Sleeper v. Loring

• Court: Superior Court of Maine
• Decided: March 8, 2016
• Docket: CUMap-10-20
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss Docket No.: AP-10-20

) GARY SLEEPER, ROMONA SLEEPER, ) RICHARD ROY and HOLLY ROY ) ) Plaintiff, ) ) SUPPLEMENTAL ORDER V. ) AND FINAL JUDGEMENT ) DONALD R. LORING, MARILYN P. ) '::,A,: :: cw \~A!NE Cumt:o ri <1nc ss Clerk s O'.fice LORING, HARRY GREENLAW and ) ANN GREENLA Y ) MAR O~ 2016 Defendant RECElVED

Pursuant to the Law Court's remand, Sleeper v Loring, 2013 ME 112, 83 A.3d 769, and

this Court's Order dated June 12, 2015, as testimonial hearing was held on September 21, 2015

to resolve the last remaining issue in this case: the dimensions of the dock allowed on the

common right of way, Lot 40A. After a day-long hearing, at which seven witnesses testified,

including Plaintiffs Gary and Ramona Sleeper and Defendants Donald Loring and Harry

Greenlaw, and considering the further documentary evidence admitted, as well as the parties'

prior stipulations, the Court determines the maximum dimensions of the dock to be four feet (4 ')

in width and forty-two feet (42 ') in length (not to exceed 39' over the water and not to exceed 3'

over land). The height of the dock may not be any higher than its current elevation.

The dimensions of the dock were not specified in the original grants of easement rights to

the back lot owners to get from the perimeter road "to the shore of the Lake." See Plaintiffs'

Ex. 1 (1959 deed to Plaintiff Sleepers' predecessor in title) and Plaintiffs' Exs. 2 and 3 (1961 and

1957 deeds to Plaintiff Roys' predecessors in title). Consequently the Court must look to the objectively manifested intentions of the original grantor and grantees, the purpose of those

original grants, the then-current relationship of the dominate and servient estate property owners

and, here-lacking any truly definitive evidence from the time those original easements were

granted-the conduct acquiesced to by the affected property owners shortly thereafter. See

Sleeper v. Loring, 2013 ME 112, ,r 20; Guild v. Hinman, 1197 ME 120, ,r 9, 695 A.2d 1190.

The parties have stipulated the maximum width of the dock to be four feet (4 '), which the

Court finds to be reasonable and likely to have been within the contemplation of the original

grantor and grantees at the time (and remains reasonable to date) to accommodate the range of

uses that such a dock would likely provide related to accessing the Lake.

Also, implicit in the four foot dock width limitation is the obligation to keep the dock

"picked up" on a daily basis, i.e., remove all personal belongings on a daily basis, as failing to do

so would frustrate use of the right of way dock by the many other back lot owners beyond the

Plaintiffs.

The parties have agreed the dock may be no higher in elevation that it is now.

However, the Court still must determine the maximum length of the dock. No testimony

was presented as to the length of the original dock constructed by John Lestage, an original back

lot owner, in the late 1950s. See Plaintiffs' Ex. 23 (photo of Mr. Lestage building the dock in

1957 or 1958). Similarly, no written or photographic evidence was admitted that documented the

dock's length; however, both testimonial and documentary evidence was admitted that the dock

as it existed in the mid-1960s was long enough to accommodate "reasonable dock uses" as

defined above. Trial testimony of Mr. Lestage's daughters, Linda Write and Carol Brewster; see

Plaintiff's Ex. 24 (photo·of Lestage' s daughters on adjacent Marston dock); Defendants' Exs.

105 and 107 (photos of right of way in late 1970s) and Defendants' Ex. 21 (1998 photo showing dock same approximate length as adjacent 26' dock then on Defendant Greenlaws' property) and

Defendants' Ex. 106 (sales brochure for the Lorings' property from 1999 with photo in lower

right-hand comer showing right of way dock same approximate length as 23' dock then on

Defendant Lorings' property). In short, based on the trial testimony of Mrs. Wright and Mrs.

