Little Ossipee River Development v. White Brothers

• Court: Superior Court of Maine
• Decided: November 28, 2005
• Docket: CUMre-03-78
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss.

LITTLE OSSIPEE RIVER DEVELOPMENT, CIVIL ACTION Docket No. RE-03-78 I ----a / \ ] , -/' \ ,-. c -

LLC.

Plaintiff,

DECISION AND ORDER

WHITE BROTHERS, INC.,

Defendant.

T h s case involves a boundary dispute between plaintiff Little Ossipee Ever

Development, LLC. and defendant Whte Brothers, Inc. If Little Ossipee is correct as to

the location of the boundary between its land and that of Whte Brothers, it owns

approximately 56 feet of frontage on Route 117 in Limington, enough to allow a

subdivision. If Whte Brothers is correct as to the location of that boundary, Little

Ossipee owns only some 22 feet of road frontage, below the 50-foot minimum necessary

to allow a subdivision.

A bench trial was held on October 26-27, 2005, followed by a view requested by

both parties on November 4, 2005. Submission of post-trial briefs was concluded on

November 17,2005.

The following comprises the court's findings of fact and conclusions of law:

1. Record Boundarv

The Little Ossipee and Whte Brothers parcels were originally part of a larger parcel

owned by one Noah Randall' and divided by h m in 1902. What is now the Whte

In some of the relevant deeds, Randall is spelled "Randell." Brothers parcel was conveyed by Randall to Herbert Berry by deed dated March 23,

1902, whch described the parcel as follows:

Beginning at the junction of the County Road leading over Edgecombs Bridge to North Hollis and the Maple Run Road (so called) lying on the Easterly side of the aforesaid County Road; thence by said Maple Run Road to the foot of the long meadow, running Southerly from near Smokey Cove so called, thence by the outlet of said Meadow Brook to Smokey Cove (so called), thence around by said Cove to a granite stone set on the Easterly side of said Cove, thence Easterly down the river by land of Nathan Smith to the Moses Sweat lot (so called), thence Southerly by said Sweat lot (so called) to the County Road above named, thence by said road to the place of begnning, containing seventy five acres, to be the same more or less.

Exhibit 5. The parties agree that the "County Road" referenced in Whte Brothers's

chain of title is now Route 117

Subsequently that same year, Randall conveyed several parcels, including what

is now the Little Ossipee parcel, to the same grantee, Herbert Berry, by deed dated

August 1,1902. That deed described the Little Ossipee parcel as follows:

Beginning at a point on the small inlet on the southerly side of Smokey Cove so called, thence by said inlet to the Maple Run Road, so called, thence by said hlaple Run Road to the Waterboro and Limington town line, thence by said town line to the Bacon lot described by the second lot in deed of Noah Randell to Noah Randell Jr. recorded in book 261, page 226 of said Registry of Deeds, thence by said Bacon lot to a corner, thence to a point w h c h was spotted Pine Tree northerly from said corner, thence easterly by said Bacon lot to the head of the Great Meadow, so called, thence northerly parallel to the above-named town line to the Little Ossipee River, thence by said river and by Smokey Cove to the point begun at, containing eighty acres more or less, reference being had to the John and A. Howard Chase deeds and to deed from me to Herbert L. Berry.

Pursuant to these deeds, the northern boundary of the Whte Brothers lot ran

from the intersection of the County Road and the Maple Run Road "by said Maple Run

Road" to the foot of a large meadow and over to Smokey Cove (an oxbow on the Little

Ossipee River). The southern boundary of the Little Ossipee Lot ran "by said Maple

Run Road" from an inlet on Smokey Cove to the Waterboro and Limington town line. Maple Run Road therefore forms the record boundary between the Little Ossipee and

Whte Brothers lots. The dispute in this case concerns the western end of the Maple

Run Road, whch can no longer be located on the face of the earth.

The parties essentially agree as to the existence and the location of the boundary

as it moves west from Smokey Cove, where portions of Maple Run Road may still be

discerned, until the line reaches a location approximately 400 feet east of the County

Road. At that point the contentions of the parties and their respective surveyors

diverge, with Little Ossipee contending that the line is far enough south to result in its

ownership of 56 feet of road frontage along Route 117 and Whte Brothers contending

that the line is more northerly, limiting Little Ossipee to 22 feet of frontage.

