Dombkowski v. Ferland

• Decision Date: 13 March 2006
• Citation: 2006 ME 24,893 A.2d 599
• Parties: Marion J. DOMBKOWSKI v. Edgar R. FERLAND.
• Court: Maine Supreme Court

Page 599

893 A.2d 599

2006 ME 24

Marion J. DOMBKOWSKI v. Edgar R. FERLAND.

Supreme Judicial Court of Maine.

Submitted On Briefs: December 13, 2005.

Decided: March 13, 2006.

COPYRIGHT MATERIAL OMITTED

William L. Dawson Jr., Esq., Belfast, for plaintiff.

James A. Mitchell, Esq., Butler, Whittier, LaLiberty & Mitchell, L.A., Waterville, for defendant.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

DANA, J.

[¶ 1] Edgar R. Ferland appeals from a judgment entered in the Superior Court (Waldo County, Hjelm, J.) granting Marion J. Dombkowski title by adverse possession to a disputed parcel of land to which Ferland holds record title, and enjoining Ferland from interfering with Dombkowski's use, possession, and enjoyment of the land. Ferland contends that: (1) the court erred in applying and interpreting 14 M.R.S. § 810-A (2005); (2) the court abused its discretion in admitting in evidence the entire transcript from the hearing for a preliminary injunction; and (3) there was insufficient evidence for the court to find actual possession and use of the entire disputed parcel for the twenty-year period required for an adverse possession claim. We disagree and affirm the judgment.

I. BACKGROUND

[¶ 2] Ferland and Dombkowski own abutting parcels of real estate in Burnham. Ferland claims title to his property by virtue of a deed from the Estate of Doris Rood in 2001. Dombkowski acquired his property from his brother, Anthony, in 1994. Anthony purchased the property in 1967, at which time the Roods lived in the house next door.

[¶ 3] Dombkowski and Anthony resided in Connecticut, where they ran a pig farm. Anthony spent his winters in Connecticut, but lived at the Burnham property much of the time during the other seasons from 1967 until his death in 1994. Dombkowski visited the Burnham property regularly to attend auctions with Anthony and buy pigs, which Dombkowski would transport back to Connecticut. Just before his death, Anthony transferred his Burnham property to Dombkowski. Dombkowski has continued to visit the property from 1994 through to the present.

[¶ 4] In 1967, the disputed area was overgrown with brush and trees. Over the course of several years, Anthony cleared this area and made it into a lawn. Anthony, or others on his behalf, maintained the lawn and kept it mowed. A gravel driveway entered onto the disputed area from the road. Since 1967, whenever Dombkowski visited the property, he would use the driveway to drive trucks onto the disputed area, where he would park them.

[¶ 5] In the early 1970s, either Anthony or the Roods erected a wire fence along the line that Dombkowski now claims separates the area of adverse possession from the portion of Ferland's property that is free from this action. In the 1980s, fir trees were planted along Dombkowski's side of the fence. There is no evidence in the record as to who planted the trees. There is no evidence in the record that the Roods or anyone other than the Dombkowskis used the disputed property in any way.

[¶ 6] In 2001, Dombkowski had a well drilled in the middle of the disputed area. Some time after that, the fence that stood along the disputed area was moved closer to Dombkowski's house, closer to where the recorded property line was.¹ When the fence was moved, it blocked the driveway, preventing Dombkowski from using the driveway.

[¶ 7] Dombkowski testified that he thought he was the record titleholder, and had he known that he did not own the property, he would have ceased using it if asked by the true owner to do so. It is unknown what belief Anthony had about the disputed property when he cleared and maintained it over the years. In 2002, Ferland had the land surveyed, and Dombkowski realized for the first time that the disputed property was not included in his deed.

[¶ 8] On August 29, 2002, Dombkowski filed a complaint pursuant to the Maine Declaratory Judgments Act,² asking the court to issue a declaratory judgment regarding ownership of the disputed property. He also alleged that Ferland threatened to remove the well and he asked the court to issue preliminary and permanent injunctions prohibiting this. The court issued a preliminary injunction in April 2003, enjoining Ferland from removing or impairing Dombkowski's well.

[¶ 9] Following a jury-waived trial, the court declared Dombkowski the owner of the disputed property through adverse possession and enjoined Ferland from interfering with his use, possession, and enjoyment of the property. The court relied on 14 M.R.S. § 810-A in making its decision and concluded that although Dombkowski could not prove a claim of adverse possession under Maine's common law, he succeeded under a statutory claim of adverse possession.

