Uzdavinis v. Wagemann

• Court: Superior Court of Maine
• Decided: June 21, 2017
• Docket: OXFcv-15-027
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT OXFORD, ss. DOCKET NO. CV-15-027

JOAN UZDAVINIS, et al. ) ) Plaiil.tiffs, ) STATE OF M.A\NE v. ) Cumberland, st,C!erl<'s Office ) ORDER DEBORAH J. WAGEMANN, et al. ) 20n Ju- ~i ) Q : 'rCA f)./v'\ )

Defendants. ) ) RECFtVED Plaintiffs complain that Defendants' installation of a dock in a lake at the end of a

shared right-of-way, and storage of boats within the right-of-way, are unreasonable

interferences of their co-tenant easement rights. Defendants seek a determination of the

use and scope of the right-of-way. Evidence germane to the resolution of these issues

were presented to the court in a nonjury trial on January 30 and 31, 2017. Several weeks

after trial, the parties filed proposed finding of facts and conclusions of law.

Upon careful consideration of the evidence, the court makes certain findings of

fact and renders judgment as set forth below.

I. Background

Plaintiffs Joan Uzdavnis, Mary Malandrino, Thomas D. Boody, and Maureen D.

Boody are owners of lake-front lots on Thompson Lake, Oxford, Maine, (Pl' s' Ex. 16, 23­

24), and they have the right to use a 30-foot right-of-way abutting their properties that

runs between a private road and Thompson Lake. Plaintiffs Sean Reardon, Karen C.

Reardon, and Anne B. Turner as Trustee of the Owen Family Irrevocable Trust Dated

April 25, 2008, and Defendants Deborah J. Wagemann, Diane L. Page, and Douglas 0.

Wiles own non-waterfront lots, (Pl's' Ex. 15, 19-22) with rights to the same right-of-way

based on language in their deeds "to use the said passageway to the shore and to use

the shore fronting on the same for bathing and boating purposes."

1 of 9 In 2014, Defendants placed a 4-foot wide dock at the end of the right-of-way at

the edge of the shore fronting, which has been used by Defendants to tie their pontoon

boat on an unrestricted basis during the sununer months. Defendants did not obtain

the permission to install the dock from other holders of the easement.

II. Discussion

a. Interference with cotenants' rights

1. Interference with use

The holder of an easement has the right to do what is reasonably necessary for

the enjoyment of the easement. 28A C.J.S. Easements§§ 144, 161. However, if the holder

of an easement in common uses that easement in such a manner as to unreasonably

interfere with the rights of another holder of the same easement, the latter is entitled to

relief. Poire v. Manchester, 506 A.2d 1160, 1163 (Me. 1986); 86 C.J.S. Tenancy in Common§

17. Reasonable use is a question of fact. Poire, 506 A.2d at 1163. All cotenants should

have adequate access and opportunity to use the easement. Indermuehle v. West Shore Rd.

Improvement Ass'n, Inc., No. CV-86-142, 1987 Me. Super. LEXIS 146, at *9 (May 22, 1987).

The appropriate inquiry is a comparison of the actual use made by one easement holder

to the actual use made by the others, and the court may consider the surrounding

circumstances in its determination of what is reasonable. Poire, 506 A.2d at 1163 (the

invitation of outside guests to use a beach shared by tenants in conunon was

unreasonable where it led to overcrowding and hostile confrontations); 28A C.J.S.

Easements§ 161; Chase v. Eastman, No. 85-562, 1988, Me. Super. LEXIS 212, at *3-4 (Aug.

29, 1988) (the addition of a dock in a reserved shorefront area was an unreasonable

interference where it would have been in the sole area left for non-boating activities.)

1. Use of the passageway

2 of 9 Plaintiffs argue that Defendants' boat storage in the passageway unreasonably

interferes with their use of the passageway. (Pl's' Post-Trial Br. 14.) A right-of­

way / passageway allows the holder to pass or cross, and the right of ingress and egress

is the right to pass over, not control. 28A C.J.S. Easements§§ 8(a), 144; Ballentine's Law

Dictionary (copyright 2010t available at LEXIS ("passageway.,,). However, an easement

providing a right-of-way may be found to support other uses besides passage,

depending on its purpose. See Badger v. Hill, 404 A.2d 222, 226-228 (Me. 1979) (a dock

was permissible at the end of a right-of-way to a river given its purpose to provide

access to the river.)

