Center v. Halliday

• Court: Superior Court of Maine
• Decided: November 10, 2016
• Docket: CUMre-10-317
• Status: Unpublished

Opinion

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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION Docket No. RE-10-317 j ROBERT N. CENTER, as Trustee of the Robert N. Center Living Trust dated December 13, 2007 .., • r , I •1 ..J

of Waitsfield, Vermont, et al., - ) C. ._ ·-- . - •. 1 • . ..-- 1,, , - l..... •

Plaintiffs

v. ORDER ON PLAINTIFFS' MOTION FOR CONTEMPT MALCOLM F. HALLIDAY, Individually and as Trustee under the Halliday Family Trust dated May 18, 2006 of Potomac, Maryland, et al.,

Defendants

Before the court is plaintiffs' motion for contempt filed August 16, 2016. On September

1, 2016, defendants were served with the subpoena for the hearing on plaintiffs' motion. The

hearing was held on September 21, 2016. 1 Plaintiffs appeared and were represented by Attorney

Metcalf. Defendants appeared and represented themselves. For the following reasons, the court

finds by clear and convincing evidence that defendant Malcolm Halliday is in contempt of the

terms of the 2011 stipulated judgment.

Background

Plaintiffs allege defendants have violated the terms of the stipulated judgment agreed to

by the parties and signed by the parties' attorneys and a Superior Court justice on April 29, 2011.

(Pis.' Ex. 2; Tr. of April 29, 2011 Hr'g.) The stipulated judgment resolved plaintiffs' 2010

complaint against defendants, in which plaintiffs sought, among other things, a declaratory

1 The September hearing was scheduled expeditiously and especially to accommodate defendants , who planned to travel very shortly after the hearing _to Maryland for the winter.

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judgment with regard to easements and boundaries pertaining to the parties' adjoining properties.

(Comp!. Counts I, II, IV, V; Pls.' Ex. 1.)

The stipulated judgment provides, in relevant part:

Plaintiffs' land described in paragraph 1 is burdened by an easement for the right of ingress and egress across the existing gravel road, in the path, route and width of that existing gravel road as depicted on the Standard Boundary Survey [the Plan] ... This easement is solely for the purpose of ingress and egress, by pedestrian and vehicular means, and does not include the right to park or store anything on any of the land of the Plaintiffs for any length of time.

The Defendants, individually and as Trustees, their agents, servants, employees, representatives, guests and invitees, and successors in title and those that act in concert with them are hereby PERMANENTLY ENJOINED from parking or storing anything on the Plaintiffs' property as described in paragraph 1 hereof and when exercising their easement rights of ingress and egress they are further PERMANENTLY ENJOINED from deviating from the path, route, and width of the graveled right of way as depicted on the face of the earth as shown on the Plan and the tax map as attached to the complaint as Exhibit C.

The Plan depicts a Path to Shore which is a pedestrian pathway. It is hereby found that the Plaintiffs have the right to use and maintain that pedestrian pathway without disturbance, interference or disruption.

The Defendants, individually and as Trustees, their agents, servants, employees, representatives, guests and invitees, and successors in title and those that act in concert with them are hereby PERMANENTLY ENJOINED from altering or disturbing the pedestrian pathway and its components and from interfering with or obstructing the use of the pedestrian pathway by the Plaintiffs, their guests, invitees, agents, employees, servants, attorneys, and successors in interest.

(Pls.' Ex. 2 !! 3, 6, 10, 11.) Plaintiffs now allege defendants have violated the terms of the

permanent injunction by (1) parking their vehicle on plaintiffs' property; (2) trespassing on

plaintiffs' property by moving a compost pile, dumping plaintiffs' flower pots and planters,

throwing the planters into the woods, defacing landscaping rocks and fence posts across

plaintiffs' property, and leaving notes on plaintiffs' car; and (3) erecting blockades to prohibit

plaintiffs' use of their path to the shore. (Pls.' Mot. 4-8 .) Plaintiffs seek remedial sanctions,

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including compensatory and coercive fines, coercive imprisonment, and attorneys' fees. M.R.

