STATE OF MAINE SUPERIOR COURT CUMBERLAND, SS DOCKET NOS. RE-12-10 RE-12-117 CU#1-3AW/ oL.f~OI-tlf- MICHAEL PALMER, LORI PALMER andMARY ANN BRADSTREET, Plaintiffs
v.
RANTIT S. GILL, GURDARASHAN GILL, PALMER POINT ROAD ASSOCIATION, Defendants
DECISION AND ORDER
BRENDA F. SKILLIN and JOHN W. SKILLIN, Plaintiffs
v. c. rnJ;•.!~,· TE 5 OF MAINE fld-- "~ . . . c·tr.'k's o#: II LORI PALMER and MICHAEL PALMER, IIIC~ Defendants APR 02 2D14- '~ECEIVE0 INTRODUCTION
This litigation concerns ( 1) a disputed parcel of land, called in this litigation "the
wedge", and (2) whether the Palmers' retaining wall encroaches on the Skillins' right of
way 1 across the Palmers' land along the shore and encroaches on the rights of the
defendants to Palmer Point Road.
The Palmer Point Road neighborhood contains six homes and begins where
Palmer Point Road turns off of Staples Point Road and heads towards Casco Bay with the
1 Mrs. Karen Trip also has a deeded right of way to her property located easterly ofthe Skillins' property; however, Mrs. Tripp is not a party to this action and she does not contend that the Palmers have interfered with her access to her property over the right of way. Spears' home 2 on the right and the Gills' home across the road from the Spears. As one
moves down Palmer Point Road towards Casco Bay, on the waterfront is the Bradstreets'
home on the right and across the road is the Palmers' home. At the Palmers' home the
paved road ends and proceeds either to the wedge and Casco Bay or to the left along a
gravel right of way that turns along the shore of Casco Bay traveling easterly across the
front of the Palmers' property, the Skillins' property, ending at the Tripp's property. 3
Until 2008, that neighborhood was relatively peaceful. The Palmers gave permission to
the Spears and the Dickinsons, the Gills predecessors, and then to the Gills to access
Casco Bay by crossing over the Palmer property along or near the wedge. The Spears,
Dickinsons and Gills did not have waterfront property or deeded waterfront access.
The Palmer property as well as other lots located off of Staples Point Road were
part of a larger tract owned by Richard Learned ofNew Hampshire. In the 1960's
Learned subdivided the land and conveyed out about a dozen lots, some of which were
accessed by the private road known as Palmer Point Road. In granting rights over Palmer
Point Road to the various lot owners which were benefited by the road, Learned never
conveyed the fee interest or the land under which the road runs to any of the lot owners.
Nor did he convey the wedge, which was a gap created in his conveyance to the
Bradstreets in the 1960's.
1. The Wedge and Palmer Point Road
The current dispute began in 2008 when two events occurred. Ranjit Gill told
Michael Palmer that he does not control the wedge and the Gills have the right to access 2 The Spears property was for sale at the time of trial. 3 The Palmers, Skillins, Tripp and Gills all have another access to their properties across the back of the Palmers, Skillins and Tripp's property. The Gills obtained their legal access by virtue of the Stipulated Judgment entered in this litigation with the dismissal of the counterclaim.
2 the water through the wedge without Palmer's permission. Up to that point, Michael
Palmer believed he owned to the midway point of the wedge where his land met the land
of his neighbors, the Bradstreets, along a line of oak trees. The Bradstreets believed they
owned on the other side to the midway point of the wedge.
Although much of this dispute is about who owns the wedge, the court heard
almost no evidence of anyone, not even the clarnmers who trespassed, actually using the
wedge because it is steep and blocked by a large oak tree at the edge of the bank, making
it difficult to access the water through the wedge. Almost all of the testimony is that prior
to 2008 people accessed the water by walking to the east of the wedge, which is clearly
Palmer property. Without clearing the oak trees and installing steps or otherwise
rebuilding the bank, climbing down the wedge's embankment to the water is perilous.
Further fueling the 2008 dispute, Michael Palmer told the Gills that they did not
have the right to use Palmer Point Road or the wedge. In fact, the Gills property is not
located on Casco Bay and the deed for the Gill parcel does not convey an easement to
Palmer Point Road or the wedge or Casco Bay. The Gills access to their property is from
Staples Point Road at the end of Palmer Point Road, even though the Gills driveway is on
Palmer Point Road. In contrast, the Skillins have an easement that includes Palmer Point
Road and the gravel driveway along the waterside of the Palmer property to the Skillin
property.
When Learned conveyed lots, he did not include the wedge or land covered by
Palmer Point Road. Unbeknownst to the parties, Richard Leamard never conveyed this
strip of property. A survey completed in 201 0 by Mann Associates brought this fact to
the attention of the homeowners on Palmer Point Road and triggered the race to get the
3 devisees of Learnard to grant them easements over the wedge and Palmer Point Road. It
is this easement that the Palmers and Bradstreets challenge in this litigation and claim
they own the wedge by virtue of adverse possession.
2. The Retaining Wall and Right ofWay 4
In the early 2000s Michael Palmer began building a retaining wall along the right
of way across the front of his property. The Skillins, one of the neighbors with a right of
way across Palmers' land, complained that the Palmers' retaining wall interfered with the
Skillins' access to their property on their deeded right of way. The Skillins were deeded
their property on September 2, 1982 and their deed described "a right of way, as now
existing, to be used in common with others over land formerly of WalterS. Palmer and
along the bank for pedestrians and vehicles to the lot hereby conveyed." The location of
the right of way on the face of the earth was not described, other than to say along the
bank. It was not until the Tripps purchased their property in 1983, that a centerline for the
right of way was described in their deed. Mrs. Tripp is not a party to this action and has
not complained about the location or access to the right of way. However, both the
Skillins and Gills have complained about the encroachment of the retaining wall on
Palmer Point Road and the Skillins right of way along the water.