Here, Plaintiffs concede that boat storage "may very well be within the scope of

the common easement." But, throughout the boating season/ Defendants have stored

canoes, kayaks, a 19¥2-foot wellcraft, and an 18-foot pontoon boat in the right-of-way.

Plaintiff Reardon testified that he has ceased to launch his pontoon boat from the

passageway because of the stored boats (and dock), and Plaintiffs Uzdavinis and Boody

testified that the boat storage interferes with their lateral access to the passageway from

the sides of their properties. Plaintiff Uzdavnis testified that the reduced width of the

right-of-way affects her ability to install and retrieve her dock between seasons. As

such, Defendants' boating-season storage of boats in the passageway unreasonably

interferes with Plaintiffs' access and opportunity to use the passageway.'

ii. Use of the shorefront

, "[A]s soon as the ice clears and into the late fall." (Pl's' Post-Trial Br. 5.) , Defendants counter that Plaintiffs U zdavinis and Malandrino have stored their docks in the passageway in the winter. (D's' Post-Trial S. of Facts 5

3of 9 Plaintiffs argue that Defendants' installation of a dock on the shorefront at the

end of the passageway unreasonably interferes with their use of the shorefront. In

Levasseur, the court held that both the defendants and the plaintiffs could maintam a dock on a waterfront, so long as one parties' dock did not interfere with waterfront use

any more than the other parties' dock: Levasseur v. Doucette, No. RE-06-244, 2008 Me.

Super. LEXIS 63., at *13 (Mar. 18, 2008). In Chase, the court held that placing docks,

parking vehicles, or leaving equipment in the sole remaining shorefront area for non­

boating activities was an unreasonable interference of the rights of other common

easement holders to use the areas for purposes other than boating. Chase, 1988 Me.

Super. LEXIS 212, at *3-4. Here, like in Levassuer, the installation of a dock may be a

reasonable use and right shared by wate;rfront easement cotenants. In fact, no other

parties have indicated a desire to install their own dock However, like in Chase, with

the shorefront's 30-foot width, a 4-foot dock, with an 8-foot wide boat tied to it, may

interfere with the other cotenants' use of the waterfront for bathing or boating. While

Defendants assert that Plaintiffs are still able to launch boats and use the waterfront the

testimony makes apparent that Defendants' stored boats and dock interferes with

Plaintiffs' ability to do so. All plaintiffs testified the boat storage and dock have made a

previously safe swim area unsafe, a conclusion well supported by the evidence.

Defendants provided tepid testimony that all parties are free to use the dock In

addition to not being particularly persuasive, the court notes that such post hoc

hospitality is illusory in practice. This modest little piece of shorefront is not equipped

to host a flotilla, nor is Defendant likely to yield to the dock's use by any number of

, Note, Levasseur was expressly decided as an inter.ference of rights case (i.e., did the plaintiffs h ave an exclusive right to maintain a dock), and n ot an unreasonable interference dispute. Levasseur, 2008 Me. Super. LEXIS 63, at *12-13.

4of 9 other easement holders. Defendants' dock unreasonably interferes with Plaintiffs' use

of the waterfront.

2. Physical exclusion

No cotenant has the right to occupy any particular part of an easement to the

exclusion of others, or to exclude them from or to appropriate sole use of a particular

portion of the common property without prior consent. 20 Am.Jur. 2d Cotenancy and

Joint Ownership§§ 2, 42i 86 C.J.S. Tenancy in Common§§ 3, 22; Bank ofMe. v. Giguere, 309

A.2d 114, 119 (Me. 1973). Temporary exclusion may be permissible, but the installation

of a permanent structure is not reasonable where it is for one party's own benefit. (Id.)

(both parties were entitled to reasonable use of an entire parking area for purposes of

parking, ingress, and egress, but the construction of a drive-in bank teller unit by one

party would be an unreasonable interference with the other party's rights of use.)

