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STATE OF MAINE SUPERIOR COURT CUNIBERLAND, ss. CIVIL ACTION DOCKET NO. RE~07-077 1· ~~_,~,-~ ~ .~~~ I) !li,' ~ () C '.',') , ''.J c.. . /.. ···---7'
WINDHAM LAND TRUST,
Plaintiff ORDER ON PLAINTIFF'S v. MOTION FOR PRELIMINARY INJUNCTION
RUSSELL I. JEFFORDS, ET AL,
Defendants
This matter is before the court on the motion of the plaintiff Windham Land
Trust for a preliminary injunction to enjoin certain activities by the defendants
Russell Jeffords and Sue Poulin on land owned by them in Gray, Maine.
BACKGROUND
In 2003, the Estate of George L. Freeman, Jr. owned a 100 acre parcel of
land on Route 202 in Gray, known as the Freeman Farm ("Farm Property"). On
August 22, 2003 the estate granted a perpetual conservation easement to the
plaintiff on the rear 85 acre portion of the Farm Property ("Easement Parcel"). I
The remaining 15 acre front portion of the Farm Property, which includes a house
1The text of the easement deed was the collaborative product of the attorneys for both the estate and the plaintiff.
1 and outbuildings, was not subject to the easement ("Front Parcel"). The estate then
conveyed the fee interest in the entire Farm Property to Michael and Marjorie
Major, subject to the conservation easement.
In June 2004, the Majors conveyed the Farm Property to the defendants,
subject to the easement. After purchasing the property, the defendants discovered a
significant amount of tree cutting and slash within the Easement Parcel and
undertook to clean the area and remove fallen trees and debris. The defendants
also did renovation work to improve the buildings on the Front Parcel.
Since 2004, the defendants have organized and conducted two mUSIC
festivals on the Front Parcel, and have permitted festival patrons to hike on logging
trails and take hay rides and sleigh rides on the Easement Parcel. The defendants
have donated most of the festival proceeds to charities and have earned some
income from the endeavor. They intend to carry out similar activities during music
festivals scheduled for the periods of July 6-8, 2007 and August 10-12, 2007, and
hope to attract approximately 1,000 people during each period. They also intend to
allow festival patrons to camp overnight on a twenty-acre area adjacent to the
Front Parcel, but located entirely within the Easement Parcel. They do not intend
to charge those patrons for using the camp site.
The defendants have advertised the upcommg mUSIC festivals m
publications, such as flyers and internet postings, and on the radio. One such ad
2 invites the public to enjoy the Farm Property's 100 acres and to participate in year
round in skiing, sleigh and horse-drawn carriage rides, and hiking. Plaintiffs Exh.
7. According to the defendant Russell Jeffords, festival patrons will have access to
all 100 acres of the Farm Property and campers will be allowed to bring their pets
and have campfires, portable toilets will be placed in the camp site and a twenty
person security staff will patrol the area.
Mr. Jeffords also testified to the defendants' long-term goal of establishing a
"wilderness campground" on the Easement Parcel offering ski and snow-shoe
trails, sleigh rides, hay rides and other activities for the campgrounds patrons. To
this end, the defendants have obtained a permit from the State of Maine for 36 tent
and trailer camp sites to be located within the above-mentioned twenty-acre area of
the Easement Parcel.
The plaintiff seeks to enjoin all of the foregoing actual and planned activities
on the Easement Parcel.
STANDARD OF REVIEW
In order to succeed on a motion for a temporary restraining order, a moving
party has the burden of demonstrating "( 1) that plaintiff will suffer irreparable
injury if the injunction is not granted, (2) that such injury outweighs any harm
which granting the injunctive relief would inflict on the defendant, (3) that plaintiff
has exhibited a likelihood of success on the merits (at most, a probability; at least,
3 a substantial possibility), (4) that the public interest will not be adversely affected
by granting the injunction." Ingraham v. University of Maine, 441 A.2d 691, 693
(Me. 1982). These four criteria, however, "are not to be applied woodenly or in
isolation from each other; rather, the court of equity should weigh all of these
factors together in determining whether injunctive relief is proper." Dep't ofEnvtl.
