Fluckiger v. Bayley

• Court: Superior Court of Maine
• Decided: October 31, 2013
• Docket: YORcv-12-159
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CNILACTION YORK, ss. DOCKET NO. CV-12-1,59 PAF -yo~-- tD/31 j;;_ot3 I / ~

DEBRAH L. FLUCKIGER, GREGG FLUCKIGER and JEAN ROY, KELLY S. ROY and JASON E. WHEELER, KAREN M. WHEELER f/ k/ a KAREN M GAGNON,

Plaintiffs

v. ORDER

FRED BAYLEY, KATHLEEN BAYLEY, and JULIE BAYLEY and SHAWN CAHILL,

Defendants

I. Background

In 2001, Richard C. Sawtelle divided Lot 7 on Swan Pond in Lyman, ME into the

Sawtelle Acres Subdivision. (De£. Supp. S.M.F. <][ 1.) Sawtelle divided the lot into six,

Lots 7A-7F. Id. and recorded a plan of the division at the York County Registry of

Deeds. See Plan Book 263, Page 22. Lot 7A borders on South Waterboro Road. Lots 7B,

7C, 7D, and 7E are back lots and do not have road frontage. (De£. Supp. SMF <][<][ 8,9.)

Access to Lots 7C, 7D, and 7E is provided by an easement named "Vema Lane", which

runs through Lots 7A, 7C and 7D. (De£. Supp. SMF <][<][ 8, 9.) Lots 7B and 7F do not have

frontage to Verna Lane. Id.

Additionally, Lots 7A, 7C, 7D, and 7E were all deeded access to the beach on

Swan Pond along with access to a nearby fireplace and picnic area. (De£. Supp. S.M.F. <][

16.) The exact locations of these spots were not defined, and are currently disputed. (De£. Supp. S.M.F. 1117-20; Pl. Opp. S.M.F. 1117-20.) The deeds permit access to Swan

Pond by way of a woods road and paths. (De£. Supp. S.M.F. 1 23.) Instead of using

Woods Road, the owners of Lots 7A, 7C, 7D, and 7E cross over Lot 7E, and possibly part

of Lot 7F, in order to reach the beach and picnic areas. (De£. Supp. S.M.F. 124; Pl. Opp.

S.M.F. 1 24.)

The deeds create restrictions on the use of the beach, fireplace, and picnic area

and reserve to the grantor the right to post new rules in the picnic area. (De£. Supp.

S.M.F. 116.) Sawtelle posted rules for the beach, fireplace, and picnic areas at the time

of the creation of the subdivision. (De£. Supp. S.M.F. 132.) The rules written and posted

by Sawtelle have since been removed and replaced with new rules. (De£. Supp. S.M.F. 1

33.) On January 11, 2013, Julie Bayley conveyed to Fred Bayley a corrective deed

including the right to post restrictions and conditions on the use to the beach and picnic

areas. (De£. Supp. S.M.F. 1 37.) This right had been inadvertently conveyed to Julie

Bayley by the Estate of Richard C. Sawtelle on March 30,2007. Id.

Defendant Fred Bayley intends to construct a home on Lot 7F. (De£. Supp. S.M.F.

114.) In order to access the proposed structure, Defendant Fred Bayley has extended

Ryan's Lane, a fire access road that runs from South Waterboro Road through Lots 7A

and 7B, near the boundary line of Lot 7E. Defendant Fred Bayley erected a silt fence

two to three feet tall for the purpose of the construction of the road. (De£. Supp. S.M.F. 1

26.) The road extension displaced the previous fireplace. This court ordered the

rebuilding of the fireplace at the spot of defendants' choice. (Order on Pl' s Consolidated

Motion for Ex Parte T.R.O. (June 29, 2012).)

