Dupuis v. Soucy

Maine Superior

Dupuis v. Soucy

DecidedNovember 17, 2009

DocketKENre-08-81and09-10

StatusUnpublished

This text of Dupuis v. Soucy (Dupuis v. Soucy) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dupuis v. Soucy, (Me. Super. Ct. 2009).

Pincite

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CIVIL ACTION DOCKET NOS. RE-08-81 i ~-09-1O rv -- 1/' t', _ i '-, L- " \ \ jo-/ I! .,' II J J ( " ,"\ , ' / c' ~i I

MARC J. DUPUIS, JR.,

Plaintiff

v.

RONALD SOUCY and DANUTA SOUCY,

Defendants **************************** JUDGMENT

Plaintiffs

Defendant

Hearing on these consolidated cases was held on 10/14/09 and 11/3/09. Marc J.

Dupuis owns real property described in a warranty deed dated 6/28/05 and recorded

in the Kennebec County Registry of Deeds in Book 8480, Page 128 and designated as Lot

42C on the Town of Winslow Tax Map 9. Ronald Soucy and Danuta Soucy own real

property described in a warranty deed dated 6/4/79 and recorded in the Kennebec

County Registry of Deeds in Book 2212, Page 199 and designated as Lot 42 on the Town

of Winslow Tax Map 9. A controversy has arisen with regard to the location of the

northern boundary of the Dupuis property and the southern boundary of the Soucy

property, where the properties abut. Raymond Pomeroy and Christina Pomeroy sold property to Ronald Soucy and

Danuta Soucy in June 1979. The Pomeroys reserved to themselves the property now

owned by Mr. Dupuis. (Dupuis Ex. 3A.)

Larry Pelotte previously owned what is now the Dupuis property and sold it to

Mr. Dupuis. (Dupuis Ex. 2B.) Mr. Pelotte walked the boundary lines with Bill

Davidson, from whom the property was purchased, prior to the closing on the

property. During the walk, Mr. Pelotte saw four pins: one at the northeast corner of the

land, approximately two feet north of the pin depicted on the David Wendell survey;

one at the northwest corner; one approximately fifty feet south of the northwest corner

pin; and one at the southeast corner of the land at the Abbott Road. (Dupuis Ex. 1.)

Mr. Pelotte cleared the land in 1984, including the land to the north of the house

and pool depicted on the Wendell survey, and mowed the area. (Dupuis Ex. 1.) In

1985, Mr. Pelotte decided to plant trees on the northern line of his property. He strung

a rope from the northeast corner pin to the northwest corner pin and began to plant the

trees two or three feet south of the rope on his property. Mr. Soucy appeared and

adjusted the line because the rope was bowed; the pins were not changed. When Mr.

Soucy indicated he was satisfied with the line, Mr. Pelotte planted the trees. (Dupuis Ex.

7.)

Mr. Dupuis walked the boundaries of the land with Mr. Pelotte prior to the

closing in June 2005. (Dupuis Ex. 2A.) Mr. Dupuis saw the same pins Mr. Pelotte saw:

the pins at the northeast corner, the northwest corner, south of the northwest comer,

and the southeast corner. (Dupuis Ex. 1.)

After he purchased the property, Mr. Dupuis trimmed the tree branches and

mowed the area under the trees. He placed a camper and a volleyball net in the now

2 disputed area. Until 2007, Mr. Soucy never stated to Mr. Pelotte or Mr. Dupuis that

they were using the Soucy property or that the trees were on the Soucy property.

In the late summer of 2007, Mr. Soucy strung a cable across the boundary

between the Dupuis and Soucy properties from the northeast corner pin to the

northwest corner pin. In April 2008, Mr. Soucy strung a cable from the northeast corner

pin to the pin approximately 50 feet south of the northwest corner pin. Mr. Soucy stated

that the cable represented the boundary. Mr. Soucy cut seven or eight of the trees on

the Dupuis property. Mr. Dupuis left a note for Mr. Soucy and requested that he cut no

more trees until the matter was resolved. Mr. Soucy apologized for cutting the trees

before the boundary was determined.

