Soley Wharf, LLC v. Proprietors of Portland Pier

• Court: Superior Court of Maine
• Decided: March 29, 2023
• Docket: CUMre-20-46
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. RE-20-46

SOLEY WHARF LLC, ) ) Plaintiff, ) ) V. ) ORDER ON DEFENDANTS' MOTION ) FOR SUMMARY JUDGMENT PROPRIETORS OF PORTLAND PIER, ) CORPORATION OF THE ) PROPRIETORS OF PORTLAND PIER, ) and MARY GREEN BARTHELMAN ) ) Defendants. )

Before the Court is Defendant City of Portland's (the "City") Motion for Summary

Judgment. For the reasons set forth herein, the motion is DENIED.

FACTUAL BACKGROUND

This case concerns the ownership of a section of alleyway between Portland Pier and

Custom House Wharf and behind a block of buildings known as the "Thomas Block" building.

The plaintiff in this case, Soley Wharf LLC ("Soley Wharf'), holds record title to the property on

which Thomas Block building sits and the easterly 3/8 of the alleyway. (Def. S.M.F. ~~ 27-28.)

The question is who owns the other 5/8 of the alleyway (the "Westerly 5/8 of the Passageway").

The parties agree that in 1857, the Westerly 5/8 of the Passageway was owned by a corporation

known as the Proprietors of Portland Pier (the "PPP"). (Def. S.M.F. ~ 12.) The PPP has since

dissolved, and the parties disagree as to what became ofits interest. (Def. S.M.F. ~ 30; Pl. S.A.M.F.

~ 13a.) Soley Wharf now claims ownership of the Westerly 5/8 of the Passageway by adverse

possession. The City claims fee ownership through a chain of title allegedly dating back to the

PPP.

REC'D CUMB CLERKS OFC 1 MAR 29 '23 PM 1: 18 Soley Wharfs Complaint was docketed on April 24, 2020. It names Proprietors of Portland

Pier, Corporation of the Proprietors of Portland Pier, and Mary Barthelman as defendants and

alleges two causes of action: count I, adverse possession; and count II, quiet title. Mary Barthelman

was dismissed from the case on February 19, 2021, after transferring any interest she may have

had in the Westerly 5/8 ofthe Passageway to the City by way of a quitclaim deed without covenant.

On June 15, 2021, the City filed an answer and counterclaim, alleging fee ownership. On July 5,

2022, the City moved for summary judgment on its claim of fee ownership and both counts of

Soley Wharfs Complaint.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper when review of the parties' statements of material fact and

the record evidence to which they refer, considered in the light most favorable to the nonmoving

party, indicates that there is no genuine issue of material fact in dispute and the moving party is

entitled to judgment as a matter of law. M.R. Civ. P. 56(c); Remmes v. The Mark Travel Corp.,

2015 ME 63, ,r 18, 116 A.3d 466. A fact is material ifit has the capacity to affect the outcome of

the case. Lewis v. Concord General Mut. Ins. Co., 2014 ME 34, ,r 10, 87 A.3d 732. An issue is

genuine if the factfinder must choose between competing versions of the truth. Id. Summary

judgment is not a substitute for a trial. Arrow Fastener Co. v. Wrabacon, Inc., 2007 ME 34, ,r 18,

917 A.2d 123.

DISCUSSION

I. Fee Ownership

The City argues that it is entitled to an affirmative declaration that it has fee ownership of

the Westerly 5/8 of the Passageway. The City asserts that ownership flowed through the following

chain: the PPP retained its interest in the Westerly 5/8 of the Passageway until 1961, when all of

2 PPP's stock was transferred to Percival Baxter ("Baxter"); the interest transferred again when

Governor Baxter gifted all of PPP's stock to the State of Maine; and, finally, the State transferred

its interest in the Westerly 5/8 ofthe Passageway to the City by deed on June 2, 2021. Soley Wharf

argues that the City is not entitled to summary judgment because material facts remain in dispute

as to PPP's intent at the time of the conveyances and as to the City's chain of title. The Court's

analysis will begin with construction of the relevant deeds.

A. Construction of the Deeds

Construction of a deed is a matter oflaw for the court. Almeder v. Town ofKennebunkport,

2019 ME 151, ,r 28, 217 A.3d 1111. "The first step in any analysis of the language in a deed is to

give words their general and ordinary meaning to see if they create any ambiguity." Gravison v.

Fisher, 2016 ME 35, ,r 39, 134 A.3d 857 (quoting Green v. Lawrence, 2005 ME 90, ,r 7, 877 A.2d

1079). "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. Mazzaglia, 2007 ME 81, ,r 13, 926 A.2d 728. "Language is

deemed ambiguous when it is reasonably susceptible to different interpretations." Doyon v.

