*1 1068 issue self-defense. He is: entry contends findings of fact made after re- Judgment affirmed. satisfy mand are insufficient to M.R.Crim. 23(c).4
P. Whether findings factual issued
prior to remand are void as to issues out- scope
side the of the remand order is a
question of law we de review novo. State O’Connor, 475,
v.
476
A.2d
contention,
support
[¶7] To
his
Ricky
Ricky’s argument. We stated Michaud that: Supreme Judicial Court of Maine. 23(c) requires Rule a trial court to make Argued 2000. Jan.
specific findings upon of fact request. 23(c) However, Decided Oct. 2000. Rule not require does specify court to all the it evidence relied
on in making findings its of ultimate
fact. the contrary, To a court need only
find as fact each of the elements of the
offense, satisfy in order to require- 23(c).
ments of Rule
Michaud, 251, 22, 1998 ME (citations omitted). findings
[¶ 8] The fact the first
judgment the District Court issued in
Ricky’s clearly case set forth court’s
finding of each element of manslaughter. findings later made the court after
remand were directed at the issue of self-
defense, left all undisturbed other fac-
tual findings previously issued. Accord-
ingly, the court did not err failing to
provide findings additional fact and con-
clusions of law. findings previ- The factual
ously provide issued the court a suffi-
ciently detailed recitation the facts on
which all the court relied to find the ele- crime, and, coupled
ments of the with the remand,
findings satisfy made after 23(c).
requirements of P. M.R.Crim. 23(c) opinion M.R.Crim. P. "In a or states: case tried memorandum of decision is jury Court filed, without the Court findings be it will sufficient if the of fact general finding shall make and shall in appear therein.” request addition specially. find the facts If *3 Carolyn McGeechan. Sher-
mond and im- trial court contends wood for decided properly judgment quiet declaratory (1) failing properly apply claims the lo- rules construction standard lines, in- cation correctly concluding that the McGeechans the Pa- the area of land known as contends per Mill Road. Sherwood also finding the court erred in *4 an parcel by benefitted McGeechans’ is In a property. over Sherwood’s easement cross-appeal, the contend McGeechans J.) (Marden, in that the trial court erred summary in favor of granting judgment a Bangor and Real Sherwood co-defendant claim inter- Estate on their of intentional relationship an ference with economic part arising purchase out of Sherwood’s of family. her land from Ellis of agree with the McGeechans We [¶2] and properly that the trial court identified the east-west declared which be- boundary properties between the two affirm location of gins, and we the court’s boundary line that runs from the east-west Baber, “point beginning” to the northern Brett D. Esq., (orally), Baber & the two Weeks, P.A., boundary terminus of the between Bangor, plaintiffs. trial We affirm the properties. also Cuddy, (orally), Kevin M. Esq., Pamela court’s conclusion that McGeechans’ Chute, Cuddy Lanahm, Esq., Bangor, D. & by across land is benefitted an easement for defendants. as Mill is identified the Old Grist what Paper agree We Road and the Road.1 WATHEN, C.J., Panel: and Sherwood, however, court that with CLIFFORD, DANA, SAUFLEY, (1) Paper erroneously concluded ALEXANDER, CALKINS, JJ. Road, along parties’ which lies CLIFFORD, J. boundary, north-south shared title,2 chain of McGeechans’ Mary H. a appeals Pa- title does include the Sherwood’s entered in judgment Court Mill Road. per J.) (Penobscot Mead, County, that de- cross-appeal, boundary proper- two On the McGeechans’ clares the between parcel judgment in entered Hampden, summary located one we vacate the ties Sherwood, claim of Ray- their by by against the other the McGeechans on owned only that survey prepared Paper Mill Road. We affirm concluded a entire 1. The court Avery, professional recognizing a sur- Michael licensed court’s determination part of the depicted boundary veyor, lines by prescription to McGeechans' title properties. that encom- section of driveway. passes their 2. The trial court also concluded prescriptive were owners of the Finally, although parties agree intentional interference with economic relationship title to genuine because there exist that Sherwood retains known Grist Mill issues of material fact that must be re- the road Old along which runs shared solved a factfinder. east- boundary, west the McGeeehans claim also the benefit of an easement in that road. I. BACKGROUND assert, alternatively McGeeehans 1800s, road formed the they the event are not determined to be boundary entire southern western the owners of the parcel, what is now the Sherwood located property their benefits from deed ease- north and east of ment in