STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. BCD-REA-2023-00007
MONTAGU REID HANKIN and ) BONDIE HANKIN, ) ) Plaintiffs, ) ) ) ORDER GRANTING PLAINTIFFS' V ) MOTION FOR TEMPORARY ) RESTRAINING ORDER AND ) PRELIMINARY INJUNCTION SARAH B. SEWALL and ) THOMAS P. CONROY, ) ) Defendants, ) ) And ) ) GUN CLUB, INC., et al. ) ) Parties-in-Interest. )
BACKGROUND
Before the court is a Motion for Temporary Restraining Order and Preliminary Injunction
filed by Montagu Reid Hankin and Bondie Hankin (together, the "Plaintiffs") in the above
captioned matter. Plaintiffs, through their motion, request this court enter a temporary
restraining order against Defendants Sarah B. Sewall and Thomas P. Conroy (together, the
"Defendants") enjoining them from interfering with, impeding, blocking, gating, interrupting, or
threatening, in any way, Plaintiffs' use, passage, and easement rights over and across Navy Road
in the Town of Phippsburg, State of Maine.
FACTUAL ALLEGATIONS The court recites the factual allegations from Plaintiffs' Verified Complaint for the
purpose of deciding Plaintiffs' Motion for Temporary Restraining Order and Preliminary
Injunction.
I. Location of Navy Road
The parties' properties are within the area of land depicted in and described by a certain
Plan of Lots by Motion & Quimby, dated January 1, I 896. (V. Comp!. ~ 90.) That plan also
shows proposed roads and lots in connection with future development of the depicted land,
which necessarily includes Navy Road. (V. Comp!. ii 91.)
Until the early 1960s, Navy Road existed as a cart path between Seal Cove Road and
Small Point in Phippsburg. (V. Comp!. ilil 91-92.) During the 1960s, the United States
Government developed Navy Road as a means to access the Rake Station located at the south
end of Small Point. (V. Comp!. ~ 93.) To do so, the government acquired easements from
various landowners of properties along Navy Road between the Seal Cove Road junction and
Small Point. (V. Comp. ~ 93.) A governmental survey shows that Navy Road was constructed,
in part, over existing cart paths and other roads, and that it crosses areas shown as roads
proposed for future development in the Morton & Quimby Plan.' (V. Comp!.~ 93.)
According to the Defendants, they are the owners of part of the eastern half of Navy
Road, which is within their lot. (See Defs.' Opp'n Pis.' Mot. forTRO, 1.)
II. Use of Navy Road to Access Plaintiffs' Property
Plaintiffs reside at the property located at 116 Navy Road in Phippsburg, Maine, which
they acquired by deed dated March 25, 2021 (the "Hankin Property"). (V. Comp!.~~ 1, 15.)
Defendants, who reside in Natick, Massachusetts, own the real property located at 44 Navy Road
1 The governmental survey is entitled "U.S. Naval Air Station, Brunswick Maine Boundary and Easement Plan Proposed Rake Sta. No, 2 and Access Road, Phippsburg, Maine," dated December 14, 1969, and recorded with the Sagadahoc County Registry of Deeds. (V. Comp!.~ 93.)
2 as trustees of the Sarah B. Sewall Revocable Trust and the Thomas P. Conroy Revocable Trust,
which they acquired by deed dated December 18, 2021.' (V. Comp!. ,r,r 2, 156.) The owners of
the other properties abutting Navy Road are named parties-in-interest in this lawsuit. (V. Comp!.
,r,r 3-14, 18-30.) The Hankin Prope1ty was previously owned by Plaintiff Montagu Reid Hankin 's
grandmother, Marcia 1-1. Gallup, during the 1950s, and then passed to his mother, Marcia Gallup
Hankin, during the early 1970s. (V. Comp!. 1133.) During 1976, Marcia Gallup Hankin retained
a builder to construct a home there, which was constructed consistent with municipal approvals
and according to a septic easement from Patty-in-Interest Gun Club, Inc. (V. Compl. ,r,r 35, 38.)