Plaintiffs include Jean and Kelly Roy, who are the owners of Lot 7C; Jason

Wheeler and Karen Wheeler, who are the owners of Lot 7D; and Deborah and Gregg

Fluckiger, who are the owners of Lot 7E. They have brought a nine-count complaint

2 against Julie Bayley who owns Lot 7A; Julie Bayley and Shawn Cahill, who owned Lot

7B; and Fred and Kathleen Bayley, who ownLot 7F. Ms. Bayley and Mr. Cahill are now

divorced and it has been represented that he has no remaining interest in Lot 7B or this

dispute. In Count I, Plaintiffs seek a declaratory judgment from the court concerning

their right to use the beach, fireplace, and picnic area. Count II is an action for

declaratory judgment as to the reasonableness of the most recent rules. Count III is a

claim for injunctive relief to enjoin Defendants from interfering with Plaintiffs' use of

the beach and picnic area. Counts IV and VI seek declaratory judgment that Lots 7B and

7F do not have a right to access Verna Lane. Counts V and VII seek injunctive relief to

enjoin the use of Verna Lane by the owners of Lots 7B and 7F. Count VIII seeks

declaratory judgment of Plaintiffs' rights to use Woods Road and pass over Lot 7F to

reach Swan Pond. Finally, Count IX seeks injunctive relief enjoining Defendants from

interfering with Plaintiffs' usage of Woods Road and passing over Lot 7F to reach Swan

Pond. The counts have been renumbered to reflect a clerical error in the complaint. The

Defendants have filed a counterclaim seeking a declaratory judgment. Defendants have

moved for summary judgment on all counts. Plaintiffs have filed a cross motion for

partial summary judgment moving the court to find in their favor on Counts II, IV, V,

VI and VII.

II. Standard of Review

Summary judgment is appropriate where no genuine issue of material fact exists

and the moving party is entitled to judgment as a matter of law. Beal v. Allstate Ins. Co.,

2010 Me 20, 111, 989 A. 2d 733; Dyer v. Dept. of Transp., 2008 ME 106, 114; 951 A.2d

821. When reviewing a motion for summary judgment, the court reviews the parties'

statements of material facts and the cited record evidence in the light most favorable to

the non-moving party. !2y§:, 2008 ME 106, 114.

3 A genurne 1ssue of material fact exists where the fact finder must make a

determination between differing versions of the truth. Reliance Nat'l Indem. v. Knowles

Indus. Servs., Corp., 2005 ME 29,

Bank of Me., 2003 ME 20,

affect the outcome of the case." Reliance Nat'l Indem., 2005 ME 29,

III. Discussion

A. Count I and Count III: Declaratory Judgment and Injunctive Relief-Use of Beach, Fireplace, and Picnic Area

Plaintiffs have brought a claim asking the court to declare their rights to use the

beach, fireplace, and picnic area on Lot 7F. "The scope of an interest in land conveyed

by deed is determined solely from the language of the deed, if that language is

unambiguous." Rancourt v. Town of Glenburn, 635 A.2d 964, 965 (Me. 1993). The

language included in the deeds to Lots 7A, 7C, 7D, and 7E is as follows:

This conveyance also includes the right to use the beach on Swan Pond and the adjoining picnic area with a fireplace to be located thereon. This easement is limited to the beach and the cove on said pond (and the adjoining picnic area) and includes access to and from said beach and picnic area over the driveway on land of grantor herein, leading from Frost Road, and over a woods road and path, which connect with said driveway. This easement is for the benefit of the grantees herein, their heirs and assigns in common with the grantor herein, his heirs and assigns, members of the grantor's family and with the owners of the other lots designated on the Plan of Sawtelle Acres (also see Plan recorded in said Registry of Deeds at Plan Book 254).

The following conditions and restrictions apply to the use of the beach and picnic areas:

No alcoholic beverages of any kind are to be used at any time on the beach or picnic areas.

Other conditions and restrictions as to fires, boating, curfew and the like will be posted from time to time by the grantor herein at the picnic area.

Violation of any of these conditions and restrictions will result in either permanent or limited termination by the grantor of the right to use of the beach and picnic areas.

4 (De£. Supp. S.M.F.

this interest as an easement.