Brewster and the photographic evidence, there was sufficient evidence to demonstrate that the

length of the dock as used by the Lestages from the late 1950s to 1970s (when the Lestages

finally sold their back lot) and the depth of the water (even with rocks along the shoreline) were

adequate to accommodate such "reasonable dock uses." Further there is a photo from May 28,

1999 showing the dock to be no longer than 42' (3 9' over the water at that date and 3' over

land); Defendants' Ex. 54 shows Plaintiff Gary Sleeper in the water on May 28, 1999 in the

process of adding a 12' section with obviously brand new decking to the existing dock. See also

Defendants' Ex. 106 (sales brochure photo of dock no longer than 23' over the water).

Taken as a whole, this evidence demonstrates that the maximum length of the dock

reasonably within the intention of the original easement grants is forty-two feet (42 ') total

(maximum 39' over the water and maximum 3' over the land, the latter to include any

pedestrian-only ramp from the right of way to the dock). And, with the parties having agreed to a

four-foot width and a height not to exceed the dock's current elevation, the right of way dock

may not exceed these dimensions. No dinghies may be left on the dock other than as temporary

tie-ups to the water.

This access Order, together with this Court's judgment dated June 12, 2015, constitutes the

final judgment in this matter.

So ORDERED. The clerk is directed to incorporate this Order into the docke

Date: ~,2016 STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION CUMSC-AP-10-20

GARY SLEEPER, RAMONA SLEEPER, RICHARD ROY and HOLLY ROY,

Plaintiffs

v. JUDGMENT

DONALD R. LORING, MARILYN P. LORING, HARRY GREENLAW, f 'tJI"'\~~ ot,\ce s1f:>-1'c. 0 c1e1¥- $ and ANN GREENLAW, 1 d sS, per\aJ ' curl' . l 1~\~ Defendants ~\j~ \

?-t:-cE-\\/E.O Following the Law Court's decision in this case, Sleeper v. Loring, 2013 ME

112, 83 A.3d 769, on remand the court must answer three questions: (1) who is

the fee simple owner of Lot 40A? (2) do plaintiffs have the right to build and

maintain a dock on Lot 40A under the terms of the easement? (3) are plaintiffs 1 overburdening their easement?

1. Fee Simple Title

In June 1955, the North Sebago Shores Subdivision (the Subdivision) was

developed for D. Wilson Hawkes. (Stipulation 11.) Wilson Hawkes held title to

the entire subdivision property in trust for the benefit of himself, Delmont R.

Hawkes, Beryl Josephson, and Arnold Josephson. (Stipulation

Hawkes conveyed his interest to the other three beneficiaries of the trust in 1970.

(Stipulation 1 5.) The trust existed until August 24, 1972 when all of the trust

property, including Lot 40A, was conveyed to Wilson Hawkes, Beryl Josephson,

1 The court has already determined that no other parties need to be joined under M.R. Civ. P. 19(a}. See 9/29/14 Order. and Arnold Josephson, as co-partners of Hawkes Lumber Company. (Stipulation

In 1976, Beryl and Arnold Josephson brought a partition action for several

parcels of land they held as tenants in common with Wilson Hawkes, including

the subdivision property. (Stipulation IJ[ 7.) On December 23, 1976 the Superior

Court entered a judgment ("Partition Judgment") which required the parties to

convey the "Caggiano Lot," which included Lot 40A, to their attorneys Charlton

Smith and Sumner Bernstein. (Defs.' Ex. 3.) The attorneys were then required to

list the property for sale and divide the proceeds equally between Wilson

Hawkes, Beryl Josephson, and Arnold Josephson. (Defs.' Ex. 3.) The Josephsons

and Wilson Hawkes executed quitclaim deeds conveying the Caggiano lot to

Attorney Smith and Attorney Bernstein. (Stipulation

the property on August 31, 1977 and delivered a quitclaim deed to Bradley

Benson, purporting to convey the Caggiano Lot. (Stipulation

On appeal, the Law Court interpreted the quitclaim deed delivered to

Bradley Benson from the attorneys. Sleeper, 2013 ME 112,

court held that the deed was unambiguous and did not convey title to Lot 40A.

Id.

