Hill v. Shaw Brothers Construction

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION

YORK, ss. DOCKE'I' N 0. CV-05-057 ' >. 3 ' ( ,-*,

DAVID HILL, Plaintiff

ORDER

SHAW BROTHERS CONSTRUC'I'ION, INC. & S.B. DAYTON, INC.,

Defendants

This case comes before the Co~rrton Defendants Sham. Brothers Construction, Inc. & S.B. Dayton, Inc.'s Motion for Summary Judgment on Plaintiff Mr. Hill's clairn of common law adverse possession, statutory adverse possession, and the doctrines of

acquiescer~ceand practical locati~n. F o l l ~ ~ v i n hearing, i;' the hktior! is Granted in part

and Denied in part.

FACTUAL BACKGROUND

This action revolves arlround tl-LC disputed ownership of an uncultivated heavily forested parcel of land in Dayton, Mairie. A11 parties ~ g r e ethat the disputed land is described as:

In Dayton beginning at a pitch tree standing on the southerly slde of the old Gould IXoad, so called, spotted on 4 sides, and marked with 1 1 letters ~ I I.II., thence North easterly, bj7 said old road, 26 rods or till it comes to the old corporation line, thence South abvut 23 ?hdegrees East, by said old corporati011 line, 71 rods, or till i t comes to a stone set in the ground, thence North about 21 degrees West, 78 rods to the place begun at, containing 12 acres, more or less.

Mr. Hill owns five properties in the area of the disputed land. One of Mr. ill's-

properties is located to the north and i vest of the disputed ianci. A small part of this property abuts the eastern boundary of the disputed Iand. S.3. Dayton's property, which it currently uses as a gravel pit, surrounds the disputed land on the other three sides. In and around1979, Mr. Hill researched the ownership of the disputed land and-

could not identify the record owners other than that ownership was probably splintered among Inany heirs of the L.L. Clark Lumber Company. Tn that same year, in order to establish a claim of ownership to the disputed lard, Mr. Hill \.Aras g v e n a deed to the disputed land from Dorothy and Har1c.y Hill. Mr. Hill rvas aware that Dorothy and

Harley Hill did not have an ownership interest in the d i s p ~ ~ t eland d at that time. The

false deed was merely drawn u p to establish a temporal starting point for Mr. Hill's adverse possession claim. Mr. Hill did not record the deed until 1999.

Beginning in 1979, Mr. Hill has 1x;en present on the disputed land approximately forty times each year. He used the land to cut wood, between 300 and 900 trees each year. He mostly cut wood from the middle portion of the land. Mr. Hill created a "woods road" roughly through the n~iclillt:of the He often mt sma!!cr kccs to

allow the bigger ones to grow. In 1986 a ~ i d2002, Mr. Hill hired logger Dan D ~ ~ n n e lto ls

thin out the disputed land. During these twenty years, Mr. Hill walked the boundary lines of the disputed land thirty times per year and flagged llle bu~tndsrylines

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1 Defendallls dispute tlx~tMr. Tlill crealecl a "woods road." They argue that h4r. Hill was asked in his deposition to draw a dotted line around ~ ~ hhe~ cut r ewood and that the dotted iine he drew does not form woods road. 'They also argue that Mr. Hill's affidavit implies that ~ v o o d sroad extends the entire length of the disputed land. The language of paragraph 10 of Mr. IIill's affidavit is as follows:

"Exhibit A2 is a picture of the disyutecl Iand sllowing the woocls road that is roughly ~ I Ithc middle of the disputed parcel .... I created the woods road over the years beginning in 1979 as 1 cut trees for firewood. [Ian Dunnells, a iogger 1 hired to cut wood, widened the road so he could get a skiddcr deeper into t-he disputed land."

The fact that hlr. hill drcw a U-shapeti dotted line around roughly half of the disputed land starting at the eastern boundary line with his property does not mean that he did not create a \voods road in the middle of tile property. The question asiced of Mr. Hill in his deposition was nrhere he cut trees, not where he cleared a woods road. The C0~1i.t reads Mr. I-{ill's affidavit to say that the woods road wascreated to provide easier access to tree cutting. 'l'hat does not mean that the only trces cut were directly down the middle of the l a l ~ d .l'he affidavit also docs not state that ~ v o o d sroad runs the entire length of the property.

periodically, when necessary. The comers of the disputed iand are d l marked by visible iron pins, w h c h are noted on the Defendant's gravel pit plan. Mr. Hill also- "swamped" the boundaries of the disputed land dow11 near the Shawl Brothers property by cutting a six-foot wide swath.