3. Palmers, Gills and Palmer Point Road Association
The plaintiffs seek a declaration that (1) they are the owners ofthe wedge by
virtue of adverse possession; (2) an easement to the wedge granted by the Road
4 Throughout the trial, this right of way was also called the traveled way, roadway, gravel drive, gravel way, gravel driveway, and travel area. There is only one right of way and it is the same right of way described in the 1982 Skillin deed and the 1983 Tripp deed. The Skillins' deed conveys a "right of way, now existing, to be used in common with others on land formerly of Walter S. Palmer and along the bank for pedestrians and vehicles to the lot being conveyed."
4 Association to the Gills is of no force and effect (Count I); and (3) enjoins the defendants
from interfering in plaintiffs' rights (Count II). The Gills filed a counterclaim alleging
the Palmers built a wall and this wall trespasses on Association land along Palmer Point
Road (Count III) and seeking in Count IV an injunction preventing the Palmers from
interfering in the Gills and the Association's rights in the easement by removing the wall
and ceasing their trespassing activities.
4. Skillins and Palmers 5
The Skillins seek a declaration that ( 1) they own an easement across the right of
way; (2) locates the right of way by using the Tripps' centerline (Count I); (3) enjoins the
Palmers from interfering with their right of access via the right of way; and (4) requires
the Palmers to relocate the wall away from the boundaries of the right of way (Count II).
They seek damages in Count III for interference in the use of the right of way and in
Count IV a determination of a nuisance in the Palmers' use of their property by altering
the flow of water into the Skillins' property. There is no evidence as to Count IV and that
count is hereby dismissed with prejudice.
The Palmers filed a counterclaim against the Skillins seeking in Count I a
declaration that the Skillins have no right to drive their vehicles in a way that damages
the Palmers' lawn, trees and bushes, and in Count II an injunction from infringing on the
Palmers' property. The court rejects these claims because although Mr. Skillin admits
that he drove intentionally on the lawn adjacent to the Palmers' land, he did not actually
5 The Skillins filed a separate action on or about March 20, 2012. The court assigned docket no. RE-12-10 to that lawsuit. In an order dated July 25,2012, the court consolidated the two actions under docket no. RE-12-10. For purposes of the trial, the parties agreed that the Palmers and Mrs. Bradstreet would be referred to as "Plaintiffs" and that the Gills, Skillins and Road Association would be referred to as "Defendants." The court adopts these designations for purposes of this Decision and Order.
5 drive on the Palmers' land. 6 Further, there is no evidence of any damages to the Palmers'
property. Therefore, the Palmers have failed to meet their burden of proof on this claim
and Counts I and II of the Palmers' counterclaim are dismissed with prejudice.
The trial occurred on October 15- 18, 2013. The court heard testimony from a
number of witnesses and accepted a number of exhibits. 7 The court also conducted a
view of the wedge, Palmer Point Road and the right of way. The following findings of
facts and conclusions of law are made, in addition to findings of fact that appear in the
Introduction.
FINDINGS OF FACTS
1. The Wedge
For decades the Palmers and Bradstreets believed they shared a common boundary
between their properties fronting Casco Bay in Freeport, Maine. Michael Palmer
purchased his property, located at 8 Palmer Point Road, from his father, Ronald Palmer,
in 1998. The land had been in the Palmer family since the 1930s. Ronald Palmer
acquired the back half of the Palmer property from his grandfather, Walter Palmer, in
1965. Walter Palmer purchased the portion of the Palmer property from Richard Learnard
in 1964. Ronald Palmer acquired the waterfront half of the Palmer property from his
grandfather, Walter Palmer, in 1974. Walter Palmer inherited the waterfront portion of
Palmer property, along with other property on Palmer Point Road, from his aunt, Ida
6 Mr. Skillins admits that he intentionally drove his car onto the lawn maintained by the Palmers to make the point that the Palmers do not own this property. The Palmers do not contend that they own the land that Mr. Skillins drove over, although they do maintain it. 7 The court reserved decision on Defendants' Exhibit 11, and now excludes this exhibit as inadmissible under M.R.Evid. 803(16). Even if this exhibit were admitted, it does not change the court's analysis. Seen. 9, below.
6 Griffin, in the 1930s. Ida Griffin acquired titled to her property on Palmer Point Road,
including the waterfront half of the Palmer property, from Abbie S. Torrey in 1904.
The Bradstreet family has held title to their property since 1964. Mary Ann
Bradstreet and her late husband, Neal Bradstreet, acquired titled to the waterfront half of
the Bradstreet property, located at 6 Palmer Point Road, from Richard Learnard in 1964. 8
Mary Ann and Neal Bradstreet acquired title to the remaining portion of the Bradstreet
property from Richard Leamard in 1970.
The Palmers and Bradstreets believed that their properties joined and were
adjacent to each other in an area that has been called the wedge in this litigation. Ronald
Palmer visited his property regularly his entire life. He lived on the property fulltime
from approximately 1965 to 1975. After 1975, he continued to regularly visit the
property. Michael Palmer, like his father, either lived on the property fulltime or when
not there fulltime, he visited the property on weekends and seasonally. He moved to the
Palmer property fulltime in 1994. Michael and Lorie Palmer were fulltime residents of
the property until 2011 when they started renting the property to tenants.