Defendants have stored boats in the passageway and have installed a dock on

the waterfront during the entire bathing and boating season without prior consent. This

behavior is effectively an unreasonable, permanent physical appropriation, particularly

where Defendants have labeled the dock with their name and where there is conflicting

testimony as to whether all cotenants are able to use the dock Even that conflicting

testimony militates in favor of the court's conclusion already expressed, that

Defendants invitation to use the dock is not only dubious but that as a practical matter

could not be exercised in the same way, for example, that a parking area could.

3. Improvements to the shared easement

A tenant in common has the right to make improvements, provided they are not

injurious or detrimental to the rights of the cotenants, where the right to improve is

subservient to the rights of co-owners to use the entire property. 86 C.J.S. Tenancy in

Common§ 7Bbi 28A C.J.S. Easements§ 174. For example, a permanent obstruction that

5 of 9 significantly lessens ingress and egress is not reasonable, but an obstruction that does

not bar access is not prohibited. 28A C.J.S. Easements § 178.< Any improvements must be

reasonably necessary and consistent with the easement's purpose, where

reasonableness is a question of fact and the court will look to the individual

circumstances, such as the terrain of an easement and the intent of the grantor, if the

language of the conveyance is ambiguous. 86 C.J.S. Tenancy in Common§ 78b; Levasseur,

2008 Me. Super. LEXIS 63, at *10; Hultzen v. Witham, 146 Me. 118, 126, 78 A.2d 342,346

(1951) (the erection of a sea wall was reasonable where the beach area had not been of

practical use without improvement); Chase, 1988 Me. Super. LEXIS 212, at *2-4 (the

intent of the original grantor was to provide for all uses reasonably related to the

enjoyment of a waterfront, but the installation of a dock was unreasonable in the only

spot left for non-boating purposes.) Whether an improvement is an unreasonable

impedance to cotenants depends upon the use to which the easement is, or may be

susceptible, but the objecting party must be seriously inconvenienced. Hultzen, 146 Me.

at 122, 78 A.2d 342 at 344i 28A C.J.S. Easements§ 177. Any material change requires

consent, where "material" means a substih1tion of servitude, and improvements done

without consent inure to the benefit of all. 28A C.J.S. Easements§ 173; 20 Am.Jur. 2d

Cotenancy and Joint Ownership§ 69. Here, Defendants did not seek permission before installation of their dock, and

Plaintiffs' convincingly contest Defendants' claim that all easement holders are able to

use it. There is testimony that the dock precludes some easement holders from

launching their boats and swimming as they had done before its installation, and that

•In Tully, the court held that no one could leave personal property in a waterfront easement where there was evidence that the objects impeded access to the lake. Tully v. Frautten, No. RE­ 12-26, 2013 Me. Super. LEXIS 132, at *14-15 (June 26, 2013) (note this was a dispute between an easement holder and the fee holder of the easement.)

6 of 9 all the easement holders, including Defendants, had been able to launch boats prior to

the dock's installation. Furthermore, the dock substitutes its footprint and the space

around it from either boating or bathing to only boating for the entire boating/bathing

season. Therefore, the dock is an unreasonable improvement to the shared waterfront

area.

b. Use and scope of the easement

Defendants seek a determination of the permissible use and scope of the

right-of-way. Plaintiffs argue the court should not consider Defendants' counterclaim

because an essential party, the fee holder of the easement, is not joined. Necessary

parties are all persons who have a stake in a controversy such that a decree cannot be

made without affecting their interests. M.R. Civ. P. 19(a); 28A C.J.S. Easements § 194; See

Everly v. Fowler, No. RE-14-36, 2015 Me. Super. LEXIS 125, at *4 {June 18, 2015). In

Levasseur, the court did not require all holders of .an easement for water access to be

parties when deciding the rights of two holders to maintain docks. Levasseur, 2008 Me.

