point, summary judgment may not be entered.= Jd.
DISCUSSION
I. Implied Quasi-Easement (Count I of the Complaint)
First, the Snows seek summary judgment on their Implied Quasi-Easement claim set
forth in Count I of the Complaint. The Law Court has recognized two types of implied
easements: implied easements by necessity and implied easements created by, or arising from, a
prior quasi-easement. Northland Realty, LLC v. Crawford, 2008 ME 92, § 12, 953 A.2d 359. The
latter type of easement4which is at issue here48depends on both a preexisting use of the land
and the intent of the grantor at the time of conveyance.= Jd. 4 13. To establish the existence of an
implied quasi-easement at the summary judgment stage, there must be no genuine issue of
material fact with respect to the following elements:
(1) the property when in single ownership [was] openly used in a manner constituting a
Connolly v. Maine Cent. R. Co., 2009 ME 43, { 8, 969 A.2d 919 (alterations in original)
(quotation marks omitted).
Here, the Snows have failed to meet their burden on the second element. The summary
judgment record does not allow the Court to conclude that when Mr. Esponnette conveyed the 35-foot-wide strip of land to James Murphy in 1949, Mr. Esponnette intended to retain an
easement over the 35-foot-wide parcel for the benefit of the property he continued to hold.
There is no deed language indicative of such an intent. See Pls.9 S.M.F. 7 4; Snow Aff. 4
10 & Ex. | attached thereto. To the contrary, the Esponnette-to-Murphy deed indicated that the
conveyance of the 35-foot parcel was
2008 ME 92, ¢ 15, 953 A.2d 359 (finding
quasi-easement as a true easement= where the
[property] was 8free of all encumbrances9=).
The only other evidence in the record that is arguably indicative of Mr. Esponnette9s
intent4including (1) evidence that Mr. Esponnette used what is now the Snows9 property for
commercial purposes and (2) evidence that the Snows9 predecessors used the 35-foot parcel to
access their property some eight or more years after the Esponnette-Murphy conveyance4does
not compel an inference that Mr. Esponnette intended to retain an easement over the 35-foot-
wide parcel. See Curtis, 2001 ME 158, J 9, 784 A.2d 18 (
dispute on a material point, summary judgment may not be entered.=). Accordingly, the Court
declines to enter summary judgment on the Snows9 Implied Quasi-Easement claim.
II. Prescriptive Easement (Count II of the Complaint)
The Court likewise declines to enter summary judgment on the Snows9 Prescriptive
Easement claim. Acquisition of an easement by prescription requires proof of
for at least 20 years under a claim of right adverse to the owner, with his knowledge and
acquiescence, or a use so open, notorious, visible, and uninterrupted that knowledge and
acquiescence will be presumed.= Dowley v. Morency, 1999 ME 137, § 23, 737 A.2d 1061.
Acquiescence implies
granting of a license or permission given with the intention that the licensee's use may continue
only as long as the owner continues to consent to it.= Jd. (quotation marks omitted).
<[A] prescriptive easement may [] be interrupted by proof of nonacquiescence.= /d. For
instance, the Law Court has held that a property owner9s placement of a barrier, such as a chain-
link fence, constitutes an indication of nonacquiescence sufficient interrupt a prescriptive
easement claim. Cedar Beach/Cedar Island Supporters, Inc. v. Gables Real Estate LLC, 2016
ME 114, 99 22-25, 145 A.3d 1024:!
In this case, the summary judgment record contains evidence of nonacquiescence
sufficient to defeat the Snows9 summary judgment motion. The record reveals that from 1965
until an indeterminate year in the 1990s, John Murphy, then-owner of the Road, visited his
property every few years and attempted to prevent access to the Road by placing a chain across
it. Pls.= S.M.F. 9 21, 24. Though the chains were always removed, Mr. Murphy would replace
the chains each time he was in Maine until he stopped visiting the property in the 1990s4
' Although Cedar Beach addressed a public prescriptive easement, a party seeking to establish such an easement must prove4as with a private prescriptive easement4that the use was
the property in the new millennium, but shortly after Mr. Corliss acquired the 35-foot-wide strip
of land in 2018, Mr. Corliss placed a barrier across the Road to block access. Pls.9 S.M.F. 4 19,
40.
