Bank of Maine v. Giguere

• Decision Date: 29 August 1973
• Citation: 309 A.2d 114
• Parties: BANK OF MAINE v. Lionel GIGUERE.
• Court: Maine Supreme Court

Page 114

309 A.2d 114

BANK OF MAINE v. Lionel GIGUERE.

Supreme Judicial Court of Maine.

Aug. 29, 1973.

Sanborn, Moreshead & Schade, by Richard B. Sanborn, Augusta, for plaintiff.

Marden, Dubord, Bernier & Chandler, by Albert L. Bernier, Watervill, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

WEATHERBEE, Justice.

This action for a Declaratory Judgment involves the respective rights of the parties with regard to present and proposed uses of a parking area under a lease. Plaintiff bank, as present owner and Lessor of the building and adjacent parking lots under consideration, seeks to build a drive-in teller's unit on the parking lot to the rear of the portion of the building occupied by the bank, and Defendant-Lessee seeks to disallow such use of the parking lot under his claimed leasehold right to use of the entire parking facility in common with the Plaintiff.

The lease was executed in 1966 between the Plaintiff's predecessor in title and the Defendant. It conveyed to the Defendant a leasehold interest in the entire building ¹ 'together with the present unbuilt upon parking area of Lessors lying to the west of said store premises'. ² Defendant's rights, however, were subject to the rights of the then occupant of the south half of the building, J. C. Penney Company. Those rights of J. C. Penney Company, derived from an earlier lease which would soon expire, were described in Defendant's lease as follows:

'C. Temporary Exception-Excepting and reserving from the above described premises the premises and the access and parking rights included under the leasehold rights of Penney under a lease dated April 17, 1940, as from time to time heretofore amended and extended, which now expires July 31, 1969, but may be terminated sooner on 12-months prior notice by Penney; and without limiting the forgoing, meaning and including the southerly portion of the Building situate on the above described premises together with parking privileges in the rear thereof, this exception and reservation to continue only during the period hereinafter defined as the 'Temporary Exception Period'.'

The lease also obligated Defendant to keep the entire parking lot free of rubbish, snow and ice. It required the Lessor to regrade and repave the parking area in the event this became necessary as a result of the Waterville Urban Renewal Authority's street construction but it freed the Lessor from any 'further or other obligations or responsibility with respect to such parking area'.

The lease, therefore, gave Defendant immediate occupancy of the north half of the building and exclusive use of the north helf of the parking area. It also gave Defendant eventual exclusive occupancy of the entire building and eventual exclusive use of the entire parking lot together with the Library parking lot if it was later acquired by the Lessor.

Defendant entered into occupancy setablishing a retail market in the north half of the building and using the entire parking lot in common with J. C. Penney Company.

When the J. C. Penney Company lease expired, however, Defendant had lost interest in occupying the south half of the building and the Plaintiff's sredecessor and Defendant renegotiated the situation. On June 26, 1969 they executed an amendment to the original lease clearly excluding from the leased premises the south half of the building, readjusting rentals and reserving to the Lessors rights of installation and maintenanc of 'all pipes, ducts, conduits, wires, apparatus and appliances' located in the leased protion but serving the south half. The amendment left unclear, however, the parties' rights to the parking area. As to this, the amendment reads:

'1. The Temporary Exception Period shall continue throughout the full term.

2. The leased premises shall not include (and shall expressly exclude) those portions of the interior and exterior of the Building lying south of the centerline of the partition now separating the store numbered 178 Main Street (now occupied by J. C. Penney Company under its lease referred to in Paragraph I-C of the Basic Lease) and the store numbered 180 Main Street (now occupied by Lessee); and the leased premises shall also not include (and shall expressly exclude) the basement portion of the Building demised to J. C. Penney Company as aforesaid.

3. Lessors expressly reserve to Lessors and those claiming by, through and under Lessors, and to the customers, prospective customeres, employees and business invitees of any of them, the right to use, in common with Lessee and with Lessee's customers, prospective customers, employees and business invitees, the unbuilt-upon parking area of Lessors lying to the west of the Building, for purposes of non-fee parking, and for access and egress in connection with the portions of the Building not demised to Lessee.'

Shortly after the execution of the Amendment the Plaintiff purchased the building, renovated tha south half and now occupies it as a commercial bank. The Plaintiff also negotiated a lease for the Library parking lot which became a part of the Lessor's total parking area. It is the rights to the total parking area which are now in dispute. The entire area is presently used for non-fee parking by customers of both the Plaintiff bank and the Defendant's supermarket. The Defendant also makes use of the area in the immediate rear of his store for the unloading of his merchandise from trucks.

The Plaintiff proposes erecting a drive-in window structure on the parking lot to the rear of the bank and opposite one of the ingress/egress points. The Defendant objects to this as an interference with his claimed right to use of the entire parking lot in common with Plaintiff.

Plaintiff's complaint seeking a Declaratory Judgment as to the rights of the parties in the parking lot and Defendant's answer were heard before a Referee.

The Referee found: 1) that the Defendant-Lessee had not acquired an easement in the parking area lying west of the south half of the building but, rather, only a permission or license to use it; and 2) that the Plaintiff-Lessor's proposed eraction of the drive-in facility would be a fair and reasonable use of the land and not an unreasonable interference with the Plaintiff's rights under the lease.

As the parties had reserved the right to object to the acceptance of the report of the Referee-and as Defendant did object-both the Referee's findings of fact and of law were presented for approval to the Justice of the Superior Court. The Referee's findings of fact were conclusive unless clearly erroneous. M.R.C.P., Rule 53(e)(2); 1 Field, McKusick and Wroth, Maine Civil Practice, §§ 52.7, 53.4. The 'clearly erroneous' test does not apply to the Referee's conclusions of law. Osteopathic Hospital of Maine v. City of Portland, 139 Me. 24, 26 A.2d 641 (1942). The Justice accepted the report of the Referee. The Defendant filed an appeal from the Justice's action.

We are well aware that the report of the Referee is not a judgment and, ordinarily, neither is the accepatnce of the report a judgment. Adams v. Alley, Me., 308 A.2d 568 (1973). The Referee was also aware of this and he closed his report with the words:

'Judgment should be rendered in accordance with these findings.'

The Justice's action on Plaintiff's motion for acceptance of the report was by him entitled 'Decision on Motion for Acceptance of Referee's Report'. His 'decision' reads:

'This Court finds no reason to disturb the report of the Referee, and therefore, grants the motion for acceptance of the Referee's report.'

The 'decision' is docketed as 'Decision on Motion for Acceptance of Referee's Report.'

Is this 'decision' a judgment and thus ripe for appeal? M.R.C.P., Rule 73(a). The action is one in which the Plaintiff has asked that the Court 'issue its declaratory judgment fixing and determining the rights of the parties' as to use of the parking lot. No award of damages or injunctive relief were sought by the Plaintiff or recommended by the Referee which would have required a specific judgment of the Court to make them effective. We believe that the language of the Justice-although somewhat equivocal-was intended to be his judgment that the rights of the parties are as the Referee has determined them and that the Justice was adopting the recommendation as his judgment. We will treat it as such.

We must now test the...