The Bradstreets, along with their children, began visiting their property from the
day they bought it in 1964. Within a few years of buying the property, they built a house
and began staying on their property seasonally, from the day school ended in the spring
until the day school started in the fall. After Neal Bradstreet died in 1984, Mary Ann
Bradstreet would stay at Bradstreet Property for shorter periods of time, but still visited
every summer. From 1981 to 2003, the Bradstreets' son, David Bradstreet, spent 3 to 4
8 The Bradstreet property is now owned by the Revocable Indenture of Trust of Mary Ann Bradstreet. Mary Ann Bradstreet as Trustee of the Trust transferred the property to the trust in 2000.
7 weeks in August of each summer at the property. Members of the Bradstreet family visit
the Bradstreet property every summer.
Both families maintained the wedge, which ranges between 3.8 and 4.1 feet 9
along the banks of Casco Bay. They maintained the wedge consistent with the way they
managed other areas of their yards. The wedge contains oaks and white pines and other
scrub brush. The oaks have grown over the years and crowded out the pines.
Throughout the time of their occupation of their properties, the Palmers and Bradstreets
have maintained the wedge raking leaves and removing debris to clear the drainage for
both properties. They have mowed the lawn and cut pine trees and other brush in the
wedge. These activities were observed by Dr. Dickinson, Karen Tripp and the Skillins.
Even Mrs. Gill admitted that she observed the Palmers maintaining the wedge just like
the Gills maintained their own yard. The Bradstreets kept a picnic table near the wedge.
Neal Bradstreet use to take afternoon naps in this area. At one time, there was a
hammock in this area. The families would cross the wedge to access the water to the east
of the wedge on the Palmer property. The Palmers and Bradstreets would walk across or
in the area of the wedge to each other's property on a regular basis. The wedge is not
conducive to construction of permanent structures due to its small size and the presence
of trees.
The wedge is visible from Palmer Point Road. Both families posted their side of
the wedge to keep others out of the area and off their properties. Both families believed
that the common boundary was a row of trees in the wedge. Clarnmers trespassed to the
east of the wedge to access the clam-flats from the Palmers' property. Both families 9 The plaintiffs' expert measured the wedge to be 3.8 feet and the defendants' expert measured the wedge to be 4.1 feet, a difference of a few inches that was characterized as insignificant by defendants' expert.
8 chased away clarnmers and others who attempted to access the Bay through or along the
wedge. The embankment is steep on the ocean side of the wedge, and the waterfront area
is muddy with sea grass. Michael Palmer participated in petitions in 1998 and 2001 to
keep clam diggers and other non-residents from using Palmer Point Road. Michael
Palmer objected to clammers walking across the Palmer property, the wedge and Palmer
Point Road. Lori Palmer called the police whenever clammers trespassed on Palmer
property, the wedge or Palmer Point Road.
The Palmers and Bradstreets did not learn that "the wedge" -the property they
had been maintaining as their own for decades- even existed until2008. The wedge was
not conveyed out in 1964 when Richard Learnard transferred the Bradstreet property to
Mary Ann and Neal Bradstreet. 10 At the time ofhis death, Learnard continued to own the
wedge and the land crossed by Palmer Point Road. Record title of the wedge and Palmer
Point Road passed to certain heirs of Richard Learnard through his residuary estate.
Neither the Palmers nor the Bradstreets sought permission of Richard Learnard or his
heirs to use and maintain the wedge. They used and maintained the wedge, mistakenly
believing that they owned it.
In 1993 Ronald Palmer commissioned a survey ofthe Palmer property (which had
nothing to do with the wedge). The 1993 survey did not show the Bradstreet boundary or
the wedge. The 1993 survey disclosed the existence of a pin ("IPF") at the southeast
comer of the Palmer property at the approximate high water mark. Prior to 2008,
10 Defendants' Ex. 11 discloses that Learnard was preparing a deed to transfer property to the Bradstreets. There is a discussion between Learnard and Walter Palmer concerning the proposed line for the Bradstreet property. Learnard expressed concern about encroaching Palmers' property. There was no discussion of a wedge or Learnard retaining property between the Bradstreets and Palmers' property. Even if Ex. 11 were admitted it adds nothing to the court's analysis of ownership of the wedge.
9 Michael Palmer believed the pin in the ground just over the embankment below the last
oak tree in the wedge - which is labeled IPF on the 1993 survey - marked the boundary
between the Palmer property and the Bradstreet property.
In 2003, Ranjit and Gurdarshan Gill purchased their property at 3 Palmer Point
Road, which is located behind the Palmers' property. The former owner, David
Dickinson, owned that property for 21 years. Dr. Dickinson never believed he had any
rights to access the water or to cross the Palmer or Bradstreet properties and always
assumed that the area near the Palmer and Bradstreet boundary belonged to them. Dr.
Dickinson accessed the water across the Palmer property and left his children's rowboat
there with Michael Palmer's permission. 11 When Dr. Dickinson sold his house to the
Gills, he made it clear to the Gills that there was no right of way to the water from Palmer
Point Road.
After the Gills purchased their property, the Gills made occasional use of the area
between the Palmer and Bradstreet properties in the vicinity of the wedge. After the
argument in 2008, Mr. Palmer told the Gills that they could not enter his property. Up to
this point, the Palmers and Gills had been friends, visiting in each other's homes as
frequently as once a week. As a result of the argument, the Gills investigated the legal
descriptions in the parties' deeds and, with the benefit of a survey, informed the Palmers
that there was a gap of land between the Palmer and Bradstreet properties that had never
been conveyed, thereafter being known as "the wedge."
The Palmers engaged Haskell and Owens to update the 1993 survey of their
property to determine whether a gap existed between the deeded legal description of the
11 Dr. Dickinson even offered to purchase from Michael Palmer an easement across the Palmer property for water access, but they could not reach an agreement on price.