Civ. P. 66(d)(3).

Findings of Fact

Within days of the signing of the stipulated judgment, defendant Malcolm Halliday

parked his car on plaintiffs' property and trespassed on plaintiffs ' property . (Pls. ' Ex . 3; Pls.'

Ex. 2 ~ 3.) Plaintiffs have never given defendants permission to enter plaintiffs' property in

violation of the terms of the stipulated judgment. In July or August 2011, defendant Malcolm

Halliday trespassed again on plaintiffs' property and , in a fit of rage, dumped plaintiffs' flower

pots. (Pis.' Ex. 2 ~ 6 .) Plaintiffs contacted defendants' attorney, who wrote to defendants and

reminded them about the terms of the stipulated judgment and the conduct the stipulated

judgment prohibited. (Pls.' Ex. 4.) Again in 2011, defendant Malcolm Halliday trespassed on

plaintiffs' property. (Pls.' Ex. 3 7; Pis.' Ex. 2 ~ 6.)

In the spring of 2012, plaintiffs tried to delineate defendants' right of way with

landscaping based on the survey. (Pis.' Ex . 2 ~ 3 .) A surveyor visited the property to ensure the

boundaries were correct. 2 Notwithstanding, defendant Malcolm Halliday trespassed on

plaintiffs' property and painted plaintiffs' landscaping rocks and fence posts, which were not

located in defendants' easement. (Pis.' Ex. 5; Pls.' Ex. 2 ~ 6.) Plaintiffs understood a deputy

sheriff spoke to defendants about the rocks and fence posts. Defendant Malcolm Halliday

admitted at the hearing he painted trees on plaintiffs' property with yellow paint. (Pis.' Exs. 12,

13 .)

On September 8, 2016, plaintiff Henry was . standing on plaintiffs' property near the

boundary line, several feet from the fence. (Pis .' Ex . 13 .) Defendant Malcolm Halliday

2 The surveyor set the pins but they disappeared. He set the pins again. Plaintiffs have paid nearly $2000 to the surveyor.

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trespassed on plaintiffs' property by driving his car on plaintiffs' property at a fast pace toward

plaintiff Henry. (Pis.' Ex. 2 '1 6.) Plaintiff Henry was fearful and stepped to the side. Also on

September 8, 2016, both defendants approached plaintiffs and told them to get off defendants'

property; plaintiffs were on their own property at the time. (Pis.' Ex. 12 3.) On September 13,

2016, plaintiffs found a wheelbarrow on their property that was not plaintiffs' wheelbarrow.

(Pis.' Ex. 14.)

After defendants returned from Maryland in spring 2016, a note from both defendants

was placed on plaintiffs' car, stating, incorrectly, that plaintiffs were parked in the wrong place.

(Pis.' Ex. 9 .) Plaintiffs' car was parked appropriately on their land, as depicted on the last page

of exhibit 3, and placing the note required trespassing on plaintiffs' property. (Pis.' Ex. 3; Pis.'

Ex. 2 '1. 6.) Plaintiffs do not park on the right of way reserved for defendants' benefit. (Pis.' Ex.

2 '1 3.)

Plaintiffs photographed the note and contacted their attorney. They were concerned

because this behavior was becoming more aggressive. A deputy went to defendants' property to

speak to them. The next morning, on July 29, 2016, plaintiffs found that their pedestrian

pathway to the shore had been blocked by defendants' car and by branches, leaves, and a rope.

(Pis.' Ex. 11; Pis.' Ex. 2 '1! 10-11.) The right of way remains blocked. Defendant Malcolm

Halliday agreed at the hearing he enlisted his grandson to put the rope across the path.

After July 29, plaintiffs found a manila envelope on their car and received a letter signed

by both defendants, who alleged, incorrectly, that plaintiffs were parking their car on defendants'

right of way. (Pis.' Ex. 10 .) Plaintiffs were parked appropriately on their driveway. Placing the

envelope required trespassing on plaintiffs' property. (Pis.' Ex. 2 ! 6.)