Prot. v. Emerson, 563 A.2d 762, 768 (Me. 1989). For example, if the evidence of
success on the merits is strong, the showing of irreparable harm may be subject to
less stringent requirements. Id.
DISCUSSION
A. Likelihood of Success
As an initial matter, there is no support on this motion record for the
plaintiff's claim that the defendants have widened paths and trails or otherwise
caused damage within the Easement Parcel to accommodate a tractor or a horse
drawn wagon for hay rides and sleigh rides. The evidence is that the defendants
merely removed fallen trees, slash and brush and did work to maintain the existing
woods roads, all in a manner consistent with the conservation easement.
The issue bearing on the plaintiff's likelihood of success is whether the
defendants' use and intended uses of the easement area, particularly by music
festival patrons, constitute permissible "residential recreational purposes".
4 1. The Conservation Easement Deed
The focus of this injunction proceeding is whether or to what extent the
defendants' activities and intended activities on the Easement Parcel are permitted
by the conservation easement deed. To make this assessment, the language of the
easement deed must be applied to the facts found in this case. Of necessity, this
requires the court to interpret that document.
When interpreting a deed, its words "are given their general and ordinary
meaning to see if they create an ambiguity." ALC Development Corp. v. Walker,
2002 ME 11, ~ 8, 787 A.2d 770. "If the terms of the deed are unambiguous, then
the language determines the parties' intent; however, if the terms are ambiguous,
the court may look to extrinsic evidence for guidance." Id. The plaintiff asserts
that the terms of the deed are not ambiguous. The defendants assert that they are.
Relevant to the context of this dispute, the easement deed expressly provides
that the Easement Parcel "shall be used by Grantor only for residential recreational
purposes." Plaintiffs Exh. 1 at ~ 3. Although the phrase "residential recreational
purposes" is not expressly defined in the deed, it is not ambiguous and its meaning
can be discerned by giving those words their general and ordinary meaning.
Sylvan Props. Co. v. State Planning Office, 1998 ME 106, ~ 8, 711 A.2d 138
(citing Rhoda v. Fitzpatrick, 655 A.2d 357, 360 (Me. 1995) (using Webster's
5 Dictionary and case law to interpret the tenn "intersection"). In isolation, those
words have the following meanings:
Recreational means "any fonn of play, amusement, or relaxation used for this purpose, as games, sports, or hobbies." WEBSTER'S NEW WORLD COLLEGIATE DICTIONARY 1198 (4th ed. 2002).
Residential means "of or connected with a residence; of, or characterized by, or suitable for residences or homes; chiefly for residents, rather than transients." Id. at 1219.
As used in the latter definition,
A resident is "a person who lives in a place, as distinguished from a visitor or transient." Id.;
A residence is a "place in which a person resides; dwelling place, abode; esp., a house. Id.;
To reside means "to dwell for a long time." Id.; and
Transients are persons "staying only for a short time (the transient population at resorts). A transient person (transients at a hotel)." Id. at 1520.
Using those definitions in combination, "residential recreational purpose" means
any fonn of play, amusement, or related relaxation, such as games, sports, or
hobbies, that is chiefly for residents (persons who live in a place), rather than
transients (persons who stay only for a short time), or that is connected with a
residence (the place where a person dwells for a long time), or that is characterized
by, or suitable for residences or homes. In the context of this definition,
6 commercial activities, such as music festivals and campgrounds, are not residential
in nature.
While this definition prescribes the type of uses allowed on the Easement
Parcel, other language in the easement deed serves to prescribe who may engage in
those uses. Section 1 describes the purpose of the conservation easement as
follows:
It is the dominant purpose of this Conservation Easement to preserve and protect in perpetuity the natural, open space, scenic, aesthetic and ecological features and values of the [Easement Parcel] while not limiting Grantor's power to utilize the property for residential recreational purposes. In so doing, it is the purpose of this Easement to foster responsible conservation practices while permitting Grantor to engage in certain recreational uses on the [Easement Parcel].