10 Palmer property and the Bradstreet property. The updated survey disclosed the gap. The
parties now agree on the metes and bounds of the gap as a result of the two surveyors
agreeing on the points for the wedge. The wedge is shown on the Boundary Survey on
Palmer Point Road for Michael Palmer by Owen and Haskell, dated September 9, 2008
(the 2008 Haskell Plan). The wedge is also shown on defendants' plan, titled
Retracement Survey of Palmer Point Road by Mann Associates, Inc., dated October 20,
2009 (the 2009 Mann Plan). Mr. Skillins hired Mann Associates to perform the
Retracement Survey to determine who owned Palmer Point Road. By this point, the
Skillins and Gills had become friends and joined in their dispute against the Palmers.
With regard to the wedge, the gap in the legal descriptions starts at the curve of
Palmer Point Road and extends to the high water line of Casco Bay. Plaintiffs' surveyor,
John Schwanda of Owens & Haskell, and Defendants' surveyor, John Mann, agreed on
the boundaries of the wedge and marked the boundaries of the wedge with surveyor
stakes and flagging in accordance with their respective surveys in September 2013.
Notwithstanding the surveys, the Palmers and Mrs. Bradstreet assert they own this
property through adverse possession dating back to at least 1964.
The Gills, who failed to convince the Town of Freeport to assert a public right of
way down the Palmer Point Road, formed a road association in late 2010. The Road
Association included only the Gills and Skillins, and one of the first acts of the
Association after obtaining release deeds from some ofLearnard's heirs, was to convey
to themselves an easement to the wedge and Palmer Point Road. The Palmers on their
own behalf and on behalf of Mrs. Bradstreet also obtained release deeds to the wedge and
11 Palmer Point Road from the other half of the Learnard heirs, nevertheless still claiming
ownership of the wedge through adverse possession.
2. Retaining Wall and Right of Way
Just north of the wedge, Palmer Point Road curves and crosses the Palmer
property, Brenda and John Skillins' property, and ends at Karen Tripp's property. The
Skill ins and Ms. Tripp have a deeded right of way to traverse the Palmer property via this
gravel drive to access their own properties, the existence of which is not in dispute. The
location of the right of way on the Palmer property, however, is described only in the
1983 Tripp deed and therein only by a centerline with an undefined width. The Palmers
began constructing a retaining wall on their property along the northern edge of the
gravel drive in 2001 and completed the wall in 2005. The Skillins claim in this lawsuit
that the Palmers moved the right of way and that the retaining wall encroaches on their
right of way. The Palmers did not move the right of way. Over time, the gravel drive has
shifted as the result of regular vehicular use. The Palmers installed their retaining wall
along the grassy edge of the gravel drive existing in 2001.
DISCUSSION
The Palmers and Mrs. Bradstreet filed in RE-12-1 0 a Complaint with respect to
the wedge shaped parcel for declaratory judgment in Count I and injunctive relief in
Count II. The plaintiffs have dismissed Count III. The Gills and the Road Association
filed a Counterclaim for declaratory judgment in Count I, injunctive relief in Count II,
trespass in Count III, and injunctive relief in Count IV. In RE-12-117, the Skillins filed a
Complaint with respect to a right of way for declaratory judgment in Count I, injunctive
relief in Count II, damages for interference with right of way in Count III, and nuisance
12 in Count IV. The Palmers filed a counterclaim for declaratory judgment in Count I and
injunctive relief in Count II. These claims were tried in a consolidated bench trial during
the week of October 15,2013.
1. Adverse Possession and the Wedge
The plaintiffs claim title by adverse possession under both common law and
statutory law. A party claiming title by adverse possession has the burden of proving, by
a preponderance of the evidence, that possession and use of the property was (1) actual;
(2) open; (3) visible; (4) notorious; (5) hostile; (6) under a claim of right; (7) continuous;
(8) exclusive; and (9) for a duration exceeding the twenty-year limitations period. See
Weinstein v. Hurlbert, 2012 ME 84, ~ 8, 45 A. 3d 743, 745. These nine elements require
"possession and use of the property for a twenty-year period that was actual, open,
visible, notorious, hostile, under a claim of right, continuous, and exclusive."
Dombkowski v. Ferland, 2006 ME 24, ~ 10, 893 A. 2d 599. Maine statutory law for
adverse possession modifies common law, stating that "[i]f a person takes possession of
land by mistake as to the location of the true boundary line, the possessor's mistaken
belief does not defeat a claim of adverse possession. 14 M.R.S. § 81 0-A.
A claimant shows "actual" possession and use by "immediate occupancy and
physical control" of the property. Strei.ffel v. Charles-Keyt-Leaman P 'ship, 1999 ME 111,
~ 6, 733 A. 2d 984 (upholding finding of actual use where claimant used parcel in
"typically residential manner that included recreation, storage and gardening"). The
elements "open," "visible," and "notorious" require use without attempted concealment,
that others can see, and that others would reasonably communicate to a true owner. Id. ~
11-12 (upholding fmding of open, visible, and notorious where neighbors could clearly
13 observe possession and use). "Hostile" means simply that claimants did not have the true
owner's permission to use the property; and "claim of right" means the claimants were in
possession as owners with intent to claim ownership. Id. at~ 13-14 (upholding finding of
hostile and claim of right where claimant did not have permission and "intentionally
possessed and used parcel as though they owned it"). "Continuous" use and possession
without interruption requires only the kind of occupancy an average owner would make;
and "exclusive" means the claimants did not share use of possession with the true owner
or the public. ld. at~ 15-16.