Bernstein died in 2002. (Stipulation

executed a quitclaim deed to the Lorings and the Greenlaws, conveying all of his

interest in Lot 40A to the Lorings and the Greenlaws. (Stipulation

parties dispute whether this deed conveyed the entire interest that Smith and

Bernstein acquired in 1976 pursuant to the Partition Judgment.

Defendants argue that the Partition Judgment created a trust and that

Attorneys Bernstein and Smith were obligated under the judgment to acquire

2 and sell all of the property constituting the Caggiano lot, which includes Lot 40A.

They argue that all elements of a trust under Maine law are present, specifically

(1) trustees (Bernstein and Smitht (2) beneficiaries (Hawkes and the Josephsons),

and (3) trust property (the Caggiano Lot). See 18-B M.R.S. § 401 (2014).

While Smith and Bernstein purported to convey the Caggiano Lot to

Bradley Benson, the deed to Benson did not actually convey Lot 40A. Thus,

Smith and Bernstein continued to hold title to Lot 40A as cotrustees. Under 18-B

M.R.S. § 704(1), a vacancy in trusteeship occurs if one of the trustees dies. "If one

or more cotrustees remain in office, a vacancy in a trusteeship need not be filled."

18-B M.R.S. § 704(2). When Bernstein died in 2002, there was a vacancy in the

trusteeship, but because Smith remained a trustee, that vacancy did not need to

be filled. Accordingly, defendants argue, when Smith quitclaimed his interest in

Lot 40A to the defendants, he conveyed the entirety of the interest Smith and

Bernstein acquired as trustees.

Plaintiffs rely on the Statute of Frauds, 33 M.R.S. § 851, which provides,

"[t]here can be no trust concerning lands, except trusts arising or resulting by

implication of law, unless created or declared by some writing signed by the

party or his attorney." In this case, the deed conveying the Caggiano Lot to 2 Bernstein and Smith is signed by the parties. That deed explicitly refers to the

1976 Partition Judgment, which establishes the intent to create a trust The deed

and the judgment together satisfy the writing requirement. See Bl.ake v. Collins, 69

Me. 156, 157 (1879) (" Any writing, however informal, from which the existence of

2 A trust may also have arisen by implication of law and therefore would not be subject to the writing requirement.

3 a trust in the estate and the terms of it can be sufficiently understood, whether it

was intended by the signer as such or not, is sufficient.").

The court agrees with defendants that the Partition Judgment effectively

created a trust. This interpretation is consistent with the equitable powers of the

Superior Court to appoint a trustee for the sale of property in a partition action.

See 33 M.R.S. § 153(1); 4 M.R.S. § 152(5)(L); Boyle v. Boyle, 1999 :ME 128, 'JI 14, 736

A.2d 273 ("Section 153 grants authority to the Superior Court ... to appoint a

trustee to sell real estate, on the petition of any person who has possessory

interest in the real estate, even though the real estate is subject to a contingent

remainder interest."). It is irrelevant that the court did not use the terms

"trustee" and "trust" when it ordered the parties to convey their property to

Bernstein and Smith. See Restatement (Second) of Trusts§ 23 cmt. a (1959) ("[N]o

particular form of words or conduct is necessary for the manifestation of

intention to create a trust."). All elements necessary to create a trust in this case

were satisfied.

When Smith conveyed Lot 40A to the Greenlaws and the Lorings in 2012,

he was simply acting according to the 1976 Partition Judgment. That judgment

ordered the attorneys to sell the entirety of the Caggiano Lot-they were not

allowed to retain any interest in that property. Smith testified that the two

attorneys did not intend to retain any portion of the Caggiano Lot, and in fact

had received full consideration for the entirety of the property. Smith was

therefore obligated by the judgment to convey any remaining interest in Lot 40A

to the defendants as the successors-in-interest to Bradley Benson. (Stipulation 'JI

12.) When Smith quit-claimed his interest in 2012, the Greenlaws and the Lorings

acquired fee simple title to Lot 40A.

4 2. Scope of the Easement

The Greenlaws own Lot 40 on the Subdivision Plan and the Lorings own

Lot 41. (Defs.' Exs. 8-9.) Each family has 40 feet of frontage on Sebago Lake. (Id.)