Plaintiffs Exh. 1 (emphasis added). In keeping with this purpose, Section 3
provides that the Easement Area "shall be used by the Grantor only for residential
recreational purposes, and maintenance or access relating to such purposes,
together with conservation purposes and for the proper management of its forest
resources." Id. (emphasis added). Section 3 also reserves to the fee owner "the
right to the recreational use and general enjoyment and the right to maintain and
occupy the [Easement Parcel], and all other uses consistent with the terms of this
easement." Id. It also provides that mobile homes and motorized vehicles, which
includes, "without limitation, motorcycles, snowmobiles, all terrain vehicles, and
tractors" are prohibited on the Easement Parcel
7 except in an emergency; provided, however, Grantor shall be allowed the use of motorized vehicles by Grantor and Grantor's guests, up to but not exceeding five in number at anyone time. [Section 3 also prohibits] filling (except for forest management), dumping, alteration or excavation [] other than that caused by [] Grantor related to Grantor's recreational uses
and Section 3 expressly reserves and retains to the fee owner of the Farm Property
the right of recreational use and general enjoyment, and the right to maintain and occupy the [Easement Parcel], and all other uses consistent with the terms of this easement; [but prohibits] any clear cutting or large scale removal of timber or wood resources, except such as is reasonably necessary for construction of access roads for uses permitted hereunder[.]
Id. (emphasis added). Finally, Section 10 makes clear that
[w]henever the term "Grantor" appears in the Conservation Easement, including the foregoing covenants, it shall also refer, as appropriate, to any transferee, assignee or successor in interest of the Grantor of this Conservation Easement.
Based upon the foregoing, the court concludes that the unambiguous
language of the easement deed is intended to restrict permitted residential
recreational activities on the Easement Parcel to the fee owners of the Farm
Property and to their guests/ and the court further concludes that the easement
deed prohibits any collateral use of the Easement Parcel, recreational or otherwise,
by patrons or attendees of permitted commercial activities on the Front Parcel.
2Section 3 of the deed makes reference to the permitted "use of motorized vehicles by Grantor and Grantor's guests.
8 The court does not accept the defendant's argument that the easement deed
allows more than merely "residential recreational uses" based on language in
section 3 that expressly reserves to them the rights of "recreational users] and
general enjoyment". Any broader use of the property that might be suggested by
the latter phrase is tempered by the abundant references to the more restrictive
"residential recreational purposes" throughout the easement deed. Nor does the
court accept the defendants' additional argument that, even if only residential
recreational uses are permitted on the Easement Parcel, their proposed
campground, hay rides, sleigh rides and other activities for patrons of the music
festivals are all within the meaning of that term. The defendant's view of
"residential recreational purposes" focuses on the recreational nature of the
activities, which the defendants assert includes camping, campgrounds, hiking,
wagon rides, and the like, by anyone, including patrons of their music festivals.
However, the court has contrarily concluded that scope of the recreational
activities permitted on the easement area is limited by a requirement that the
activities must be suitable for a residential use of the property and be chiefly for
the residents of the Farm Property and their guests.
2. Overburdening of the Easement
The plaintiff also argues that collateral activities by festival patrons on the
Easement Parcel, including the festivals planned for July 6-8 and August 10-12,
9 will likely involve large numbers of people, thereby overburdening the easement,
and they should be preliminarily enjoined. An easement is overburdened when its
present use changes from past practices and the change produces some greater
independent burden on the servient estate that unreasonably or unforseeably
interferes with the landowners enjoyment. Taylor v. Nutter, 687 A.2d 632, 635
(Me., 1996).
The starting point in this analysis is determining the use of the property at
the time the conservation easement was created. That point was specifically
referenced in section 6 (Baseline Data) of the easement deed,
Holder (plaintiff-Trust) acknowledges by acceptance of this easement that Grantor's historical and present use of the [Easement Parcel] and the anticipated future residential recreational use described herein is compatible with the purposes of this Easement.
Plaintiff's Exh. 1. Although the motion record and testimony shed dim light on
what the "historical and present" uses of the easement area were, the preamble to
the easement deed provides some illumination.