the Mill Road. With this McGeeehans.3 The road single mind, general background we now turn continuous, but was identified different ap- to this gave events which rise names, commonly most the Old Grist Mill peal. Road and the Mill Road.4 purchased McGeeehans [¶ 5] The have established the Hamp- twenty-five-acre land location segment of the road as it July den 1981. In learned runs west the southern *5 adjacent parcel that an four acre was be- parcel, the Sherwood forming parties’ ing family and that Ellis David sold shared boundary, frequently north-south Bangor Caliendo of Real Estate was the to in litigation referred this as the listing agent. They contacted Caliendo disagreement, Mill Road. There is howev- and informed him of their interest in the er, as to segment who owns that of the old property. parties roadway, claiming both Paper Mill Road is in their chain of title.5 Raymond [¶ 9] McGeechan obtained parties agree property also on the seller’s disclosure for the Ellis Sherwood, northern They terminus of the road. dis- a real estate broker with however, Estate, agree, as to where that Bangor road Real and Sherwood listed turns from the boundary prospect southern of the McGeechan on the sheet for the north, parcel and property,6 Sherwood heads Sherwood did not inform she, too, being disputed “point begin- McGeechan was interested ning” located trial They property. court. also the informed Sherwood Calien- road, disagree precise path property do of her interest in the and generally Mill arranged property referred to the Old Grist to view the at the same northerly travels as it runs from the time as the McGeeehans. Neither Calien- point of beginning agreed to reach the do nor Sherwood disclosed to the McGee- upon repre- potential pur- northern terminus. That line ehans that Sherwood was a sents their shared east-west chaser. purchasing parcel, they
3. Prior to the Ellis Sher- 5. The McGeeehans also claim that have parcels wood had obtained two south of and acquired by ad- title to the adjacent one parcels to the Ellis Those three possession. verse property abut the McGeeehans’ comprise what we refer to as "the Sherwood purchase 6. The issue of whether Sherwood's parcel.” parcel gives rise to a action cause of against was decided the McGeeehans on a 4. There some name of confusion as to the summary judgment. Accordingly, motion for the road. both and the Because although disputes many Sherwood of these so, generally trial court have done we refer to facts, purchase the facts are set out in a part parties’ of the road that forms the light See most favorable to McGeeehans. boundary as the shared north-south Althenn, Estate Althenn v. part and that of the road that boundary forms the shared east-west as the Old Grist Mill Road. Avery conclud- property. survey their to allege that Sher- The McGeechans their hearing distance ed that remained within wood also pole. After He property. utility driveway viewed while McGee- inaccu- property, Raymond survey had touring Day’s concluded any were if there boundary chan asked Caliendo the western rately located offers on the Caliendo other ignored and had the Sherwood negative. in the McGeechan responded of the road to that fact that title the terms with openly discussed Caliendo Mill Road was as the identified $30,000, and proposed offer of of their by the McGeechans.8 held thought that he the offer stated Caliendo complaint filed The McGeechans acceptable to the seller. McGee- would be declaratory for a Court that the offer chan also informed Caliendo between judgment to define dialogue negoti- was intended to start complaint includ- properties. the two family regarding the Ellis ate with trespass9 quiet and to a claim for ed purchase. The McGeechans terms of the also The McGeechans property. signed submitted a offer that Sherwood and co-defendant alleged that Sherwood signed as a witness.7 also inter- intentionally Bangor Real Estate day One after ad- economic fered with the McGeechans’ offer, prepared her signed their Sherwood relationship with the Ellis vantage $35,000. did own offer of Caliendo attempt purchase family in their of- inform the McGeechans of Sherwood’s property. Ellis fer, inform Mr. Ellis that nor did Caliendo discovery, Following pay prepared the McGeechans were summary judgment, partial moved for a $30,000 property. more than for the Cal- *6 could not the McGeechans arguing $30,000 iendo submitted the McGeechan with an intentional interference establish $35,000 to offer and the Sherwood offer evi- relationship absent some an economic Ellis, accepted offer. and Ellis Sherwood’s fraud, was no fraud. and there dence of Subsequent pur- to 12] Sherwood’s [¶ J.) (Marden, conclud- Superior The Court property, survey of the chase of the Ellis had failed to ed that the