At Mr. Soucy's request, the Ellis survey of the Dupuis property was completed in

April 2008. (Dupuis Ex. 11; Soucy Ex. 3B.) Without speaking further to Mr. Dupuis, Mr.

Soucy cut 52 beautiful 22-year-old pine trees on the Dupuis property. (Dupuis Ex. 8.)

He also cut the tree stumps depicted on the Wendell survey. (Dupuis Ex. 1.) Mr. Soucy

also removed the pin in the northeast comer. The value of the trees cut was $4,300.00.

(Dupuis Ex. 9.)

Mr. Soucy's demeanor at trial was precisely that of a person who would engage

in such unreasonable conduct. For no apparent reason, in the fall of 2007, he simply

"started to think" about a garden he had and, therefore, "knew" that the trees were on

his land. His testimony was not credible.1

After the trees were cut, Mr. Dupuis hired Mr. Wendell to prepare a survey.

(Dupuis Exs. 1; 10.) The court accepts the boundaries2 determined by Mr. Wendell for

I The court also assigns no weight to the testimony of Norman Warren. 2 The northern boundary is the more northern, thinner line of the two lines, which would have been marked by the pin near the spruce tree.

3 the following reasons. 3 First, the Dupuis deed calls for a straight boundary of 425 feet

along the Abbot Road, which is reflected in the Wendell survey. (Dupuis Exs. 1; 2A.)

Second, the Wendell survey is consistent with the two pins found by Mr. Wendell and

the four pins seen by Mr. Pelotte and Mr. Dupuis. Third, the Wendell survey is almost

identical to the Armstrong survey, which reflects the agreement between Earl McCaslin

and the Pomeroys and the survey by Lloyd Rowe. (Dupuis Exs. 4; 5.) The Armstrong

survey was incorporated into the purchase and sale agreement and the deed between

the Pomeroys and the Soucys. (Dupuis Exs. 3A; 5.) Fourth, the Wendell survey

provides a 671.1-foot line between two found pins. (Dupuis Ex. 4.) Fifth, the deed

description with regard to the fence is more consistent with the Wendell survey.

(Dupuis Ex. 3A; 1.) Sixth, there is evidence of a stone wall and fence across the Abbott

Road from the pin that marks the southeast boundary of the Dupuis property on the

Wendell survey. There is no evidence of a fence or wall across the Abbott Road from

the southeast corner of the Dupuis property as marked on the Ellis survey.

The entry is

In RE-08-81, on Counts II, III, and IV, Judgment is entered in favor of the Plaintiff Marc J. Dupuis and against the Defendants Ronald Soucy and Danuta Soucy in the amount of $12,900.00 (14 M.R.S. § 7552(3)(B) & (4)(B); 17 M.R.S. § 2510(2) & (3)) and $2,217.70 (14 :M.R.S. § 7552(3)(C)), a total of $15,117.70, prejudgment interest at the rate of 6.42%, post judgment interest at the rate of 6.40%, plus attorney's fees and costs.

3 Even if the Wendell survey was rejected, the court concludes that Mr. Dupuis has proved by clear and convincing evidence that he acquired by acquiescence his northern boundary reflected by the more northern, thin line on the Wendell survey. See Hamlin v. Niedner, 2008 ME 130, 9[ 7, 955 A.2d 251, 253-54~ Dowley v. Morency, 1999 ME 137, 9[ 16, 737 A.2d 1061, 1067; Marja Corp. v. Allain, 622 A.2d 1182, 1184 (Me. 1993); Calthorpe v. Abrahamson, 441 A.2d 84, 288-90 (Me. 1982). There were two pins at the northeast and northwest corners of the Dupuis property. Mr. Soucy knew in 1985 that Mr. Pelotte possessed the land and Mr. Soucy agreed. There is no evidence of fraud by Mr. Pelotte of Mr. Dupuis or mistake on the part of Mr. Soucy. Mr. Soucy has acquiesced since 1985 until he cut the trees in 2007 and 2008. This boundary that the landowners "consented to and accepted . . .

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