The parties dispute whether the easement is in gross or appurtenant to Lots 7A,

7C, 7D and 7E. An easement appurtenant is created to benefit the dominant estate and

runs with the land. Stickney v. City of Saco, 2001 ME 69,

easement in gross is not an interest pursuant to ownership of another estate in land,

"but is a mere interest in or right to use the land of another." Id. at

gross is generally not assignable and will terminate on the death of the individual for

whom it was created. 2 Id. Maine law requires that, whenever possible, an easement be

construed as appurtenant to the land of the person for whose use the easement was

created. Id. at

In the current case, the deeds include language of conveyance referring to the

easement being intended to benefit the grantees and their heirs and assigns.

Additionally, they refer to the other lot owners in the subdivision. A strict reading of

the instrument suggests that the easement was intended for lot owners of the

subdivision in perpetuity subject to the restrictions described therein. The deed can

fairly be construed to grant an easement appurtenant. Therefore, the court must

The deeds conveyed to the Wheelers, the Fluckigers, and the Roys are very similar. The language concerning use of the beach and picnic is different in the following ways: the Fluckigers' deed states that the easement is also for the benefit of the "owners of the other lots designated on the Plan of Sawtelle Acres." (Pl. Opp. S.M.F.

5 construe the deed in that fashion. See ALC Dev. Corp. v. Walker, 2002 ME 11, 114, 787

A.2d 770.

The parties dispute the boundaries of the easement and the exactlocation of the

beach, fireplace, and picnic area referred to in the deed. "In the face of imprecision in a

grant, the same types of extrinsic evidence that can be considered for the use of an

easement are applicable to determine its location." Anchors v. Manter, 1998 ME 152, 1

20, 714 A.2d 134 (emphasis in the original). The court must "ascertain the objectively

manifested intention of the parties in light of circumstances in existence recently prior

to the conveyance, such as the relation of the parties, the nature and situation of the

dominant and servient property, and the apparent purpose behind the grant." Guild v.

Hinman, 1997 ME 120, 1 7, 695 A.2d 1190, (citations omitted). Where the beach,

fireplace, and picnic area were intended to be prior to and at the time of the 2001

conveyance is a question of fact. Because the scope of Plaintiffs' interests in the beach,

fireplace, and picnic area depends upon defining the location of those areas, and the

determinations of those locations are questions of fact, this determination of interests is

inappropriate for summary judgment.

Plaintiffs argue that they have a right to access the beach, fireplace, and picnic

area over a path through Lot 7E on the basis that the Fluckigers, the owners of Lot 7E,

granted Plaintiffs permission to cross over their lot. The Fluckigers may grant

whomever they choose permission to cross over Lot 7E. The Fluckigers do not have the

authority to independently grant access over Lot 7F, owned by Fred and Kathleen

Bayley. Whether Plaintiffs only need to cross Lot 7E in order to reach the beach,

fireplace, and picnic areas depends on the determinations the locations of those areas.

6 The court denies summary judgment on the issue of whether Plaintiffs have a right of

access to the beach, fireplace, and picnic area over Lot 7E. 3

Plaintiffs brought an action for injunctive relief asking the court to enjoin

Defendants from interfering with use of their easement to the beach and picnic area.

Again, the exact locations of the beach and picnic areas are questions of fact. The court

must first determine the location of the easement before making a determination as to

whether Defendants have interfered with Plaintiffs' rights or obstructed Plaintiffs' use

of the easement. Summary judgment is denied on Count III. 4

B. Count II: Declaratory Judgment- Posted Rules

The parties have filed cross motions for summary judgment on Plaintiffs' Count

II asking the court to declare the rules posted by Defendants unreasonable and

unenforceable. The issues before the court are whether Defendants had authority to

post and enforce the rules and whether the rules were reasonable.

The language of the deeds set certain restrictions and permit the posting of

further restrictions by the "grantor". Plaintiffs argue that a strict interpretation of the

language of the deed allows only the original grantor, Sawtelle, to post new conditions

or restrictions. Plaintiffs allege that because the deeds use the language of succession to

grant access to the beach, fireplace, and picnic areas to the successors in interest of the

property, and fail to use language of succession in describing the ability to post

3 Plaintiffs allege that in 2001, when Lot 7 was divided, Sawtelle intended for the owners of Lots 7C, 7D and 7E to pass over Lots 7E and 7F in order to reach the beach and picnic area. As evidence they cite to language in the Roys' deed granting access to the beach and picnic area over Sawtelle's driveway. (Pl. Opp. S.M.F. ~ 16.) Plaintiffs' cited evidence is insufficient to prove as a matter of law that Mr. Sawtelle intended for the owners of Lots 7C, 70, and 7E to have an access easement other than that explicitly stated in the deeds.