Fantini, 2020 ME 77, ,r 7, 234 A.3d 1222.

The language of Soley Wharfs deed is unambiguous. It conveys to Soley Wharf the

property on which the Thomas Block building is located and the Easterly 3/8 of the Passageway.

It does not convey the Westerly 5/8 of the Passageway. Soley Wharf argues that the Court may

still find that it has good title by deed, on the basis that the PPP did not intend to retain its interest

in the Westerly 5/8 of the Passageway, but rather to create a "common area" behind the Thomas

Block building, where the abutting landowners would collectively control the entire passageway.

Because the deed is unambiguous, the Court cannot speculate as to the PPP's intent. Sleeper v.

3 Loring, 2013 ME 112, ,r 16, 83 A.3d 769 ("When interpreting a deed whose tenns are not

ambiguous, we do not speculate about the grantors' actual or probable objectives; rather, we focus

on what is expressed within the four comers of the deed.").

Soley Wharf argues that the Cou1t may consider extrinsic evidence in this case on the basis

that a latent ambiguity exists in its deed. "A latent ambiguity in a deed is created when, in applying

the description to the ground, facts extrinsic to the document controvert or in some way render

unclear the deed's apparently unambiguous terms." Harvey v. Furrow, 2014 ME 149, ,r 8, 107

A.3d 604 (quoting Milligan v. Milligan, 624 A.2d 474, 477 (Me. 1993)); see Taylor v. Hanson,

541 A.2d 155, 157 (Me. 1988) (latent ambiguity where two roads described as parallel in a deed

were "not parallel on the face of the earth"). No latent ambiguity has been presented in this case.

Soley Wharf has not argued that the legal description of the property in its deed, when applied to

the ground, renders any of the terms of the deed unclear. Rather, Soley Wharf argues that it would

make more sense for the PPP to have intended for the abutters to hold the entire passageway in

common ownership than it would for the PPP to have intended to retain title to the Westerly 5/8

of the Passageway. Whether that is true or not, it does not create a latent ambiguity.

B. Chain of Title

The City's primary argument is that it holds fee ownership of the Westerly 5/8 of the

Passageway based on the above chain of title, originating with the PPP. The City presents evidence

that Governor Baxter had possession of the PPP stock in 1961 and that he gifted the stock to the

State. Soley Wharf argues that even ifthe PPP did retain title to the Westerly 5/8 ofthe Passageway

(1) there is no evidence in the record of how Governor Baxter acquired PPP's stock or assets, and

(2) any interest Governor Baxter may have had was not effectively gifted to the State. To support

4 the latter argument, Soley Wharf presents an inventory of PPP's assets from December 31, 1960. 1

The inventory lists cash, bonds, and stocks, but does not list any real property. Soley Wharf argues

that if Governor Baxter was unaware that he had acquired an ownership interest in the Westerly

5/8 of the Passageway, he could not have had the requisite intent to gift that interest. Westleigh v.

Conger, 2000 ME 134, ,r 7, 755 A.2d 518 (an effective gift requires intent, delivery, and

acceptance).

Generally, a transfer of all of the stock of a corporation also transfers ownership of the

corporations other assets. SCI Minn. Funeral Servs., Inc. v. Washburn-McReavy Funeral Corp.,

795 N.W.2d 855, 864 (Minn. 2011) ("In the context of a stock sale agreement, the law presumes

that all assets and liabilities transfer with the stock."); Brodsky v. Frank, 342 Ill. 110, 173 N.E.

775, 777 (I 930) ("The sale of all of the stock of a corporation is, in legal effect, a sale of all of its

assets."); Big Lots Stores, Inc. v. KB Acquisition Corp., 340 B.R. 726, 728 (D. Del. 2006) ("it is a

general principle of corporate law that all assets and liabilities are transferred in the sale of a

company effected by a sale of stock"); see also Knowles Co. v. Ne. Harbor Insurers, 2002 ME 6,

,r 3, 788 A.2d 587 (plaintiff repurchased certain corporate assets after those assets transferred to new ownership through a sale of all of the company's stock).

Thus, if Governor Baxter did obtain ownership of the Westerly 5/8 of the Passageway, that

interest could have transferred to the State, even if both parties were unaware of the interest. SCI

Minn. Funeral Servs., Inc., 795 N.W.2d at 857-859 (two vacant lots transferred in a stock sale even

though none of the parties were aware of the existence of the vacant lots). The relevant intent is

the intent to transfer the stock. However, Soley Wharf is correct that there is a missing link in the

1 In its Reply, the City argues that the inventory is inadmissible. The Superior Court (Cumberland County, Murphy, J.) allowed a sur-reply from Soley Wharf to respond to the evidentiary issue. The Court may consider the document because it is an ancient document and because it is not offered for the truth of the matter asserted.