The parties also agree that Maple Run Road was a private road and that therefore

deed language conveying land whch runs "by said Maple Run Road" did not convey

the road itself. Therefore, as of the 1902 deeds and at all times to the present, the heirs

of Noah Randall retained ownershp of the Maple Run Road, with Little Ossipee's

parcel running along the northern edge of the Maple Run Road and the Whte Brothers

parcel running along the southern edge of Maple Run Road. Little Ossipee has since

purchased a fractional interest in Maple Run Road, whch assures it of access to its

property but does not affect the m o u n t of its frontage on Route 117.

Subsequent to the original 1902 deeds, the Town of Limington acquired the

Whte Brothers parcel by tax foreclosure, describing the northern boundary simply as

"land formerly owned by S.S. Randell [sic]." Exhbit 16. Although the lot was

subsequently conveyed by the town in 1934 and conveyed back to the town in 1971, the

description remained unchanged until 1997, when the parcel was conveyed to Whte

Brothers. At that time the northerly boundary of the parcel was described as follows: [Allong Route 117 to Maple Run Road, so-called, where the Limington- Waterboro town line as it exists on the date of h s deed crosses Route 117, wluch point is also the southwesterly corner of land of Wolfriver Holding Corp . . . thence in a general easterly hrection by Maple Run Road and land of Wolfriver.

Exhibit 27.

Although Little Ossipee purports to attach some significance to t h ~ slanguage,

the court does not find it to be significant. The northern boundary of Whte Brothers

land is now set by both Maple Run Road and by the land of Wolfriver Holding Corp., a

predecessor in title to Little Ossipee. But since the southern boundary of the

WolfriverILittle Ossipee parceI remains the Maple Run Road, there is no difference

between the two for all practical purposes.

As noted above and as not disputed by the parties, the western end of the Maple

Run Road, whch is the monument marlung the record boundary, can no longer be

located on the face of the earth. Nevertheless, it is well settled that the physical

disappearance of a monument does not end its use in defining a boundary if its former

location can be ascertained. Theriault v. Murrav, 588 A.2d 720, 722 (Me. 1981).Indeed,

the court has a duty to determine the original location of the monuments if it is possible

to do so. Id. Accord, Harborview Condominium Association v. Pinard, 603 A.2d 872,

876 (Me. 1992); Ricci v. Godin, 523 A.2d 589,592 (Me. 1987).

In h s instance, the court finds that it is more likely than not that the Maple Run

Road was located along the line described in the Dostie survey and shown on that

survey as the northern boundary of the Whte Brothers lot. Exhbit 61. The court makes

h s finding after considering all the evidence but places particular importance on the

1940 and 1947 aerial photographs. The court finds it is more likely than not that the

The only discrepancy is that Little Osslpee's southern boundary stops at the northern edge of the Maple Run Road. To the extent that the Town was purporting to convey the roadbed of the Maple Run Road to White Brothers, however, it could not convey what it did not own. road that can be seen on those photographs in the area of the boundary between the

Little Ossipee lot and the Mrhte Brothers lot is the Maple Run Road.3 Moreover, the

intersection of that road with Route 117 is almost directly opposite the entrance to a tote

road leading from Route 117 to Isinglass Pond - a tote road which exists in the same

location today. The court finds, therefore, that the former location of the intersection of

the Maple Run Road and Route 117 is almost directly opposite the road to Isinglass

Pond as shown on Exhbit 61.

In reaching t h s result, the court has considered plaintiff's arguments as to the

unreliability of aerial photographs. First, such photographs are not unreliable as a

matter of law. See, en., Zemero Corp. v. Hall, 2003 ME 111 ¶ 8, 831 A.2d 413, 415

(affirming findings based on aerial photographs). Second, the court finds, having

considered the testimony of both surveyors and the surveying treatise relied upon by

plaintiff's counsel in his cross-examination of Dostie, that any imprecision in the use of

aerial photographs would not be material to the result here. The treatise relied upon by

plaintiff's counsel refers primarily to the dfficulty of malung accurate measurements

from aerial photographs. In this case the court is not relying on any measurements

derived from aerial photographs but is relying on the juxtaposition shown on the

photographs between the former entrance of Maple Run Road and the entrance to the

road of Isinglass Pond.

Given that the court has found that the record boundary is as depicted by the

White Brothers survey, the court must address plaintiff's arguments that a different

boundary has been established by agreement, by practical location, or by acquiescence.

