Hennessy v. Fairley

• Decision Date: 06 May 2002
• Citation: 2002 ME 76,796 A.2d 41
• Parties: Francis HENNESSY v. William FAIRLEY.
• Court: Maine Supreme Court

796 A.2d 41

2002 ME 76

Francis HENNESSY v. William FAIRLEY.

Supreme Judicial Court of Maine.

Argued: March 5, 2002.

Decided: May 6, 2002.

Timothy J. Bryant, Roy T. Pierce, (orally), Preti, Flaherty, Beliveau, Pachios & Haley, LLC, Portland, for plaintiffs.

George C. Schelling, (orally), Kristin D. St. Peter, Gross, Minsky, & Mogul, P.A., Bangor, for defendant.

Panel: SAUFLEY, C.J., and LIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.

DANA, J.

[¶ 1] William Fairley appeals from a judgment entered in the Superior Court (Hancock County, Marsano, J.) rejecting a referee's report that Francis Hennessy's version of a disputed boundary line was correct. For the reasons stated in the opinion, we vacate the judgment of the Superior Court and remand to the Superior Court for a remand to the referee for a clarification.

I. BACKGROUND

[¶ 2] This case concerns a disputed boundary line on the southwest point of Eagle Island in Penobscot Bay. The Fairley family acquired their property in 1929¹ and their deed, identical to others back to 1884, describes the property as follows:

Beginning at stake and stones at the shore; thence running southwesterly about sixty rods to stake and stones on the opposite shore; thence by shore and as the shore runs, to the first mentioned bound and containing two acres more or less with the buildings described thereon. The above described land is on the southwest end of Eagle Island, being the northwest corner on the southwest end.

Hennessy acquired the abutting property in 1980 from Edith Quinn; his deed "except[s]" the Fairley property, and uses the preceding description to delineate the Fairley land.

[¶ 3] Hennessy filed a complaint in July of 1998 claiming that a fence on Fairley's lot is the true boundary between the properties. Fairley counterclaimed that the deed should control a determination of the boundary, and locates it east of the fence line running from the northern shore to the southern shore at a distance of 60 rods. Alternatively Fairley claimed that the land between the fence and his proposed line had been acquired through adverse possession. [¶ 4] At the parties request, the Superior Court (Hjelm, J.) appointed a referee pursuant to M.R. Civ. P. 53.² The hearing before the referee commenced in July of 2000; both counsel stipulated as to the dismissal of "adverse possession claims arising after 1980." The referee heard the following evidence.

[¶ 5] Neither of the "stake and stones" described in the Fairley deed could be located. Raymond Eaton, a surveyor familiar with Eagle Island, testified that the Fairley deed was "ambiguous." Eaton first looked for the "stake and stones monuments" but could not find them. He then examined the "distance" but concluded that he could not use the distance of 60 rods because of "erosion." He went outside the deed to assess original intent, examining historical texts and concluding that when James Quinn conveyed the future Fairley lot to his daughter Ada, he intended to convey two acres. Eaton also drew a southwesterly line of 60 rods, and used a spot close to a spring on the northern shore as an "arbitrary" starting point. This line produced a Fairley lot of approximately four acres. Eaton concluded that the 60 rod line (approximately 990 feet) did not comport with the deed because "it's excessive ... it does not agree with what I believe the intent to be. And the intent was two acres." Eaton testified that although Fairley claimed ownership of the high tide path and spring, "we who know Eagle know that we all use everything anyway ... we wander the island."

[¶ 6] During cross-examination Eaton testified that the measurement of the fence was about 611 feet, which did not fulfill the description in the deed of 60 rods, i.e., 990 feet. Eaton postulated that the fence line could have been 990 feet at one time, but that erosion could have reduced it to 611 feet: "When I considered the time period of 108 years and the fact that it involved two shores and it would have yielded a number something like 1.7 feet of erosion per year. But I've seen examples where you can lose 10 feet due to erosion in one storm...." Eaton concluded that: "The fence line or what's left of the fence line delineates on the face of the earth where the property line was meant to be."