5 chain of title from the PPP to Governor Baxter. This missing link creates a genuine issue of

material fact and makes summary judgment inappropriate. Tallwood Land & Dev. Co. v. Botka,

352 A.2d 753, 756 (Me. 1976); Ouellette v. Daigle, 219 A.2d 545,548 (Me. 1966).

Accordingly, summary judgment is denied as to Count I of the City's Counterclaim.

II. Adverse Possession

Adverse possession presents a mixed question of fact and law. Grondin v. Hanscom, 2014

ME 148, if 13, 106 A.3d 1150. "[W]hether the necessary facts exist is for the trier of fact, but

whether those facts constitute adverse possession is an issue of law for the court to decide."

Dombkowski v. Ferland, 2006 ME 24, if 28, 893 A.2d 599. A party claiming title by adverse

possession must prove by a preponderance of the evidence that their possession and use of the

property was: "(l) 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."

Weeks v. Krysa, 2008 ME 120, if 12, 955 A.2d 234.

The City argues that Soley Wharf's adverse possession claim fails as a matter of law

because title to the Westerly 5/8 of the Passageway has been held by a sovereign2 for the entirety

of Soley Wharfs use, and because Soley Wharf cannot prove it has.met all eight elements of

adverse possession for the twenty-year limitations period. As discussed above, material facts

remain in dispute as to whether a sovereign now holds or has ever held fee ownership to the

Westerly 5/8 ofthe Passageway. The Court will thus tum to a discussion ofthe elements of adverse

possession.

2 "A person cannot obtain title by adverse possession against the government 'absent express statutory authorization."' Sandmaier v. Tahoe Dev. Group, 2005 ME 126, ~ 9, 887 A.2d 517 (quoting loavenbruckv. Rohrbach, 2002 ME 73, ~ 12, 795 A.2d 90).

6 Generally, on a defendant's motion for summary judgment, a plaintiff claiming title by

adverse possession has the burden to make out a prima facie case as to every element. Levis v.

Konitzky, 2016 ME 167, ,i 21, 151 A.3d 20. This is a low standard, requiring only some evidence

on each element, the reliability and credibility of which "may be considered at some later time in

the process." Camden Nat'/ Bankv. Weintraub, 2016 ME 101, ,i 11, 143 A.3d 788 (quoting Nader

v. Me. Democratic Party, 2012 ME 57, ,i 34, 41 A.3d 551). In certain instances, a plaintiff may

satisfy their burden simply by "putting forth prima facie evidence that establishes a genuine dispute

of material fact as to only those elements that are challenged by a defendant's factual or legal

argument." Boivin v. Somatex, Inc., 2022 ME 44, ,i 10 n.2, 279 A.3d 393. Here, although the City

contends that Soley Wharf cannot meet any of the eight elements, the bulk of its argument relates

to whether Soley Wharfs possession has been "actual" and "exclusive."

A. Actual and Exclusive

"Actual possession" means "physical occupancy or control over property." Black's Law

Dictionary 1282 (9th ed. 2009). "Actual possession" is "manifested by acts of occupancy that

indicate a present ability to control the land and an intent to exclude others from such control."

Striefel v. Charles-Keyt-Leaman P'ship, 1999 ME 111, ,i 9, 733 A.2d 984 (quoting Flowers v.

Roberts, 979 S.W.2d 465,469 (Mo. Ct. App. 1998). To determine whether an adverse possession

claimant "actually" possessed the land, the court considers "the nature and location ofthe property,

the potential uses of the property, and the kind and degree of use and enjoyment to be expected of

the average owner of such a property." Striefel, 1999 ME 111, ,i 9, 733 A.2d 984. "Exclusive

possession" means that the adverse possession claimant "is not sharing the disputed property with

the true owner or public at large." Id. ,i 17. Use of the land by the public will not defeat a claim of

7 adverse possession if the use is permissive, casual, or of a different kind than that of the adverse

possession claimant. 3 Am. Jnr. 2d Adverse Possession § 66 (2023).

The City has submitted the deposition testimony of two lobstermen, Keith Lane and Willis

Spear, who claim to have used the passageway for decades to load and unload lobster traps and do

other marine activities. The City argues that because ofthis use by the lobstetmen, Soley Wharfs

possession of the passageway has not been "actual" or "exclusive." Soley Wharf has submitted the

affidavit of Tim Soley, the manager of Soley Wharf, who alleges that he has worked full-time in

an office overlooking the passageway for more than twenty years and has rarely seen any

lobstetmen using the passageway. Tim Soley claims that Soley Wharf has used the passageway

since 1998 to access rear building doors, park vehicles, store trash receptacles, erect scaffolding,

and perform maintenance. He further claims that Soley Wharf has posted and enforced "no

parking" signs in the passageway since 1998. Tim Soley' s affidavit presents evidence that is

demonstrative of an ability to control the passageway and an intent to exclude others from such

control.