McGeechans property conducted for Sherwood Rich- inter- evidence to show present sufficient Day, professional a licensed land sur- ard relationship be- an economic ference with veyor, concluded that McGeechans’ law, cause, alleged as a matter of driveway utility pole and encroached on did not of Sherwood and Caliendo Conduct sent a parcel. the Sherwood Sherwood concealment” to the level of “active rise informing them letter to the McGeechans prove fraud. Accord- required that is to per- giving of the encroachments and them summary judg- entered a ingly, the court property mission to continue to use claim, on that ment in favor of Sherwood only. purposes those subject of the McGeechans’ is the which Believing driveway that the [¶ cross-appeal. property, on their own utility pole were in Decem- A trial was held bench Avery, hired Michael boundary to resolve surveyor, ber of 1998 professional land also a licensed making an offer that he was told Mr. Caliendo claim that Sher- McGeechans do not 7.The $30,000 property.” for the Ellis of the amount of their offer wood learned of Rather, they reading the offer sheet. it from part the McGee- utility pole and of remained within 8. The that Sherwood contend driveway Paper Mill located on the chans' are were hearing distance while the McGeechans Road. including when the property, on the Ellis offer, “[i]t and that McGeechans made their appear have trespass Sher- claim does reasonably inferred that Mrs. 9. The may be pursued. when he been Mr. McGeechan wood overheard surveyors title claims. In the The and their have February J.) (Mead, on agreed Court concluded that the location of historic D, Avery Survey, “Plaintiffs’ Exhibit between Lot 24 have boundary and 25 and appropriately boundary, the location road along more establishes located the now incorporat- common known as the Road. boundary,” generally however, survey judgment. They agree, ed into its The have been unable to Avery survey point identifies the entire bound- on the location of the at which the (now between ary parcels generally and shows the road known as Old Road) boundary McGeechans as the owners Grist Mill leaves the which runs the southern Lots 24 25 and turns to the north along boundary parcel. Lot dividing point of the Sherwood 25. This has been re- in agreed Avery litigation court also with ferred as “the property beginning” McGeechan benefits and is essential to the location along easement the Old shared east-west boundary which runs the western history Also of the title is the parcel. appealed the Sherwood fact that the eastern 25 was of Lot judgment. subdivided, later smaller creating several parcels. parcels, including Those most re- II. THE BOUNDARY DISPUTE parcel, the Ellis reunited cently were later THE A. SHARED EAST-WEST comprise and now the Sherwood
BOUNDARY parties rely two deeds 17] The [¶ issue this case chain of title to Sherwood’s establish lots, originally part designated two proper- boundary east-west between their early 1800s as Lots 24 and 25. Both parties agree ties. The deed an 1822 rectangu- Lot and Lot 25 were roughly Gray Crosby Benjamin from William in shape lar and the between their shared bound- describes east-west straight them ran-east-west line. Lot reads, ary.10 part: That deed 24 is now owned and is Beginning at the north east corner directly located to the south of Lot 25. Crosby Brick store owned John 1800s, Jr. on side of the road early Crosby 18]. John *7 Mill, 1820, to the leading owned all of Old Grist thence Sr. Lot 25. he southerly the side of said till it divided a road to mark road using strikes said Grist Mill Pond. boundary properties. the between the two That road is same the road the are leading The “road to the [¶ 22] Old seeking dispute. to locate in this The road same at the begins Mill” is the road begins southeasterly the corner of Lot northeasterly corner of Lot 24 and the westerly along boundary 25 and runs the 25, southeasterly corner of runs Lot Lots 24 and 25. At the point of some road of boundary north-south those shared that boundary northerly, leaves and runs north, lots, ultimately and turns to the dividing Lot 25 and west- into eastern Lot 25 into an eastern and a dividing parcel. property ern The Sherwood lies part.11 western Because the McGeechans 25, Lot portion within the eastern of part Lot 24 and the of now own western the western own much of 25, eastern Lot and Sherwood owns the 25, 24. portion of Lot as well as Lot 25, of the part “southerly of Lot side” leading to Mill” as physical 19] Most of the characteris- “road the Old Grist disappeared. of in the 1822 deed tics the road have since described is a monument conveyance, appears Gray William 11. At time of the it 10. obtained title yet of the known as that no road Crosby from John Sr. Paper Mill Road.