Defendant cites to the Department of Environmental Protection issued permit as proof that Defendants are not interfering with Plaintiffs easement rights. (Supp. S.M.F. ~ 25.) The purpose of DEP site plan review is to ensure that projects that may have a substantial effect on the environment are not harmful. Department of Environmental Protection (2013) http:/ /www.maine.gov/ dep/ about/index.html. The issuance of a permit by the DEP is not evidence of exclusive rights to use of land.

7 restrictions and conditions on the use of the beach and picnic area, Sawtelle did not

intend for the right to run with the land. Defendants argue that the ability to post

restrictions runs with the land and is now held by Fred and Kathleen Bay ley.

There is no evidence presented to the court that Sawtelle intended the ability to

post and enforce new rules to run with the land. The deed conveyed by Sawtelle to the

Roys has a variation on the phrasing of the continued right to post restrictions. It states

/JOther conditions as to fires, boating, curfew and the like will be posted from time to

time at the picnic area. Violations of any of these conditions and restrictions will result

in either permanent or limited termination by Richard C. Sawtelle of the right to use the

beach and picnic area." (Pl. Opp. S.M.F. 9[ 16.) Sawtelle reserved the right to enforce the

rules to himself. The court interprets the language of the reserved right to post new

rules as similarly reserving the right to Sawtelle alone. See Rancourt, 635 A.2d at 965

(Me. 1993). Summary judgment is granted to Plaintiffs. 5

Because the court finds that Defendants do not have the authority to post rules,

the court does not reach the issue of whether the rules themselves are reasonable.

C. Count IV and Count VI - Declaratory Relief-Verna Lane

The Plaintiffs have requested that the court declare that Lots 7B and 7F have no

right of access over Verna Lane. Defendants move for summary judgment on the basis

that there is no justiciable controversy. /JFor a case to be ripe there must be a 'genuine

controversy' and a 'concrete, certain, and immediate legal problem. 111 Marquis v. Town

of Kennebunk, 2011 ME 128, 9[ 18, 36 A.3d 861 (citing Johnson v. City of Augusta, 2006

ME 92, 9[ 7, 902 A.2d 855).

Furthermore, if the court were to determine that Defendants had the authority to post rules, that authority would be held by Defendants Fred and Kathleen Bayley because of their status as successors in interest to Sawtelle and because of the corrective deed executed on January 11, 2013. Defendant Fred Bayley has stated that he did not write or post the new rules. (Pl. Opp. S.M.F.135.)

8 Property, although subject to an easement, remains within the ownership and control of the owner of the servient estate. That ownership and control is subject only to the restriction that the owner of the servient estate not "materially impair" or "unreasonably interfere with" the use of the right-of-way that is allowed by the easement. This principle is further limited to application only within the bounds of the easement. The owner of the servient estate "has the right to use its land in a manner not inconsistent with the dominant estate holder's right."

Flaherty v. Muther, 2013 ME 39, 9I 21, 65 A.3d 1209 (citations omitted). Easement

holders do not hold the right to exclude others.

Verna Lane crosses over Lot 7A. Defendant Julie Bayley owns Lot 7A. Defendant

Julie Bayley has the right to use her property, including Verna Lane, as long as the use

does not materially impair the easement rights of Lots 7C, 7D, and 7E. 6 Defendant Julie

Bayley has granted permission to the owners of her other parcel, Lot 7B, and to the

owners of Lot 7F to use Verna Lane. Allowing two additional parcels to use Verna Lane

does not materially impair the easement rights of the dominant estates. There is no

current controversy. The issue is not ripe. Summary judgment is granted for Defendants

on the issue of Declaratory Judgment of access to Verna Lane by Lots 7B and 7F.