While the removal of the chains may be considered an act of adversity,
[the chains] conversely constitute[d] an indication of nonacquiescence.= Cedar Beach, 2016 ME
114, | 24, 145 A.3d 1024. The chains and other barriers placed by Mr. Murphy and Mr. Corliss,
even if they were removed after only a few days, sufficiently interrupted any prescriptive period.
See id. The summary judgment record does not establish, without dispute as to material fact, that
the Snows and their predecessors adversely used the Road for a 20-year period that was
uninterrupted by these acts of nonacquiescence. Accordingly, summary judgment must be denied
with respect to the Snows9 Prescriptive Easement claim.
III. Nuisance (Count III of the Complaint)
The Snows ask the Court to enter summary judgment on their claim of Nuisance, which
alleges that Mr. Corliss damaged a culvert and caused ground water to back up and infiltrate
their well. To prevail on a claim of Nuisance, the Snows must prove, among other elements, that
Mr. Corliss
Jewett & Noonan Transp., Inc., 2018 ME 98, § 14, 189 A.3d 277.
Here, the affidavits submitted by Mr. Corliss generate a genuine issue of material fact as
to whether the defendant, when causing damage to the culvert, acted with the intent of interfering
* The summary judgment record is unclear as to the exact year in the 1990s that Mr. Murphy stopped visiting Maine and replacing the chains. In the face of such an ambiguity, the Court will
(suggesting that any interference with the culvert was done inadvertently and as part of Mr.
Corliss9s efforts to prevent the Road from eroding and that Mr. Corliss engaged a contractor to
perform a proper repair). Summary judgment therefore cannot be entered on the Snows9
Nuisance claim.
IV. Trespass (Mr. Corliss9s Counterclaim)
Because genuine issues of material fact exist as to whether the Snows enjoy easement
rights over the Road owned by Mr. Corliss, the Snows are not entitled to summary judgment on
the claim of Trespass set forth in the Counterclaim. See supra §§ I-II.
V. ITED (Mr. Corliss9s Counterclaim)
Finally, the Snows seek summary judgement on Mr. Corliss9s claim of IIED, which
requires proof of the following elements:
(1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from her conduct; (2) the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, utterly intolerable in a civilized community; (3) the actions of the defendant caused the plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.
Curtis, 2001 ME 158, § 10, 784 A.2d 18 (quotation marks omitted) (alteration omitted).
Specifically, the Snows argue that Mr. Corliss9s claim fails on the fourth element, noting
that it is undisputed that the only symptoms Mr. Corliss has suffered are sleeplessness and
anxiety for which he has not received a diagnosis. See Pls.9 S.M.F. § 47. The Snows furthermore
3 In responding to Paragraph 41 of the Snows9 Statement of Material Facts, Mr. Corliss cites to the Affidavit of Gary Choate. It appears, however, that Mr. Corliss intended to cite to the Affidavit of Dan Coutts, as the Coutts Affidavit addresses the subject of the culvert. The Court therefore understands Mr. Corliss9s citation to the Choate affidavit to be a mistake. point out that it is undisputed that Mr. Corliss never sought treatment for his anxiety or
sleeplessness from a medical professional. Id. § 48.
Mr. Corliss responds with his own affidavit, which reaffirms that he has continued to
suffer anxiety and sleeplessness and also states that <[t]he situation has caused conflict with my
wife and we experience anxiety that interferes with our ability to function normally.= Def.9s Opp.
S.M.F. § 31; Corliss. Aff. § 13. The Court must therefore decide whether Mr. Corliss has
established a prima facie case with respect to IIED9s fourth element. See Curtis, 2001 ME 158, §
10, 784 A.2d 18; Corey v. Norman, Hanson & DeTroy, 1999 ME 196, 4 9, 742 A.2d 933.