3 The court's recollection is that plaintiff's surveyor, Robert Yarumian, agreed with this in his testimony. Even if he did not, the court finds this to be more likely true than not. 2. Boundar~bv Agreement, Practical Location or Acquiescence

Little Ossipee argues that notwithstanding the record boundary, a boundary

giving it at least 50 feet of road frontage, as shown on the Yarumian survey, has been

established either by agreement, or by practical location, or acquiescence.

There may be some uncertainty as to the difference between a claim that a

boundary has been established by agreement and a claim that a boundary has been

established by practical location. At least one Law Court case can be read to suggest

that boundary by agreement and boundary by practical location are different theories.

See Steinherz v. Wilson, 1998 _ME22 ¶ 8 n.5, 705 A.2d 710, 712 n.5 (finding a boundary

by agreement w h l e noting that the court below had rejected a claim of boundary by

practical location). On the other hand, another Law Court case seems to equate the two.

Calthorpe v. Abrahamson, 441 A.2d 284, 288 (Me. 1982) (referring to the "rule of

practical location by parol agreement").

Treating the two as separate doctrines, as does Little Ossipee, the court concludes

that Little Ossipee has not met its burden of showing by a preponderance of the

evidence that a boundary exists in the disputed area along the line proposed by

Yarumian either by agreement or by practical location. For a boundary to exist by parol

agreement, there must at a minimum have been an agreement between the owners of

adjoining lands to settle the location of a disputed boundary. Steinherz, 1998 ME 22 ¶

12, 14, 705 A.2d at 713. No evidence was offered that any boundary agreements were

ever reached between Little Ossipee and W h t e Brothers or between any of their predecessors in title, and the court finds on h s record that no such agreement was ever

reached .4

For a boundary to exist by practical location, some understanding or agreement

between adjoining owners is also required. See Calthorpe, 441 A.2d at 288, quoting H.

Skelton, The Leaal Elements of Boundaries and Adjacent Properties 5 322 at 362-63

(1930):

Where adjoining owners deliberately erect monuments, fences, or make improvements on. a line between their lots on the understanding that it is the true line, it amounts to a practical location . . .

In distinguishing boundary by practical location from boundary by acquiescence, the

Law Court in Calthorpe emphasized that agreement is required for a boundary by

practical location to exist:

The distinguishn-g feature of acquiescence [as opposed to practical location] is that proof of an agreement to locate and fix a boundary on a certain line is not required.

Id. (citation omitted). The absence of sufficient proof of an agreement, therefore, - precludes Little Ossipee's claims that a boundary has been established by practical

location.

Little Ossipee's h r d theory is boundary by acquiescence. A party relying on the

establishment of a boundary by acquiescence must prove, by clear and convincing

evidence, all of the following:

(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 w h c h recognition and acquiescence not induced by fraud or mistake may be fairly inferred; (4) acquiescence for a long period of years such that the policy behnd the doctrine of acquiescence is well-served by recognizing the boundary.

he court therefore does not need to consider whether the other elements of boundary by par01 agreement have been met - such as the existence of a dispute preceding the agreement and subsequent marlung of the agreed boundary. See Steinherz, 1998 ME 22 q[ 12,705 A.2d a t 713. Calthorpe, 441 A.2d at 289.

With respect to the disputed area, the court concludes that Little Ossipee has

failed to prove the first element - possession up to a visible line marked clearly by

monuments, fences, or the like. As noted above, the dispute in h s case concerns the

western end of the boundary line. At the eastern end of the boundary line the remnants

of the Maple Run Road can be discerned. T h s portion of the boundary runs from

approximately the point marked L14 to the point marked L21 on Exhbit 61. Moving

westward from L14 on Exhbit 61, the boundary runs along a ridge or berm of earth

w h c h appears to have been created in the course of gravel pit mining operations on

both sides of the boundary. This man-made ridge, unlike the land on either side of it, is

covered by trees and other vegetation. It rises a number of feet above the land on either

side of it and generally follows the course of the Maple Run Road as that road has been

depicted on Exhbit 61.

The discernable man-made ridge, however, does not extend all the way to Route

117 but stops approximately 300 feet short of Route 117. Between the end of the ridge

and Route 117, there are some random hllocks and mounds, but these are not oriented

in any one direction. There is also a ragged area of trees and vegetation that continues

from the end of the ridge to Route 117.