WHEREAS, the [Easement Parcel] is to remain (except as provided herein) in an undeveloped, open and natural state, recognizing its scenic, aesthetic, scientific and ecological value in providing a place of recreateion and of natural solitude; it is the purpose of the Grantor and Holder to assure the protection and conservation of the [Easement Parcel] and for assuring the continuation of a viable forest, while at the same time not precluding its use for recreation in a manner which does not substantially diminish its protection and conservation[.]
10 There is enough record evidence to conclude that the uses and intended uses of the
Easement Parcel as a campground or in conjunction with music festivals or other
public-at-Iarge activities are a change from the manner in which that area was used
at the time the conservation easement was created, and are inconsistent with the
manner it was expected to be used under the terms of the easement deed. Finally,
it is reasonable to expect that these changed and expanded uses are likely to
produce some greater independent burden on the Easement Parcel that will
unreasonably or unforeseeably interfere with the purposes of the easement.
Based upon the foregoing, the court concludes that the plaintiff has made a
strong showing of a likelihood of success on the merits.
B. Irreparable Harm
The court also finds that the plaintiff has demonstrated that it will suffer
irreparable injury if the injunction is not granted and the defendants are permitted
to go ahead with their plans. Although the record is somewhat sparse on this issue,
it is sufficient to establish that the defendants' use and intended uses of the
Easement Parcel will disturb the condition and natural environment of the
easement area in such a way that it would take many years to return the land it to
its current state. Dep't of Envtl. Prot. v. Emerson, 563 A.2d 762, 768 (Me. 1989)
(if the evidence of success on the merits is strong, a showing of irreparable harm
may be subject to less stringent requirements).
11 C. Balancing ofHanns
The court is not persuaded by the defendants argument that any hann to the
property caused by their activities is outweighed by the hann that they will suffer if
a preliminary injunction is granted because it will interfere with their property
rights and cause them to suffer economic loss through interruption of their music
festivals. As the court has already concluded, they have no right to conduct
collateral activities on the Easement Parcel in conjunction with their commercial or
public endeavors. As for any economic loss, the music festivals take place entirely
on the Front Parcel, which is not enjoined. Thus, an order prohibiting festival
patrons from venturing onto the easement area will not prevent and should not
impact that core activity. And, finally, any impact and resulting hann would not
outweigh the long-tenn damage that likely would be done by allowing such
activity within the easement.
D. Public Interest
The motion record does not disclose any reason to believe that the public
interest would be adversely affected by the issuance of a temporary restraining
order.
DECISION
Accordingly, based upon the foregoing, it is ORDERED AND DECREED,
as follows:
12 A. The defendants Russell 1. Jeffords and Sue A. Poulin are enjoined and
restrained, directly or indirectly, whether alone or in concert with others, from
permitting, soliciting, encouraging or allowing others to go upon and use the
Easement Parcel
(1) For any commercial activities or other activities on the Easement Parcel
to which the public-at-large or any segment of the public-at-large is invited,
including, but not limited to, a campground, camping, hiking, skiing, hay or
wagon rides, sleigh rides; or
(2) In conjunction with or collateral to any commercial activities or other
activities on the Front Parcel to which the public-at-large or any segment of the
public-at-large is invited, including, but not limited to, music festivals.
B. This preliminary injunction does not apply to residential guests of the
defendants - meaning, persons who are family members or social invitees of the
defendants - for the duration of their visit with the defendants.
C. This preliminary injunction does not limit lawful and permissible
commercial activities or other activities to which the public-at-large or any
segment of the public-at-large is invited that are conducted solely on and within the
confines and bounds of the Front Parcel, including, but not limited to, music
festivals; provided, however, the defendants shall not permit, solicit, encourage or
allow any person who is on the Front Parcel for any purpose related to such
13 activities to go upon or enter the Easement Parcel, and the defendants shall take
and implement reasonable measures and precautions to prevent any such person
from going upon or entering the Easement Parcel.
D. This preliminary injunction shall remain in full force and effect until the
issuance of a final judgment or an earlier order of the court.