1075 they “are not the extent that at least to the north-south only defines with the inconsistent parties’ properties manifestly or boundary between the absurd boundary. from the face apparent common east-west but also their intentions parties’ ” Haagen, v. 679 Snyder the deed.... of not locate the The court could [¶ 23] (Me.1996). 510, The rules of A.2d deed, in the 1822 monument described to establish require a court construction leading to the “southerly of the road side descending order of control “in boundaries Mill,” however, relied on the Old Grist monuments, courses, distances locate later 1875 deed to description Id. quantity.” parties’ road that forms the of the obtaining After east-west The location of monuments 1822, 25 in part of Lot to the eastern fact, the earth is an issue of on the face of convey- Benjamin Crosby made several to such findings and “the trial court’s ances, part two of are now which appeal disturbed on will not be locations death, parcel. After his Sherwood Har clearly erroneous.” they are unless conveyed Benjamin’s will trustees under Pinard, Ass’n borview Condo. of the east- Emery Barker what remained 872, physical disap “The part of Lot which later became ern does not end its of a monument pearance parcel, and is now the western most Ellis if former its defining use the entire parcels comprising of the three Theriault v. location can be ascertained.” That de- 1875 deed (Me.1991) The A.2d Murray, 588 boundary by the east-west refer- scribes determine, if duty to trial court “has a as the 1822 ence to the same road ...” possible, original location[ ] and the court determined the location of Id. monument. parties’ boundary by locating east-west point beginning described The initial call point by connecting 1875 deed and that can refers to several monuments deed sweeping agreed means of arc to beginning. point locate the be used to northern terminus of the bound- of “the refers to the intersection The deed ary.12 Paper Mill road” and southerly side of the “[determination Major Crosby.” heirs of “the land of the from a property boundaries as ascertained begin locates the The deed also law.” question Baptist deed is Youth side ning along Robinson, 175, 7, 714 Camp v. 1998 ME west of the General Mill Road 1074 feet ^io “If language Crosby old store. brick ambiguous, and the intention of the deed is trial court found doubt, may the court then parties is the road had characteristics of physical may resort to rules of construction *8 was insuffi- disappeared, and the evidence light deed in of extrinsic cir examine the the road intersect- cient to indicate where surrounding its execution.” cumstances Major heirs of “land of the ed with the Corp. First v. Kennebec Water Hartford (Me.1985). that monu- Dist., Crosby,” and concluded here, could not be located. applied ment rules of construction must be reads, the old Grist Mill road part: line of deed 12. The 1875 Grist Mill Thence across said Mill road. beginning southerly parcel on the side One and land line thereof road to westerly feet of the Mill road 7io westerly by Thence [Lot 24]. of J.R. Holt Crosby store at the the Geni. old brick from begun at. point Holt land to Major Crosby .... said [de- of land of the heirs boundary.] scription of the northern Crosby” Major heirs of The “land of the Hodg- southerly by ... the heirs of [TJhence portion of Lot now the western refers to Hodgman corner and the southwest man to by the McGeechans. Thence the north old Grist Mill road. found where Sher- for the wheel tracks The MeGeechans introduced ex- evidence, including physical deeds evidence of tensive several wood claims there was Moreover, photographs, and historical to establish surveyor, their a road bed. testified, store, leading of the old location brick Avery, that he could find Michael proven its court to find that had of the road. physical no evidence Such precision.” location “with some We find loca- evidence casts doubt on Sherwood’s finding. no clear error in that factual See road, part of the and the trial tion of that Emerson, Harmon compelled accept court was not Sher- point beginning wood’s of location. locating after the brick 29] Even [¶ Because the trial court’s determi- store, however, the court was unable point beginning reflects a nation of the of point using monu beginning locate of proper application of the rules of construc- Accordingly, ments alone. the court tion, giving descending effect order adopted Avery survey conclusion