4 In August 2016, plaintiffs requested that surveyors mark the boundary between the

parties' property. Defendant Malcolm Halliday challenged the surveyors, who left to avoid

confrontation. The surveyors returned on September 8, 2016 and defendant Malcolm Halliday

was again present on plaintiffs' property. (Pls.' Ex. 12; Pls.' Ex. 2, 6.)

In 2013, after the stipulated judgment was signed, defendants sued plaintiffs for damages

allegedly resulting from redirection of runoff water from plaintiffs' property after construction of

plaintiffs' new home. Plaintiffs' construction was completed in 2004. In spring 2005, defendants

complained to plaintiffs about the water. Defendants' complaint was filed in 2013. Summary

judgment was granted in favor of plaintiffs because their complaint was not filed within the

statute of limitations. (Pis.' Ex. 6.) Defendants appealed and the judgment in favor of plaintiffs

was affirmed by decision dated May 12, 2015. (Pis.' Ex. 7.) The Law Court concluded

defendants' complaint was barred either by the three-year or six-year statute of limitations. See 3 Halliday v. Henry, 2015 ME 61, ' ' 8-9, 116 A.3d 1270; 17 M.R.S.' 2808 ; 14 M.R.S. § 752.

On June 8, 2015, fewer than 30 days after the affirmance, defendants filed another

complaint against plaintiffs and alleged the same facts as in the 2013 complaint. The 2015

complaint was dismissed based on claim preclusion. (Pis.' Ex. 8.)

Defendants also have reported three attorneys, including plaintiffs' Attorney Metcalf, to

the Board of Bar Overseers based on the cases related to defendants' disputes concerning their

property. (See Defs.' Docs. filed September 9 & 14, 2016.) Defendants appealed the dismissal

of one of the complaints against an attorney. Defendants also have reported two Superior Court

justices to the Committee on Judicial Responsibility and Disability based on these cases. (See

Defs.' Docs. filed September 14, 2016.)

3 Defendants cited this statute several times during the hearing on the motion for contempt.

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In conversation with plaintiff Robert Center, defendants have relied on the 2016 Cedar

Beach decision to justify their refusal to obey the terms of the 2011 stipulated judgment. See

Cedar Beach/Cedar Island Suppo,ters, Inc. v . Gables Real Estate. LLC , 2016 ME 114, _ A.3d

_. At the hearing on the motion for contempt and in their filings, defendants continued to

complain at length about the alleged runoff water from plaintiffs' property. (See Defs.' Docs.

filed September 14, 2016.)

Defendant Malcolm Halliday's opinions regarding the allegations in the motion for

contempt and the accuracy of the attached survey appear in his handwriting on plaintiffs' exhibit

17. (Pls .' Ex. 17 .) The words, "lie, false, perjury, knowingly misrep" and various ad hominem

attacks on Attorney Metcalf appear on the document. Defendant Malcolm Halliday asserts the

survey, on which the stipulated judgment was based, is "false."

The handwriting on exhibits 9 and 10 is the same as defendant Malcolm Halliday's

handwriting on exhibit 17. He wrote the note and the envelope. (Pls.' Exs. 9-10.) He added

defendant Ingigerdur Halliday's name to the note. (Pls.' Ex. 9.) She apparently signed the

envelope. (Pls.' Ex. 10.) Based on his other conduct, the court reasonably infers defendant

Malcolm Halliday trespassed on plaintiffs' property to place the note and envelope on plaintiffs'

car.

Both defendants participated at the hearing on the motion for contempt. They are

capable people who can read, write, speak, and drive. (Pls.' Ex. 12.) Defendant Malcolm

Halliday has a Ph.D. and described himself as a scholar and a former principal of a school. Both

defendants have the power to conform their conduct to the terms of the 2011 stipulated

judgment. M.R. Civ. P. 66(d)(2)(D)(ii).

6 Conclusions of Law

In order for the court to find defendants in contempt, plaintiffs must prove by clear and

convincing evidence that defendants have "failed or refused to perform an act required or

continue[] to do an act prohibited by a court order, and" it is within defendants' "power to

perform the act required or cease performance of the act prohibited." M.R. Civ. P.

