Dowley v. Morency

• Decision Date: 27 September 1999
• Citation: 737 A.2d 1061,1999 ME 137
• Parties: Marion DOWLEY et al. v. Raymond MORENCY et al.
• Court: Maine Supreme Court

737 A.2d 1061

1999 ME 137

Marion DOWLEY et al. v. Raymond MORENCY et al.

Supreme Judicial Court of Maine.

Argued September 7, 1999.

Decided September 27, 1999.

Barry K. Mills (orally), Hale & Hamlin, Ellsworth, for the plaintiffs.

Robert Mongue (orally), Kennebunk, for the defendants.

Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

ALEXANDER, J.

[¶ 1] Both parties appeal the judgment entered in the Superior Court (Washington County, Marden, J.) establishing the location of their common boundary and granting a prescriptive easement to the plaintiffs, Marion Dowley and her cotenants¹ (the Dowleys), to use a driveway, parking area, and footpath existing, in part, on land owned by the defendants, Raymond and Diane Morency.

[¶ 2] The Dowleys contend that the court's determination of the common boundary was erroneous because it was not determined according to the doctrine of acquiescence and because the placement of the boundary was not supported by evidence in the record. The Dowleys also argue that the court erred by failing to grant them title to the disputed land, claiming that the court's factual findings legally establish title by adverse possession, not merely a prescriptive easement. The Morencys assert that the court's grant of a prescriptive easement over their land was erroneous because they performed sufficient acts prior to the ripening of the easement to interrupt the running of the prescriptive period. Because we find neither legal nor factual error in the Superior Court's well-reasoned judgment, we affirm.

I. STATEMENT OF FACTS

[¶ 3] The Dowleys and the Morencys own large, adjoining tracts of land in Cutler. The two lots share a common boundary approximately one mile in length in a generally southeasterly direction beginning at Route 191 in Cutler and ending at Holmes Cove on the Atlantic Ocean. The Dowleys own the northerly lot and the Morencys the southerly lot. The Dowleys' summer residence is situated near the shore and in close proximity to the boundary line. The Dowley deeds describe the common boundary as follows, beginning at the southeasterly end:

[From] a point where the extension of a right angle line described in a deed to Mabel L. Gessner ... strikes the shore; thence running N 58° 31' 06" W along the easterly line of land now or formerly of Raymond and Diane Morency, 5,047 feet, more or less, to a cedar post inscribed "Gessner & Wolf 1963" on the South side of State Highway 191°.

The Morency deed describes the boundary, beginning from the opposite, northwesterly end, as running:

[From] a cedar post scribed "Gessner & Wolf 1963"; thence turning and proceeding South Forty Three Degrees Forty Six Minutes Forty Seconds East a distance of 5,100 feet to a monument which is to be set; thence still on the same course a distance of 10 feet, more or less, to the waters of the Atlantic Ocean at Holmes Cove at low water mark.

The compass bearings contained in the Dowley and Morency deeds are based on surveys conducted by the parties prior to their respective acquisitions. Predecessor deeds in their chains of title describe the boundary simply as a line running at "right angles" to the road and toward the shore.

[¶ 4] A 1968 survey of the Dowley lot, then owned by one Wardrop, depicts the boundary as a straight line stretching from a cedar post at the road to another post located at the shore. A 1967 letter from Mr. Wardrop reveals that the shore post was driven in 1963 and that the boundary was marked in that year by a line slashed through the alders at the shore and onward toward the road. There currently stands at the roadside a cedar post on which is inscribed "Gessner & Wolf 1963." There is no longer a post at the shore. The 1968 survey indicates that the boundary was marked by orange paint along its entire length. Presently, the orange paint "blaze line" no longer extends along the entire boundary, but remains only on the northwesterly half of the boundary where the terrain is characterized by forest growth.

[¶ 5] In 1969, George Dowley, Marion Dowley's husband, began utilizing the northerly property as a summer residence. He testified that both posts existed in 1969, but that the shore post had decomposed and disappeared sometime prior to 1985. Between the winter of 1969 and the spring of 1970, George Dowley constructed a dirt driveway and parking area to service his summer cabin at the shore. The Dowleys have used the driveway and parking area since that time and improved them with gravel in 1987. George Dowley testified that ever since he acquired the lot he had mowed the area up to the shore post and beyond.

[¶ 6] In October of 1986, immediately prior to their purchase of the southerly parcel, the Morencys hired AWI Engineering Co. to ascertain the boundaries. Mr. Morency testified that he watched while the AWI surveyor placed markers on the ground every fifty or sixty feet and that the markers ran along a line in front of the Dowley cabin and over part of the driveway and parking area. Sometime in 1987 after the Morencys purchased the lot, Mr. Morency inspected the disputed area and observed that the AWI markers had been removed.

