Lead Opinion
Thе defendant, Jeffrey Becton, appeals from the judgment entered by the Superior Court (Hancock County, Beaulieu, J.), which accepted and adopted the report of a referee finding that the plaintiffs,
The focus of the present case is a one-lane dirt road (access road) that begins on a rural town road in Deer Isle, traverses in a southeasterly direction across property now owned by Becton, and terminates at the northern border of Lot 48D. (See diagram attached as Appendix “A” to this opinion). However, the access road is also the means of reaching eight other lots, 48, 48A, 48B, 48E, 48F, 49, and 49-1. The relevant facts regarding the past use of this access road can be briefly summarized: Beginning in 1932, Fountain and Celia Davis began to make successive purchases оf the land located south of the current Becton property, comprised of land originally owned by Celia’s father. They first acquired Lot 48D, located at the terminus of the access road, and began to use the road for vehicular access to their year-round residence which they had constructed on this lot. In 1935, the Davises acquired Lоts 48E and 48F, located adjacent to Lot 48D to the east, and a small section of Lot 48, and continued to maintain and use this land in its undeveloped state as woodlots and pasture. In 1956 the Davises acquired the remainder of Lot 48, to the east of and adjacent to the three previously acquired lots, in its undeveloped state as woodland аnd pasture. Three years later, and prior to the Davises’ acquisition of this lot, the Davises’ daughter constructed a log cabin for seasonal use on Lot 48A, a small parcel south of Lot 48 reached by the access road and a driveway that the Davises had gradually extended from the terminus of the access road on Lot 48D to their other lots. In 1961, the Davises purchased Lot 48A and undeveloped Lots 48B, 48C, and
In 1985, nine years after the purchase of his property, Becton recorded a notice, which he had previously posted at the intersection of the town and access roads, to prevent the acquisition of a right of way by the plaintiffs. See 14 M.R.S.A. § 812 (1980).
[The plaintiffs are granted] an easement for vehicular traffic over the land of the defendant situated in Deer Isle, Hancock County, Maine. Said easement is located on a dirt road as now existing, which leads southerly from a road known as the French Camp Road through land of the defendant to land now owned by the plaintiffs, in that portion of Deer Isle known as Mountainville. The plaintiffs, their heirs and assigns, have the right to maintain the road, but are obligated to keep it in its present rural state, being a single-lane dirt road with limited turn-out areas.
Becton filed objections to the report pursuant to M.R.Civ.P. 53(e). After a hearing on the objections, the court entered a judgment adopting the referee’s report and Bec-ton appeals.
Becton first contends that the plaintiffs failed to establish a cоntinuous use of the road for the requisite statutory period for the purpose of access to residential lots, and that the referee therefore erred in finding that prescriptive easements had been created over his land to benefit the plaintiffs’ property in such a changed condition.
Becton next contends that even if the court properly found the plaintiffs entitled to prescriptive easements, it erred in finding no current overburdening of the easements caused by the alleged increase in vehicular traffiс across the access road, the plaintiffs’ alleged interference with the established scope of the right of way, and the subsequent changes in the use of the various dominant estates from undeveloped to residential lots. Whether a prescriptive easement is overburdened is a question of fact, and we review the record tо ascertain if there is competent evidence to support the factfinder’s conclusions. In general, a person who possesses an easement over another’s property can exercise his right only in a reasonable manner. See Beckwith v. Rossi,
In the present case, the record discloses ample evidence that Becton’s property has not been subjected to an unreasonable burden. The type of traffic across the right of way remains vehicular in nature. It is well settled that a mere increase in the volume of traffic across the access road will not constitute a per se overburdening. See Baldwin v. Boston & Maine R.R.,
Becton finally contends that the description of the property rights acquired by the plaintiffs in the right of way over his property is too broad to protect him from potential future overburdening of the easements. In Benner v. Sherman,
The entry is:
Judgment affirmed.
ROBERTS, CLIFFORD and BRODY, JJ., concur.