The Sleepers own Lot 71 and the Roys own Lots 74 and 75. (Pls.' Ex. 5.) The

plaintiffs' lots are all back lots with no lake frontage. (See Stipulation

Plaintiffs' deeds include a right of way, which states: "Also a right of way from

the road to the shore of the lake over Lot 40-A as shown on said plan." (Pl.'s Exs.

1-3.) The Law Court concluded that this language is ambiguous as to the purpose

of the right of way. Sleeper, 2013 ME 112,

court, the Law Court set forth the test for this court to apply: "when the purpose

of an express easement is not dear, a court must ascertain the objectively

manifested intention of the parties to the original conveyance in light of

circumstances in existence recently prior to the execution of the conveyance, as

well as use of the easement and acts acquiesced to during the years shortly after

the original grant." Id. 'IT 20.

The court held a bench trial on November 3-5, 2014. Defendants' witnesses

testified that Hawkes intended to construct a boat ramp at the end of Lot 40A.

There is no evidence, however, that he ever took any steps to construct a boat

ramp. While this may have been Hawkes's original plan, the court concludes that

the scope of the right of way over Lot 40A is not limited to the construction of a

boat ramp to the exclusion of a dock. The evidence supports this conclusion for

several reasons.

First, the court notes that the shore at Lot 40A is rocky, making a boat

ramp impractical. In addition, the right of way across the lot was granted only to

back lot owners. If Hawkes intended to create a boat ramp at Lot 40A, then he

5 likely would have granted access to both front and back lot owners. The fact that

he granted the right of way only to back lot owners suggests that it was intended

to provide them general access to the lake, which in that area, is best

accomplished by using a dock.

Historical use of Lot 40A confirms that the scope of the easement includes

the right to build and maintain a dock. Based on the testimony at trial, the court

finds that John Lestage constructed a dock at the end of Lot 40A in either 1957 or

1958. This is the dock pictured in Plaintiffs' Exhibit 23. This dock was located in

approximately the same location as plaintiffs' dock is now. There is no evidence

that Hawkes, the developer, ever objected to the dock, and the dock remained in

the same location until the 1970s, after the Lestages sold their property. In fact,

Hawkes continued to convey deeds that included express easements over Lot

40A until 1961, after the dock was built.

Defendants' witness Jon Hebert .testified that the dock pictured in

Plaintiff's Exhibit 23 was actually built on the neighboring Marston property.

Hebert believed, however, that the Marstons had 55 or 60 feet of lake frontage,

when in fact they only had 40 feet. The court does not credit his testimony

regarding the location of the Lestage dock.

Based on the circumstances at Lot 40A around the time Hawkes conveyed

the easements, the court concludes that plaintiffs' dock is within the scope of the

easements. The plaintiffs are permitted to keep and maintain a dock at its current

location at the end of Lot 40A.

3. Overburdening Analysis

To determine whether plaintiffs are overburdening the easement, the

court "evaluate[s] whether it is reasonable to conclude that a particular use was

6 within the contemplation of the parties to the conveyance and, in that context,

whether the contested use made of the servient estate by the dominant estate

exceeds the rights granted to the user." Flaherty v. Muther, 2011 ME 32,

A.3d 640.

Although plaintiffs are entitled to build and maintain a dock at the end of

Lot 40A, use of the easement is limited to accessing the lake. Plaintiffs may

temporarily tie a boat up to the dock because one of the purposes of accessing the

lake is for boating. Plaintiffs' easement does not allow them to set up a table and

chairs; store property on the lot, including sections of the dock when not in use;

or conduct any other activity on Lot 40A that is not related to accessing the lake.

One issue that has not been adequately addressed by the parties the

permitted width and length of the dock. Although there was some testimony on

this issue, it is unclear to the court how large the dock at Lot 40A is compared

with the Lestage dock and compared with other docks in the area. In the interest

of resolving this case completely and finally, the court will schedule a hearing

and take additional testimony, if necessary, to determine the permitted width 1 and length of plaintiffs dock.

