*1 economy” questionable “judicial it how is is by replacing hearing one before
served pre- questions
court to decide the discrete motions post-judgment
sented referee, hearings: appoint
three one to develop
one before the referee a recom- mo- post-judgment decision on
mended
tions, and one back before the court
accept reject report the referee’s
decide the court those issues economy
could is not decide. Judicial
served in three process results
hearings post-judgment on a motion when hearing
one do. would post-judgment motions
[¶ 35] With it,
before the trial court was obligated motions, those
hear and decide absent
agreement parties or a
exceptional circumstances—neither delega-
which present justify here —to
tion decision-making of the initial responsi-
bility to the referee.
[¶ 36] This Court should reach interlocutory appeal
merits of this from a act on
judge’s refusal to be- business attempted
fore the court delegation adjudicative responsibilities referee, prohibition in violation of the delegation
such Rule stated motions,
applicable post-judgment
constitute Family a new action. Division ME 106
Edgar E. et al. PETERS
Richard D. O’LEARY.
Supreme Court of Judicial Maine.
Argued: Sept. 2011. Nov.
Decided: *2 Bannon, Esq. and John (orally),
John C. Shumadine, Plumb & Esq., Murray, B. Portland, D. Murray, appellant for Richard O’Leary. Bartlett, Esq. (orally), and
James .B. Bartlett, Page, Esq., Theresa James B. P.A., York, Peters appellees Edgar for E. Sheryl A. Peters. and C.J., SAUFLEY, Panel: and SILVER, ALEXANDER, MEAD, GORMAN, JABAR, JJ. and SAUFLEY, C.J., Majority: SILVER, ALEXANDER, MEAD, GORMAN, JABAR, JJ. ALEXANDER, Concurrence: J. SAUFLEY, C.J. Edgar Sheryl E. and A. Peters parcel
own a land in Ogunquit from uphill proper- abuts and oeeanfront ty O’Leary. owned Richard D. This because, litigation arose aftеr a series Peterses, disputes O’Leary plant- with the seventy-four ed a row of least trees near at parties’ 125-foot-long boundary, views from the Peterses’ obstructed ocean newly Superior home. The constructed J.) Fritzscke, (York County, found Court pur- had created a nuisance statute, 17 to Maine’s suant (2010),1 § M.R.S. the common or oc- provides: 1. The statute the owners cupants adjoining property, shall Any fence or other structure nature private unnecessarily exceeding feet deemed a of a 2801(2010). height, maliciously kept maintained law, injunctive relief to the In June granted [¶ Peterses’ 4] court new argues reaching completion, Peterses. that the home its reaching applying O’Leary arranged erred in of sixty- have a total *3 the argue the law. The Peterses pear one arborvitae and thirteen trees attorney court have awarded them planted property. should his trees on These were all of the Having parties’ fees. considered designed provide to a continuous barrier arguments, judgment the we affirm though properties, they between the did only issue: and write to address the central strictly boundary follow the line. The determining in whether the court erred pear could reach heights up trees to O’Leary spite had created a fence give forty O’Leary feеt. did not the Pe- terses notice of extensive in- advance the planned. he had stallation I. BACKGROUND events, Based these the Pe- [¶ 5] their purchased The Peterses [¶ 2] complaint terses a against O’Leary filed in sepa- Thе property property in 2002. is Superior complaint, the Court. The by property rated from the ocean that has amended, subsequently alleged O’Leary, been owned or a trust his plantings O’Leary’s private constitutеd a name, The Peters is property since 1988. nuisance pursuant fence stat- uphill O’Leary property from the and ute, § pursuant and to the subject of the to an easement in favor sought common law. Peterses dеclar- O’Leary pro- for the property purpose of injunctive atory O’Leary relief. an- driveway to viding O’Leary enter the complaint alleged swered the counter- property. subject It is also to a deed trespass claims for enforcement of restriction prohibits the erection the Peterses’ deed restriction. structures ten feet of the within 125-foot- dispute After alternative resolu- [¶ 6] long boundary O’Leary property. unsuccessful, tion was the court held a appear The abutters to have had nonjury July three-day trial in 2010. The relationship a cordial until the Peterses took a property also view of the at decided tо their replace house on O’Leary issue. testified at the first, property. wife At and his he admitted that did not tell the Peterses complained to the Peterses about the about the extent of his planned plantings, boundаry removal of vegetation along the they agree- even when reached written properties. between their con- As the just him plant- ment with weeks before struction progress- of the Peterses’ home ings that allоwed O’Leary plant arborvi- ed, however, relationship between the tae on their land within area of the neighbors increasingly became conten- driveway long easement as as the trees tious. O’Leary and Pеterses had dis- were trimmed to pre- ten feet or lower to agreements the meaning about of the Pe- serve their ocean views. terses’ deed restriction and about The court judgment entered a vegetation driveway finding favor of the Peterses easement. As tensions were be- growing plantings constituted private nuisance tween the neighbors, learned statute, pursuant from the En- Ogunquit’s Town of Code § M.R.S. and at common law. The vegetation planted forcement Officer that, although court found wall of property vege- his could not be removed place once in tation violating without shoreland increased “the privacy, zoning standards. dominant reason for such a massive series property, occupants adjoining landscaper] [O’Leary’s owners plantings, ‘installations,’ punish nuisance.” 17 private was to be deemed a shall to as