The Law Court has explained that
evidence severe emotional distress can be found,= and <8it is for the jury to determine whether, on
the evidence, it has in fact existed.= Bratton v. McDonough, 2014 ME 64, § 24, 91 A.3d 1050
(quoting Restatement (Second) of Torts § 46 cmt. j (1965)); see also Argereow v. Weisberg,
2018 ME 140, {ff 29-30, 195 A.3d 1210. The fourth element imposes an objective standard of
proof. Lyman v. Huber, 2010 ME 139, § 21, 10 A.3d 707. The Law Court has described the legal
standard used to assess the
[W]hen . . . the existence of the fourth element cannot be inferred from the extreme and outrageous nature of the defendant's conduct alone, a plaintiff must prove that that her emotional distress was so severe as to have manifested objective symptoms demonstrating shock, illness, or other bodily harm. [The Law Court] [has] not preclude[d] the possibility that this can be achieved without the corroborating testimony of an expert medical or psychological witness. That possibility is, however, remote. In most instances, proof of objective symptoms will require expert testimony to establish that the plaintiff's emotional injury qualifies for a diagnosis such as shock, post-traumatic stress disorder, or some other recognized medical or psychological disease or disorder. . . . This standard prevents recovery for emotional injuries that are anything less than severe.
Id. 423.
be so intense that
omitted).
life are endurable.= Schelling v. Lindell, 2008 ME 59, 26, 942 A.2d 1226.
Here, the Court concludes that severe emotional distress cannot be inferred from the
Snows9 conduct, which includes heated arguments with Mr. Corliss over the parties9 respective
property rights, videotaping members of Mr. Corliss9s family, and driving slowly and repeatedly
by Mr. Corliss9s home. See Lyman, 2010 ME 139, 4] 19, 24-26, 10 A.3d 707 (concluding that
the fourth element was not established notwithstanding evidence of the defendant9s tirades,
hurtful comments, and efforts to contro! [the plaintiff]'s activities and to limit her contact with
others). Accordingly, Mr. Corliss must prove that that his
have manifested objective symptoms demonstrating shock, illness, or other bodily harm.= Jd. q]
23. He has failed to do so in this case.
Mr. Corliss9s symptoms4which consist of anxiety, loss of sleep, and resultant marital
problems4do not permit a finding of severe emotional distress. See Schelling, 2008 ME 59, 4
26, 942 A.2d 1226 (
every day life are endurable,= and not actionable); Argereow v. Weisberg, 2018 ME 140, §§ 29-
30, 195 A.3d 1210 (<[the plaintiff's] allegations do not place her emotional distress, which takes
the form of lost wages and a strained marriage that led to counseling, at a level where it could be
characterized as 8so severe that no reasonable person could be expected to endure it9=).
Moreover, even though Mr. Corliss vaguely asserts that his anxiety has interfered with his ability
to function normally, there is no evidence that he has failed to meet the demands of everyday living. Lyman, 2010 ME 139, ¥ 24, 10 A.3d 707. Nor did Mr. Corliss seek treatment from a
medical or mental health professional. /d.; Pls.9 S.M.F. § 48.
Thus, the Court concludes that Mr. Corliss9s symptoms, as a matter of law, are not
substantial enough to qualify as emotional distress
expected to endure it.= Curtis, 2001 ME 158, § 10, 784 A.2d 18; see also Lougee Conservancy v.
CitiMortgage, Inc., 2012 ME 103, § 26, 48 A.3d 774.
CONCLUSION
The entry is: The Snows9 Motion for Summary Judgment is DENIED as to Counts I-III
of the Complaint and as to the claim of Trespass set forth in Mr. Corliss9s Counterclaim. The
Motion is GRANTED as to the ITED claim set forth in the Counterclaim.
The Clerk is directed to incorporate this Order into the docket of this case by reference in
accordance with M.R. Civ. P. 79(a).
Dated: rm i4 Jo ' . . 2 4 | QA a NE
Michaela Murphy ~~ Justice, Maine Superior Court
5 Jalat! Entered oa the deckeT-