that call, monuments, the and located distance call gave effect to the distance and course call, finally the course we affirm that de- westerly feet of “1074 the Geni. 6/io connecting line termination as well as the Crosby point to locate the old brick store” northern terminus of agreed it to the of referred to in the 1875 deed. beginning properties between the two point along That is located the historic to establish the east-west boundary line of Lot 24 and Lot 25. Us ing point beginning, this the court also THE PAPER B. OWNERSHIP OF adopted approach Avery taken in the MILL ROAD survey and established the western bound the road is the 1822 ary parcel by connecting of the Sherwood only as “the road to the Old described point beginning agreed upon and the time, Grist Mill.” It is clear that at using sweeping arc. northern terminus fully within Lot 25. road was contained contends that the court [¶ 30] Sherwood The eastern of Lot 25 was subse- point begin- erred in location of the its quently subdivided. ning. She contends that the intersection “southerly side of the parcels Three created Major Road” and “the land of the heirs of division, parcel, including the Ellis Crosby” beginning, is the true and comprise parcel now the Sherwood is a monument she has located property. The border the MeGeechans’ through surveyor. Her con- her evidence parcels lying to the east of the Ellis two prior surveys properties of her sists Benjamin conveyed by Crosby were abutting parcels, maps as well as historical lifetime, conveyances during his and those evidence, physical such as wheel ownership part of did not include area. claims tracks Sherwood also along Mill Road that runs their indicating evidence to have found other his respective southern boundaries. Until presence roadway, including a stone death, Benjamin Crosby remained wall, fencing.14 wire barbed (1) of Lot 25 that was owner of Ellis, MeGeechans, however, Grist Mill later owned Old of- that runs the western border Raymond Road fered evidence that McGeechan *9 parcel to where the road responsible in the area and was of the Ellis cut trees finding erred in that argues point begin contends that the court 14. Sherwood that the of ning by point. call "1074 described the distance the same We are both calls describe 5/io contentions, westerly Crosby brick feet from the Geni. old unpersuaded by and con her point with the of store” is not coincident court did not err in deter clude that the trial beginning by described the intersection of the single mining only point a there was Paper "southerly side of the Mill road” and beginning the 1875 deed. described in Major Crosby.” She the "land of the heirs of
1077 ” Pierre, at 1370 513 A.2d Road, grantee.’ St. Paper Mill identified as the now Co., Power Kinney runs v. Central Me. Paper (quoting Mill Road that all of the 350). 24 north-south border of Lots along the 403 A.2d deed, By the 1875 the Estate and 25. Further, reviewing
Benjamin Crosby conveyed par- the Ellis the deed, placed only court rebanee is Emery. cel to Barker The trial deed, “the but also on conveyance language found that the did not include may properly be drawn Paper to the Mill Road. The court inferences which title ” undisputed the McGeechans own facts.... stipulated further found or Paper Mill Road. A.2d at 350. Our review Kinney, 403 the record leads us to conclude parties both claim title to [¶ 35] Because in the deed conveyance described 1875 Road, Paper bear the each in title includes predecessor Sherwood’s establishing burden of title to the Paper Mill Road. Hills, 215, 217 662 A.2d See McGrath (Me.1995). boundary description [¶38] disputed point of begins deed with the 1. SHERWOOD’S CLAIM OF OWN- side of the beginning “southerly on the BY DEED ERSHIP Mill road” 1074 feet from the Paper % claim of [¶ 36] Sherwood’s store, point Crosby old brick a General Paper Mill Road is based on the properly trial court located. conveyance of what became the north, point, boundary From that runs Ellis, Sherwood, bought from Ellis east, then and then: described in the 1875 deed from the Estate Hodgman ... the heirs of southerly Benjamin Crosby Emery. to Barker south-west corner and the Hodgman We review for clear error the court’s de Mill road. Thence old Grist that the termination boundaries described old Mill road to north line of the Paper the 1875 deed do not include the Mill road. Thence across said Paper Grindle, Mill Road. See Coombs v. 1998 southerly line Grist