E. On this record, the court cannot conclude that there is a likelihood that the
plaintiff will be liable for costs or damages incurred or suffered by the defendants,
or either of them, as a result of being wrongfully enjoined or restrained herein, but
the court does conclude that there is good cause, including the plaintiffs likelihood
of success on the merits, for waiving the requirement that the plaintiff give security
pursuant to M.R. Civ. P. 65(c).
Pursuant to M.R. Civ. P. 79(a), the Clerk is directed to enter this Order On
Plaintiffs Motion for Preliminary Injunction in the Civil Docket by a notation
incorporating it by reference.
Dated: June 29, 2007
14 STATE OF MAINE I' SUPERIOR COURT CUMBERLAND, ss. ,t. ,CIVIL ACTION . ' ,:;,'~, :;:: i- : '-:80CKET NO: RE-07..077
Plaintiff,
STATE OF MAINE,
Intervenor / Plaintiff,
ORDER v.
RUSSELL I. JEFFORDS, and SUSAN A. POULIN,
Defendants.
Before this Court are various motions, including Defendants Russell I.
Jeffords and Sue A. Poulin's (collectively "Defendants") Motion to Dismiss and
Motion to Vacate two orders and Plaintiff Windham Land Trust (WLT) and
Intervener Plaintiff State of Maine's (State) (collectively "Plaintiffs") Motion for
Summary Judgment pursuant to M.R. Civ. P. 56.
BACKGROUND In 2004, Defendants purchased one hundred acres of land located in Gray,
Maine. Eighty-five acres of the land is subject to a conservation easement
(Easement Parcel) created in 2003 and held by WLT. The easement contains a
mandatory notice and mediation clause.! Defendants planned to allow
! The Conservation Easement states in pertinent part:
If Holder shall determine that a vIolation of this easement exists, Holder shall provide written notice of same to Grantor and Grantor shall have thirty (30) days in which to cure such violation.
1 wilderness camping on previously cleared property, as well as wagon rides,
sleigh rides, and nordic skiing on existing logging roads.
The WLT became aware of Defendants' plans and expressed their
concerns. The concerned violations were set forth in an August 2006 letter to
Defendants. It is undisputed that no mediation occurred prior to the filing of this
lawsuit. The reasons for the failure are disputed, however Plaintiffs provide a
letter requesting mediation between the parties, by reference to the Conservation
Easement, dated November 1,2006 and a reply letter from Defendants dated
November 3,2006 indicating that they were not ready to mediate. Defendants
assert that in February 2007, they requested mediation, but the WLT declined.
In March 2007, WLT filed the instant suit and requested a preliminary
injunction. After a June 26,2007 testimonial hearing before Chief Justice
Humphrey, the injunction was granted (Injunction Order). A motion to
reconsider the Injunction Order was denied on July 12, 2007.
In November, 2007 the State filed a motion to intervene pursuant to 5
M.R.S.A. § 194 and 33 M.R.S.A. § 478, which was granted over Defendants'
objection on January 2,2008. Prior to intervener status being granted to the State,
the WLT and Defendants engaged in a Rule 16B mediation over several days in
December 2007 and January 2008. The State participated in those sessions by
agreement of Defendants. Attempts at mediation failed.
Prior to commencing any court or administrative action regarding enforcement of this easement or any part thereof, as a precondition thereof, Holder shall be required to engage in mediation in good faith with Grantor, with a mutually acceptable mediator, or upon a failure to agree with a mediator appointed by Cumberland County Superior Court.
PI. Ex. 1 at 4. 2 On April 10, 2008, the State served a complaint on Defendants' counsel.
The State concedes the error of failing to file the complaint with the Motion to
Intervene pursuant to M.R.Civ. P. 24.
I. Defendants' Motion to Dismiss
Defendants move to dismiss both the State's and the WLT's complaints
and thus vacate any prior orders in the case, principally on the grounds that the
Court had no jurisdiction over the matter because both the State and the WLT
failed to mediate the matter prior to filing the lawsuit.
A. Standard of Review
"Whenever it appears by suggestion of the parties or otherwise that the
court lacks jurisdiction of the subject matter, the court shall dismiss the action."