[¶ 7] In 1994, George Dowley commissioned a survey from Huntley Surveying & Engineering. After conducting the survey, Huntley informed Mr. Dowley that the boundary was closer to his cabin than Mr. Dowley thought. The Huntley surveyor determined the trajectory of the boundary by simply continuing the trajectory of the upland paint line toward the shore. In addition, the surveyor mapped out a "disputed" triangular region starting at the southerly terminus of the blaze line, running along the course of the blaze line to the shore, turning and running with the shore to the point Mr. Dowley later marked with an iron stake, and then returning to the blaze line's terminus. The Huntley survey depicted a portion of the Dowley driveway and parking area as resting within this disputed area.

[¶ 8] In April of 1995, the Morencys commissioned their second survey, this time hiring Civil Consultants. Not long thereafter, George Dowley's daughter, who was visiting the cabin, informed him that there were nine wooden posts running over and across the southern end of the driveway and the parking area. George Dowley testified that the posts were marked "Posted. No Trespassing," and that they were removed because "they were interfering with ... access and egress to [the] property." [¶ 9] In March of 1996, the Dowleys filed a complaint seeking, in two counts, to quiet title and obtain a declaratory judgment establishing the parties' common boundary along a trajectory that would encompass the driveway and parking area. In a third, alternative count, the Dowleys sought an easement through adverse possession to preserve their use of the driveway and parking area.² The Morencys answered with a counterclaim for trespass and for a declaratory judgment establishing the boundary according to their Civil Consultants' survey. Against these claims, the Dowleys asserted the adverse possession statute of limitations defenses.³ After a nonjury trial, the Superior Court entered judgment in favor of the Morencys with respect to the boundary and in favor of the Dowleys on their prescriptive easement claim.

II. THE BOUNDARY DISPUTE

[¶ 10] The parties agree that their deed descriptions are incapable of resolving their dispute and that the court was required to look to extrinsic evidence for the proper placement of the boundary. There is also no dispute that the blaze line marks the common boundary along the forested terrain. The Dowleys argue that the boundary changes course at the end of the blaze line and continues along a new, more southerly trajectory to the iron stake driven by Mr. Dowley in 1996 at the point he claims the shore post once stood. The Morencys argue the boundary runs in a straight line on the trajectory determined by Civil Consultants.

[¶ 11] In cases involving boundary line disputes, suits properly may be commenced as either quiet title, 14 M.R.S.A. § 6651-6661 (1990 & Supp.1998), or declaratory judgment claims, 14 M.R.S.A. §§ 5951-5963 (1980).⁴ Whichever approach is taken, the party asserting the affirmative of controlling issues in the case bears the risk of nonpersuasion. See Markley v. Semle, 1998 ME 145, ¶ 5, 713 A.2d 945, 947

(quoting Hodgdon v. Campbell, 411 A.2d 667, 670-71 (Me.1980)). In a boundary dispute, that party bears the burden of proving the boundary's location and that his title is superior. See id. (citing Hodgdon, 411 A.2d at 671; Ollison v. Village of Climax Springs, 916 S.W.2d 198, 203 (Mo.1996) (en banc); Chappell v. Donnelly, 113 N.C.App. 626, 439 S.E.2d 802, 805 (1994)).

[¶ 12] The court found that "the boundary is a straight line. This conclusion is indisputably determined by the source deeds."⁵ In addition to the deeds describing the boundary in a single call for a straight line, both parties' surveyors testified that the common boundary is a straight line. The court concluded that the proper trajectory of the line corresponds with the course described in the Civil Consultants' survey.

[¶ 13] Because the determination of the court as to the location of the boundary is a question of fact, the applicable standard of review is clear error. See Coombs v. Grindle, 1998 ME 230, ¶ 7, 718 A.2d 1107, 1108

; Baptist Youth Camp v. Robinson, 1998 ME 175, ¶ 7, 714 A.2d 809, 812 (Me.1998); Rhoda v. Fitzpatrick, 655 A.2d 357, 360 (Me.1995). "This Court will affirm the trial court's findings on appeal unless `there is no credible evidence on the record to support them ... or ... the court bases its findings of fact upon a clear misapprehension of the meaning of the evidence.'" Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME 111, ¶ 10, 733 A.2d 984, 990 (quoting Rhoda, 655 A.2d at 360).

[¶ 14] Given the deferential standard of review and the evidence admitted, including the deeds' singular call for a...