the right of way by Steven Perry. Based on the evidence presented at trial, the court concludes that these objects do not interfere with the use or
3 maintenance of the right of way. In fact, the fence likely reduces the likelihood of future conflict between the parties 1•
CONCLUSIONS OF LAW
1. The 50-foot right of way at issue in this case is one of the ways laid out in the Robinhood Trust Subdivision Plan, which is recorded in the Sagadahoc County Registry of Deeds. Pursuant to 23 M.R.S. § 3031(2), all own rs of land shown in th Robinhood Tntst Subdivision Plan have acquired a privat right-of-way over the way that is at issue in this case.
2. The Law Court's holding in Brown vs. Carson, 2012 Me. 97, 48 A.3d 224, regui:ting all subdivision owners, a well as th ir mortgagees and lienh lders, t be joined in litigation is inapplicable to this litigation b cause the court d clines to limit in any way the rights of those not a party to this litigation.
3. The right of way includes th · right to install and maintain all utilities of the typ that now, or in the future, may be typically used for residential purposes. The current and future own r 0£ Lot 7 h ave the right to install and maintain utilities in the right of way.
4. The Plaintiffs ar ntitled t make reasonable improven.ents to the right f way witJ1out the consent 0£ the owners 0£ Lot 2. With the further d vel pment of L t 7, the i.Tavelled portion of th right of way is expected to need more gravel and improvements to allow for heavier use. A road improved to a uniform width of 12 feet, onsist nt with the r quirements f the Ge rgetown Subdivision Ordinance (Plaintiff's Exhibit 11), with sloping on foot shoulders and oth r improvements detail din the plru1 proposed by Charles Collins (Plaintiffs Exhibit 5) are the type of reaso abl improvements that the Plaintiffs can make with ut th consent of the owners of Lot 2. Given that Webber Road is only 12 f t wide in many areas near th subject pr p rtie , a road wider than 12 feet in the right of way w uld not be reasonable.
5. With additional use, the right of way will need to includ a hunout area when two vehicles approach each other from opp site dir cti.ons. Defendant Perry testified that the area near his garage is currently used for this purpos and that this area has ad quate sightlines in both directions. Bas d on this te timony, it is ORDERED that this area be left un bstructed to allow its continued use as a turnout.
6. The Plaintiffs have the right to maintain and repair the r ad in th right of way by grading, 1 veling, adding gravel, repaiJ:ing potholes, removing bush and trees, installing culverts, creating and maintaining drainage ditches and oth -r measures to protect against water damage, ru1d the right to tak any other reasonable m asures to n1aintain the road for its intend d ttse to access residential property.
7. The snowplow and the hall telephone poll currently impede the use of the right of way in the winter and will impede an improv d road in the future. D f ndant
1 "Good fences make good neighbours." Robert Frost, Mending Wall (1914).
4 P rry i ORDERED to remov the snowplow and half tel phone p 11 within 30 days of this order. If Defendant Perry does not d so, the Plaintiffs may remov these items and Defendant Perry will be liable for any reasonable costs incurr d by the Plaintiffs in doing so.
8. Defendant Perry is ENJOINED from placing any objects within th right of way that would interfere with the us or maintenance of th road. He is also ENJOINED from interfering with any improvements to or maintenance of the road that is onsistent with this order.
9. Defendant Perrys relocati n of the b ginning of the road to within. the right of way was done lawfully. Because the beginning of the road WcJ.S not located within the right of way, the consent of the oth r property owners wa not reqttir d .
10. Any conclusion about how future development of Lot 7, beyond the existing 4 lots, would impact th right of way would be entirely speculative and the court declin s to mak any such findings.
11. The court does not believe that there is any basis to r quire Defendant Perry to contribute to the cost of th expected in1provements to the road or the future maintenance of the improved r ad.
12. Each party shall pay their own costs and attorney's fees.
Any pending motions are made MOOT by this ORDER. This ORDER is a final order of the c urt in this matter.
The Clerk is directed to incorporate this Order by reference into the docket for this case, pursuant to Rul 79(a), Main Rules of Civil Procedure.