B. Open, Visible, and Notorious

"Open" means without attempt to conceal. Striefel, 1999 ME 111, if 11, 733 A.2d 984.

"Visible" means capable of being seen by those who view the property. Id. "Notorious" means

known to those who may "reasonably be expected to communicate their knowledge to an owner

maintaining a degree of supervision over [their] property." Id. These three elements exist to

provide notice to the true owner that their rights are in jeopardy. Id. In this context, "notice need

not be actual; it is sufficient to prove acts so open, visible, and notorious that the owner's

knowledge of them and of their adverse character may be presumed." Id. (quoting Emerson v. Me.

Rural Missions Ass'n, 560 A.2d 1, 3 (Me. 1989)).

8 The City argues that the general use of the passageway by the lobstermen and the public

necessarily precludes a finding that Soley Wharfs possession has been "open," "visible,"3 and

"notorious." The Court disagrees. The record indicates that Soley Wharf has made no attempts to

hide its use of the passageway. Rather, Soley Wharf presents evidence that it has, for over twenty

years, openly used the passageway for rear access, parking, storage, and maintenance, and has

posted and enforced "no parking" signs in the passageway.

C. Hostile, Under a Claim ofRight, and Continuous

"Hostile" means without permission from the true owner. Striefel, 1999 ME 111, ,i 13, 733

A.2d 984. "Under a claim of right" means that the claimant is in possession of the property as an

owner, "with intent to claim the land ... and not in recognition of or subordination to [the] record

title owner." Id. ,i 14 (citing Black's Law Dictionary 248 (6th ed. 1990). "Continuous" means that

that the claimant has possessed the prope1ty in the way an average owner would without

interruption. Id. ,i 16. The City argues that the facts of this case undercut any assertion that Soley

Wharfs use of the passageway has been "hostile," "under a claim of right," and "continuous."

Soley Wharf argues that its use of the passageway, as set forth in Tim Soley' s affidavit, satisfies

those three elements.

Soley Wharf has presented some evidence relating to each of the nine elements of adverse

possession. Soley Wharf has alleged, through the affidavit of Tim Soley, that it has used the entire

passageway as an owner would for more than twenty years. However, it is not clear from the record

whether members of the public have used the passageway casually or whether they have used it

3 The City argues that the visibility element is nearly impossible to meet in urban areas, citing to Striefel, 1999 ME 111, '\{ 11 n.5, 733 A.2d 984. In that footnote, the Law Court refers specifically to small encroachments that are "not readily apparent to the naked eye, but would require an on-site survey to discern." Id. (citing Manni/lo v. Gorski, 54 N.J. 378, 255 A.2d 258, 263 (N.J. 1969) (no presumption of notice for "minor encroachments not exceeding several feet" in urban areas)). Here, the dispute is not over a few inches or feet; it is over the majority of an alleyway.

9 extensively enough to prevent Soley Wharf from proving exclusive possession. There are material

facts in dispute as to the true extent of others' use of the passageway. There are also material facts

in dispute as to fee ownership by a sovereign. Summary judgment for either party would thus be

inappropriate at this time.

Accordingly, the City's motion for summary judgment is denied as to Count I of Soley

Wharfs Complaint.

Ill. Quiet Title

A quiet title action is a request for the court to determine the relative rights of a private

claimant and the State regarding ownership of a specific property interest. Welch v. State, 2004

ME 84, ,r 6, 853 A.2d 214. A person may bring a quiet title action if they have had uninterrupted

possession of the property for at least four years. 14 M.R.S. § 6651. In this context, uninterrupted

means "continuous and exclusive." Levis v. Konitzky, 2016 ME 167, ,r 24, 151 A.3d 20. The quiet

title statute "does not provide an independent basis for a claim of title," rather, it is a vehicle for

relief"if the plaintiff in such an action provides the legal basis for that title." Id. Here, Soley Wharf

claims title by adverse possession. As discussed above, material facts remain in dispute as to Soley

Wharfs adverse possession claim. It would thus be inappropriate to grant summary judgment as

to Soley Wharfs quiet title claim at this time.

Accordingly, the City's motion for summary judgment is denied as to Count II of Soley

10 Entry is:

Defendant City of Portland's Motion for Summary Judgment is Denied. The clerk is

directed to incorporate this order into the docket by reference pursuant to M.R. Civ. P. 79(a).

Dated:

Justice, Maine Superior Court