[¶ 7] Stanley Plisga examined the deeds for Fairley. As a surveyor Plisga relies on the descending order of priorities and stated that the "call for area necessarily has to come at the bottom of the list because it's a quantity that [is] derived based on the measurements associated with the property." Because the monuments were missing, Plisga expounded on the call of a "southwesterly" direction — the presumption "given the date of [the] deed," is that "southwesterly" was a "magnetic call [and] in its true sense, southwesterly would mean south 45 degrees west." Plisga testified that the distance of 60 rods had some uncertainty associated with it, yet the fence line distance of 611 feet did not satisfy the call of the deed — such a difference satisfied Plisga that "the boundary is not the fence." Plisga opined that the fence was "probably built to keep out animals" and that a determination of the acreage in 1880 would have been "a very challenging undertaking ... [b]ecause the actual shoreline is very irregular [versus] if a parcel was rectangular or square in shape, it's a very easy operation to compute the area."

[¶ 8] Plisga compared an 1873 United States Geological Survey map with a map reflecting the current shoreline and concluded "that there has not been 300 feet of erosion on the southwesterly end of that point." The southwesterly end as Plisga observed it is "a fairly steep, rugged, rock coastline in that area of fairly solid granite ... the major erosion that seems to have taken place on the island was in areas where there were dirt banks." When asked where the boundary should be located on the property, Plisga recited the deed that it should "run in a southwesterly direction, and it should be 60 rods in length," regardless of whether it encompasses two acres; thereby the fence could not be the boundary line. A boundary line drawn from the spring should be drawn "south 45 degrees west based on magnetic north in 1880," which comes "pretty darn close" to 60 rods. While the line drawn from the spring complies with the deed, "[t]he only thing we can't do is nail down exactly where it starts."

[¶ 9] James Fairley came to the island in 1930 and recalled that his father erected the fence to keep out sheep. Fairley testified that his family used the spring for drinking water and are the only persons who have maintained it. Fairley could not remember "anybody coming up [the high tide path] except in connection with our property" and that he had never observed anyone using the land on the east side of the fence on a regular basis in seventy years.

[¶ 10] William Fairley, the youngest of the three brothers, came to the island in 1939, and testified that his first memory of the fence dated to 1951, when the fence was in "disrepair." The family often used the land beyond the fence toward the Hennessy property to frequent the long spurs of rock on the southwest coast, so his mother could sit on the grassy knolls to write and to pick raspberries. He had never seen the Hennessys camping in the area and always understood that the disputed area east of the fence was Fairley land, "[a]nd to be more specific the spring [and high tide path] were unquestionably our property." Fairley acknowledged that he had received tax bills for two acres and conceded that many people on the island used the clam flat below the high tide line and picked berries in the disputed area. Also, there had been some timber cutting around 1962 in "maybe a fifth" of the area where the family picnicked and picked raspberries.

[¶ 11] Hennessy came to the island in 1967 and related that between 1967 and 1980 "we picnicked many, many, many times every year, every summer with friends, with relatives, with children," in the disputed area. Robert Quinn, a caretaker for the Fairleys since the late 1960's, testified that he had never seen any of the Fairleys camping or hiking in the disputed area, although he was not in a position to "testify in detail" about the extent to which the Fairleys used the disputed property. He observed that the owners before the Hennessys, the Quinns, used the property up to the fence line; "Jimmy started cutting wood there to build his house," and there was timber cutting in the early 1960's. Quinn acknowledged that the Fairleys had regularly maintained the spring and routinely asked Quinn to clean it; also, he was not aware of anyone other than Fairley who maintained the high tide path.

[¶ 12] The referee issued the report of findings of fact and conclusions of law in March of 2001. The referee determined that the deed contained a "latent ambiguity" because the stake and stones markers had not been located, so turned to the standard rules of construction to determine the intent of parties to the deed: (1) Because the stake and stones were not located, the monument call could not be met; (2) The course call of southwesterly could mean "southwest, west-southwest or south-southwest," and because there is no starting point, "there are an infinite numbers of lines that could be drawn on a due southwest course." Moreover, Fairley's version of the boundary line would result in a parcel of "four to five acres" which more than doubles the acreage called for in the Fairley deed; (3) The distance call of 60 rods, approximately 990 feet, could not "solely" determine the boundary dispute — the fence line would have been 709 feet when "measured from its north end at present." The referee found that there "does not appear to have been much erosion ... at the northern end of the fence"; (4) The quantity call was also indeterminable because "there has clearly been erosion in the area of the parcel in...