M.R. Civ. P. 12(h)(3). When considering a motion to dismiss for subject matter
jurisdiction, the court "does not draw inferences favorable to the pleader, but
should consider any material outside the pleadings submitted by the pleader and
the movant." Davric Maine Corp. v. Bangor Historic Track, Inc., 2000 ME 102, 16,
751 A.2d 1024, 1028 (citations and quotations omitted). Dismissal for lack of
subject matter jurisdiction is generally considered a dismissal not upon the
merits. See M.R. Civ. P. 41(b)(3).
B. Lack of Jurisdiction
Defendants assert that the fail ure to mediate deprived this Court of
subject matter jurisdiction. The Court disagrees. This Court has subject matter
3 jurisdiction and an alleged failure of a condition precedent in a contract between
parties does not deprive the Court of jurisdiction. 2
Moreover, considering all materials presented by the parties, as this Court
should when jurisdiction is at issue, it is clear that the WLT initiated the
mediation process in its November I, 2006 letter, prior to filing the complaint.
Defendants did not avail themselves of the opportunity to mediate at that time.
Nor did they raise the issue prior to this Motion to Dismiss and willingly
participated in the Rule 16B mediation. Accordingly, Defendants have waived
their right to mediation under the Conservation Easement. See Roberts v. Frank L.
McKinney, Inc., 485 A.2d 647, 65l(Me. 1984)(citing Houlton Trust Co. v. Lumbert,
136 Me. 184, 186 (1939)).
Defendants also assert that the State failed to give the appropriate notice
and failed to participate in mediation under the Conservation Easement prior to
filing its complaint. As stated above, such a failure would not deprive this Court
of jurisdiction. Nonetheless, the State entered the action in order to enforce the
conservation easement because the WLT was not financially able to do so. They,
in effect, stepped into the shoes of the WLT without altering the claims of the
WLT. Defendants concede that the WLT did give proper notice. It is also
undisputed that the State participated in the Rule 16B mediation, which occurred
prior to the State being granted intervener status. 3
2The Court is not persuaded by the sole case proffered by Defendants in support of their contention. The case cited is an administrative law case that refers to a statutory restriction on jurisdiction. See Me. State Employees Assoc. v. Williams, 373 A.2d 258, 260 (Me. 1977). That is not the case before this Court.
3 Defendants also assert that the mediation that did occur was biased due to the previously entered injunction. Defendants cite no case law in support of this contention, nor any reason why the case should be dismissed based on the allegation.
4 II. Defendants' Motion to Vacate
Defendants Motion to Vacate the two orders previously entered in this
case were dependent upon a finding that the Court lacked jurisdiction to render
the orders. However, because we have determined that the Court did have
jurisdiction over the subject matter, all prior orders in this matter stand.
III. Plaintiffs' Motion for Summary Judgment
Plaintiffs move for summary judgment asserting that they are entitled to
judgment as a matter of law and issuance of a permanent injunction prohibiting
Defendants from conducting any commercial activities within the Easement
Parcel.
Summary judgment is proper where there exist no genuine issues of
material fact such that the moving party is entitled to judgment as a matter of
law. M.R. Civ. P. 56(c); see also Levine v. R.B.K. Caly Corp., 2001 ME 77, 14,770
A.2d 653, 655. A genuine issue is raised "when sufficient evidence requires a
fact-finder to choose between competing versions of the truth at trial." Parrish v.
Wright, 2003 ME 90, 1 8, 828 A.2d 778, 781. A material fact is a fact that has "the
potential to affect the outcome of the suit." Burdzel v. Sobus, 2000 ME 84,16,750
A.2d 573, 575.
Plaintiffs rely solely on the Preliminary Injunction Order entered by the
Court in June, 2007 temporarily prohibiting any commercial use of the Easement
Parcel. They specifically rely on the Preliminary Injunction Order's
determination that the Conservation Easement language is unambiguous with
respect to its intent to restrict recreational use of the Easement Parcel to
"residential recreational use" only.4 Defendants assert that the Preliminary
4 The Order states in pertinent part:
5 Injunction Order is not a final judgment and thus the Court is free to revisit the
issues.