Mr. H~ill gave permission to hunters to hunt on the land. He also gave permission to Wade Juilkins to cut v\;ood 011 the land. Mr. I-lill's daughter also went horseback riding on the disputed land. According to the tax records from the Town of

Dayton, Mr. Hill has paid taxes on t h ~ disputed land since at least 1990. Mr. Hill

believes he has paid taxes on the disputed land prior to 1990, however, the tax records do not show this one way or the other. The following people knew that Mr. Hill claimed the disputed land as his own: Dorothy Hill; Harley Hill; Clement Meserve; Mr. IGllls son, daughter, and wife; Alfred Grantham; David Grantham; Everett Moore; and Lindy Glover.

In 2004, the Shaw Brothers locdied 'i:ie reciird iiwi-iers iif :lie dispilted land and negotiated the purchase of record title from them. They are the current record owners of the disputed land. Peter Clark, the only true owner to be located, is ill his 60's and has not been on the property since he was a child.

The following material facts are i n dispute: whether Mr. Hill c ~ iwood t from the

middle of the disputed land or also along the eastern boundary line, (SMF 41 33, RSMF ¶ 33); whether or not more than fifty people, without permissioi~,would ride their ATVs through the disputed land, (SMF 38, RS?.4F fl 38); whether Mr. Hill told Danny Shaw that he did not tell anyone about his intentions to take t11e property by adverse possession. (SMF 1'1 48, RSMF % 48); whether Defendants acquiesced to 11-leb o u ~ ~ d a r i e s of the disputed lands until they began clearing the land in 2000 or 2001. (RSMF 4[¶ 114, 115).

DISCUSSION

a. Common Law Adverse Possession Possession sufficient to establisl~title by adverse possession must be "actual,

- continuous, and exclusive for a period open, notorious, hostile, under a claim of right,

of at least twenty years." hilaiize Ginve2 Services, lnc. 7). Hni7zing, 1998 ME 18, 1 3, 704 A.2d 417, 418. "Whether specific possessory acts are sufficient to establish title through adverse possession can only be resolvec! in light of the nature of the land, the uses to which it can be put, its surroundings, and various other circumstances." Id. For a claimant to establish a claim of adverse possession he must show that his use and enjoyment of the property has been the same "in kind al-td degree as the use and enjoyment to be expected of the average owner of such property." Id.

The Court reviews a motion for summary judgment in the llght most favorable to the non-moving party to determine whelller the parties' statements of materia! fact and the referenced record evidence indicate any genuine issue of material fact. Bcryvieu Bnnk, N.A. v. The Highland Gold Mortgcrgces RenlLy Trt~st,2002 ME 178, ¶ 9, 814 A.2d 449, 451. When a defendant moves for summary judgment, i t is pldii~tiff's burden to

establish a yrirrza facie case for each elcinelit of his cause of action that is properly challenged in the defendant's motion. Cr~rtisu.Poi,fer, 2001 ME 158, ql 8, 784 A.2d 18.

Here, for Mr. Hill to survive summary judgment, he must delllonstrate a yririln fncie case that his possession of the disputed land as actual, open, notorious, hostile, under a claim of right, continuous, and exclusivc~for a period of at least twenty years.

1. Actual Actual possession consists of a literal, physical entry upon the land, and is manifested by "acts of occupancy that ~ndicatea present ability to control the land and an intent to e x c l ~ ~ dothers e from such control." Striefei v , Kaji-iellti-lanPa~tiie~sTiip, 1999

ME 111, ql 9, 733 A.2d 984, 989. Actual possessio~~ depends on the nature and location

or the property, the potential uses of the property, and the h n d and degree of use to be expected of the average owner of such a property. Id.

Here, the undisputed facts are that the land is uncultivated and heavily forested.

Mr. IG11 physically entered the land forty times a year to cut a substantial amount of wood. He hired a logger to assist him. He created a woods road to facilitate the woodcutting. He col~sciouslymanaged the forest by cutting the smaller trees to allow the bigger ones to grow. A fact finder could properly conclude that Mr. Hill's actions on the disputed land amounted to more than occasional acts of trespass. Furthermore, his activity is in line with the potential irses of sucli a property and the land of use expected of an average owner of such a property.

2. Open, Visible, and Notorious I, A means capable zf beir,g

upen 1neaIis tt7ithoiit attempted concea!ment. TvTisible

seen by persons who may view the premises. Notorious means known to some who might reasonably be expected to communicate their knowledge to an owner maintaining a reasonable degree of supervision over his property." Streifel, 1999 ME 111, 11 11, 733 A.2d 984, 990 (quotation omitted). "The purpose of these three requirements is to provide the true owner with adequate notice that a trespass is occurring, and that the owner's property rights are in jeopardy." Id. at 991. This notice - need not he actual. Id. It is sufficient t-c? prove open, visible, and 17otoriousacts such

that the owner's knowledge of t l ~ e ~and n of their adverse character may be inferred. ld.