66(d)(2)(D)(i) & (ii); see Sullivan v. Tardiff, 2015 ME 121, ! 18, 124 A.3d 652. Plaintiffs have

proved by clear and convincing evidence that defendant Malcolm Halliday intentionally violated

the terms of the parties' stipulated judgment when he (1) parked his vehicle on plaintiffs'

property; (2) repeatedly trespassed on plaintiffs' property while he dumped flower pots, painted

rocks, fence posts, and trees, challenged surveyors hired by plaintiffs, left notes on plaintiffs' car,

and tried to hit plaintiff Henry while driving his car; and (3) interfered with and obstructed .

plaintiffs' use of their path to the shore. (Pis.' Ex. 2 !! 3, 6, 10, 11.)

Plaintiffs have not proved that defendant Ingigerdur Halliday violated the terms of the

parties' stipulated judgment. Based on her conduct and statements at the hearing on the motion

for contempt, she clearly disputes the terms of the stipulated judgment. During defendant

Malcolm Halliday's testimony regarding plaintiffs' path to the shore, defendant Ingigerdur

Halliday interjected, "It's my property." Signing a notice to plaintiffs is not, however, a

violation of the terms of the stipulated judgment. Without question on this record, defendant

Malcolm Halliday is the culpable party.

Defendant Malcolm Halliday had been warned by his attorney and by deputies about

continuing to engage in conduct that violates the terms of the stipulated judgment. (See~' Pls.'

Ex. 4.) Defendant Malcolm Halliday had the power to cease parking on plaintiffs' property,

7 trespassing on plaintiffs' property, and obstructing plaintiffs' path. He intentionally refused to

conform his conduct to the terms of the court's injunction.

Defendants' lawsuits against plaintiffs, their reports of attorneys and justices to

professional authorities, and defendant Malcolm Halliday's conduct directed toward plaintiffs

and their property are mean spirited. Defendants' refusal to accept the determination of three

courts that their allegations about runoff water from plaintiffs' property are not actionable

reflects disrespect for the court. Defendants' conduct during the hearing on the motion for

contempt also reflects disrespect for the court. Defendant Malcolm Halliday's intentional refusal

to obey the 2011 injunctive order from the Superior Court because he does not agree with the

terms further reflects disrespect for the court and plaintiffs and is without defense or mitigation.

M.R. Civ. P. 66(d)(2)(D).

Plaintiffs have attempted without success to resolve this difficult situation and achieve

compliance with the terms of the stipulated judgment without resort to the court. Plaintiffs have

now dealt with defendant Malcolm Halliday's contemptuous conduct for more than five years.

Based on the above considerations, the court is concerned about defendant Malcolm Halliday's

future compliance with the terms of the 2011 stipulated judgment and will order relief pursuant

to Rule 66 to encourage compliance with the 2011 court order, which remains in full force and

effect. M.R. Civ. P. 66(d)(3).

Conclusion and Remedy

By parking his car on plaintiffs' property, repeatedly trespassing on plaintiffs' property,

and obstructing plaintiffs' path to the shore, defendant Malcolm Halliday has violated the

provisions of the parties' stipulated judgment dated April 29, 2011 and is in contempt of the

court's order. (Pls.' Ex. 2 ii 3, 6, 10, 11.)

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The following is ORDERED:

l. Defendant Malcolm Halliday is sentenced to five days at the Cumberland County Jail. Sentence is stayed until December 9, 2016 to give Defendant Malcolm Halliday an opportunity to purge his contempt by removing permanently every obstruction on Plaintiffs' Path to Shore. M.R. Civ. P. 66(d)(3)(B); (Pls.' Ex. 2 !1 10-11.) Defendant Malcolm Halliday has the ability to remove the obstruction personally or through an agent by December 9, 2016. See Wrenn v. Lew is, 2003 ME 29, 1 28, 818 A.2d 1005.