The Court agrees with Defendants that the preliminary injunction is not a
final order of this Court. However, after a full testimonial hearing, a preliminary
injunction was entered based both on questions of law and fact. To the degree
that the facts have been clarified at this later stage in the process, the Court will
consider the preliminary injunction court's application of the law to the facts.
Short of a significant error on the part of the injunction court, however, this
Court will not disturb any determinations of law as they have become the law of
the case. s
Based on the foregoing, the court concludes that the unambiguous language of the easement deed is intended to restrict permitted residential recreational activities on the Easement Parcel to the fee owners of the Farm Property and to their guests, and the court further concludes that the easement deed prohibits any collateral use of the Easement Parcel, recreation or otherwise by patrons or attendees of permitted commercial activities on the Front Parcel.
Preliminary Injunction Order at 8.
S The Law Court has articulated the "law of the case" doctrine as follows:
The doctrine of the "law of the case" rests on the sound policy that in the interest of finality and intra court comity a Superior Court justice should not, in subsequent proceedings involving the same case, overrule or reconsider the decision of another justice. Blance v. Alley, 404 A.2d 587, 589 (Me. 1979); Warren v. Waterville Urban Renewal Auth., 259 A.2d 364, 367 (Me. 1969). Such a rule of practice promotes the orderly conduct of an action and discourages judge shopping. Blance, 404 A.2d at 589. While based on important policy considerations, the law of the case is not as rigidly applied as the doctrine of res judicata. ld. The rule does not serve as a complete bar to reconsideration of an issue when the prior ruling is provisional or lacks clarity, or the error is of such character that it should be corrected at trial. IB Moore's Federal Practice
Grant v. City of Saco, 436 A.2d 403, 405 (Me. 1981).
6 With respect to the facts proffered at summary judgment, Defendants ask
the court to consider understandings the Defendants may have had regarding
the scope of the Conservation Easement based on statements made by certain
individuals at the time Defendants purchased the property and when they were
creating their business plans. Defendants also ask the Court to consider the
impact of their proposed uses on the Easement Parcel. Defendants do not
dispute that they intend to offer to the public hay rides, sleigh rides, Nordic
skiing, snowshoeing, and hiking on the logging roads and skating on the pond
wi thin the Easement Parcel.
This Court does not find that Defendants' additional statements of
material fact have the potential to effect the outcome of the suit. The question
before the Court at summary judgment is the scope of the Conservation
Easement. In the Preliminary Injunction Order, the court found, as a matter of
law, that the Conservation Easement did not permit commercial uses within the
Easement Parcel. This determination was not provisional, does not lack clarity
nor does the Court find error with it. Accordingly, the Court will not disturb the
prior determination of law made in this case.
Defendants do not deny that they intend to make commercial use of the
Easement Parcel. Thus, summary judgment in favor of Plaintiffs is appropriate
to clarify the scope of the Easement Parcel.
7 Therefore, the entry is:
Defendant's Motion to Dismiss is DENIED.
Defendant's Motion to Vacate Orders is DENIED.
Plaintiffs' Motion for Summary Judgment is GRANTED. The easement deed is intended to restrict permitted residential recreational activities on the Easement Parcel to the fee owners of the Farm Property and to their guests, and the thus Defendants are permanently enjoined from any collateral use of the Easement Parcel, recreation or otherwise by patrons or attendees of permitted commercial activities on the Front Parcel.
The clerk shall incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).
Dated at Portland, Maine this ;)qfC day of ~~~A----~
8 • V , \.JUUM I " lerland County J. Box 287 V1aine 04112-0287
LINDA CONTI AAG 6 STATE HOUSE STATION AUGUSTA ME 04333
COFCOURTS >erland County O. Box 287 Maine 04112-0287
MARCIA CORRADINI ESQ PO BOX 4510 PORTLAND ME 04112
(OF COURTS >erland County O. Box 287 Maine 04112-0287
CHRISTOPHER NEAGLE ESQ PO BOX 9711 PORTLAND ME 04104-5011