To establish adverse possession, the claimants must show that their use and
enjoyment of the property has been consistent "in kind and degree as the use and
enjoyment to be expected of the average owner of such property." Maine Gravel
Services, Inc. v. Haining, 1998 ME 18, ~ 3, 704 A. 2d 417 (quoting Howe v. Natale, 451
A. 2d 1198, 1200 (Me. 1982); see also Gay v. Dube, 2012 ME 30, ~ 14, 39 A. 3d 52
(upholding finding of adverse possession where claimant and predecessors in title treated
parcel as a contiguous part of their property for over forty years).
A claim of adverse possession is a mixed question of law and fact. Whether
plaintiffs' use of the wedge constitutes adverse possession is an issue oflaw for the court
to decide. Weeks v. Krysa, 2008 ME 120, ~ 12,955 A. 2d 234. The elements of adverse
possession must be established by clear proof of acts and conduct sufficient to put a
person of ordinary prudence, and particularly the owner, on notice that the land in
question is actually, visibly and exclusively held by a claimant "in antagonistic purpose."
Weeks v. Krysa, 955 A. 2d at 238, ~ 13 (citation and quotation marks omitted). Whether
the acts of the plaintiffs are sufficient to establish adverse possession "can only be
14 resolved in light of the nature of the land, the uses to which it can be put, its surroundings
and various other circumstances." !d.
This court concludes that the plaintiffs have established by clear proof of acts and
conduct sufficient to put a person of ordinary prudence, and particularly Learnard and his
heirs, on notice that the land in question is actually, visibly and exclusively held by the
plaintiffs as claimants with an antagonistic purpose. Considering the nature of the land
and the limited uses to which it can be put, its surroundings and various other
circumstances, the court finds that the plaintiffs have clearly established possession and
use of the wedge for a twenty plus year period that was actual, open, visible, notorious,
hostile, under a claim of right, continuous and exclusive. That they were mistaken as to
the location of the true boundary line and did not know that there was a gap until 2008
does not defeat their claim for adverse possession. The plaintiffs and the Palmers'
predecessors in title treated the wedge as a contiguous part of their property for over
twenty years.
The Palmers and the Bradstreets have intentionally maintained the wedge as true
owners and treated it as a contiguous part oftheir property since the 1960s. They have
mowed the lawn, raked leaves, cleared brush and otherwise maintained the wedge in a
manner typical of seasonal, residential owners. The wedge is only 3.8 feet wide at the
water's edge and has a mature tree blocking access to the water, making it virtually
impassable without crossing onto either the Palmer or Bradstreet deeded property, as
clammers have done from time to time. Additionally, there are other large oak trees in the
wedge leaving at most one foot to travel. Plaintiffs' use and possession of the wedge is
consistent with their ownership of the adjoining parcels. Plaintiffs have also never sought
15 to conceal their possession or use. They have posted the wedge with no trespassing signs
and replaced those signs as they were tom down by trespassers. They have chased
others, including clammers, from their property. The plaintiffs did not seek permission to
use the parcel because they thought they owned it, that is until the surveys performed in
2008 and 2009 showed otherwise. When others used the wedge or accessed the bay over
the Palmers' property, they did so with express or implied permission ofthe Palmers, as
evidenced by the testimony of neighbors such as Dr. Dickinson. The plaintiffs have used
the wedge in such a manner, without interruption, since acquiring their respective parcels -
well over twenty years ago.
Defendants contend that Walter Palmer knew that the property lines were
consistent with the property lines disclosed first on the 1994 and then on the 2008 Owen
Haskell Plan. Def.'s Proposed Judgment at 9. For this argument, defendants rely on
Def. 's Ex. 11, marked for identification but judgment reserved at trial on admissibility.
De f.'s Ex. 11 consists of correspondence and sketches exchanged between Walter Palmer
and Richard Leamard between 1964 and 1969 concerning the location of the boundary
line for the Bradstreet property. Learnard was selling the Bradstreets their waterfront
property and in drawing the line for the Bradstreet property, Leamard did not want to
encroach on the Palmers' property. There is no discussion ofLeamard retaining any
property or of any gap or wedge in the property between the Bradstreets and the Palmers.
Even ifDef.'s Ex. 11 were admitted, it is not evidence that Leamard left a gap between
the Palmer and Bradstreet property. The letters contained in Def.'s Ex. 11 state only that
Leamard did not want to encroach on the Palmer property. The drawings or maps that
appear in Def.'s Ex. 11 do not add anything to the discussion of this issue.
16 2. The Retaining Wall and the Right of Way
Between 2001 and 2005, the Palmers built a concrete block retaining wall to
protect the septic system that the Palmers updated when they renovated their cottage.
The wall runs along the westerly line of the Skillins' property and then curves westerly
along the shore side of the Palmer property and then northerly in the direction of the
Palmers' driveway on Palmer Point Road. When citing the wall, Michael Palmer
followed the inside curve of the gravel drive and placed the wall inland from the gravel
drive existing in 2001. The Palmers did not move the gravel drive before, during or after
construction of the retaining wall. However, the Palmers did not take into consideration
the Tripp deed description of the right of way but followed the existing gravel way in
2001 in constructing the wall. The photographs depicting the retaining wall show the
wall located on the grassy area along side the gravel way in the early 2000's. See Plt.'s
30-31Y
The Skillins 1982 deed conveys a "right of way, now existing, to be used in
common with others over land formerly of Walter S. Palmer and along the bank for
pedestrians and vehicles to the lot hereby conveyed." This right of way crosses the
Palmers' property along the bank to the Skillins and Tripp property. Although the
location of the Skillins' right of way on the face of the earth was not described in their
deed, the 1983 Tripp deed described the centerline of their right of way, which otherwise
reads like the Skillins' right of way. There is only a single right of way: the same right of
way is described in the Skillins and Tripp deed. Although the Skillins have not
demonstrated that the right of way granted by their 1982 deed gives them a right to cross
12 Plt.' s 30 contains six photographs. Plt. 's 31 contains seven photographs.
17 the waterfront side of the Palmer property at a particular place on the earth, there is only
one right of way.
