North Sebago Shores v. Mazzaglia

Opinion

\.

STATE OF MAINE' ?, -..-\ SUPERIOR COURT CUMBERLAND COUNT?,^^ CIVIL ACTION DDCKET NG. 5'3-05-032 L' / (11 14-3 / 2 \ 0 5

NG~:E~ Sebago Shores, LLC, Randal E. Millett, Timothy R. Cronin and Christopher J. Cronin, Plaintiffs

ORDER

Barry T. Mazzaglia, trustee, Mazzaglia Family Trust, Defendant

This case comes before the Court on Plaintiffs' Motion to Alter or Amend its Order of June 10,2005, denying Plaintiffs' motion for a temporary restraining order.

The parties are engaged in litigation concerning the right of Plaintiffs, owners of property in the Lake Ssbago Estatss subdivision, to gain access to their easement to Thrd Beach by boat, rather than by way of the path provided by Lake Sebago Estates when the easement was created. The Defendant Trust owns Thrd Beach subject to the easement and has erected swim ropes that restrict the ability of boaters to get to Third Beach by water. Boat owners from Lake Sebago Estates can and do anchor nearby and make use of the beach. On June 10,2005, h s Court denied Plaintiffs' motion for a temporary restraining order barring installation of the ropes when Plaintiffs failed to meet their burden of showing a liiteiihood of success on the merits of their ciaim. T h s Court found Piaintiffs' success unlikeiy, particularly in light of the Law Court decisions on the rights of parties who hold rights in common to an easement, and the unreasonableness of subjecting Thrd Beach to heavy boat traffic, when the easement is for swimming --A -.<-L-+L:-- --I.- allu a u l l u a u u l ~ t j ULUY.

Plaintiffs bring a motion "under Rule 59(e) and/or 60(b)," arguing first, that h s Court incorrectly-interpreted the language of Ivfail-~e'smiscellaneoiis nuisance statute, 17 M.R.S.A. § 2802, in a way the materially alters their chance of success on the merits of their nuisance claim (Count I). Plaintiffs also argue that the June 10,2005 decision was based on a false representation by the Defendant that Plaintiff Randal Millet (Millet),who is confined to a wheelchair but who owns and uses a boat, was permitted to use the Defendant's dock to access Thrd Beach. The Defendant has withdrawn h s offer, which Millet had previously dsclined, in light of t\e ongoing litigation between the parties.

I. Flaintiffs' Nuisance Claim.

Pursuant to M. Civ. R. 60(b)(l),relief from an order may be granted for I/ mistake, inadvertence, surprise or excusable neglect." Here the Court agrees -W. .:cL I L Plaintiffs ~ ~ that the ineariing of tkle term "co~1ec"uoiiof water" in 17 hf.R.S.A. 5

2802 refers to lakes and ponds, and includes legally unauthorized impeding or obstructing of passage in those bodies of water in the definition of miscellaneous nuisances.' To the extent the Order of June 10,2005 suggests otherwise, it stands corrected.

' 5 2802. Miscellaneous nuisances The erection, continuance or use of any building or place for the exercise of a trade, employment or manufacture that, by noxious exhalations, offensive smells or other annoyances, becomes injurious and dangerous to the health, comfort or property of individuals or of the public; causing or permitting abandoned wells or tin mining shafts to remain unfilled or uncovered to the injury or prejudice of others; causing or suffering any offal, filth or noisome substance to collect or to remain in any place to the prejudice of others; obstructing or impeding, without legal authority, the passage of any navigable river, harbor or collection of water; corrupting or rendering unwhoiesome or impure the water of a river, stream, pond or aquifer; imprudent operation of a watercraft as defined in Title 12, sectior. 13068, subsection 8; unlawhlly diverting the water of a river, stream, pond or aquifer from its natural course or state to the injury

Nonetheless, tlvs Court found and finds Plaintiffs do not meet their burden or' showing a substantial iikellliood of siiccess on the merits of their miscellaneous nuisance claim. To succeed, Plaintiffs will need to persuade a trial court that placing a swim rope across a swim area in a cove near two privately- owned sand bars near the shore obstructs boat passage on Sebago Lake, and is outside the DefendantsJ legal authority, where Defendants own title to the area in question and where an easement for boating is not provided.

Nothing in the maps or record before this Court suggests the Defendant has placed ropes over anythng other than its own property. Nor is there evidence before the Court suggesting the Defendant has violated any State or other regulation regarding this placement. Plaintiffs have not persuaded this Court that they are substantially likely to succeed in arguing the Defendant has no authority to protect its right in common with Plaintiffs to reasonable use of an easement for swimming m d sunbathng by barring boat traffic in the swimming area and on the beach.