Super. LEXIS 63, at *5, *13. In Indermuehle in a lawsuit between beach easement holders

and others claiming similar privileges, the court joined two additional easement holders

to the suit because they had expressed a future intended use that would be directly

affected by the findings in the case, then declared reasonable uses that would not

substantially interfere with the rights of the easement holders in light of the

circumstances and contemplated use of the property for the express purposes of bathing

and swimming. Indermuehle, 1987 Me. Super. LEXIS 146, at *5-6. In Sleeper in a suit

between the holder of an easement in a lot and person claiming to have fee simple title

to the lot, the Court remanded the case ordering a determination of whether other fee

holders and easement holders whose interests would be prejudiced by the ruling

should be joined. Sleeper v. Loring, 2013 ME 112, <[ 22, 83 A.3d 769. The lower court

7 of 9 found that no other parties needed to be joined because no one else claimed fee interest,

the easement owners with the strongest interest were already parties to the case, it

would be burdensome to add more easement holders, and the scope ruling would not

foreclose on absent owners' from enforcing their easement rights against the fee holder.

Sleeper v. Loring, No. CUMSC-AP-10-20, 2015 Me. Super. LEXIS 116, at *1 n.1 (June 12,

2015); Everly, 2015 Me. Super. LEXIS 125, at *8-9 (holding similarly that no additional

parties were necessary in a suit between an easement holder and the fee holder to the

lot burdened by the easement where there were fifty-six other easement holders.) In

Merrill, the court ordered the joinder of all parties owning property who would be

affected by a decision in a lawsuit between lot owners and other family members

claiming an easement on the lot. Merrill v. Parsons, No. RE-2011-056, 2017 Me. Super.

LEXIS 5, at *1-2 (Jan. 12, 2017).

Plaintiffs assert that the fee title to the servient estate of the passageway is held

by the Estate of the developer Carl E. Milligan, while Defehdants state there is a

stipulation by both parties "that nobody owns fee title to the 30 foot right-of-way." The

court concludes that Defendants have not met their burden and further concludes that

there are not other necessary parties whose interests could be prejudiced by a ruling on

scope. See Slee-per, 2013 ME 112, 'l[ 22, 83 A.3d 76 9. The reasoning of Levasseur militates

in favor of concluding, as the court now does, that no additional parties are needed to

decide the counterclaim as an issue of reciprocal rights between easement holders, as an

easement holder is still ultimately limited by the purpose of the conveyance. 28A C.J.S.

Easements§§ 144, 161. Neither this easement's expressly stated purpose of boating and

bathing, nor the fact that the right-of-way provides passage to a shore, unambiguously

provides a right to store personal property in the passageway, install a dock, or

snowmobile, inter alia, as asserted by Defendants See Levasseur, 2008 Me. Super. LEXIS

8 of9 63, at *5; See Chase, 1988 Me. Super. LEXIS 212, at *2; See Brewer v. Bean, 1997 Me. Super.

LEXIS 177, at *5 Qune 5, 1997); See Tully v. Frautten, No. RE-12-26, 2013 Me. Super. LEXIS 132,

at *13 Qune 26, 2013); See Badger, 404 A.2d at 226-227; See Sleeper v. Loring, No. CUMSC­

AP-10-20, 2015 Me. Super. LEXIS 116, at *7-8 Qune 12, 2015). Defendants, who bear the

burden of proof, have provided no persuasive evidence on the issue of the intent of the

easement's grantor. Levasseur, 2008 Me. Super. LEXIS 63, at *10. Therefore, Defendants

are not entitled to the injunctive and declaratory relief they seek.

II. Conclusion

Judgment in favor of the Plaintiffs/Counterclaim Defendants as to Counts I and

II of the Complaint and Counts I, II, and III of the Counterclaim. The court declares the

following:

1. Defendants do not have a right to establish or maintain a dock as such a

structure overburdens and unreasonably interferes with the Plaintiffs' easement rights.

2. Defendants are enjoined from establishing or maintaining a dock at the

terminus of the 30-foot passageway and shall remove any dock now existing at the

terminus of the 30-foot passageway.

3. Defendants do not have a right to store boats on the 30-foot passageway;

Defendants shall remove all such boats from the 30-foot passageway; and Defendants

are enjoined from storing boats upon the 30-foot passageway.

The Clerk is directed to enter this Order on the civil docket by reference pursuant

to Maine Rule of Civil Procedure 79(a).

Date: June 21, 2017 Lance E. alker Justice, uperior Court

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