2. Defendant Malcolm Halliday will pay a $5 ,000 .00 coercive fine to the Treasurer, State of Maine. Payment of the fine is suspended to give Defendant Malcolm Halliday an opportunity to comply with the terms_ of the Stipulated Judgment dated April 29, 2011. (Pis.' Ex. 2.) The fine will be due in full if Defendant Malcolm Halliday violates any of the terms of the Stipulated Judgment. M.R. Civ. P. 66(d)(3)(B).

3. Within 21 days of the date of this order, Plaintiffs' attorney will file an affidavit of attorneys' fees and costs incurred in prosecuting Plaintiffs' Motion for Contempt. M.R. Civ. P. 66(d)(3)(C). In the affidavit, Plaintiffs' attorney shall address the factors specified in Gould v. A-1 Auto . Inc., 2008 ME 65, ! 13, 945 A .2d 1225 and shall include the language required by M.R. Civ. P. 7(b)(l)(A).

The clerk is directed to incorporate this order into the docket by reference. M .R. Ci v . P. 79(a) .

Date: November 10, 2016 Nancy Mills Justice, Superior Court

9 STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. RE-)}~-?;7 rvM - Cu Nl- J,;+ ,Y'°10 /0 ROBERT N. CENTER, et al.,

Plaintiffs ORDER ON MOTION FOR v. PRELIMINARY INJUNCTION

MALCOLM F. HALLIDAY, et al.,

Before the court is a motion for preliminary injunction pursuant to M.R. Civ. P.

65. Plaintiffs Robert N. Center and Kathryn W. Henry request that this court enjoin the

defendants, Malcolm F. Halliday and Ingigerdur K. Halliday, from

(1) parking on the plaintiffs' lawn and from deviating from the graveled right of

way as depicted on the tax map;

(2) interfering with the plaintiffs' right of way across the defendants' land;1 and

(3) altering or disturbing a pedestrian pathway over which the plaintiffs claim

they have a right of passage.

For the following reasons, the motion is granted in part and denied in part.

According to the verified complaint, the plaintiff, Robert N. Center, as trustees of

the Robert N. Center Living Trust, and plaintiff Kathryn W. Henry, as trustee of the

Kathryn W. Henry Living Trust, own land located in Harpswell, Maine. 2 The

1 The plaintiffs do not address this request in their memorandum. 2 The plaintiffs are also owners of a second, distinct parcel of land located in Harpswell, Maine.

1 defendants, as trustees of the Halliday Family Trust, are the owners of adjacent

property and access their property by a gravel right of way, which the plaintiffs assert

"has appeared on the face of the earth in an unchanged fashion for no less than 40

years." (Compl.

From 1979 until approximately 2005, a garage was located at the end of the

plaintiffs' driveway. The plaintiffs relocated the garage in 2005 and installed a garden

and a lawn in the space. A year before the plaintiffs moved the garage, the defendants

acquired a parcel of land from their neighbor, Sharon A. Kirker, which the plaintiffs

state gave the defendants a deeded right to park on her land. (See Pl.'s Compl.

E.) Since the defendants acquired this right and there is no longer a garage at the end of

the plaintiffs' driveway, the plaintiffs contend that the defendants started driving across

the plaintiffs' land instead of using the graveled right of way to access Ms. Kirker's

land.

The plaintiffs, along with others in the community, are the beneficiaries and

holders of the right to use a path to the shore. 3 The pedestrian pathway does not

encumber the defendants' land. With the consent of Ms. Kirker and the Town of

Harpswell, the plaintiffs repaired the path after the winter weather made it unsafe. On

July 10, 2010, Mr. Halliday allegedly destroyed the path. (Compl.

allege that only Mr. Halliday had the opportunity and means to destroy the path.

(Center Aft.

DISCUSSION

I. Standard of Review

In order to succeed on a motion for a preliminary injunction, a moving party has

the burden of demonstrating the following: 3 The pedestrian pathway is depicted on the plan recorded at Plan Book 204, Page 585.

2 1) that plaintiff will suffer irreparable injury if the injunction is not granted; 2) that such injury outweighs any harm which granting the injunctive relief would inflict on the defendant; 3) that plaintiff has established a likelihood of success on the merits (at most, a probability; at least, a substantial possibility); and 4) that the public interest will not be adversely affected by granting the injunction.