refers added). rеducing by significantly (emphasis M.R.S. 2801 [Peterses] of the Atlantic.” view prized their we appeal, To this ad- decide O’Leary to re- court ordered (1) whether questions: two dress at one end three trees pear first move in the nа- created a “structure plantings pear six at last row fence,” the evi- whether ture of sixty days, within of the row end the other adequate support dence at a *4 all of the arborvitae maintain and to O’Leary mаintained the structure “for eight feet. The more than of not height the annoying” of Peterses. purpose the O’Leary and enjoined permanently successors, heirs, agents assigns, or his of the Nature a A. “Structure in any similar maintaining or “installing from Fence” exceeding 8 feet in planting or structure ques legal review 13] We [¶ ... views of impair ... that would height statutory interpretation de novo. the Peterses’ of Ocean” from tions Atlantic the ¶43, 16, 15 Ducatt, damages of ME The court awarded v. 2011 property. Jusseaume counterclaim for O’Leary’s interpreted one dollar 714. A statute will be A.3d to award refused trespass, and it otherwise plain meaning to discern according to its costs, party. to either or fees damages, Legislature. Id. If a the intent of removal require to The court also declined to reasonably susceptible differ statute is wall within the retaining the Peterses’ of ambiguous, interрretations, it is see ent area. deed-restricted ¶ Deacon, 9, 15, ME v. 964 Gaeth 621, may we then review A.2d to amend the moved [¶ 9] for ad- intent legislative moved indicia of judgment, and Peterses additional of The court made findings meaning, fact. its HL LLC Riv ditional determine ¶ O’Leary erwalk, LLC, 29, 17, findings, including additional 2011 ME 15 A.3d knowing that spite, the trees out of planted pursuant be
they could not removed of plain language sec [¶ 14] restrictions, punish zoning shoreland anticipatеs possibility tion him. disagreeing the Peterses in the nature of a fence” could “structure remedy im- Notwithstanding limited 17 M.R.S. 2801. constitute fence. O’Leary appealed to us from the posed, no error in the We therefore discеrn judgment. court’s planting conclusion that the dense court’s II. DISCUSSION adjacent neighboring to the of tall trees the court argues to form continuous barrier be property finding plantings consti- erred in “a the two created struс properties tween meaning of the Id,.-, tuted a fence within the ture in the nature of a fence.” see detennining in spite fence statute and Webster’s Third New International Dictio with a dominant he had Unabridged, English Language nаry of motive of malice. a fence as “a barrier (defining prevent escape or intrusion or intended pro- Maine’s fence statute boundary”). Although to mark vides, fence or in the “Any other structure exactly traсe the bound plantings did unnecessarily exceeding nature of deeds, by line described the two noth ary main- maliciously kept height, 6 feet requires bound- ing statute tained for directly fence run ary by created court’s malice boundary supported here is alongside line. evidence the num- deed-defined size, extent, planted; of trees
ber
Annoying
B.
Purpose
“For the
trees;
anticipated rapid
of the
growth
Adjoin-
Occupants
Owners
O’Leary’s fаilure to
or trim the
prune
pear
ing Property”
trees and
than
arborvitae other
near his
driveway
planting; O’Leary’s
own
after
a trial
We review
secrecy
making arrangements for the
factual
error
findings for cleаr
and its
testimony
plantings; O’Leary’s own
re-
application of the law
those facts de
Peterses;
his
garding
dealings with
Degenhardt
novo. See
v. EWE Ltd.
from
awareness
discussions
¶ 7,
P’ship, 2011 ME
Knox, N.E. 148 Mass. entry is: (1889) (hоlding that plaintiff must estab Judgment affirmed. lish “that malevolence dominate [is] motive” for installing the which re ALEXANDER, J., concurring. quires more proof than the defendant pleasure took thought join that the fence I concur in Court’s annoyed neighbor)). his or her I write opinion. separately emphasize interpretation of regarding
two issues First, remedy fash- opinion.
Court’s court, to- and affirmed trial
ioned based carefully limited
day, was those findings. place It left bushes that
recently-planted privacy barrier be- an immediate
provided yard O’Leary’s home and
tween home, Peters
recently constructed new home overlooked
extent yard. Court’s
O’Leary’s home suggest not be read to
opinion should it vegetation, when constitutes
planting of barrier, may be suc- legitimate privacy fence.
cessfully challenged Second, nothing Court’s any neigh-
opinion provides invitation neighbors actions bring against
bors to vegetation provide cutting
force
complaining neighbor with a better view.
The trial court’s action here based on
unique planting large facts of recent
vegetation that court found to
have been with malice for the ex- obstructing neigh-
press purpose
bor’s similar of action could view. A cause have prevailed veg- to seek removal of naturally grown up
etation that had over a thirty
period twenty years, of ten or vegetation, naturally,
even if growing neighbor’s
had come to obstruct a view.
Frank CONNOLLY
MAINE RAILROAD CENTRAL CO.
Supreme Judicial of Maine. Court April
Argued: 8, 2011.
Decided: Nov.