11. Mr. MlletJs fights of Access Plaintiffs further suggest that the Defendant's refusal to allow Plaintiff Millet to make use of the Defendanys dock alters h s Court's analysis of Plaintiffs' likelihood of success on their claim of interference. Under the Law Court's holding in Poire v. Ma~zckester,requiring "reasonable" use of easement

or prejudice of others; and the obstructing or encumbering by fences, buildings or otherwise of highways, private ways, streets, alleys, commons, common landing places or burying grounds are nuisances w i t h n the limitations and exceptions mentioned. Any places where one or more old, discarded, worn-out or junked motor vehicles as defined in Title 29-A, section 101, subsection 42, or parts thereof, are gathered together, kept, deposited or aiiowed to accumuiate, in such manner or in such location or situation either within or without the limits of any highway, as to be unsightly, detracting from the natural scenery or injurious to the comfort and happiness of individuals and the public, and injurious to property rights, are public nuisances. 17 M.R.S.A. 5 2802 (ZOO4)(emphasisadded).

rights held in common with others, and other case law, this Court found it far 1 - 1 LLULLL 3u 11 L 1 a L a L L u a L L y ~ U ~ D L V L C LLLQL L n n n n c

~ L V Y V O LU

LULLLULLS

f

U ILU act,,ce

FuuC CcU -

nf Th;,.,-I

Beach would be found reasonable in a trial on the merits. 506 A.2d 1160,1162 (hie. 1986).This Court listed a number of factors in its reasonableness aiialysis, only one of which was the Defendant's previous willingness to accommodate Plaintiff Millet. The falling away of that factor does not change the reasonableness balance in Plaintiffsf favor, in light of the remaining factors weighing on the side of the Defendant, and discussed in detail in this Court's Order.

Although it has no bearing on t h s Motion, h s Court welcomes the Plaintiffs' suggestion at oral argiment that a compromise might be reached by the parties malung some, but not all, of Third Beach accessible to Plaintiffs' boats. However neither this Court's inadvertence in the matter of the statutory lmguage of 17 Y4.R.S.A. 2802, nor the Defendant's ~nwillingnessto accornmodate Plaintiff Millet at the Eefendantfs dock alter this Corzrt's analysis of the likelihood of Plaintiffsf success on the merits of their claims for purposes of a temporary restraining order. Plaintiffs Mo June 10,2005 is hereby DENIED.

Dated ~4 2; ~05

COURTS ~d County IX 287 e 041 12-0287

CHRISTOPHER NEAGLE ESQ

PO BOX 9 7 1 1 C

PORTLAND ME 04104-5011

' COURTS i d County )x 287 e 041 12-0287

DANIEL MITCHELL ESQ

PO BOX 9729 -

PORTLAND ME 04104-5029

:,.

.

.+,< : >.> .-> .-- 7 :. ,--7.- ( .,..-,

. <::,- 8

1 , .

STATE OF MAINE ,.2r.:,..-:, :<'-.

:; . ; ,:;,,;L-.i:;

, !;.<,:

, , . . .. "- SUPERIOR COURT :., .';.,

.. ,.,.-.

%

~~.

... r: ' .- .'"

-.;:

.;>!

:

."IS 8 , CIVIL ACTION CUMBERLAND, ss.

i195 %:,a ..

':.,.: 07?' i

.?. ;;J

:

!a DOCKET

-.

..

, NO: RE-05-032

: , ,,

/

L'

7

'& c-

NORTH SEBAGO SHORES, LLC *

*

* ORDER

*

BARRY MAZZAGLIA, TRUSTEE * OF THE WIAZZAGLIA FAMILY * TRUST *

*

This case comes before the Court on Defendant Barry Mazzaglia's, Trustee of the Mazzaglia Family Trust, Motion for Summary Judgment on the claims brought by North Sebago Shores, and Partial Summary Judgment on Defendant's counterclaim for Trespass and Nuisance.