The home was built with insulation and heat for year-round usage. (V. Compl. 11 36.) Since that
time, under Plaintiffs' family's ownership the Hankin Property and home were and continue to
be continuously occupied by Plaintiffs' immediate family, during both summer and winter
months. (V. Comp!. 111139-41, 46.)
Between 1976 and 2010, Plaintiffs, their friends and family utilized the Hankin Property
from time to time each year and accessed it from Navy Road. (V. Comp!. 11if 42, 99.) Because
many of these visits occurred during wintertime, Plaintiffs have paid for plowing of Navy Road.
(V. Comp. ,r,r 41, 96.) Plaintiffs, their friends and family accessed the Hankin Property by car
across Navy Road during this period, without objection by or permission from Defendants or any
other party.' (V. Comp!. il11 34, 37, 42, 82.) Likewise, contractors driving construction trucks
and other service providers utilized Navy Road to service, repair or maintain the Hankin
Property. (V. Comp!. ,r 43.)
2 Beforehand, Sewall and Conroy owned their Small Point property in their induvial capacities. JThe Hankin Property was accessed almost exclusively by car, except for occasions when Plaintiff5 hiked in. (V. Compl. 1[ 96.)
3 Marcia Gallup Hankin deceased during 2010. (V. Comp!. ii 42.) Plaintiffs held title to
the Hankin Properly between 2010 and 2020 through their limited liability company owned by
Plaintiff Reid Hankin and his siblings. (V. Comp!. ~ 44.) They continued their use of Navy
Road to access the Hankin Property during this period. (V. Comp!. ii 44.) During 2020 or 2021,
Plaintiffs acquired the siblings' interest in the Hankin Property and became the sole, individual
owners thereof. (V. Comp!. ii 45.) Then, they moved to Maine from New York and began to live
at the Hankin Property full time. (V. Comp!. ~ 46.) Due to their use of Navy Road, Plaintiffs
have made numerous contributions to its maintenance, including plowing and making repairs
after a large storm. (V. Campi. ~~ 96, 98.) Defendants also contributed to such repairs. (V.
Comp!.~ 98.)
On or about January 23, 2021, Plaintiffs received a letter from Defendants that, for the
first time, called into question Plaintiffs' and their predecessors-in-titles' right to use Navy Road.
(V. Comp!. ~~ 57, 109.) Until then, Defendants had affirmed others' use of Navy Road,
including Plaintiffs'. (V. Comp. ii I03 .) Through the letter, Defendants notified Plaintiffs that
they would not have year-round access over Navy Road, and that they should seek alternative
access to the Hankin Property via Gun Club Road. (V. Comp!. ~ 58.) The Hankin Property has
never been accessible from Gun Club Road; the intervening area is thickly vegetated and steep,
and it contains ledge. (V. Comp!.~~ 59-60, 99, 109.)
In response to Defendants' letter, Plaintiffs and other members of the Small Point
community notified Defendants that Plaintiffs have lawful access over Navy Road and that said
access is necessary to reach the Hankin Property. (V. Comp!. ~ 61.) Nonetheless, Defendants
proceeded to install a gate across Navy Road to the south of Defendants' driveway and north of
Plaintiffs'. (V. Comp!.~ 62.) Defendants threatened to lock the gate and to refuse southbound
4 vehicular passage on Navy Road below the gate as of October 15, 2022. (V. Compl. ~ 62.) The
gate is installed such that it only blocks vehicular access to the properties located to the south of
Defendants' property, which includes the Hankin Property. (V. Comp!.~~ 63, 75-76.)
When the gate was installed during October of 202 l, Defendants locked it and provided
Plaintiffs with a key. (V. Compl. ii 65.) The gate remained locked throughout the winter of2021
and 2022, which required the Plaintiffs to exit their vehicle, unlock and open the gate, drive
through it, then exit their vehicle again to close and lock the gate before accessing their prope11y.