Here, Defendants argue that Mr. Sill's int-e~~tion Lo conceal his possession of the

disputed land is evidenced by not recording the 1979 deed until 1999, and by cutting wood in the middle of the property rather than near tlw boundaries where the public would see his actior~s. Notwithstanding, Mr. Hill spent forty days a year on the property cutting wood, hired a logger to cut tvood, gave permission to hunters to hunt on the land, and continuously flagged and marked the boundaries. In light of these actions, the record simply does not conclusively support a finding that Mr. Hill inteEded to co~cealhis possession of t11~land.

Visibility and notoriety on a heav~iyforested uncultivated parcel can be difficult

to prove. The Law Court has s11ow11 re!uct;lnc~ to permit secret encroachments on s>

large woodland areas to ripen into titlc. Webber v. McAvot/, 117 Me. 326, 104 A. 513;

Steu~nrtv. Small, 119 Me. 269, 110 A. 680; and Webber 2). Bnrker, 121 Me. 259, 116 A. 586.

However, although timber harvesting does not necessarily demonstrate adverse possession, depending on the circulnstances of each case, such activity may demonstrate sufficient activity consistent with an adverse claim to prove adverse

possession. Maine Gravel Sewices, 171c. v.Ui7iizi11g, 1998 ME 18, 7 6, 704 A.2d at 419.

.The

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circumstances of this particuiar case indicate that Mr. Hill was iiii-~tir~iioiisly

marking the boundaries and asserting his control over the land. Additionally, Mr. Hill paid taxes on the disputed land at least since 1990. This official record provides notice to the public and the true owner of Mr. Will's actions. Mr. Hill told his family, friends, and hired help of h s intentions with the disputed land. it is reasonable, if the true owner was known, that these people ~vouldhave communicated their knowledge of Mr. Hill's intentions to the true owner. Based on the record evidence there is a genuine issue of fact concerning whether Mr. Hill's possession and use of the disputed land was

2 The visibility element is also difficult to prove in ~lrbanareas where boundary lines are infrequently deiinealed by markers a n d t!:c i-ncr~acl-unentcovers a relatively sma!l portion ol the adjoining owner's land. Streifel, 1999 h4E 113, n5,733 A.2d at 991.

sufficiently apparent to put the true owner on notice that the claimant was malung an adverse claim of ownership.

3. Hos ti1e "Hostile simply means that the possessor does not have the true owner's permissi~nt~ he on the ! a d and E..s r-!c?tb.ing to do ~ 7 i t hdemonstrating a heated controversy or a manifestation of ill ~7111, or that the claimant was in any sense an enetny of the owner of the servieni estdtc." Streifel, 1999 Ill, 13, 733 A.2d at 991. Here, the true owner was unaware of anything that was happening on the disputed land. It is clear that Mr. Hill did not have. the owner's permission to possess the land.

4. Under a Claim of Right "Under a claim of right means that the claimant is in possession as owner, with intent to claim the land as his own, and not in recognition of or subordination to the record title owner." Strevel, 1999 ME 111, 14,733 A.2d at 991. Mr. Hill executed a false deed to establish h s ownership in the disputed property. He contmuously marked the boundaries, used the land to cut wood, gave permission to others to use it, and hired others to work the land. He also paid taxes on the land at least since 1990. See McMullen v. Dowley, 418 A.2d 1147, 1151 (Me. 1980) (paying taxes on land tends to prove claim of title).

Defendants argue that many others used the land to ride ATVs without Mr.

Hill's permission. Even if that were true, just as occasional acts of trespass on uncultivated lots are insufficient to establish a claim of adverse possession, Webber v. McAvoy, 117 Me. 326, 104 A. 513; Stezuai.: T I . Small, 119 Me. 269, 110 A. 683; and Webber v. Barker, 121 Me. 259, 116 A. 586, occasional ATV trespassers do not establish that Mr. Hill does not possess the disputed land undcr a claim or right.

5. Conlinuous, Excl~tsive,and for at least 20 Years Continuous simply means occurring wit2tout interruption. Strefel, 1999 ME 111,

9 16, 733 A.2d at 993. Exclusive means that the possessor is not sharing the disputed property with the true owner or the public at large. Id. ¶ 17. Here, Defendants argue

that the public uses the property by driving their ATVs over the property. However, as mentioned above, Mr. Hill has continuously maintained control over the disputed land since 1979. He has granted permission to those who sought permission to use the land. Finally, there is no dispute that he did this for twenty years from 1979 until 1999. The Court concludes that Mr. Hill has met his burden of establishing a prima case for each of the elements of common adverse possession. b. Statutorv Adverse Possession of Uncultivated Lands Pursuant to 14 M.R.S.A. § 816, the legislature set forth the requirements for obtaining title by adverse possession to uncultivated land in incorporated places. These rewiremeats inc!.;de "a d i m to the !and under a recorded deed or deeds, 'exd~si~.7e, peaceable, continuous and adverse possession' of the claimed land, and payment of taxes, all for a period of twenty years." Estnfe of Stone v. Hansolz, 621 A.2d 852, 853 (Me. 1993). In this case, Mr. Hill attests that the deed was not recorded for 20 years. With that admission alone, Mr. Hill is unable make out a prima facie case of statutory ad~rerse possession. He also is unable to attest, b,ised on personal knowledge that he paid taxes on the disputed land from 1979-1999. c. Acquiescence and Practical Location Defendants assert that the doctrines of acquiescence and practical location are applicable only wllen there is a bouuda~ dispute. &In1ja Corpornfion v. Allai~z,622 A.2d