D. Counts V and VII- Injunctive Relief- Use of Verna Lane by Lot Owners of 7B and 7F

Plaintiffs have sought injunctive relief concerning the use of Verna Lane by the

owners of Lots 7B and 7F. Defendants move for summary judgment on this claim

arguing that Plaintiffs have not alleged sufficient harm to meet the burden for obtaining

injunctive relief. Plaintiffs have filed a cross motion for summary judgment on the

claim. Injunctive relief is awarded where Plaintiffs have shown:

(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 exhibited a likelihood of success on the merits (at most, a probability; at least, a substantial possibility),

The deeds conveyed to the Wheelers, the Fluckigers, and the Roys all include Lots 7A and 7B in the grant of the easement over Verna Lane. The deeds conveyed to the Wheelers and the Roys both include Lot 7E as well. (Pl. Opp. S.M.F. <][8.)

9 (4) that the public interest will not be adversely affected by granting the injunction.

Ingraham v. Univ. of Maine at Orono, 441 A.2d 691,693 (Me. 1982).

Plaintiffs argue that the use of Verna Lane by Lots 7B and 7F has increased

traffic, eroding their easement interests. Furthermore, Plaintilfs argue that the

placement of trees and boulders on the side of the road at the intersection of the new

road and Verna Lane interferes with their easement rights. (Pl. Opp. S.M.F.

Law Court has found that a small increase in traffic over an easement does not amount

to interference with the use of an easement. Gutcheon v. Becton, 585 A.2d 818, 822 (Me.

1991) ("It is well settled that a mere increase in the volume of traffic across the access

road will not constitute a per se overburdening.") Plaintiffs' allegations of increased

traffic do not at the proposed level rise to the level of overburdening.

As mentioned in the discussion of Counts IV and VI, ''The owner of the servient

estate 'has the right to use its land in a manner not inconsistent with the dominant

estate holder's right."' Flaherty v. Muther, 2013 ME 39,

omitted). There has been no evidence presented that the trees and boulders placed by

the side of Verna Lane are inconsistent with the rights of the dominant estate holders to

access the easement. Plaintilfs have not been impeded in using the full easement, nor

have they been unable to access their properties by way of Verna Lane. Plaintilfs have

not suffered irreparable injury as a result of the use of Verna Lane by the owners of Lots

7B and 7F or the placement of boulders by the side of Verna Lane. Summary Judgment

is granted to Defendant with respect to Plaintilfs claim of injunctive relief for the use of

Verna Lane by Lots 7B and 7F.

10 E. Counts VIII and IX- Declaratory and Injunctive Relief on #Woods Road and Path"

Plaintiffs have brought claims for declaratory and injunctive relief to define and

enforce their easement over Woods Road also referred to as a woods road and path to

Swan Pond. Woods Road appears to end significantly short of Swan Pond. (Pl. Add.

S.M.F. 11 92,93.) Plaintiffs ask the court to define the path of their easement to the water

and to declare Defendants in violation of the easement. Defendants move for summary

judgment on the basis that they claim Defendants have never interfered with Plaintiffs'

easement. (De£. Supp. S.M.F. 130.)

The location of the path of Plaintiffs' easement from the Woods Road to Swan

Pond is a question of material fact. The court is not able to make a determination on

whether the easement has been honored without first determining the location of the

easement. Summary Judgment is denied as to both Counts VIII and IX.

IV. Conclusion

The court grants summary judgment to Defendants on Counts N, VI, V and VII.

The court grants summary judgment to Plaintiffs on Count II.

The court denies summary judgment on Counts I, III, VIII and IX.

Judgment for the Plaintiffs on the counterclaim.

Dated: October 31, 2013 Paul A. Fritzsch~ ' Justice, Superior Court

11 ATTORNEYS FOR PLAINTIFF; THOMAS AINSWORTH JOHN TURCOTTE AINSWORTH THELIN & RAFTICE PA PO BOX 2412 SOUTH PORTLAND ME 04116

ATTORNEY FOR DEFENDANT: GENE LIBBY LIBBY O'BRIEN KINGSLEY & CHAMPION LLC 62 PORTLAND RD UNIT 17 KENNEBUNK ME 04043