(V. Compl. ~ 66.) Each Plaintiff fell on at least one occasion when they were working the gate.
(V. Comp!. ii 67.) Plaintiffs were required to leave their home to open and close the gate each
time their guests or service providers arrived and departed, and each time their snow contractor
anived to plow Navy Road. (V. Compl. ~~ 69-71, 80.)
When Plaintiffs left the gate unlocked to ensure that it would not freeze, Defendants
complained and, through counsel, told Plaintiffs that they must lock the gate at all times or else
Defendants would pcnnancntly lock it. (V. Compl. ilil 72-73.) Plaintiffs, hopeful to keep the
neighborhood peace, complied. (V. Compl. ~ 74.) However, Plaintiffs complain that Defendants
located the gate where it is intentionally to hassle and inconvenience Plaintiffs. (V. Compl. ii
76.)
Defendants also blocked Navy Road during the summer months by closing the gate,
drawing a rope from the gate across the ungated portion of Navy Road, and by parking their ear
in front of the gate. (V. Comp!. ~ 78.) This prevented or delayed certain of Plaintiffs'
contractors from accessing the Hankin Property, perfom1ing work there, and from departing from
the Hankin Property. (V. Compl. ~~ 78, 80.) During the summer of 2022, Defendants asked to
5 meet with Plaintiffs and then informed them that Plaintiffs must relocate their driveway because
they planned to lock the gate on October 15 that year. (V. Comp!. ,iii 81, 83.)
If Defendants maintain the locked gate across Navy Road, it will render the Hankin
Property and Plaintiffs' home there inaccessible by vehicle. (V. Comp!. i1,i 84, 99.) Emergency
personnel and Plaintiffs' service providers will not be able to access the Hankin Property. (V.
Comp!. ilil 84-85.) Plaintiffs and other owners of the properties along Navy Road have declared
their rights to use Navy Road to access their properties. (V. Comp!. ,i 86.)
TEMPORARY RESTRAINING ORDER STANDARD
The party seeking a temporary restraining order ("TRO") must demonstrate that the
following elements are satisfied: (I) the movant will suffer irreparable injury if the TRO is not
granted; (2) such injury outweighs any harm which granting the TRO would inflict on the
adverse party; (3) the movant has a likelihood ofsuecess on the merits; and (4) the public interest
will not be adversely affected by granting the TRO. Bangor Historic Track, Inc. v. Dep 't of
Agric., Food & Rural Res., 2003 ME 140, ,i 9, 837 A.2d 129 (citation omitted); see also M.R.
Civ. P. 65(a).
Each of these four elements must be established by a preponderance of the evidence. See
Cumberland Farms, Inc. v. Everett, 600 A.2d 398, 399 (Me. 1991). "A court does not consider
these elements in isolation, but weighs all the criteria together in dete1111ining whether injunctive
relief is proper in the specific circumstances of the case." Windham Land Tl'. v. Jeffords, 2009
ME 29, ,i 41, 967 A.2d 690 (discussing injunctive relief generally) (citation omitted). Nonetheless, a moving party's failure to demonstrate any of the four elements or criteria requires
denial of the requested TRO. Bangor Historic Track, Inc., 2003 ME 140, ,i 10, 837 A.2d 129
(citation omitted).
6 DISCUSSION
Plaintiffs' Verified Complaint includes counts for declaratory, equitable, and injunctive
relief primarily relating to their claimed right to access the Hankin Property by and over Navy
Road.' (V. Compl. ilil 115-130, l 63-172.) Plaintiffs base this claim on an alleged express
easement (Count III), easement by prescription (Count IV), easement by estoppel (Count V), or
easement by necessity (Count VI). (V. Compl. ,r,r l 31-146.) Because the court finds the present
record is sufficient to grant Plaintiffs' motion insofar as it seeks temporary injunctive relief
related to the claimed easement by prescription, the coU1t's discussion is limited to Plaintiffs'
Count IV.