1182 (Me. 1993); Calthorye v. Abrdlanzso~~, 441 A.2d 284 (Me. 1982) ("Calthorpe I"). As

such, they argue that because the parties c10 not dispute the boundaries of the disputed land, but rather the ownership of that lal-~d,these doctrines are inapplicable. Mr. Hill argues that the doctrines broadly apply to disputes between adjoining landowners. In the alternative, he argues that the doctrines apply because the disputed land forms the common boundary between the respective properties of the parties.

The location and description of the boundaries of the disputed land are not in dispute. The only dispute lies ill the ownership of the land itself. The doctrine of practical locabon provides:

Where adjoining ow7nersdeliberately erect monuments, fences, or make improvements on a between their lands on the understanding that it is the true line, it amounts to a practical location . . . . A practical location may be along a wrong line, and either of the parties so malung may be estopped to claiming to the true line, especially when acquiesced in over a long period of years.

This doctrine makes four references to location of a line, which the Court interprets to mean the boundary line behveen adjoining property owners. There is no record evidence to support that the parties deliberately and collectively erected a monument or fence, or made improvements on a line, albeit the wrong line, between their lands Turning to doctrine of acquiescence, Maine courts have applied this doctrine to cases concerned with "the alleged existence and/or enforceability of an express agreement to establish a boundary in a particular location which is not in accord with the deed." Cnltllorpe 1, 441 A.2d at 289 (collecting cases); See, e.g., Milliken TI. Btrswell, Me., 313 A.2d 111 (1973); Bemis v. B~rulltry,126 Me. 462, 139 A. 593 (1927); Frr~lglrt v. Hol~ucry,550 Me. 24 (1861); Moody 77. Nicl~ols,16 Me. 23 (1839). The elenlents to establish acquiescence require a showing of "1) possession up to a visible line rnarked clearly by monuments, fences or the like; 2) actual or consh-uction notice to the adjoining landowner of the possession; 3) conduct by the adjoining iandow~nerfrom which recognitioil a1i1 acq uiescencc not indui:l;cl by fi-a tid or iiiis take m y bc fairly inferred; 4)

acquiescence tor a long period of yecil.:; s~lcllt1i;lt tllc policy 11el1i11iik l ~ docLl:iilc c of

acquiescelice is well-served 11~7 r e c o g ~ i i ~ !lllc Id. 'I his doctnne recognl7es ~ ~bo~~iidarj/.''

::

that "long con liliued rccogni linli, ac7i-j i cscence, and occtrpalion ] iinply ~i t'lci t agreemeni-, as binding- as an c.x;,ress one, . . . as a n~atterof p1.1blic policy to prevent the

Ficrc, Mr. I-lill 1vo11ldliice this ( ' c i i ~ i - 1 to vii-~,'\/ 01 a n clis(lt.lti:cn~ici-rningov\/i1(:1-~lli13

def~nedparcel of land in the snmr>!ii.;l~ta:; a dispute over an ~1li:;ettledboundary ~~vell

line between two parcels of land. H o\\/i:\ri:l-,tl-le cases discussing acq~~iescence concerr~

I, ~ l t iI. A.2d 21;4 (Me. 1982).

bounclal-y disputes. See C~~lthnropi. 'I-he Law Court has

dCictl-inctis to recngni~cthe status quo -

articulated that the purpose of the acqlrit3ic7cncc

of boundary lines that landowners 11,~\rccolleclively yiclded to over Lime, albeit

incorrectly. If the Court were to view [!)is case as a bo~irtdarydispute, i l ~ v o ~ l be ld

adverse possession, mhich clearly applio:; in this case.3

to

T11c Delcrlc!antsf Motion lor sun^ i I l,lry J~lciprlentis Drnieci \/villi rc.s~)c~ct of~the corny?!alnt, but Cr:,i;tcld 2s to C:G:I;;!S !I,TI! 2i;d I1J.

C O L I 1I ~

Dated: hj!arcl-~::,."/ , 2006

Aaron K. B a l t e s , Esq. - PL John C. Bannon, Esq. - DEFS John Shumadine, Esq. - DEFS