Maine law provides that:
Property, although subject to an easement, remains within the ownership and control of the owner of the servient estate. That ownership and control is subject only to the restriction that the owner of the servient estate not "materially impair" or "unreasonably interfere with" the use of the right-of-way that is allowed by the easement.
Flaherty v. Muther, 2013 ME 39, ~ 21, 65 A. 3d 1209, 1215 (citations omitted). The
Skillins have established the location of the right of way but they have not shown any
unreasonable interference with their use of the right of way. They also have failed to
demonstrate any actual or compensatory damages with respect to the right of way. They
have shown that the wall leans into the portion of the gravel way. The court uses the
term "gravel way" to distinguish from the deeded "right of way". The gravel way is the
way that exists today and existed before the Palmers installed their retaining wall and
along which the retaining wall has been built.
There was no survey of the right of way until1983, even though it existed as early
as 1958 when Walter Stillman Palmer conveyed the right of way easement to Alfred M.
Palmer and Lester E. Palmer. Howard Babbidge was the first to survey the location of
the gravel driveway in 1983. The Tripp deed description is based upon Babbidge's plan
titled "R!W Survey for Lester Palmer" prepared by Howard F. Babbidge, date June 3,
1983. According to the testimony of John Schwanda of Owen Haskell, Inc. and John
Mann of Mann Associates, the only evidence of the location of the right of way was the
location of the gravel driveway across the Palmer property in the Babbidge survey. The
Babbidge centerline described in the Tripp deed is the best record evidence of the right of
18 way. The centerline is shown in the Babbidge plan, the 2008 Owen Haskell plan and the
2009 Mann plan.
Although the centerline may be located on the face of the earth, that does not
provide the width of the right of way. When the width of the easement is not stated, the
width " will be held to be of a width suitable and convenient for the ordinary uses of free
passage to and from grantee's land. And if the particular object of the grant is stated, the
width must be suitable and convenient, with reference to that object." Willband v. Knox
County Grain Co., 128 Me, 62, 71, 145 A. 405, 406 (Me. 1929)(citations and internal
quotations omitted). Furthermore, "an easement in general terms is limited to a use ...
as little burdensome to the servient estate as possible for the use contemplated." Mill
Pond Condo Ass 'n v. Manalio, 2005 ME 135, ~ 6, 910 A. 2d 392. Here, the purpose of
the right of way is to be used in common with others and along the bank of Casco Bay for
pedestrians and vehicles to access the Skillins and Tripp property. Thus, the right of way
had to be at least wide enough for pedestrians and vehicles.
The Babbidge plan shows the width of the right of way to be ten feet. In
calculating how close the Tripp centerline was to the retaining wall, Mann, whose
testimony the court accepts, considered that the right of way description did not provide a
width, applied the Babbidge minimum width, applied the Tripp deed centerline, and
concluded that the closest point of the centerline to the wall is three feet, and near the
stairway it may even be less than three feet. The surveys confirm that the retaining wall
encroaches on the right of way. Furthermore, the retaining wall is in a deteriorating
condition and, in places, leans into the gravel way. The Skillins failed to demonstrate that
the retaining wall interferes with their ability to bring their boat to their property or
19 emergency vehicles access to their lot. The Skillins demonstrated that the wall leans into
the gravel way and that they are "driving wide" to avoid hitting the wall with their rear
view mirror. Over time it is possible that the leaning wall and their "driving wide" will
inevitably push the gravel way even closer to Casco Bay.
The court observes that once an easement is granted, it cannot be changed unless
both parties consent or a document granting an easement reserves the power to relocate.
See Davis v. Bruk, 411 A. 2d 660, 664-65 (Me. 1990). There was no reservation of the
right to relocate and the parties have not expressly agreed to relocate the easement. The
right of way remains as described by Babbidge in 1983. It is only the gravel way that has
moved or relocated. The Palmers argue that the defendants acquiesced to the location of
the right of way where the gravel way is and they acquiesced to the location of the
retaining wall because the wall was completed in 2005 and the defendants did not bring
their claims until March 20, 2012, more than six years after the wall was built and any
change in the gravel way's location occurred. See, e.g., Henning v. Neisz, 148 Ind.App.
576,268 N.E. 2d 310 (1971). However, the gravel way had changed before the Palmers
constructed their wall beginning in 2001, and the right of way once established could not
be relocated.
The Skillins and Gills are able to drive their vehicles on Palmer Point Road and
across the shorefront side of the Palmer property, notwithstanding the presence of the
retaining wall. 13 They have not demonstrated any unreasonable interference with their
right of way or easement. They have also failed to demonstrate any damages as a result
13 The court rejects any claims based on the placement of white rocks on the edge of the right of way. Historically, Walter Palmer first put the rocks their to protect the original septic system. The evidence at trial is that the rocks were removed a few years ago and are no longer an issue.
20 of the retaining wall. There is no evidence that the Palmers did anything to move the
gravel. Both parties' experts agreed that the gravel way shifted towards Casco Bay over
time between 1983 and 2008 but cannot explain how or when it shifted. However, they
agreed that travel ways or gravel right of ways change over time. This court concludes
that it is just as likely that the shifting of the gravel way was occasioned by vehicles
traveling over the right of way. It is also probable that in an earlier time period-(long
before the right of was located on the face of the earth by the Tripp deed) the gravel way
shifted towards the water because of white rocks placed by Walter Paimer to mark the
leech field forced Lester Palmer and Alfred Palmer to drive closer to the ocean to avoid
the leech field. This was all before 1982, when the Skillins purchased their property and
well before 2001 and 2005 when the Palmers built their retaining wall.