II. ADVERSE POSSESSION

[¶ 10] Under the common law, a party claiming title by adverse possession needed to establish by a preponderance of the evidence that his possession and use of the property for a twenty-year period was actual, open, visible, notorious, hostile, under a claim of right, continuous, and exclusive. See Striefel v. Charles-Keyt-Leaman P'ship, 1999 ME 111, ¶ 6, 733 A.2d 984, 989 (outlining the elements and defining their meaning in detail). Only the hostility and claim of right elements are contested here.

A. Hostile and Claim of Right

[¶ 11] Although "[s]ome courts and commentators fail to distinguish between the elements of hostility and claim of right, or simply consider hostility to be a subset of the claim of right requirement[, s]ee, e.g., Johnson v. Stanley, 96 N.C.App. 72, 384 S.E.2d 577, 579 (1989)[,] ... [u]nder Maine law, the two elements are distinct." Striefel, 1999 ME 111, ¶ 13 n. 7, 733 A.2d at 991.

[¶ 12] "`Hostile' simply means that the possessor does not have the true owner's permission to be on the land, and has nothing to do with demonstrating a heated controversy or a manifestation of ill will, or that the claimant was in any sense an enemy of the owner of the servient estate." Id. ¶ 13, 733 A.2d at 991 (quotation marks and citation omitted). "Permission negates the element of hostility, and precludes the acquisition of title by adverse possession." Id. "`Under a claim of right' means that the claimant is in possession as owner, with intent to claim the land as [its] own, and not in recognition of or subordination to [the] record title owner." Id. ¶ 14, 733 A.2d at 991 (quotation marks omitted).

[¶ 13] Under Maine's common law, as part of the claim of right element, we have historically examined the subjective intentions of the person claiming adverse possession. See Preble v. Me. Cent. R.R. Co., 85 Me. 260, 264, 27 A. 149, 150 (1893); accord Emerson v. Me. Rural Missions Ass'n, Inc., 560 A.2d 1, 3 (Me.1989); McMullen v. Dowley, 483 A.2d 698, 700 (Me.1984). Under this approach, which is considered the minority rule in the country, "one who by mistake occupies . . . land not covered by his deed with no intention to claim title beyond his actual boundary wherever that may be, does not thereby acquire title by adverse possession to land beyond the true line." Preble, 85 Me. at 264, 27 A. at 150; see also McMullen, 483 A.2d at 700 ("[If] the occupier intend[s] to hold the property only if he were in fact legally entitled to it[, the] occupation [is] `conditional' and [cannot] form the basis of an adverse possession claim.").³ The majority rule in the country is based on French v. Pearce, 8 Conn. 439 (1831), and recognizes that the possessor's mistaken belief does not defeat a claim of adverse possession. See 16 RICHARD R. POWELL, POWELL ON REAL PROPERTY § 91.05[2] (Michael Allan Wolf ed., 2005).

[¶ 14] In 1993, the Legislature enacted 14 M.R.S. § 810-A, which provides:

§ 810-A. Mistake of boundary line establishes hostility

If a person takes possession of land by mistake as to the location of the true boundary line and possession of the land in dispute is open and notorious, under claim of right, and continuous for the statutory period, the hostile nature of the claim is established and no further evidence of the knowledge or intention of the person in possession is required.

(Emphasis added.)

[¶ 15] In Striefel, we noted that the Legislature inartfully used the terms "hostile" and "claim of right" in this provision because a claimant's mistake as to the location of the true boundary pertains to the claim of right element, not to the hostile element. 1999 ME 111, ¶ 15 n.9, 733 A.2d at 992. However, that case did not present us with the opportunity to definitively interpret section 810-A.

[¶ 16] Here, the court interpreted section 810-A as eliminating the common law inquiry into the subjective intent of the adverse possession claimant. Thus, although the court found that Dombkowski's occupation of the disputed area was "conditional" because he mistakenly believed it was his, the court determined that because section 810-A does not require inquiry into the subjective intent of the claimant, Dombkowski established adverse possession by satisfying the other elements of his claim.

B. One Claim or Two?

[¶ 17] Ferland argues that the court should not have relied on 14 M.R.S. § 810-A because Dombkowski failed to make a statutory claim of adverse possession because there are no references in his complaint to the statute. Thus, he contends that the court erred in applying the statute. He argues that this is a common law claim only and that section 810-A does not apply to common law claims for adverse possession.

[¶ 18] Ferland relies on language in dictum from Striefel to support his argument that section 810-A does not apply to a common law claim. In a footnote in that case, we stated, "[s]ince we apply the common law doctrine of adverse possession in the present case, we need not apply the statutory provisions or further address . . . section 810-A." 1999 ME 111, ¶ 15 n. 9, 733 A.2d at 993. Ferland misapprehends this statement as meaning that there are two distinct claims for adverse possession....