Mill road to the 230, 7, 1107, ME In 718 A.2d thereof and land of J.R. Holt. Thence give a construing we seek to effect point westerly by said Holt land to the intent of the to the deed. St. begun at.15 Grondin, Pierre v. 1370 (Me.1986). intention, “To ascertain that correctly trial court deter- [¶ 39] The whole, take the instrument we as the location of mined from the 1875 deed positive rules apply the of deed construc beginning, but whether Co., Kinney Me. tion.” v. Cent. Power in that deed includes the description The rules of analysis. Mill Road involves different require “every construction call that the 1875 con- concluding [¶40] description premises in the deed answered,” include the veyance did not Hopkins, Herrick v. must be final (1843), disregarded the the trial court Me. unless absurd re deed that describes Kinney, 403 call the 1875 thereby. sults are achieved run- boundary southerly contains com A.2d at 350. When deed land to the calls, “westerly by said Holt ning are resolved peting ambiguities all “ at.”16 point begun grantor and in ‘against favor of part of the give title to at least 24 now owned 15. Holt was the owner of Lot the McGeechans. it establishes because (now by the northerly Lot 24 line of runs 16. Because the McGeechans) line of of Lots the entire north-south conveyed. boundary of the land as the road 25, giving call would effect to the final *10 final call in meaning to the Avery gives and that adopted The trial court the [¶ reading the takes into account plan depicts the deed. That the referred to conveyance crossing roadways as what is in the years that over the the northerly the Mill Road from its by as Grist known a number of area have been point of southerly directly to the to its side different names. conveyance, the excluding from beginning, roadway continuous single, [¶46] ownership, the and thus from Sherwood’s are now the Sherwood that divides what Paper Mill portion of the Road entire properties originally and McGeechan survey depicts lying east Avery the the Mill Road. Over known as Old Grist beginning. the time, road were referred to portions the the deed reading Such a construes by and records different names: deeds deed’s against grantee, disregards the Road, Road, Paper Mill Mill call, with what the final and is inconsistent There is another road the Town Road. apparent other evidence shows to be similar name that borders the Sher- with a grantor. intent with the road parcel and intersects wood only nothing there 43] Not is differing names. That other with the grantor to indicate that the would record road, “a new to in an 1834 deed as referred intended the final call the 1875 have road,” as the Little had become known strong meaning, to have no there are deed depicted Paper Mill Road and is it have been the indications would Paper Little Avery survey as “The Benjamin Crosby’s estate to con- intent Paper Mill Road.” The Little Paper Mill Road in that
vey title to the south, runs north and and intersects with deed. Paper Mill now referred to as the what is parcel conveyed by the 1875 Road, at the corner of the Sher- southeast without access deed would be landlocked wood road, yet the deed makes no refer- natural in Recognizing that any easement across the reserving ence to convey would be to grantor tent of road, leading to an inference that strip along of road that ran what entire convey the road grantor intended to shared bound has now become parcel. That conclusion finds fur-
with the
plausible reading of the last
ary, the most
Benjamin
support
in the fact that
ther
Mill
in the deed to the
reference
parcel
until his
Crosby, who owned
the north
where the line runs
death,
adjacent par-
conveyed
had
the two
and crosses
line of the Old Grist Mill Road
explicitly
and had
excluded the road
cels
the north to the south side of
Old
conveyances. At the time of
from those
the reference was
Mill
is that
death,
Crosby’s
the land con-
Benjamin
Little
intended to be to the
only par-
by the 1875 deed was the
veyed
Piere,
at 1370. In
Road. See St.
he
along the entire road that
still
cel
words,
grantor
the true intent of the
other
It would make little sense for his
owned.
being
deed
read as
reflected
convey
parcel
without also
estate to
follows:
to,
or at least an easement
conveying
use,
Accordingly,
Road.
southerly
beginning on the
One
grantor
of the 1875
likely
intent of
feet
Paper Mill Road 1074
side of the
6/io
would be to include
deed
Crosby old
westerly from the Geni.
conveyance.