Although the Skillins have not shown that they have suffered any actual or
compensatory damages as a result of the retaining wall encroaching in certain places by
as much as three feet into their right of way, they have shown that the retaining wall in its
deteriorating condition leans into the gravel way and causes the to "drive wide" to avoid
hitting their side mirrors on their vehicle. Therefore, the court hereby enjoins the Palmers
from any future encroaching in the right of way and orders the Palmers to rebuild within
90 days any portion of the retaining wall that leans into the gravel way. Further the court
enjoins the Palmers from to not build a new retaining wall within five feet from the
centerline described in the Tripp deed and as reflected in the Retracement Survey. See
Def.'s Ex. 7.
21 The Gills, Skillins and the Association have failed to demonstrate any actual or
compensatory damages related to encroachment of the Palmers' retaining wall into the
Palmer Point Road near the Palmers' driveway. The wall does not unreasonably interfere
with travel on Palmer Point Road. Here the minor encroachment of the retaining wall in
this location does not outweigh the harm that would be inflicted by ordering the Palmers
to relocate their retaining wall as the defendants seek in their counterclaim.
DECISION
It is hereby ORDERED, ADJUDGES and DECREED as follows:
1. Judgment to the plaintiffs Michael Palmer, Lori Palmer, and Mary Ann
Bradstreet, as Trustee of the Revocable Indenture of Trust dated January 14,
2000 as amended, on Counts I of their First Amended Complaint. The
Palmers and the Revocable Indenture of Trust of Mary Ann Bradstreet own
the wedge by adverse possession. The Palmers and Mrs. Bradstreet own to
the center of the wedge, as that term is defined in this decision under the
doctrine of adverse possession.
2. The defendants' easement to the wedge is declared null and void. To the
extent the deeds executed by Mount Washington Observatory (Book 28220,
Page 257 and Book 28241, Page 228) purport to convey titled to the wedge to
the Palmer Point Road Association, the conveyances of title to the wedge are
of no force or effect. The Palmer Point Road Association is hereby directed to
take whatever steps are necessary to release any recorded interests in the
wedge to the Plaintiffs.
22 3. Any easement rights over the wedge purportedly conveyed by the Palmer
Point Association to Ranjit and Gurdarshan Gill (Book 28266, Page 19) and
Brenda and John Skillin (Book 28284, Page 22) are of no force and effect.
The Gills and Skillins are directed to take whatever steps are necessary to
release any recorded interests they have in the wedge by virtue of those
easements.
4. Judgment is also entered in favor ofthe plaintiffs on Count II of their First
Amended Complaint. Defendants are hereby enjoined from entering the
wedge without plaintiffs' permission.
5. Count III of the First Amended Complaint is dismissed with prejudice.
6. Judgment for the Gills and the Palmer Point Road Association on Counts III
and IV of their counterclaim. The Palmers' retaining wall encroaches on land
of the Association but does not unreasonably interfere with the rights of the
Gills or the Association. There are no actual or compensatory damages as a
result of the trespass. The Palmers are not ordered to remove the retaining
wall; however, they are hereby enjoined from rebuilding their wall or
relocating their wall so that it encroaches on the rights of the Gills or the
Association.
7. Judgment for the Skillins on Counts I, II and III of their Second Amended
Complaint. The Skill ins' right of way is defined by the Tripp deed centerline
and as shown on a survey titled Retracement Survey of Palmer Point Road by
Mann Associates, Inc., dated October 30, 2009 and recorded in the
Cumberland County Registry ofDeeds in Plan 210, Book 375 and as further
23 shown in Def.'s Ex. 7. The Palmers are hereby enjoined from rebuilding or
relocating their retaining wall so that it encroaches on the Skillins' right of
way. The Palmers ar,e further ordered to relocate within 90 days of this
judgment that portion of the existing retaining wall that leans into the gravel
way. Count IV of the Complaint is dismissed with prejudice.
8. Judgment is entered in the amount of $1 ,250, for that portion of the cost of the
Mann Associates survey performed in connection with the establishment of
the Skillins' right of way.
9. The Palmers' counterclaims to the Skillins Second Amended Complaint are
denied and dismissed with prejudice.
Date: April 1, 2014
24 STATE OF MAINE SUPERIOR COURT CUMBERLAND ss. CNILACTION DOCKETNO. RE-12-10
MICHAEL PALMER, LORI PALMER and ) MARY ANN BRADSTREET, ) ) Plaintiffs ) ) v. ) ) STIPULATED JUDGMENT AS TO RANJIT S. GILL, GURDARSHAN GILL, ) COUNT Ill OF MICHAEL PALMER POINT ROAD ASSOCIATION and ) PALMER, LORI PALMER AND CROTCHED MOUNTAIN FOUNDATION, ) MARY ANN BRADSTREET'S ) FIRST AMENDED COMPLAINT Defendants ) ANDCOUNTSIANDIIOF ) RANJIT S. GILL AND ) GURDARSHAN GILL'S BRENDA F. SKILLIN and JOHN W. SKILLIN, ) COUNTERCLAIM ) Plaintiffs ) ) V. ) ) ) LORI PALMER and MICHAEL PALMER, ) APR 02 201~ Defendants ) ) RECEIVED
On October 15, 2013, Plaintiffs Michael Palmer, Lori Palmer and Mary Ann Bradstreet
and Defendants Ranjit S. Gill, Gurdarshan Gill and the Palmer Point Road Association, by and
through their undersigned attorneys, stipulated to the entry of a Judgrnent 1 on Count III of the
Plaintiffs' First Amended Complaint and on Counts I and II of Defendants' Counterclaim.