BACKGROUND FACTS

Since 1990, the Mazzaglia Family Trust (the "Trust") has been the fee owner of a beach commonly known as "Thrd Beach" located on Sebago Lake. Barry Mazzaglia is the trustee of the Trust. T h r d Beach is adjacent to the Lake Sebago Estates subdivision.' T h r d Beach abuts a designated "common area" of Lake Sebago Estates at the southern end of the subdivision. There is a pathway that provides access from Lake Sebago Estates to T h r d Beach. Plaintiffs Randal E. hkllet, Timothy R. Cronin and Christopher J. Cronin, own lots in Lake Sebago Estates. In the past, they have all accessed T h r d Beach via boat. Each of their

1 Lake Sebago Estates was developed by the Patten Corporation, ~7liiclialso was the original grantor of the property owned by the Trust, including Third Reach.

deeds contains the following grant of an appurtenant easement with regard to Third Beach:

Also conveying without covenants of any kind, to the Grantee herein, its successors and assigns, a non-exclusive easement to use for sunbathng and swimming in common with others the sandbar area located on other land of the Grantor herein situated easterly of the Common Area adjacent to Lot No. 18.

The deeds conveyed to Plaintiffs also contain the following clause regarding fishing rights:

No activity shall be allowed in the Common Areas that will unduly disrupt the wildlife contained therein, providing, however, that h s provision is not intended to prevent fishng within the areas.

During the 1990's, at peak beach times during the summer months it was not uncommon for 70-80 boats and an additional number of jetslus to be landed on Third Beach at one time. In 1994, a boat struck Mr. Mazzaglia's six-year old son while trying to land on the beach. Throughout the years, Mr. Mazzaglia has attempted to prevent members of the public from trespassing on Third Beach.' (Pl. SMF qI 43). The parties dispute whether Mr. Mazzaglia asked Plaintiffs to discontinue using their boats to access Thrd Beach. (Pl. SMF 91 46).

In 2001, Ivlr. Mazzaglia erected an Organized Swim Area on T h r d Beach.

He installed line floats and buoys with the words "swim area" on them within approxi~nately200 feet from the shore.3 Mr. Mazzaglia's stated purpose for establishing an organized swim area was to protect the sunbathers and swimmers rightfully on the beach from boaters. As a result of the swim area,

7 He complained to I'IM enforcement autl~orit~es on a regular basis. (PI. SbfF 9[ 43)

Xccord~ngto the maps prov~ded,the length of the swlm area runs almost the e n t ~ r r length of Third Beach, approximately 1,200 feet. (PI. SMF 47).

Plaintiffs' boating access to the beach has been limited to mooring and wading through the water, or landing further down the beach and having to walk approximately 500 feet, approximately one tenth of a mile. It is disputed whether the pathway to Third Beach is always accessible for Plaintiffs. (Def. SMF ¶ 6)."

Plaintiffs claim that their beach easement rights encompass accessing Third Beach b y boat. As such, they seek a determination that the swim area infringes upon their beach easement rights. Plaintiffs' complaint seeks relief in the form of nuisance and trespass (Count I), declaration of easement rights (Count 11), and interference with easement rights (Count 111). The Trust's counterclaim seeks relief in the form nuisance and trespass.

DISCUSSION

In a motion for sumnlary judgment, the Superior Court must examine the evidence in the light most favorable to the nonnloving party to determine whether the parties' statements of material facts and record citations reveal a genuine issue of material fact. Rogers v. Jackson,2002 M E 140, 5, 804 A.2d 379, 380. a. Plaintiffs' Easement lhghts

The first issue in this case is whether the Plaintiffs' deeds include the right to access Third Beach by boat from waters of Sebago Lake in order to exercise their appurtenant easement rights. The construction of a deed is a question of law. ALC Uev. Coup. v. I/\inlkeu,2002 MX 11, ¶ 10, 87 A.2d 770, 774. In interpreting

1 Defendant asserts that the pathway accessing L hlrd Beach from L,dke Sebago Estates IS alwclys access~ble.Plarntiffs assert that the path\vay is rochy, steep, \vet, and floods a t times. Furthermore, hlr qllllet is 111 a mheel chair and cannot access 1 h ~ r dBeach vla the path.

a deed, the words of the deed are given their general and ordinary meaning to see ii they create an ambiguity. Id. If thc terms of the deed are unambiguous, the Court looks no farther than the language of the deed as a whole to determine the parties' intent. Id; see Pierre v. Gro~zdin,51 3 A.2d 1368 (Me. 1986). However, if the terms are ambiguous, the court may look to extrinsic evidence for guidance. Icl.