I. Whether Plaintiffs will suffer irreparable iujury if the TRO is not granted.
A TRO may be granted only if specific facts alleged by affidavit or in a verified
complaint clearly show that "immediate and irreparable injury, loss, or damage will result" to the
moving party without such an order. Bangor Historic Track, Inc., 2003 ME 140, ,r 10, 837 A.2d
129 (citing M.R. Civ. P. 56(a)). "Irreparable injury" is defined as "injury for which there is no
adequate remedy at law." Id. (citations omitted). Wrongful and persistent interference with
another's legitimate and material right to access their property constitutes an irreparable injury.
See Stanton v. Strong, 20l2 ME 48, ii 11, 40 A.3d 1013. This is because "the owner ofan estate
that is servient to an easement may not make a use of the servient land which impairs effective
use of the easement within the bounds of the easement." Id. ii 10 (quoting Badger v. Hill, 404
A.2d 222, 227 (Mc. l 979)).
Plaintiffs satisfied their burden of proof concerning their itTeparable mJury. Unless
Defendants are enjoined from maintaining the locked gate across Navy Road, Plaintiffs, their
4 Plaintiffs also assert claims under theories of boundary by acquiescence (Count VII) and nuisance (Count VIII). (V. Campi. 1111147-162.)
7 guests and service providers will not be able to freely access the Hankin Property and Plaintiffs'
home. Plaintiffs cannot access the Hankin Propetty via any other route, such as Gun Club Road.
Construction of a way from the Hankin Property to Gun Club Road is not feasible. Thus,
Plaintiffs' injury, Defendants' alleged persistent interference with Plaintiffs' right to access their
property, is not readily reduced to damages. This factor favors granting Plaintiffs' requested
TRO.
II. Whether Plaintiffs' claimed injury outweighs any harm that granting the TRO would inflict upon Defendants.
Plaintiffs alleged injury is described above. In opposition to Plaintiffs' motion,
Defendants claim that maintenance of the locked gate across Navy Road is necessary to protect
their privacy and to prevent damage to Navy Road. The cutTent record does not make clear
whether these are actual issues, or merely speculative concerns. Accordingly, Plaintiffs' claimed
inability to freely access their property that would result without a TRO outweighs these harms.
This factor also favors Plaintiffs.
III. Whether Plaintiffs' prescriptive easement claim is likely to succeed on the merits.
The patty claiming a prescriptive easement must prove the following clements by a
preponderance of the evidence: (I) continuous use for at least twenty years, (2) under a claim of
right adverse to the owner, (3) with the owner's knowledge and acquiescence, or with a use so
open, notorious, visible, and uninterrupted that knowledge and acquiescence will be presumed.
Andra/cites v. White, 2010 ME 133, if 14, 10 A.3d 677; see also 14 M.R.S. § 812. The court finds
that, on the record evidence, Plaintiffs are likely to succeed on the merits on each element of
their prescriptive easement claim.
a. Plaintiffs' continuous use of Navy Road to access the Hankin Property throughout the statutory period.
8 The present record suggests it is more likely than not that the Plaintiffs' use of Navy
Road to access the Hankin Property and their home there was sufficiently continuous throughout
the statutory period to entitle them to a prescriptive easement. First, Plaintiffs and their
predecessors-in-title used Navy Road to access the Hankin Prope1iy since 1976, more than the
twenty-year statutory period. Next, the nature of Plaintiffs' use of Navy Road was consistent,
even if intennittent, during the many years when they maintained their primary residence outside
of Maine.
Defendants argue that intermittent, seasonal use is not sufficiently continuous or of a
nature to support a prescriptive easement. (Def's Opp'n to Pis.' Mot. for TRO, 14-15.) It is true
that "[t]he extent of an easement created by prescription is fixed by the use through which it was
created." Bray v. Grindle, 2022 ME 130, 'ii 14,802 A.2d 1004 (quoting Restatement of Propcrty
§ 477 (Am. Law Inst. 1944)). However, "some variation between the use by which a
prescriptive easement was created and the uses made under it after its creation is inevitable. The
problem is to ascertain the limits of permissible variation." Id. 'ii 15 (quoting Restatement of
Property§ 478, emt. a). To determine whether a given variation between the use under which a
prescriptive easement was generated and a particular use, court's compare (I) the physical
character of each use, (2) their purpose, and (3) the relative burden caused by them upon the
servient estate. Id. 'ii 15 (citation omitted).