CONCLUSION

Defendants own Lot 40A pursuant to the 2007 deed from Bradley Benson

and 2012 corrective deed from Attorney Smith subject to express easements in

plaintiffs' deeds. Plaintiffs' easement rights across Lot 40A include the right to

build and maintain a dock of a size to be determined by the court in a future

hearing. The easement rights do not include the right to set up a table and chairs,

store property on the lot, or engage in any activity unrelated to accessing the

lake.

7 The entry is:

Fee simple title to Lot 40A of the Subdivision lies with Defendants Donald Loring, Marilyn Loring, Harry Greenlaw and Ann Greenlaw by virtue of the deed from Charlton Smith dated June 11, 2012 and recorded in the Cumberland County Registry of Deeds in Book 29658, Page 347, subject to the rights of others to pass and re-pass on the same;

The deed language that provides Plaintiffs with a right of way from the road to the shore of Sebago Lake over Lot 40A includes the right to build and maintain a dock at the end of Lot 40A;

The deed language does not give Plaintiffs the right to do any of the following on Lot 40A: place chairs or a picnic table, store any personal property, or use the lot for any activity other than accessing Sebago Lake.

This matter shall be scheduled for a con£ hearing to take additional testimo the issue of the permitted wi dock.

Date:

8 Date Filed __0_7_-_0_6-_l_O_ __ Cumberland Docket No. ___AP_-_1_0-_2_0_ __ County

GARY SLEEPER 'fe,WN fll" SEBAGO" RAMONA SLEEPER DONALD R LORING RICHARD ROY MARILYN P LORING HOLLY ROY HARRY GREENLAQ ANN GREENLAW vs.

Plaintiff's Attorney Defendant's Attorney

ROBERTS. HARK ESQ. BRIAN WILLING ESQ (TOWN OF SEBAGO) 75 PEARL STREET William H Dale Esq (OBO Defendants PORTLAND, ME 04101 Greenlaw and Loring)

Date of Entry 2010 STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: AP;l0-0291,; .· I

.f,f)(_, --C 4/M Bt-.i . I /

GARY SLEEPER, RAMONA SLEEPER, RICHARD ROY, and HOLLY ROY

v. ORDER DONALD R. LORING, MARILYN P. LORING, HARRY GREENLAW, and ANNGREELAW

Defendants.

There are three motions before the court: the plaintiffs' motion for summary judgment

as to Count III; the defendants' cross-motion for summary judgment as to Counts IV

and V; and the defendants' motion to strike the plaintiffs' demand for a jury trial.

BACKGROUND The lot at issue in this litigation referred to as "40A - RT W. 20" (lot 40A) in the

Plan of North Sebago Shores. (S.M.F. 9I 1.) The North Sebago Shores subdivision was

originally developed for D. Wilson Hawkes in June 1955. (S.M.F. 9I 7.) At that time

Hawkes held the title to the relevant property in trust. (S.M.F.

Hawkes conveyed lots 74 and 75 from the subdivision to individual landowners.

(S.M.F.

Richard and Holly Roy. (Id.)

In 1958, Hawkes conveyed lot 71 to Everett Littlefield, who is the predecessor-in­

title of plaintiffs Gary and Ramona Sleeper. (S.M.F. 9I 10.) The Littlefield deed includes

1 "a right of way from the road to the shore of the lake over Lot 40-A as shown on said

plan." (S.M.F.

right-of-way from Hawkes Road to Route 114 (as shown on Plan Book 115, Page 47) to

the Town of Sebago. (S.:\1.F.

In 1976, following a series of legal proceedings, attorneys Sumner Bernstein and

Charlton Smith, in their fiduciary capacities, obtained certain properties including

Hawkes ownership of the North Sebago Shores subdivision. (S.M.F.

Bernstein and Smith conveyed the property to Bradley Benson with a deed containing

the following language, which at the center of this case:

Also excepting that parcel of land shown as a right of way on a plan entitled "Map of Right of Way (1) Hawkes Road of North Sebago Shores Development and (2) Right of Way from said Development to Route #114, Me. Highway", prepared by Alan Hawkes and Leslie P. Marston, dated May 14, 1970, and recorded in Cumberland County Registry of Deeds in Plan Book 115, Page 47. (S.M.F. 9I 4.)

