Ehler v. Russell
This text of Ehler v. Russell (Ehler v. Russell) 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.
Opinion
STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV-10-049 _) PA-P - ';lot<~ 7;115j~oll I j
GAY EHLER, Trustee of the Abbott W. Geyer Trust of 1997, et al.,
Plaintiffs
v. ORDER AND JUDGMENT (TITLE TO REAL ESTATE AFFECTED)
CHARLES RUSSELL,
Defendant
. THE PARTIES - The Plaintiffs are Gay Ehler of 23 Dovetail Lane in Dover, New
Hampshire, Cornelia V. Rathbone of 2 Woodland Street in Palmer, Massachusetts,
David W. Stonebraker of Hebron, Maine, Peter W. Stonebraker of Deerfield, Illinois,
Leslie Karen Stonebraker of Sharon, Massachusetts, and Sandra Marion Stonebraker of
Sharon, Massachusetts. They were represented by Matthew W. Howell of York,
Maine.
The defendant is Charles Russell of Lebanon, Maine. He was represented by
Christopher E. Pazar of Portland, Maine.
DOCKET NUMBER- The docket number is CV-10-49.
NOTICE- All parties have received notice of the proceedings in accordance with
the applicable provisions of the Maine Rules of Civil Procedure.
THE REAL ESTATE - The Plaintiffs are members of an extended family who
share ownership of approximately 13 acres on the northerly side ofT. M. Wentworth
Road in Lebanon, Maine. Their property abuts Milton Pond and is designated as Tax Map U-13, Lot 20. Also see deeds at Book 8616, page 121, Book 15276, page 656, and
Book 11457, pages 54, 56,58 and 60.
The defendant owns land along Pickerel Cove of Milton Pond to the west of the
plaintiffs' land. See Book 14448, page 469 and Tax Map U-13, Lot 16.
The disputed real estate is approximately 1.5 acres in size and contains the
defendant's home, garage and most of his deck. The area is the dotted shaded area
shown on the Boundary Line Plan for a Portion of the Property off T. M. Wentworth
Road, Lebanon, York County, Maine, of November 18, 2009 prepared by Kenneth D.
Markley of North Easterly Surveying, Inc. of Kittery, Maine. See Defendant's Exhibit 6.
THE PLEADINGS
The plaintiffs have filed an amended complaint which consists of a request for a
declaratory judgment in Count 1 and a quiet title action in Count 2. Both counts seek a
determination that they, and not the defendant, own the disputed area.
The defendant has answered and filed a four-count counterclaim. Count I seeks
a declaratory judgment that defendant is the owner of the disputed area. Count II
seeks ownership of the disputed area and an additional area near the defendant's well
based on the doctrine of adverse possession. Count III seeks title by acquiescence
while Count IV seeks the same result based on estoppel. The case has been tried and
argued.
THE BOUNDARY
Each party presented the testimony of a surveyor in an attempt to. determine
where the common boundary was. The difficulty in this case, as with many larger,
older parcels, is that the original deeds were abutters deeds describing the parcels as
being bound by land of other people. While the location of a road and the pond can be
readily determined, where the ill-defined boundary of a former property owner's land
2 was is much more difficult. References have been made to natural objects that no
longer exist and errors have been made in the few measurements that do exist. The
task of locating number free boundaries where no precise directions or any distances
exist is challenging. Even lot size estimates proved unreliable.
I am overall more convinced that the boundary by deed is as suggested by the
plaintiffs. Mr. Markley filed a survey report outlining his reasons, which I found more
convincing than the defendant's presentation.
However, the boundary must be modified based on adverse possession. The
defendant has demonstrated that he, or his predecessors in title, has met all of the
requirements to obtain ownership of a portion of the disputed property. See Striefel v.
Charles-Keyt-Leaman Partnership, 1999 ME 111, years ago owners, including a William Trainor, used a substantial portion of the disputed area for a tennis court, parking and a helicopter pad. Also, see the photos in evidence and the testimony of Thaddeus Barbour. The plaintiffs were fully aware of these "encroachments" and, in part, because of either a hope of selling the land or because of the divided family ownership did nothing. Likewise a portion of the land near the defendant's well which is clearly owned by the plaintiffs has been acquired by adverse possession. The defendant has acquired ownership through adverse possession to a portion of the dotted disputed area shown on the Boundary Line Plan of November 18, 2009. The defendant has acquired ownership of the area on the westerly half of the peninsula or point extending into Milton Pond. He has also acquired ownership from the pond heading generally southerly past the retaining wall, existing garage, paved driveway, deck and existing house to the tree line. The defendant has lastly acquired title to the land to the east of the dark solid line showing the boundary as found by North Easterly 3 Surveying, Inc. to the Approximate Treeline". 11 This area includes the well now used by the defendant. The alternative claims of the defendant in Counts III and IV of the counterclaim need not be resolved. The entries are: Judgment for the plaintiffs in part on Counts 1 and 2 of the amended complaint. It is declared that according to the deeds of the parties and based on the Boundary Line Plan of November 18, 2009 by North Easterly Surveying, Inc. they were the record owners of the disputed parcel. Judgment for the plaintiffs on Count I of the counterclaim. Judgment for the defendant on Count II of the counterclaim. The defendant is the owner by adverse possession of the disputed area on the point, the disputed area north of the tree line to the pond and that portion of the area owned by the plaintiffs from the easterly boundary of the disputed area to the Approximate Treeline" including the well. See II Exhibit A to this order and judgment showing area acquired by adverse possession that is not on the point. Counts III and IV of the counterclaim are dismissed. No costs to any party. The defendant shall record an attested of the judgment and pay the appropriate recording fees. Dated: July 15, 2011 {?u..f1;.:4--'i 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, Superior Court 4 . \ LAND CLAIMED BY GEYER, RATHBONE "/;~ ·~ ~ AND STONEBRAKERS (LOT 20) AND CHARLES RUSSELL (LOT 16) ~. ·~. [POSSIBLE ENCROACHMENTS) 't>~ ~· r:OVE" \ \ N/F - ~ ROBERT & TERESA ENOS TAX MAP U-13 LOT 16A ' Y.C.R.D. BOOK 14028 PAGE 595 N/f- '\_ ' ~ ~ TERESA ENOS '\. I U-13 LOT 15 "'""" < 14028 PAGE 595 . ' ' . ' . , ' ........ ' ............. ................ .. . ·, : ~ _y/_.// / I • I I • fIt t I.' I • t t t tIt f ········ Ella E. C~yer ........... . . • . . ' vo . Y. C R D B k 499. 227 . · ' .. · ... ' . ' .. -- - Edge Of Povernent\.!.:;: . • . • • . /' • • • . . • ....... .... 00 0 rage ............. . Dated May 11, 1£!99 \ ··~:···· t I I. If I I I
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