Here, the prescriptive easement was generated by Plaintiffs' family's, guests', and service
providers' intermittent use of Navy Road to access the Hankin Property and Plaintiffs' home
there. Plaintiffs' present use is for the same general purpose. There is no material difference in
the physical character or purpose across these uses; each goes to vehicular and pedestrian
passage across Navy Road to access the Hankin Property. Finally, there is no significant
9 variation in the relative burden on Defendants or on Navy Road. Mere increase in the volume or
frequency of traffic is insufficient to establish per se a greater independent burden on the servient
estate. See Great Northern Paper Co., Inc. v. Eldredge, 686 A.2d 1075, 1079 (Me. 1996).
Otherwise, there is little, if any, record evidence available to corroborate Defendants' allegation
that Plaintiffs' present use of Navy Road is overly burdensome. See generally Wake/in v.
Marietta, No. CV-21-019, 2021 Me. Super. LEXIS 126, at *4 (Me. Super. Ct. June 1, 2021).
b, Plaintiffs' use of Navy Road under a claim of right adverse to Defendants,
"To use a property under a claim of right, a claimant must be in possession as the owner,
intending to claim the land as his own, and may not be in recognition of or subordination to the
record title owner." Jordan v. Shea, 2002 ME 36, ,i 23, 791 A.2d 116. Additionally, the
claimant's use of the property at issue is "adverse" when they "disregard the owner's rights
entirely and use[] the land as though he were the true owner. Relevant to these determinations is
the claimant's state of mind." Id. (citations and internal quotation marks omitted). Hence, it is
fatal to a prescriptive easement claim that the claimant seeks the owner's permission to use the
subject property, or that the owner affirmatively permits the claimant's use thereof. Id. ,i 24.
Otherwise, courts may presume a claimant's use is adverse to the owner's rights when it is
continuous for the statutory period and the owner acquiesces to that use. Lincoln v. Burbank,
2016 ME 138, ii 31,147 A.36 1165.
Here, Plaintiffs believe that they are entitled to rightful use of Navy Road. They allege
that neither of the Defendants ever objected to or permitted Plaintiffs' or their predecessors-in
tities' use of Navy Road until 2021. Defendants refute this claim and assert that (I) Plaintiffs
had permission to use Navy Road through a mutual understanding observed by the
neighborhood; (2) the "blood relative exception," see Lincoln, 2016 ME 138, ii 31, 147 A.36
1165, should apply to defeat any presumption that Plaintiffs' use of Navy Road was adverse to
10 Defendants; (3) Plaintiffs' use of Navy Road was not adverse to Defendants until 2009, when
Plaintiffs began to use Navy Road independent of the United States government; and (4)
Defendants had their land posted pursuant to 14 M.R.S. § 812 (2018), during 2018. (Def. 's
Opp'n to Pls.' Mot. for TRO, 15-16.)
First, apmt from Defendants' allegations, there is no record evidence of mutual
understanding among Plaintiffs and the other members of the Small Point neighborhood that
Plaintiffs use Navy Road with Defendants' permission. Plaintiffs, on the other hand, submitted
affidavits by parties-in-interest evincing how their and others' Small Point prope1ties were
always necessarily accessed over Navy Road, and that they accessed them accordingly as a
matter of right. (See Pis.' Mot. for TRO, Exs. D, E.)