Road
the land of the heirs of
store at
brick
[Description of the
Major Crosby ....
to the deed
given
The construction
boundary],
[T]hence
northern
likely
ignores
court
intent
by the trial
Hodg-
is,
Hodgman
...
the heirs of
final
There
disregards the
call.
and the old Grist
man southwest corner
however,
the de-
plausible reading
line of
intent,
Thence
the north
Mill road.
that is consistent with that
scription
*11
Mill Road
Paper
in
title
established
road to the [Little]
the old Grist Mill
establish
In order to
possession.
said
adverse
Thence across
Paper Mill road.
the McGee-
possession,
line
title
adverse
Mill road to the
they
that
evidence
present
Holt. Thence
had to
and land of J.R.
chans
thereof
twenty year peri-
for a
land to the
the land
westerly by
possessed
said Holt
“actual,
od,
possession
that
begun at.
notorious, hostile,
a
visible,
under
open,
the deed re-
reading
a
[¶48] Such
continuous,
exclusive.”
right,
claim of
in
in the deed
favor
ambiguity
solves the
137, 19,
ME
Morency, 1999
Dowley v.
prede-
in
grantee,
this case Sherwood’s
omitted).
(footnote
1061, 1068
title,
to each call in
gives
in
effect
cessor
“acts of domin-
the McGeechans’
Whether
what
the evi-
and effectuates
by ad-
to create title
were sufficient
ion”
to be the intent of
strongly suggests
dence
of law. See
question
is a
possession
verse
grantor.
reading gives
That
id.
Road,
strip
Paper
title
north-
road that runs
support their claim for adverse
To
south
Paper Mill
possession of the
(1)
they
that
offered evidence
McGeechans
that
Although we realize
no con-
driveway, which runs across
their
used
fully
this deed
resolves all
struction of
to the McGee-
part of
comports
result
with the
ambiguities, this
(2) they plowed
grad-
property;
chans’
ambiguities
at law that
be
requirements
(3)
area;
driveway
they
in
installed
in
of the
and best
ed
grantee
construed
favor
culvert;
predecessor in title
their
reflects what the evidence indicates to be
Company
granted Bangor Hydroelectric
grantor
the intent of the
and harmonizes
pole.
place
utility
an easement
all the calls
the deed.
had suf-
that the McGeechans
court found
2. THE MCGEECHAN CLAIM OF
pos-
ficiently
title
adverse
established
BY DEED
OWNERSHIP
Paper Mill Road.
to the entire
session
that
The McGeechans contend
evi
Although the direct
53]
[¶
Road derives
their title to the
went
presented by the McGeechans
dence
from a deed or deeds in their chain of title.
area since the
driveway
use of the
to their
Although the deeds
the McGeechans’
the land in
they purchased
time
language
chain of title contain
could
infer that the drive
properly
could
court
ownership
conveying
be read as
when the
way was
existence
they point
to no deed
Chiaparas family, by the
was owned
expressly conveys
into their chain of
for a
purchased,
whom the McGeechans
ownership
any part
requi
to reach the
period of time
sufficient
evidence,
Lacking such
Mill Road.
v.
Blackmer
period.
time
See
site
rely
cannot
on “extrinsic sur-
(Me.1981).
Williams,
A.2d
prove
...
con-
rounding circumstances
trial court’s
we affirm the
Accordingly,
expressly includ-
veyance
something
have ac
conclusion
State,
Cushing
[a]
ed
deed.”
possession to
by adverse
quired title
486, 497
The McGeechans
Road, i.e. the
Paper Mill
ownership
proving
in their burden of
failed
the evidence
most of
driveway, to which
of the road.
by deed to
was directed.
CLAIM OF
3. THE MCGEECHANS’
however, is
driveway,
TITLE BY ADVERSE POSSES-
Paper Mill Road.
part of the
only a small
SION
Ban
pole placed by
Except
utility
Electric,
scant evidence
there is
Hydro
gor
also
The McGeechans
Paper Mill Road
the entire
of the use of
contend,
agreed,
and the court
*12
(Me.1979).
