Knauer Family Ltd. Partnership v. Delisle

Maine Superior

Knauer Family Ltd. Partnership v. Delisle

Superior Court of Maine·Decided September 29, 2008·No. KENre-08-01·Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION

KENNEBEC, ss. DOCKET NO. RE-08-01 1.

KNAUER FAMILY LIMITED PARTNERSHIP,

Plaintiff

v. DECISION MATHEW DELISLE, Defendant

Before the court is the plaintiff's complaint alleging trespass (count I) and declaratory judgment (count II). The defendant filed an answer and a counterclaim asking for declaratory judgment (count I- boundary by acquiescence) and declaratory judgment (count II- boundary by estoppel).

A nonjury trial was held in Superior Court on September 3, 2008.

The plaintiff is the owner of a lot with buildings thereon located on Great Pond, Rome, Maine. The plaintiff's lot is identified as lot 7 on the subdivision recorded as the Crane Subdivision. George Knauer, Jr. obtained lot 7 from Paris Mosher in 1961 (Warranty Deed, Book 1231, Page 278).

The defendant's father purchased lots 4, 5 and 6 of said Crane Subdivision in 1964. In 1999, the defendant's father conveyed lot 6 to him. (Warranty Deed, Book 6043, Page 240). Between 1996 and 1999, the defendant constructed a summer camp on said property. He did give notice to George Knauer that he would build a summer cabin. The defendant never had a survey done and relied upon an anchor bolt in the southeast corner of the lot and an iron pipe located on the shoreline of Great Pond in

determining where the boundary line was located. The defendant cut some trees and built his cabin using the line between the anchor bolt and the iron pin on the lake as the boundary line. George Knauer's son, Ed, observed the construction and discussed the matter with his father. The elder Knauer indicated to his son that he had talked with the defendant and was assured by the defendant that everything was in order. Neither George Knauer nor his son Ed Knauer were exactly aware of where the boundary line was. Ed Knauer indicated that he never noticed the anchor bolt but did notice the construction that was being done and the trees that were cleared along the boundary line that the defendant considered the boundary line.

The defendant indicated that he had a conversation with George Knauer who indicated to him in the summer of 2000 that the defendant was doing a great job.

In 2002, the defendant put a foundation under his residence and made it year round. In 2002, he added an attached garage to the residence. Lots 6 and 7 are heavily wooded and there is a distance of 200 feet between the plaintiff and defendant's residences.

In 2006, a survey was conducted on the Delisle property, and said survey was for the purpose other than determining the boundary line between defendant's lot 6 and defendant's lot 7. As a result of that survey, the defendant was informed that his house may have been built over the Knauer's boundary line. The defendant informed the plaintiff of the boundary line problem. As· a result of that problem, the plaintiff brought suit against the defendant.

Robert Knowlton, a surveyor, conducted a survey. (Plaintiff's Ex. 1). His survey relied upon the Crane Subdivision plan (Plaintiff's Ex. 2). The original plan called for six uniform lots of 100 by 200 feet. Lot 7 was a remainder lot containing approximately 300 feet on the eastern back and 340 on the shoreline. Knowlton's survey found that the

defendanfs house was built right on the boundary line with approximately 80% of his house on Knauer's property. The survey also disclosed that the plaintiff had 154 feet extra on his eastern boundary than that set out in the deed that he received; the survey showed that he had 454 feet on his eastern back line instead of the 300 feet set out in the original subdivision plan and his deed.

On the shoreline, Knowlton's survey demonstrated that the plaintiff had 406 feet on the shoreline, 66 more feet than was set out on his deed and on the original Crane Survey.

Robert Yarumian conducted a survey for the defendant. He did not agree with the Knowlton survey due to discrepancies he found in the location and angles of the line. However, he did find that the boundary line still went through the defendanfs house but at a different angle. Discussion Both parties have asked for declaratory judgment setting the proper boundary line between the parties. The defendant has asked this court to find that the boundary lines he relied upon are the true boundary lines relying on the concepts of either boundary by acquiescence or boundary by estoppel.

After considering the evidence, this court finds that the survey conducted by Robert Knowlton and which is contained in plaintiff's exhibit 1 represents an accurate indication of the true boundary lines between lots 6 and 7. His explanation of the relationship between the original Crane Subdivision, the original Crane Survey, and the present configuration of the lots makes complete sense. His opinion is well documented and is based upon prior deeds, prior surveys, and his examination of the land in question.

The court finds that his survey establishes the true boundary line between the defendant's property lot 6 and the plaintiff's property lot 7. Boundary by Acquiescence Notwithstanding the boundary line as established by this survey as the true boundary line, the court must next address whether the concept of boundary by acquiescence demands a boundary line other than the line established by the survey. To establish a boundary by acquiescence the moving party must prove four things:

(1) possession up to a visible line marked clearly by monuments, fences, or the like;

(2) actual or constructive notice to the adjoining landowner of the possession;

(3) conduct by the adjoining landowner from which recognition and· acquiescence not induced by fraud or mistake may be fairly inferred; and (4) acquiescence for a long period of years such that the policy behind the doctrine is well served by recognizing the boundary. Calthorpe v. Abrahamson, 441 A.2d 284 (Me. 1982).

The court finds and concludes that element 1 has been proven. The boundary line used by the defendant was a clear line from an anchor bolt to an iron pin on the shoreline. Further, the defendant cleared some trees up to said line so to an observer it was a visible line marked by monuments.

The court also finds that element 2 has been proved. The plaintiff did have actual notice of the boundary line that the defendant was relying upon. Ed Knauer, son of the owner of the property at the time of this construction, indicated that he questioned the location of the construction and the boundary line. He testified that he discussed this was his father and that his father responded that he knew that the

boundary line was okay because he had talked to the defendant and was sure everything was okay. This shows that they did have notice of the boundary line.

The third element raises some serious question as to whether George Knauer was induced by mistake. The court finds that there was no fraud in that the defendant was acting in good faith and did believe that the boundary line ran between the anchor bolt and the iron pin on the shoreline. Whether he was negligent in not securing a survey before building his house is not an issue in this matter. However, the court does find that not only was the defendant operating pursuant to a mistake but he induced the adjoining landowner, George Knauer, by this mistaken belief of the location of the boundary line. Both parties were operating pursuant to a mistaken belief as to the true boundary line.

This third element has not been proven because George Knauer was induced by a mistake to acquiescence to the boundary.

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