Next, the patties are related by blood merely in that they share a great, great, great
grandfather. (Defs.' Opp'n to Pls.' Mot. for TRO, 15 n.37.) In Maine, evidence of a familial
relationship between the dominant and servient estates may preclude application of any
presumption of adverse use. Lincoln, 2016 ME 138, ,i 31, 147 A.36 1165. However, the
exception may apply only to cases wherein those estates "were owned within the same family
during the period in which the prescriptive right of access is alleged to have accrued."
Androldtes, 2010 ME 133, ,i l8, 10 A.3d 677. That is not the case here. Thus, Plaintiffs, absent
record evidence of any pem1ission from or other affirmative non-acquiescence by Defendants,
are entitled to a presumption that their use of Navy Road during the statutory period was
"adverse" to Defendants.
Finally, neither the nature and timing of the Navy's use of Navy Road nor the fact that
Defendants posted their land during 2018 defeat Plaintiffs' claim of adversity at this stage. The
Navy used and developed Navy Road under its own express easements. The Navy's use of Navy
11 Road does not dictate whether Plaintiffs' use was adverse to Defendants. An existing easement
to use of real property in a third party is not an obstacle to generation of a new easement by
prescription. Further, Plaintiffs' claimed easement by prescription ripened after twenty years.
On the TRO record, the court measures twenty years from 1976 or shortly thereafter, which
elapsed before 2018. Thus, Defendants did not defeat Plaintiffs' claim when they posted their
property during 2018.
c. Defendants' knowledge of Plaintiffs' use of Navy Road.
The record evidence is sufficient to establish that Defendants knew about Plaintiffs' and
others' use of Navy Road. The individual Plaintiffs and their family members began to use the
Hankin Property as early as 1976. Beginning that year, Defendants reasonably should have
observed Plaintiffs and Plaintiffs', their guests, contractors and service providers intermittently
accessing the Hankin Property from Navy Road. Also, Plaintiffs, like Defendants, contributed to
and coordinated the maintenance of Navy Road. Even if Defendants were truly unaware of
Plaintiffs' use of Navy Road (which is unlikely, in consideration of the shared maintenance and
Defendants' posted notice), Plaintiffs above-described use of Navy Road was sufficiently "open,
notorious, visible, and uninterrupted" to entitle them to a presumption regarding Defendants'
knowledge of and acquiescence to it.
Thus, under the current record, Plaintiffs are substantially likely to succeed on the merits
of their prescriptive easement claim.
IV. Whether public policy would be adversely affected by granting the injunction.
Other than a fundamental policy interest in ensuring landowners access to their real
property, the court concludes that public policy is not meaningfully implicated under the
circumstances. This factor favors Plaintiffs, but in this case it is less significant and less weighty
than the other factors.
12 V. Plaintiffs' entitlement to a TRO; duration and scope.
In conclusion, the court grants Plaintiffs the requested TRO. Consistent herewith:
1. Defendants must unlock and open the gate installed immediately to the south of their property along Navy Road, and immediately to the north of the Hankin Property;
2. Defendants must keep the gate unlocked and open for the duration of this court's order;
3. Defendants are otherwise enjoined from taking any action that results in obstructing or blocking, for any amount of time, free passage across Navy Road between the Seal Cove Road junction and Small Point in Phippsburg, Maine;
4. This court's Order Granting Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction will expire when this case is resolved by final judgment.
Because the issue of security was not addressed by either party in the papers or during the
parties' status conference with the court on May 16, 2023, the court has no basis to determine a
proper sum for the payment of "such costs and damages as may be incurred or suffered by any
party who is found to have been wrongfully enjoined." M.R. Civ. P. 65(c).
CONCLUSION
Based on the foregoing, the entry will be: Plaintiffs' Motion for Temporary Restraining
Order and Preliminary Injunction is GRANTED.
So ordered.
The Clerk is requested to enter this Order on the Docket, incorporating it by reference
pursuant to Maine Rule of Civil Procedure 79(a). /
b/~~// Date:- - ~ ~--~- 1J Thomas R. McKean Justice, Business & Consumer Cou1t
Entered on the docket: 06/05/2023