The defendants obtained title to property in the subdivision pursuant to a

quitclaim that was conveyed by Benson on November 19, 2007. (S.M.F.

Based on this conveyance, the defendants claim that have fee simple title to lot 40A.

On January 11, 1994, the Sleepers obtained title to lot 71 pursuant to a municipal

quitclaim deed. (S.M.F. 9I 40.) The Town of Sebago had acquired the property from

Littlefield. (S.M.F.

and both the Sleepers and Roys have used this dock. (S.M.F.

anyone uses the dock. All of the back-lot owners in the subdivision have an

easement to use lot 40A to pass from "the road to the shore of the lake." (S.M.F. 9I 47.)

Plaintiffs filed a four-count complaint on July 6, 2010. Counts I and II

SOB claims against the Town of Sebago, but they were dismissed on May 16, 2011. I Hawkes Road is now known as Anderson Road. (S.M.F. 9[ 14.)

2 Count III challenges defendants' ownership of the fee simple title of lot 40A. Count IV

requests an injunction to prohibit the defendants from parking their vehicles on the

right-of-way. Count V was added on August 30, 2011, and in it the plaintiffs request a

declaratory judgment that they are entitled to build and maintain a dock on the right-of­

way.

SUMMARY JUDGMENT

1. Standard of Review

Summary judgment is appropriate where there are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of law. :CVLR. Civ. P. 56(c);

see also Levine v. R.B.K. Caly Corp., 2001 ME 77, <]: 4, 770 A.2d 653. A motion for

summary judgment must be supported by citations to record evidence of a quality that

would be admissible at trial. Levine, 2001 ME 77, <]: 6, 770 A.2d 653 (citing M.R. Civ. P.

56(e)). An issue of "fact exists when there is sufficient evidence to require a fact-finder

to choose between competing versions of the truth at trial." Inkell v. Livingston, 2005 1v1E

42, 9I 4, 869 A.2d 745 (quoting Lever v. Acadia Hosp. Corp., 2004 ME 35,

1178). The evidence is viewed "in the light most favorable to the nonmoving party."

Driscoll v. Mains, 2005 ME 52, 9I 6, 870 A.2d 124 (quoting Tucci v. City of Biddeford, 2005

ME 7,

2. Count III

The plaintiffs argue that "there is no issue of material fact with respect to the

issue of whether the deed from Sumner Bernstein and Chadbourne [sic] Smith to

Bradley Benson conveyed any fee interest in the parcel at issue in this action, to wit,

'40A- RT W.20."' (Mot. Summ. J. 1.) As a result, they move for partial summary

judgment on Count III. The process for interpreting a deed is well established by the

Law Court.

3 The construction of a deed is a question of law that we review de novo. A court construing the language of a deed ... must first attempt to construe the language . . . by looking only within the 'four corners' of the instrument. In evaluating the language of a deed, courts should give effect to the common or everyday meanings of the words in the instrument. If the deed is unambiguous, the court must construe the deed without considering extrinsic evidence; if the deed is ambiguous, however, the court may admit extrinsic evidence of the parties' intent. N. Sebago Shores, LLC v. lvlazzaglia, 2007 ME 81, 9I 13, 926 A.2d 728 (internal citations and

quotation marks omitted); see also Badger v. Hill, 404 A.2d 222, 225 (Me. 1979) (allowing

use of extrinsic circumstances only when consideration of plain meaning does not

suffice). "The objective intent of the parties is a question of fact." Flaherty v. Muther,

2011 ME 32, 9I 55, 17 A3d 640 (discussing express easements).

The plaintiffs argue that the deed is not ambiguous because "[t]he. Hawkes plan

describes nothing other than a parcel of land that consists of contiguous rights-of-way,

all of which are contiguous and thus constitute a single parcel of land; and all of which are

labeled as rights-of-way." (Pls' Reply 3 (emphasis in original).) Since the plaintiffs believe

the deed is not ambiguous they based their deed interpretation on the content within

the 'four corners' of the instrument. For example, the plaintiffs argue that the deed

"expressly grants to Benson a right-of-way for access 'between the numbered lots

shown on the Plan and the Lake ...'" 2 (Pls' Reply 3.) They assert that these numbered

lots include lot 40A and "the effect of such a conveyance would be to merge the

dominant and servient estates, and the right-of-way would be a nullity." (Pls' Reply 3

(emphasis in original).)