SO ORDERED,
~ Dated: May 15, 2017
JUSTICE, MAINE SUPE OR COURT
5 PAUL BROWN - PLAINTIFF SUPERIOR COURT 1411 WASHINGTON STREET SAGADAHOC, ss. BATH ME 04530 Docket No BATSC-CV-2015-00015 Attorney for: PAUL BROWN RUFUS BROWN - RETAINED BROWN & BURKE DOCKET RECORD PO BOX 7530 PORTLAND ME 04112-7530
CHARLOTTE BROWN - PLAINTIFF 1411 WASHINGTON STREET BATH ME 04530 Attorney for: CHARLOTTE BROWN RUFUS BROWN , RETAINED BROWN & BURKE PO BOX 7530 PORTLAND ME 04112-7530
vs STEVEN PERRY - DEFENDANT 81 WEBBER ROAD GEORGETOWN ME 04548 Attorney for: STEVEN PERRY ROGER THERRIAULT - RETAINED LAW OFFICE OF ROGER THERRIAULT 48 FRONT STREET BATH ME 04530
LORA PERRY - PARTIES IN INTEREST Bl WEBBER ROAD GEORGETOWN ME 04548
Attorney for: LORA PERRY ROGER THERRIAULT - RETAINED LAW OFFICE OF ROGER THERRIAULT 48 FRONT STREET BATH ME 04530
CHRIS ENEMARK - PARTIES IN INTEREST 89 WEBBER ROAD GEORGETOWN ME 04548 JASON RIGGS - PARTIES IN INTEREST 85 WEBBER ROAD GEORGETOWN ME 04548
Attorney for: JASON RIGGS RUFUS BROWN - RETAINED 01/22/2016 BROWN & BURKE PO BOX 7530 PORTLAND ME 04112-7530
NANCY PINKHAM - PARTIES IN INTEREST 85 WEBBER ROAD GEORGETOWN ME 04548
Page 1 of 11 Printed on: 05/15/2017 BATSC-CV-2015-00015 DOCKET RECORD Attorney for: NANCY PINKHAM RUFUS BROWN - RETAINED 01/22/2016 BROWN & BURKE PO BOX 7530 PORTLAND ME 04112-7530
LOANDEPOT COM - PARTIES IN INTEREST BATH SAVINGS INSTITUTION - PARTIES IN INTEREST PO BOX 548 BATH ME 04530
Attorney for: BATH SAVINGS INSTITUTION BRUCE HOCHMAN - RETAINED EATON PEABODY PO BOX 15235 100 MIDDLE STREET PORTLAND ME 04112-5235
FANNIE MAE - PARTIES IN INTEREST 3900 WISCONSIN AVE NW WASHINGTON DC 20016
Attorney for: FANNIE MAE SHANNON MERRILL - RETAINED 04/11/2016 BENDETT & MCHUGH PC 30 DANFORTH ST SUITE 104 PORTLAND ME 04101
Attorney for: FANNIE MAE PAUL D WEINSTEIN - RETAINED 07/06/2016 BENDETT & MCHUGH PC 30 DANFORTH ST SUITE 104 PORTLAND ME 04101
Filing Document: COMPLAINT Minor Case Type: GENERAL INJUNCTIVE RELIEF Filing Date: 08/06/2015
Docket Events: 08/12/2015 FILING DOCUMENT - COMPLAINT FILED ON 08/06/2015
08/12/2015 Party(s): PAUL BROWN ATTORNEY - RETAINED ENTERED ON 08/06/2015 Plaintiff's Attorney: RUFUS BROWN
Party(s): CHARLOTTE BROWN ATTORNEY - RETAINED ENTERED ON 08/06/2015 Plaintiff's Attorney: RUFUS BROWN
08/12/2015 ASSIGNMENT - SINGLE JUDGE/JUSTICE ASSIGNED TO JUSTICE ON 08/06/2015 ANDREW M HORTON, JUDGE
09/11/2015 Party(s): STEVEN PERRY SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 09/01/2015 Page 2 of 11 Printed on: 05/15/2017