Ingraham v. Univ. of Maine, 441 A.2d 691, 693 (Me. 1982). These four criteria "are not to

be applied woodenly or in isolation from each other; rather, the court of equity should

weigh all of these factors together in determining whether injunctive relief is proper in

the specific circumstances of each case." Dep't of Envtl. Prot. v. Emerson, 563 A.2d 762,

768 (Me. 1989). For example, if the evidence of success on the merits is strong, the

showing of irreparable harm may be subject to less stringent requirements. Id. (citation

omitted).

II. Graveled Right of Way

a. Irreparable Injury

The plaintiffs assert that there is irreparable injury because there is no remedy at

law to compensate them for the loss of the quiet enjoyment and use of their property.

"An injury for which there is no adequate remedy at law is an irreparable injury." Bar

Harbor Banking & Trust Co. v. Alexander, 411 A.2d 74, 79 (Me. 1980). Despite the

defendants' claims, the defendants' unauthorized use of the plaintiffs' property and

their disregard of the plaintiffs' property rights have resulted in irreparable injury. No

adequate remedy at law could prevent the defendants' alleged continuing trespass on

the plaintiffs' lawn. Furthermore, even if the injury is only a "few blades of grass," as

the defendants claim, the plaintiffs have shown a likelihood of success on the merits, as

discussed below.

3 b. Balancing of Harms

The plaintiffs assert that there will be no harm to the defendants if this

preliminary injunction were to issue. The plaintiffs claim that the defendants will

merely be required to remain on the graveled right of way. The defendants, however,

claim that the plaintiffs have made it impossible for the defendants to access their

property by vehicle. According to the defendants, the plaintiffs have begun parking on

the right of way. Additionally, the defendants claim that the plaintiffs' actions restrict

the ability of emergency medical personnel to access their property by automobile,

which is a concern given the defendants' ages and medical conditions.

Based on the photographs attached to the plaintiffs' affidavits in support of the

plaintiffs' verified complaint, the defendants have ample space to park on the graveled

right of way granted to them by deed. First, it is clear from these pictures that the

defendants park on the lawn. (See Robert Center Aff.

though the defendants drive over the plaintiffs' lawn instead of following the graveled

curve in the road. (See Kathryn Henry Aff.

appears not only that the defendants have ample space for ingress and egress, but also

that the harm to the plaintiffs' property outweighs any inconvenience to the defendants.

The plaintiffs have demonstrated that the injury to their land outweighs any harm the

defendants will face if they travel on the graveled right of way.

c. Likelihood of Success

A "likelihood of success on the merits" is "at most, a probability; at least, a

substantial possibility." Bangor Historic Track, Inc. v. Dep't of Agric., 2003 ME 140,

837 A.2d 129, 132. Here, the plaintiffs claim that the defendants' easement does not give

them the right to drive on the plaintiffs' lawn or park their cars on the right of way.

4 Alternatively, the plaintiffs contend that if the easement is in a different location than in

the deed, as the defendants claim, the defendants abandoned the alternative location.

The contested right of way is defined in deeded easements. "Construction of a

deed ... is a question of law." River Dale Ass'n v. Bloss, 2006 ME 86, <_[[ 6, 901 A.2d 809,

811. There is no dispute that there is a deeded right of way across the plaintiffs' land.4

The defendants dispute the location of the right of way. According to the defendants,

the plaintiffs have changed the location of the right of way for their own aesthetic

reasons. The right of way is, however, clearly depicted in both the tax map and a

survey, recorded in Plan Book 204, page 585 in the Cumberland County Registry of

Deeds. (See Pl.'s Compl., Exs. C and D.) Based on these documents, the plaintiffs are

likely to establish successfully the location of the right of way as they describe it.

The plaintiffs also claim that the defendants have abandoned any alleged prior

location of the easement. "A party asserting abandonment has the burden of proof."