Here, the deed clearly states that Plaintiffs have a "non-exclusive easement to use for sunbathing and stvimming in common with others." This language is clear and unambiguous. It does not say, as could be the case, that the easement is for "boating activities" or "for all purposes."' Rather, the easement specifically limits activity on the beach to sunbathing and swimming. Although the sport of fishing is not encompassed in sunbathing and swimming, the deed sanctions fishing in a different section. The dced does not, however, mention boating or boating access to the beach According to the regulations established by the Director of the Maine Bureau of Parks and Lands, as authorized by Title 12 MRSA 51894,

All organized swim areas must be enclosed with line iloats . . . No swim area may extend beyond the water safety zone (200 feet from any shore) or one-third the distance to the opposite shore, whichever is less. A State Permit is not necessary to establish an organized swim area.6

The Trust, as owner of Third Beach, is within its rights to erect a swim area within the safety zone for the protection of s~rimmersas long as the

3 An easement granted the "right to use in common with grantor and others lawfully entitled thereto, the beach. . . for the purpose of bathing a n d boating." Poire v. 12/Ianchesfer,506 X.2d 1160,1 1 h I (h!c. 1986) .A.nof!ler e ~ e m e ngranted t ''the right to as?, fnr 211 r mrrnncoc

-.Ar-Y-i/ T I J ~ ~

or road known as the Goodwin Road and rower Road." I V i ~ r ev .Public Serzlice Corrtpuny ofNcru Hmnpshire,412 A.2d 54,85 (Me. 1980). 6 The rules define a n "organized swim area" as: Any developed swim area, especially those a r r a s drvrloped h v s u n i m r camps; c:ornmunity organ~zationsa n d other shore!ine owners, ~ v h i c his enclosed by line floats a n d delineated by at lcast two "Swim Area" markers a t the outer oif shore bounds.

establisl~rrle~~t of a swim area does not infringe upon the easement rights of

Plaintiffs to er~joysunbathing and swimming activities. In this case, the s ~ v i m area does not infringe upon the easement rights of Plaintifts. Rather, it allows Plaintiffs to enjoy their rights to swim peacefully on T h r d Beach while providing protection from encroaching motorboats and jetskis. b. Laches Plaintiffs argue that the Trust is barred from attempting to prohibit their recreational boating uses of Third Beach after allowing them to occur for 15 years. The defense of laches is applied when "the omission to assert the right has continued for an unreasonable and unexplained lapse of time, and under circumstances where the delay has been prejudicial to an adverse party, and ~vhereit would be inequitable to enforce the right." Glmu v. Glezo, 1999 M E 114,

13,734A.2d 676, 681. Whether laches applies in a given circumstance is a question of la.izr. See Id.

Here, it is ui~disputedthat Mr. h/fazzaglia became the owner of T h r d Beach in 1990, apyroxi~nately11 years before he installed the swim line. However, it is disputed whether Mr. Mazzaglia asserted his rights on T h r d Beach directly to Plaintiffs during this bme. Further, Plainbffs have not demonstrated that their interests hzve been prejludiced by the delay, if any, of Mr. hlazzag!ials assertion of the rights of the Trust.' Accordingly, Plaintiffs have failed to establish the requisite elements of laches to bar the bfr. Mazzaglia's action. c. The Trust's Counterclaims

-

' Ratller, Plaintiffs argue that the asserbon of Mr. bIazzaglias rights, by installing the s ~ v i mI~ne,has prejudiced their rights. That, however, is not the question to be answered.

Turning to the Trust's argument that volleyball and picniclung constitute an excessive use of Plaintiffs' easement rights and amount to trespass and nuisance.%n owner of an easement may not exceed his rights either in the manner or extent of its use. Beckwith v.Rossi, 175 A.2d 732, 735 (Me. 1961). Easement rights encompass all rights incident or necessary to its proper enjoyment and nothing more. Id.

Herc, the rights ir~cidentor necessary to the proper enjoyment of sunbathing and swimming as they are traditionally understood encompass, among other things, wallung the beach, reading a book, collecting shells, picnickng, and playing frisbee or beach volleyball. While daily 40-person volleyball matches may constitute trespass and nuisance, a one-time event does not. The activities engaged in by Plaintiffs to tlus date d o not amount to trespass or nuisance.

The entry is:

'The Trust's muti011 for summary judgment as to all counts of Plaintiffs'

cornplaint is GRANTED.

The Trust's mohon tor partial summary jud trespass and nuisance is DENIED.

DATE:

s The 'Trust complains that the one 40-person game volleyball match orchcstrsted as a "peaceful protest" by Plaintiffs constitutes trespass and nuisance.

= COURTS nd County lox 287 le 04112-0287

CHRISTOPHER NEAGLE ESQ

PO BOX 9 7 1 1

PORTLAND ME 0 4 1 0 4

IF COURTS and County Box 287 ne 04112-0287

DANIEL MITCHELL ESQ

PO BOX 9 7 2 9

PORTLAND Mw 0 4 1 1 2 k