Flood v. Earle

• Decision Date: 19 January 1950
• Citation: 71 A.2d 55,145 Me. 24
• Parties: FLOOD v. EARLE.
• Court: Maine Supreme Court

Page 55

71 A.2d 55

145 Me. 24

FLOOD v. EARLE.

Supreme Judicial Court of Maine.

Jan. 19, 1950.

Perkins, Weeks & Hutchins, Waterville, William H. Niehoff, Waterville, for plaintiff.

Locke, Campbell, Reid & Hebert, Augusta, for defendant.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, and NULTY, JJ.

FELLOWS, Justice.

This case comes before the Law Court on objections and exceptions to an acceptance of a referee's report.

The action is one of trespass, brought before the Superior Court in Kennebec County, for travelling 'over and across said (plaintiff's) close and defendant did wrongfully operate and propel a motor vehicle over and across said close and did wrongfully leave his said vehicle parked on said close thereby wrongfully excluding said plaintiff from her rightful possession of said close.' The defendant's plea is not guilty, with a brief statement 'that he has a right of way over and across the plaintiff's close and that the alleged trespass was only the rightful use of said right of way.' The action was referred, and the referee found that the defendant, George L. Earle, Jr., had 'a right of way by necessity from the main highway' but because the defendant had improperly parked on the plaintiff's lot, the referee found 'the defendant guilty and assessed damages at one dollar.' The defendant, Earle, moved acceptance of the referee's report, and the plaintiff, Flood, filed objections. The objections were overruled, the report accepted, and exceptions to the action of the Superior Court in accepting the report were taken by the plaintiff.

The principal question before the Law Court, as raised by the objections and exceptions, is whether the referee was correct in determining from the evidence that the defendant had a right of way by necessity across the plaintiff's land.

The report of the referee says:

'After hearing in the above cause a view of the premises was taken by the referee by agreement.

'The plaintiff and the defendant with his father are owners of adjoining cottage lots on the shore of Messalonskee Lake, a great pond. For convenience, the lots are respectively called the 'Flood lot' and the 'Earle lot.' The lots were at one time part of the Cummings farm extending from the main highway to the lake shore. The Earle lot was conveyed in 1906 to predecessors in title of the defendant and his father and was the first shore lot sold from the farm.

'I find the defendant has, and his predecessors in title have had, a right of way by necessity from the main highway to the Earle lot. Since 1906 the right of way has been located in part across the Flood lot. Changes in location of the right of way, including the change to the present location, have been made by agreement.

'The defendant, however, has done more than use his right of way. He has parked his automobile on the plaintiff's lot, and this he had no right to do. Accordingly, I find the defendant guilty and assess damages at one dollar ($1.00).'

It does not appear from the report of the evidence that 'Snows Pond,' now called 'Messalonskee Lake,' has any public landing place. It does not appear from the evidence that the defendant has any road or way to reach the pond from the main highway, except to cross land of other owners. The evidence does not disclose any method or way to reach the defendant's property by land except by crossing the land of the plaintiff. The referee could find, and undoubtedly did find, either that there was no public way to the lake, or that the lake was not 'navigable,' in the sense that it could be used as a highway. The referee could, in fact, find either or both to be true.

There was no express grant of any right of way made to the defendant or to defendant's predecessors in title by the owner of the 'Cummings Farm,' so-called, from which farm came the adjoining shore lots of the plaintiff and defendant. Arthur M. Alexander and Aimee Alexander, the owners in 1931 when the plaintiff purchased, made an express grant to the plaintiff of a right of way across the farm, 'said right of way to be used in common with other cottage owners.' The defendant's lot was sold out of the farm in 1906, twenty-five years before the lot of the plaintiff, and the defendant and his predecessors in title have been accustomed to cross and recross the other portions of the farm (including the plaintiff's lot) in going to and from the main highway. The location of the way, as used by the defendant and other cottage owners including the plaintiff, was changed somewhat during the years by use and apparent acquiescence of all parties. The sale of other lots and the building of garages etc probably made such changes more convenient.

The report of a referee made under a rule of court, pursuant to the statute, is equivalent to a finding by a single justice with jury waived. It is prima facie correct. Bourisk v. Mohican Co., 133 Me. 207, 175 A. 345; Hanson v. Casco Loan & Bldg. Association, 132 Me. 397, 171 A. 627. If there is any evidence of probative value to support the findings of fact made by a referee, such findings are conclusive. Bradford v. Davis, 143 Me. ----, 56 A.2d 68; Wood v. Balzano, 137 Me. 87, 15 A.2d 188.

It was early decided in Maine that where one conveys to another a tract of land surrounded by the grantor's own land, or inaccessible except through the grantor's own land, he is considered to have granted by implication a right of way to and from it. Trask v. Patterson, 29 Me. 499; Whitehouse v. Cummings, 83 Me. 91, 21 A. 743, 23 Am.St.Rep. 756. The test is necessity and whether the party claiming can at reasonable cost on his own estate and without trespass create a substitute. Watson v. French, 112 Me. 371, 375, 92 A. 290, L.R.A.1915C, 355.

No right of way from necessity exists across the remaining land of the grantor, where the land to which such right of way is claimed borders on the sea. Kingsley v. Gouldsborough Land Improvement Co., 86 Me. 279, 29 A. 1074, 25 L.R.A. 502. It must be necessity and not mere convenience. If free access to the...