Nightingale v. Myshrall

Maine Superior

Nightingale v. Myshrall

Superior Court of Maine·Decided June 11, 2007·No. KENre-05-049·Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION

KENNEBEC, ss. DOCKET NO. RE-05-049 , , .

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JARED NIGHTINGALE and KIMBERLY NIGHTINGALE,

Plaintiffs

v. DECISION AND ORDER

DANIEL B. MYSHRALL, JR. and JEAN MYSHRALL,

Defendants

This matter is before the court after bench trial.

By their complaint, plaintiffs request declaratory judgment, an injunctive order prohibiting trespass on their land by defendants and damages for intentional and willful trespass.

In 1949, one Richard D. Tillotson and Alice I. Tillotson acquired a large parcel of land on the west side of what was then known as the Old Bath Road in the town of Pittston in this county. The Old Bath Road is now known as the Cedar Grove Road. On March 24, 1971, Alice 1. Tillotson, in her own right and as survivor of Richard D. Tillotson, conveyed two parcels of land from the larger parcel, both to her sons and wives. To her son Daniel B. Myshrall and his wife Sylvia H. Myshrall she conveyed a lot next westerly of her home lot some 240 feet west of the Old Bath Road with the dimensions of 166 feet on the east and west and 905 feet on the north and south. The description contains a monument being a rock wall on the southerly border of her home lot and a fence as a continuation of that rock wall on the southerly border of the lot conveyed to Daniel, et al.

In that warranty deed, she also conveyed, "A twenty (20') foot right-of-way to the Grantees herein from the Old Bath Road, so-called, to the lot herein conveyed." On that same date, Ms. Tillotson conveyed to another son and his wife, Fred C. Tillotson and Bertha E. Tillotson, a parcel next northerly of her home lot abutting the west side of the Old Bath Road some 1,145 feet on the north and south boundary and 166 feet on the east and west. In this deed, she excepted and reserved"A twenty (20') right-of-way over these premises to the lot of one Daniel B. Myshrall as conveyed by deed of Alice I. Tillotson to the said Myshrall." Both parcels referenced the deed to Richard D. Tillotson and Alice I. Tillotson by Arthur B. Campbell in 1949. The result of these deeds was a rectangle on the west side of the Old Bath Road with the north 166 feet owned by Fred Tillotson and spouse and the westerly 905 feet of the southerly portion of the rectangle owned by Daniel Myshrall and spouse, Alice I. Tillotson retaining a parcel 240 feet on the north and south and 166 feet on the east and west next abutting the west side of the Old Bath Road. As a result, the Daniel Myshrall parcel, landlocked from the highway, has the benefit of a 20-foot right-of-way over the parcel of Fred C. Tillotson to access the Old Bath Road from the rear lot.

Unfortunately, for reasons not entirely clear to this court for lack of evidence precisely to the point, Alice I. Tillotson executed. and recorded what has been characterized as a corrective deed dated August 2, 1975, in which, except for minor variations not relevant to this discussion, she purported to convey to Daniel B. Myshrall and Sylvia H. Myshrall the identical parcel conveyed in 1971 but, unfortunately, also containing the language of the 20 foot right-of-way and using the identical language, "A twenty (20') right-of-way to the Grantees herein from the Old Bath Road, so-called, to the lot herein conveyed." In 1975, Alice I. Tillotson owned the home lot, being the parcel next easterly of the Daniel Myshrall lot and the only property retained by her

which could be subject to an interpretation of the right to the right-of-way from the rear parcel. This serious error of real estate draftsmanship has created this litigation.

As a result of the 1971 deeds, Daniel B. Myshrall and spouse caused to be constructed a driveway consistent with the 20-foot right-of-way granted abutting the northerly boundary of the remaining home lot of Alice I. Tillotson along the south edge of the Fred Tillotson piece, from the border of the Daniel Myshrall lot to the Old Bath Road. During the period of ownership of Daniel B. Myshrall and subsequent owners, they used that driveway as access to the highway. In April of 1998, one Brady R. Palmer acquired the Alice I. Tillotson home lot from the Nationscredit Financial Services Corp. Apparently acting on the language appearing in the 1975 Alice I. Tillotson deed to Daniel Myshrall, the bank quit claim deed with covenant contains the following language: "The above-described parcel may be subject to a twenty (20) foot wide right-of-way. Reference is made to a deed recorded in said Registry in Book 1837, Page 343." This reference is the 1975 deed which has been identified by the court to create the misunderstanding.

In December of 1998, Mr. Palmer, having acquired the property from Nationscredit Financial Services Corp., entered into a boundary line agreement with Daniel B. Myshrall and Sylvia H. Myshrall in which the adjoining property owners entered into a mutual boundary line agreement based upon surveyed metes and bounds. The document is silent as to any rights-of-way and does not purport to convey any property rights except to release and quit claim any interest in the real estate abutting and lying to the opposite side of the line in question from each grantor. From testimony of Michael Tillotson, it is clear that the boundary line is intended to be on the

southerly edge of the driveway which is the clearly marked 20 foot right-of-way first established by joint deeds in 1971 over land then conveyed to Mr. Tillotson. 1 On December 24, 1998, some eight days after the execution date of the boundary line agreement, Brady R. Palmer conveyed the original Alice 1. Tillotson home lot to the plaintiffs. The description utilized is that first appearing in the boundary line agreement including that the parcel "mayor may not be" subject to a 20 foot right-of-way and making reference to the 1975 Alice 1. Tillotson deed. Some time in 1998, the defendants, who had acquired the lot originally conveyed by Alice 1. Tillotson to her son and wife Daniel B. Myshrall, Sr. and Sylvia Myshrall, caused to be constructed a driveway along the southerly boundary of the Nightingale lot between the Nightingale's driveway and the stonewall appearing as a monument of the southerly line of the lot in the original Alice 1. Tillotson deeds. The defendants are relying upon the 1975 Alice 1. Tillotson deed conveying a 20-foot right-of-way at a time when she owned the plaintiffs' lot. In said construction, the defendants destroyed a number of ornamental trees, shrubs and flowers originally planted and maintained by Alice 1. Tillotson. This construction and use of that driveway is the subject of the present matter before this court.

Construction of a deed is a question of law. Bennett v. Tracy, 1999 ME 165, <n: 7, 740 A.2d 571. This court must give the words their "general and ordinary" meaning. Rhoda v. Fitzpatrick, 655 A.2d 357 (Me. 1995). In doing so, the court first looks to the language within the four corners of the instrument. Rancourt v. Town of Glenburn, 635 A.2d 964 (Me. 1993). If the language of the deed is unambiguous, the court must construe the deed without considering extrinsic evidence of the intent of the parties. [d. If the deed is ambiguous, then the court must admit extrinsic evidence of the parties'

1 This boundary line agreement references the book and page of the 1975 deed as the recording information of the 1971 deed, clearly a drafting error.

intent. Northern Utilities Inc. v. City of So. Portland, 536 A.2d 1116 (Me. 1988). See also Pettee v. Young, 2001 ME 156.

The original conveyances by Alice 1. Tillotson to her sons Daniel B. Myshrall, Sr.

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