2 The Bernstein deed reads: Also hereby conveying to the Grantee, his heirs and assigns, any rights which the Grantors may have, in common with others entitled to the use of them, for the purpose of access, ingress and egress between the numbered lots shown on said Plan and the Lake, the Public Highway, Hawkes Road and any other streets, ways or rights of way shown on said plan of North Sebago Shores, recorded in said Registry of Deeds in Plan Book 44, Page 10, or appurtenant to the premises hereby conveyed.

4 Upon review of the deed and the referenced pages from the plan book, the deed

is ambiguous. Lot 40A boarders another right-of-way, but the plaintiffs' description of

the right-of-ways is misleading. There are several connected parcels of land that are

labeled as rights-of-way on Plan Book 115, Page 47. The Hawkes road, which is a right­

of-way, has four rights-of-way shooting off of it connecting it to the Lake. Lot 40A is

one of those parcels. Although the parcels are all connected in some way they do not

create a single flowing parcel. One could drive along them without entering a non.­

right-of-way, but not without backtracking. As a result, the deed is ambiguous.

The defendants bring in several arguments, based on extrinsic evidence, that the

Bernstein deed conveyed lot 40A to Benson. For example, the defendants argue that

Benson believed he had title since he separately conveyed the individual right-of-ways,

including lot 40A, as right-of-ways. Additionally, Bernstein and Smith did not

separately convey lot 40A, but they did separately convey the larger roads to the city.

The intent of the deed is not clear from the disputed facts provided by the parties. As a

result, whether the defendants have a fee interest in lot 40A is a question of fact for a

factfinder.

3. Count IV

In Count IV the plaintiffs allege that the defendants are parking on lot 40A "and

generally occupying said lot as though the lot was a personal driveway for their

cottages." (Com.pl. <[ 37.) As a result the plaintiffs ask the court for injunction relief

stopping this interference. In their briefs and at the hearing the parties agreed that this

issue has been resolved, but the plaintiffs continue to ask for a declaration in their favor.

(See S.M.F. <[<[ 36-39.) Since the court does not have a legal or factual reason to issue an

injunction regarding the parties parking on the right-of-way it grants summary

judgment in favor of the defendant.

5 4. Count V

The plaintiffs' amended complaint included Count V, which asks the court to

"enter declaratory judgment that the Plaintiffs are entitled to build and maintain

properties of Defendants." (Amend. CompL Count V.) The parties disagree regarding

whether deed conveying the plaintiffs' their right-of-way access to lot 40A

ambiguous. The plaintiffs argue that the deed is ambiguous and the court should

consider extrinsic evidence, but defendants argue that the language is not

ambiguous.

The Sleepers obtained lot 71 through a municipal deed from the.Town Sebago.

The property description of this deed noted, "such lot or parcel of land more fully

described in the conveyance of D. Wilson Hawkes to H. Littlefield." (Sleep Dep.

Ex. 24.) The deed in the Hawkes-Littlefield conveyance 3 contained the language, "Also

a right of way from the road to the shore of the lake over Lot 40-A as shown on said

plan." (Cole Dep. ex. E.) The Roys obtained lots 74 through a warranty deed

from the Morneaus. This deed contained the language, "Also a right of way from the

road to the shore of the Lake, over Lot 40A as shown on said Plan." (Sleeper Dep. Ex.

57.) Considering the plain language, the lot 40A right-of-way provides landowners

access to the shore of the Lake, not to the body of the Lake.

Plaintiffs argue that this case is similar to Badger v. Hill, 404 A.2d 222 (Me. 1979),

where, in a dispute over the construction of a dock, the Law Court found the deed

conveying a right-of-way "to the York River" ambiguous. Id. at 225. Similarly, another

dock was at issue in Rancourt v. Town of Glenburn, 635 964 (Me. 1993), the

3 Even when the deed is unambiguous the court may documents that are the deed. LVledeika v. Watts, 2008 ME 163, 9I 7 n.3, 957 A.2d 980 (permitting survey for interpreting an unambiguous deed).