As noted above, only the western end of the boundary - for a length of

approximately 400 feet from Route 117 - is in dispute in &s action. Little Ossipee's

surveyor proposes that the length of the discernable ridge, w h c h generally runs along

the line of Maple Run Road as located by Whte Brothers's surveyor, constitutes a

boundary by acquiescence. The court need not decide if h s is correct because there is

no dispute as to the boundary in the area where the ridge is discernable. Little Ossipee contends, however, that there is also a boundary by acquiescence in the disputed area

once the ridge peters out and is no longer discernable. In h s area, Little Ossipee's

proposed line follows to the end of the contour lines on Exhbit 61 and then proceeds

through the middle of the area of vegetation to Route 117.

Once the discernable ridge peters out, however, the court finds that there is no

definite boundary that is disce:rnable and that tlus is especially true for the last 300 feet

between the approximate end of the contour lines shown on Exhbit 61 and the road.

%te Brothers and its predecessors in title "cannot acquiesce in a boundary that they

cannot identify with certainty." Calthorpe, 441 A.2d at 290. Accord, Tavlor v. Hanson,

541 A.2d 155, 159 (Me. 1988).6

Since Little Ossipee has not met its burden of proof by clear and convincing

evidence with respect to the first element of its boundary by acquiescence claim, the

court need not consider whether it has met the other elements of that theory. The court

therefore determines that the disputed boundary is as shown on Exhibit 61.

3. Little Ossipee's Access finhts Over Maple Run Road

Although Little Ossipee's record title, derived from the original August 1902

conveyance by Noah Randall, ends at the northern edge of the Maple Run Road, Whte

Brothers does not contest that Little Ossipee is entitled to access its property over the

former entrance of Maple Run Road for three reasons. The first is that Little Ossipee

has an easement by implication. The second is that it has a quasi-easement to use the

5 In contrast, the record boundary as determined by the surveyor for White Brothers diverges north from the line of highest elevation on Exhibit 61's contour lines approximately 100 feet before the contour lines end and eventually follows a line generally bordering the northern edge of the area of vegetation to Route 117 at a point opposite the entrance of the tote road to Isinglass Pond. For this reason, the court need not decide whether as a matter of law a man-made ridge can constitute the knd of "structure commonly used to create a boundary line" that is necessary for a claim of boundary by acquiescence. See Crosbv v. Baizlev, 642 A.2d 150, 154 (Me. 1994). area where its driveway is now located and where the entrance to Maple Run Road

formerly existed. The h r d reason is that Little Ossipee has recently purchased an

undivided 1/24 interest in the Maple Run Road from the heirs of Noah Randall.

4. Little Ossipee's Trespass Claims

Given that Little Ossipee had an easement by implication or a quasi-easement

over Maple Run Road at all relevant times, the temporary placement by Whte Brothers

of concrete barriers blocking Little Ossipee's current entrance road constituted a

trespass. Those barriers have since been removed by Whte Brothers, however, and the

court does not find that Little Ossipee has proven any damages as a result of the

trespass. In particular, w h l e Little Ossipee's post-trial brief references 14 M.R.S.A. §

7551-B, that section applies only to one who enters the land of another without

permission and damages any fence, road, ditch, culvert, or other structure or discards

or deposits litter. Whte Brothers neither damaged any structure nor disposed of any

litter, and 14 M.R.S.A. 9 7551-B is inapplicable.

Finally, given its understanding of the boundary at the time it placed the

concrete barriers, Whte Brothers acted with neither malice nor the necessary

outrageousness to warrant an award of punitive damages. As a result, Little Ossipee is

entitled only to nominal damages for the trespass committed by W t e Brothers.

The entry shall be:

Judgment is entered (1)decIaring that the boundary between the land of plaintiff

and the land of defendant shall be as shown on Trial Exhbit 61, (2) declaring that

plaintiff has the right to access its property by the former entrance to Maple Run Road

based on an easement by implication or a quasi-easement, and based on its ownershp

of an undivided 1/24 interest in Maple Run Road, and (3) awarding nominal damages of $1.00 to plaintiff for trespass. If counsel for defendant wishes to submit a more

detailed judgment, counsel may do so witlxn 10 days in the form of a motion to alter or

amend. The clerk is directed to incorporate h s order in the docket by reference

pursuant to Rule 79(a).

Dated: November 2b, 2005

\ Thomas D. Warren Justice, Superior Court ' ,k.

CLERK OF COURTS Cumberland County P.O. Box 287 portland, Maine 041 12-0287

JOTHAM PIERCE, ESQ. 1 MONUMENT SQUARE PORTLAND, ME 04101

CLERK OF COURTS Cumberland County P.O.Box 287 Portland, Maine 041 12-0287

JOHN BANNON, ESQ. PO BOX 9785 PORTLAND, ME 04104-5085