Frederick B. Lincoln v. Harold Burbank II
147 A.3d 1165
Me.2016Background
- A cluster of neighboring property owners (the Neighbors) used a path and set of stairs across a coastal parcel in Northport for decades to access the beach; the path and "Neighbors’ stairs" had existed and been used and maintained by them since at least the 1930s. No recorded owner of the parcel had given permission for the use, and some owners occasionally posted or removed no-trespassing signs.
- The Burbank parcel is owned as joint tenancy by fourteen family members after a 1993 warranty deed from Phyllis Burbank conveying the property in fee simple to her children and grandchildren. The will executed contemporaneously created a maintenance trust but did not reserve or restrict the grantees’ ownership rights.
- In 2012, Harold Burbank II, acting without informing co-owners or the Neighbors, sought a municipal notice of violation over shoreland zoning and then removed the Neighbors’ stairs after initially pushing for enforcement and despite DEP indications the stairs might be a legal nonconforming structure.
- The Neighbors sued all owners seeking a prescriptive easement, declaratory relief, and damages (including conversion and punitive damages against H. Burbank II). Co-owners later cross-claimed for partition by sale; some co-owners settled with the Neighbors but others did not participate in the appeal.
- The Superior Court found for the Neighbors on prescriptive easement and on conversion/punitive damages against H. Burbank II, and for the Co‑owners on partition by sale; it denied the Neighbors’ trespass claim and denied injunctions sought by the Burbank defendants.
- On appeal Burbank (pro se) raised multiple challenges including insufficiency of evidence for a prescriptive easement, error in ordering partition by sale, conversion liability, bifurcation, standing, judicial takings, and failing to reopen the record; the Law Court affirmed and imposed appellate sanctions against Burbank for frivolous and improper conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prescriptive easement | Neighbors: long (≥20 yrs), open, notorious, continuous, adverse use of path and stairs; owners knew/acquiesced | Burbank: insufficient evidence of nature/duration; some prior owners protested; close neighborly relations imply permission; presumption of permission should apply | Affirmed: trial findings supported; elements met by preponderance; credibility determinations deferred to trial court |
| Partition by sale | Co-owners: joint tenants may seek partition; breakup and inability to co‑own justify sale | Burbank: deed and will show intent to bar partition or create special descendant interests | Affirmed: deed conveyed fee simple with no restrictions; will did not limit partition; equity jurisdiction permits sale |
| Conversion (removal of stairs) | Neighbors: H. Burbank II removed property (stairs) and is liable for conversion and punitive damages | Burbank: acted pursuant to Town notice of violation; therefore not liable | Affirmed: court found he used notice as pretext and knew enforcement was on hold; conversion and punitive damages proper |
| Appellate procedure / sanctions | Appellees: appeal included improper extra-record material, excessive reply briefs, frivolous arguments; seek sanctions | Burbank: (variously) challenges standing and sufficiency; disputed sanctions | Affirmed judgment; sanctions awarded: $5,000 to Neighbors and $5,000 to Co-owners toward fees plus treble costs; numerous appellate violations found |
Key Cases Cited
- Androkites v. White, 10 A.3d 677 (Me. 2010) (elements and standards for prescriptive easement; 20‑year continuous adverse use; deference to trial court factfinding)
- Gordon v. Cheskin, 82 A.3d 1221 (Me. 2013) (deference to trial court credibility determinations)
- Stickney v. City of Saco, 770 A.2d 592 (Me. 2001) (acquiescence defined as passive assent; permission or protest defeats prescriptive claim)
- Almeder v. Town of Kennebunkport, 106 A.3d 1099 (Me. 2014) (distinguishing public recreational use presumptions from private prescriptive easements)
- Libby v. Lorrain, 430 A.2d 37 (Me. 1981) (partition by sale available under equity jurisdiction)
- Beane v. Maine Ins. Guar. Ass'n, 880 A.2d 284 (Me. 2005) (appellate review is limited to the trial court record; new evidence on appeal is improper)