6 "deed granted a right of 'ingress and egress' to Pushaw Lake." Id. at 965. There the

court also found that the deed was ambiguous because it did not "indicate whether

'ingress and egress' includes the right to place a dock at the end of the right of way." Id.

This case is distinguishable from those two examples. Here, the deed clearly

states that the right-of-way goes to the "shore" 4 of the Lake, instead of simply going to

the Lake. This additional distinction removes any ambiguity and indicates that the

easement does not extend as far as a dock, since the dock would reach past the shore.

Therefore, summary judgment is granted for the defendant regarding Count V.

JURY TRIAL

For civil cases, juries are allowed in trials for legal claims, but not equitable ones.

Me. Const. art. I. § 20 ("In all civil suits ... the parties shall have a right to a trial by jury,

except in cases where it has heretofore been otherwise practiced."); DesMarais v.

Desjardins, 664 A.2d 840, 844 (Me. 1995). "The determination whether a claim is legal or

equitable depends on the 'basic nature of the issue presented, including the relief

sought.'" DesMarais, 664 A.2d at 844 (quoting Cyr v. Cote, 396 A.2d 1013, 1016 (Me.

1979)). Equitable claims require "creative, injunctive, or unique action by the court."

Thermos Co. v. Spence, 1999 ME 129, 9[ 18, 735 A.2d 484. As the surviving claim in this

action, Count III, which asks for a declaratory judgment regarding property rights,

must assert a legal claim in order to permit a jury trial.

Declaratory judgment is an equitable remedy, but it is not always based in

equity. See Hodgdon v. Campbell, 411 A.2d 667, 669 (Me. 1980). In support for a jury trial,

4 "Shore" is defined as "the land bordering a usu. large body of water." Webster's 3rd New Intematiollnl Dictionary 2102 (2002). Black's Law Dictionary defines "shore" as "land lying between the lines of high- and low-water mark; lands bordering on the shores of navigable waters below the line of ordinary high water; (2) land adjacent to a body of water regardless of whether it is below or above the ordinary high- or low-water mark." Black's Law Dic601111ry 1505 (9th ed. 2009).

7 the plaintiffs argue that their claims are essentially legal actions to quiet title, as

outlined in 14 M.R.S.A. §§ 6651-6654. (Opp. Strike Jury 4.) The plaintiffs, however, are

not requesting quiet title; instead they are asserting that the defendants do not have fee

simple ownership of the property. (See generally Compl.)

Here, Count III, the plaintiffs are not requesting damages for themselves;

instead they are asking the court to declare that another party does not have a certain

right to property. This remedy more akin to an equitable claim than a legal one. 5

a result, the plaintiffs do not have a right to a jury trial.

The entry is:

The Plaintiffs' Jvfotion for Summary Judgment regarding Count III is

DENIED;

the Defendants' Motion for Summary Judgment regarding Counts IV and

Vis GRANTED;

the Defendants' Motion to Strike the Plaintiffs' Demand for a Jury Trial is

GRANTED.

5 As the defendants assert, this case is comparable to Thompson v. Pendleton., 1997 ME 127, 697 A.2d 56, where the Law Court pointed out that a jury trial was not proper at the trial level to determine that the width of a easement was "unknown." Id. at

8 Date Filed __O_c..7_-_0_6-_1_0_ __ Cumberland Docket No. ___AP_-_l_0_-_20_ __ County

") GARY SLEEPER 'f6Wtt OF S'E'.BAGO• RAMONA SLEEPER DONALD R LORING RICHARD ROY MARILYN P LORING HOLLY ROY HARRY GREENLAQ ANN GREENLAW vs. Plaintiff's Attorney Defendant's Attorney

ROBERTS. HARK ESQ. BRIAN WILLING ESQ (TOWN OF SEBAGO) 75 PEARL STREET William H Dale Esq (OBO Defendants PORTLAND, ME 04101 Greenlaw and Loring)

Date of Entry