Phillips v. Gregg, 628 A.2d 151, 152 (Me. 1993). "The party may meet that burden by

showing '(1) a history of nonuse coupled with an act or omission evincing a clear intent

to abandon, or (2) adverse possession by the servient estate."' Id. (quoting Canadian

Nat'l Ry. v. Sprague, 609 A.2d 1175, 1179 (Me. 1992)). The plaintiffs claim that the

defendants regularly used the graveled right of way in the same location for thirty

years. Until 2005, the plaintiffs' garage prevented the defendants from parking where

they now claim they have a right of way. The plaintiffs contend, therefore, that the

defendants acquiesced to the location of the garage and thus the location of the right of

way. As the plaintiffs claim, the defendants' acquiescence to the location of the garage

4 The right of way, as described in the deed, is defined as "Right of way on easterly side now or formally of Mrs. Lawretta F. Clark's lot; thence on the easterly side now or formally of Sidney I. Gibson's lot; thence on southerly line now or formally of E.H. Blanchard's lot; thence across the corner of now or formally Pierces' lot; thence along the easterly side of little field, to old right of way; thence to Main Road over road as now traveled." (See Pl.'s Compl., Exs. A and B.)

5 is evidence of an intent to abandon. See Bolduc v. Watson, 639 A.2d 629, 630 (Me. 1994)

(six-year acquiescence to a garage across a private easement demonstrates a clear intent

to abandon). Though the defendants dispute the past location of the garage, there is at

least a substantial possibility that the plaintiffs will succeed on the merits. (See Pl.'s

Compl., Ex. D (survey showing the past location of the garage).)5

III. Pedestrian Pathway6

The plaintiffs will suffer irreparable injury if the defendants are allowed to

continue to damage the pedestrian pathway. There is no adequate remedy at law to

ensure the plaintiffs' safe and comfortable access to the shore.

b. Balancing of Harms

Allowing continued altering or disturbing the pathway harms the plaintiffs only.

The pedestrian pathway does not burden the defendants' land. (Center Aff. <[ 34.).

The plaintiffs have shown a likelihood of success on the merits of this claim

because, as they contend, the pedestrian pathway is not on the defendants' land. There

is nothing in any deed that gives the defendants the right to interfere with the plaintiffs'

safe access along the pathway.

d. Public Interest

The public has an interest in preventing damage to the pedestrian pathway. As

the plaintiffs assert in the verified complaint, the pathway is for the benefit of others in

5 "In a case involving a dispute between two private parties, this [public interest] factor is of diminished importance. Both parties are using their property for residential purposes, and the public interest is not greatly affected regardless of the outcome." Cyr v. Ruotolo, 1985 Me. Super. LEXIS 371, *22 (Me. Super. Ct. Dec. 27, 1985). The public interest is advanced by landowners complying with the terms of their deeds. 6 The defendants do not address this issue in their memorandum.

6 the community as well as the plaintiffs. (Compl.

the pathway assures safe access to the shore, the public interest favors granting the

injunction.

The entry is

The Plaintiff's motion for Preliminary Injunction is GRANTED in part and DENIED in part.

The Defendants, individually and in their capacity as Trustees of the Halliday Family Trust, and their agents, employees, servants, attorneys, guests, and invitees and those that act in concert with them are enjoined from parking on the Plaintiffs' property and from traveling or deviating from the graveled right of way as depicted on the tax map and as shown on the face of the earth. (Compl. Ex. C.)

The Defendants, individually and in their capacity as Trustees of the Halliday Family Trust, and their agents, employees, servants, attorneys, guests, and invitees and those that act in concert with them are further enjoined from altering or disturbing the pedestrian pathway and its components, as depicted on the 2004 Kirker Boundary Survey. (Compl. Ex. D.)

The remainder of the motion is DENIED.

Date: December 9, 2010 ancy Mills Justice, Superior G

7 .OF COURTS erland County Street, Ground Floor nd, ME 04101

JUDY METCALF ESQ EATON PEABODY PO BOX 9 BRUNSWICK ME 04011

:K OF COURTS berland County y Street, Ground Floor and, ME 04101

CHRISTOPHER LEDWICK ESQ PO BOX 884 BRUNSWICK ME 04011