1 This Stipulated Judgment shall have no effect upon the claims filed in Brenda F. Skillin et al. v. Michael Palmer et al., which was originally docketed as RE-12-117 and later consolidated into the above-captioned proceeding. 1. On or about January 13, 2012, Plaintiffs Michael Palmer, Lori Palmer and Mary
Ann Bradstreet commenced this action against Defendants Ranjit S. Gill, Gurdarshan Gill, the
Palmer Point Road Association and the Crotched Mountain Foundation.
2. Attorney David S. Sherman, Jr. represents Plaintiffs Michael Palmer, Lori Palmer
and Mary Ann Bradstreet (collectively, "Plaintiffs"). Attorney Jonathan M. Davis represents
Defendants Ranjit S. Gill, Gurdarshan Gill and the Palmer Point Road Association (collectively,
"Defendants"). Although the Crotched Mountain Foundation has been served, it has not entered
an appearance in this action.
3. Pursuant to 14 M.R.S. § 2401(3), the Court finds that the below-named parties
were served in accordance with the applicable provisions of the Maine Rules of Civil Procedure:
N arne/Address of Party Counsel of Record Method/Date of Service
Plaintiffs
Michael Palmer David S. Sherman, Jr. n/a 110 Libby Road Drummond Woodsum Pownal, ME 04069 84 Marginal Way Portland, ME 04101 Lori Palmer David S. Sherman, Jr. n/a 110 Libby Road Pownal, ME 04069 Mary Ann Bradstreet David S. Sherman, Jr. n/a 91 North Main Street East Longmeadow, MA 01028
Defendants
Ranjit S. Gill Jonathan M. Davis Personally served on 3 Palmer Point Road Powers & French, P.A. January 19, 2012 Freeport, ME 04032 209 Main Street Freeport, ME 04032 Gurdarshan Gill Jonathan M. Davis Personally served on 3 Palmer Point Road January 19,2012 Freeport, ME 04032
2 Palmer Point Road Association Jonathan M. Davis Personally served on c/o Ranjit S. Gill January 19, 2012 3 Palmer Point Road Freeport, ME 04032
4. This Stipulated Judgment affects title to two parcels of real estate as follows:
a. Real property owned by Plaintiffs Michael Palmer and Lori Palmer (the
"Palmers") located at 8 Palmer Point Road in Freeport, Maine, as
described in a deed dated November 28, 2005 and recorded in the
Cumberland County Registry of Deeds (the "Registry'') in Book 23462,
Page 2 (the "Palmer Property'').
b. Real property owned by Defendants Ranjit S. Gill and Gurdarshan Gill
(the "Gills") located at 3 Palmer Point Road in Freeport, as described in a
deed dated July 11, 2003 and recorded in the Registry in Book 19794,
Page 314 (the "Gill Property'').
5. In Count III of the Plaintiffs' First Amended Complaint, the Palmers assert that
the Gills do not have the right to cross a driveway located in the northerly portion of the Palmer
Property (the "Rear Driveway'').
6. The Rear Driveway is depicted in a 2008 survey and is referred to as the
"Apparent Right ofWay'' in the excerpt from the 2008 survey below:
3 ---------------------------- "PALMER ROAD. 700';1: TO - SEE NOTE 6 STAPlES POINT ROAD - - - - - - - - - MAIUIOXES ,~4 "'R - -----.r--. C'.,.. JFL~U,SHF' ~ - - - - - - - - "28'25• f ~ onr / 75.361 ., ~ JO.OO' .,
6\ 0 v I I. ~-I,}J N/F RANJIT S. GILL
tJ , ~ :f'•rt 24"041(
j)1:1 19794/316 TM 25 LOT 61-l e,~~l:a: 0 WELL
12"ASH / j 205.31' . -- ' .........._ _ _.....,.
---- - -H Of1101551 E - - - - _ - ,..,., GRAVEL DRIVE
7. As set forth in the above survey excerpt, the northern boundary of the Palmer
Property, which abuts the Gill Property, is 71.96 feet in length with a bearing ofN 84°42'05" W
(the "Palmer Northern Boundary'').
8. In Counts I and II of Defendants' Counterclaim, the Gills assert that they have a
right to use the Rear Driveway and to traverse the Palmer Northern Boundary to access the Gill
WHEREFORE, the Court hereby orders as follows:
A. Judgment is entered in favor of Defendants Ranjit S. Gill and Gurdarshan Gill
against Plaintiffs Michael Palmer and Lori Palmer on Count Ill of Plaintiffs' First
Amended Complaint and on Counts I and II of Defendant Ranjit S. Gill and
Gurdarshan Gill's First Amended Counterclaim.
B. Defendants Ranjit S. Gill, Gurdarshan Gill and the Palmer Point Road
Association and their heirs and successors have the right to use the Rear
Driveway; as described in Plaintiffs' First Amended Complaint and in paragraph
4 6 above and any land between the Rear Driveway and the southerly line of the
Gill Property, for pedestrian and vehicular access for the benefit of the Gill
C. This Judgment shall be binding upon Plaintiffs Michael Palmer and Lori Palmer
and their heirs, successors and assigns.
D. Defendants shall record this Judgment in the Cumberland County Registry of
Deeds.
E. The Clerk shall enter this Stipulated Judgment on the docket by reference at the
specific direction of the court pursuant to M.R.Civ.P. 79(a).
DATED: ---=-\-+\._1-:..._·_ _,, 2~ ~~~ Justice, Maine Superior Court