984,
by anyone
the McGeechans or
else. The
types
987
There are two
trial
finding
implied
court’s
that the McGeechans
may
easements. “An easement
proven
have
by
possession
title
adverse
to
impliedly
pre-
also be
created without a
Mill
Paper
the entire
support
existing
Road lacks
when
use
access to the
Dowley,
988,
evidence. See
1999 ME conveyed requires trespass.” Id. at
n.
137, 20, 737
at
(allowing
implied
A.2d
1068
title
3. An
may
easement
also arise
by
possession
when,
adverse
to limited area of
at
conveyance,
the time of
“existing
driveway and parking area used without
is
portion
use
made of the servient
to
area).
granting title to entire
Accordingly, benefit the
portion....”
dominant
Id. Such
judgment
court’s
must be amended to use is termed a quasi-easement. Where a
exists,
reflect
acquired
quasi-easement
have
an easement over
by
possession
only
adverse
when,
the area
implied
servient estate will be
at
Paper
of the
Mill
Road over which
the time the dominant
por-
and servient
have
a driveway.
severed,
maintained
tions of the property are
“it is
reasonable to infer that
Accordingly,
we
por-
vacate that
conveyance had regarded the continuation
tion of the judgment that declares owner-
of the use as
go
so obvious that it would
ship
Paper
entire
Mill Road
Andrews,
without saying.” Bowers v.
McGeechans. We remand to the
606,
(Me.1989);
LeMay, 397 A.2d
Court for a declaration that the area on
at 987. Relevant to
inquiry
this
is the
Avery survey
referred to as the
nature of the
the quasi-easement
use of
Town
by
Road is owned
a/k/a
prior to severance from the dominant es-
Sherwood, except
portion
tate and whether the continued use of the
area,
Mill Road in
driveway
which
quasi-easement
“important
is
for
en-
portion, by
possession,
reason of adverse
is
Bowers,
joyment” of
the retained
by
owned
the McGeechans.
557 A.2d at
(quoting
3 Powell
on Real
¶ 411(2) (1985
PropeRty
Supp.1988));
&
THE
III.
DISPUTED EASEMENTS
LeMay,
property, and that the
justifi-
respectfully dissent.
ably
representation
relied on Caliendo’s
Hills,
Citing
McGrath v.
present merely
them that Sherwood was
(Me.1995),
recognizes
the Court
discuss,
openly
broker to
to their
title,
detriment,
party claiming
their
with
that the
offer
Caliendo in the
this issue
*14
presence
Sherwood,
of Sherwood.
bears the burden of establish-
¶
ing
Determining
proper
title.
Estate,
Bangor
64] Both
Real
the sell-
owner of the
Mill Road is a mixed
broker,
Sherwood,
er’s
employee
as an
question of law and
construing the
Estate,
of Bangor
subject
Real
were
ato
fact—
law,
a question of
then
locating
statutory duty to treat
land
described
the Court’s construction
honestly. Although the duty of a seller’s
earth,
on the face of the
a question of fact.
seller,
agent
real estate
generally
is
to the
Wells,
Eaton v. Town
13273(1)
See
2000 ME
(1999),
§
32 M.R.S.A.
the seller’s
¶ 19,
particular-
judgment. record, developed this the Court a general entry is: result, ly reasonable its including finding That part judgment involving that Sherwood had failed to establish title Counts I and III declaring the common Mill Road. The trial court properties east-west between the Sherwood, having against found who had defendant, plaintiffs and that proof, only can burden of the result be plaintiffs’ property benefitted compels reversed if the record the conclu easement over Old Grist Mill Road and Hughes sion that Sherwood has title. See ap- as those roads Bros., Contractors, Inc. ME v. A & M pear on survey adopted by the land 175, 2, 997. This confused court, plaintiffs, by and that virtue of ad- compel and conflicted record does not such possession, verse own that of the Pa- I Accordingly, a conclusion. would not per driveway the area of their the trial disturb court’s determination is affirmed. I Judgment on Counts point. this III is respects. vacated all other Sum- mary judgment as to Count IV is vacated. fur-
Remanded Court for proceedings opin-
ther consistent with this
ion.