Notes
. This proceeding was originally instituted by Arlene B. French and Arthur R. French, Jr., against Jeffrey C. Becton and Ernest H. Weiner, Jr., Becton’s grantor. Ernest H. Weiner, Jr., was subsequently dismissed as a party. After Gutcheon acquired Lot 49-1 and Martha M. Green acquired Lot 49 from the Frenches, the court, with the agreement of the parties, ordered the substitution of Gutcheon and Green in place of the Frenches. Becton counterclaimed against Gutcheon and Green and amended the counterclaim to include the present owners of Lots 48, 48D, 48E, and 48F. For сonvenience of identification, we refer to the owners of these lots as the plaintiffs.
Although there is some confusion in the record, it appears that Michael L. Kaiser and Marcia L. Gorman, husband and wife, are the present owners of Lot 48A (with an existing residence) and Lot 48B, on which a residence is being or has been constructed. They were named as parties in Becton’s original counterclaim but voluntarily dismissed from this proceeding on June 29, 1987, approximately 15 months prior to the referral of the matter to the referee. Neither Larrabee nor Hardy, who had acquired Lot 48C from the Davises, nor Wainwright, to whom they subsequently deeded Lot 48C, were ever named as parties to this рroceeding, although there is reference in the record that a residence is being or has been constructed on that lot.
Accordingly, any prescriptive rights appurtenant to Lots 48A, 48B, and 48C are not at issue in this appeal.
.In 1974 and 1975, Celia Davis conveyed Lots 48, 48D, 48E, and 48F to Geraldine and Sterling Steele. In 1979 the Steeles conveyed Lot 48D and the еxisting residence to Gary Steele and Cheryl Steele, and Lot 48E to Laurie Hayward and Clarence Hayward. The Haywards thereafter built a house on Lot 48E. In 1984, Geraldine and Sterling Steele conveyed Lot 48F to Cheryl Steele Morse and Terrell Morse, who then lived in a trailer on that parcel. In 1987, Gary Steele sold Lot 48D and the residence to Don and Gwеn Reiman, and shortly thereafter Gary began construction of another house on Lot 48, owned by Geraldine and Sterling Steele.
In 1969, the Davises sold present Lots 49 and 49-1 to Arthur and Arlene French, who later conveyed that property to Martha Green and Jeffrey Gutcheon in 1986. Green then began to construct a house on her lot.
. Section 812 provides the manner of giving public notice of an intention by the owner of land to prevent the public or another person from acquiring a right of way or other easement by custom, use, or otherwise.
. Becton concedes on appeal that there is an easement appurtenant to Lot 48D for residential purposes and that this easеment is not currently overburdened.
Dissenting Opinion
with whom McKUSICK, C.J., joins, dissenting.
I must respectfully dissent. The Court’s analysis is flawed. This is not simply a case in which the owner of the dominant estate establishes a prescriptive easement for residential access and then subdivides the dominant estate. In such circumstances it is appropriate to apportion the easement among thе portions of the lot to which the easement is appurtenant, provided that the servient estate is not unreasonably burdened. The present case is more complicated. The Davises first acquired a single parcel of land with a residence and, in 1932, began to use the servient estate to gain access. In 1935 and 1956, they acquired five рarcels of adjoining land from two different grantors which they used as field and pasture. In 1961, they acquired additional parcels of land from another grantor. Although this land adjoins the expanded parcel, it had not previously been served by the easement. All of the lots at issue remained non-residential until 1979.
The Court correctly finds twenty years of continuous use with reference to all parcels by tacking on the prior usage of the Davises. It errs, however, in failing to consider that the nature of the easement appurtenant to each lot is determined by the use of the easement made by the Davis-es and their successors during their period of ownership for the benefit of that particulаr lot. Use of the easement to provide access to a residence on one lot does not establish a similar easement for a lot purchased at a later time and used as a pasture. The issue is not, as the Court suggests, whether the easement for access to residences is per se overburdened by converting pastures to residential property. The appropriate inquiry is the scope of the prescriptive easements appurtenant to the parcels used for agricultural purposes.
“The extent of an easement created by prescription is fixed by the use through which it was created.” Restatement of Property, § 477. Although some variаtion is inevitable, the use made under a prescriptive easement must either be consistent with the general pattern of use that gave rise to the creation of the easement or result from the normal evolution of that use. Id. §§ 478-479. In Benner v. Sherman,