Grant v. Warren Bros. Co.

• Decision Date: 24 August 1979
• Citation: 405 A.2d 213
• Parties: Lawrence GRANT, Malcolm Grant, and William L. Farley v. WARREN BROTHERS COMPANY.
• Court: Maine Supreme Court

Page 213

405 A.2d 213

Lawrence GRANT, Malcolm Grant, and William L. Farley v. WARREN BROTHERS COMPANY.

Supreme Judicial Court of Maine.

Aug. 24, 1979.

Boynton, Waldron, Dill & Aeschliman by Richard E. Dill (orally), Kittery, for plaintiffs.

Waterhouse, Carroll & Cyr by Robert N. Cyr (orally), Biddeford, David L. Brooks, North Berwick, for defendant.

Before POMEROY, WERNICK and ARCHIBALD, JJ., and DUFRESNE, A.R.J.

ARCHIBALD, Justice.

In plaintiffs' action premised on defendant's violation of 14 M.R.S.A. § 7552 ¹ the jury, responding to questions included in a special verdict form, determined that the plaintiffs: (1) did "own the parcel of land in dispute"; (2) the value of "trees, topsoil and gravel" taken therefrom by the defendant was $18,620; (3) the acts of the defendant in so doing were "committed willfully, or knowingly"; (4) but the plaintiffs were not "entitled to punitive damages."

Acting pursuant to Section 7552, the Superior Court justice awarded the plaintiffs double damages but granted the defendant's motion to delete from the judgment the declaration "plaintiffs own parcel of land in dispute." Having unsuccessfully moved for judgment n.o.v., or alternatively, for a new trial (M.R.Civ.P. 50(b) and 59(a)), the defendant has appealed, asserting five reasons therefor. The plaintiffs cross-appealed claiming two areas of judicial error.

We deny the defendant's appeal but sustain the plaintiffs' cross-appeal in part. We remand to the Superior Court for correction of the judgment to accord with our holding.

I

The central issue giving rise to this appeal is whether the jury's findings were supported by sufficient competent evidence, an issue appropriately preserved for appellate review by appellant's seasonably filed motions for a directed verdict (Rule 50(a), M.R.Civ.P.) and for judgment notwithstanding the verdict (Rule 50(b), M.R.Civ.P.), both of which were denied.

What the boundaries are as set forth in a deed is a question of law, Where they are on the face of the earth is a question of fact for, in this case, the jury. ² Our review, therefore, is focused on a determination of whether the verdict can be sustained by any reasonable view of the evidence, including all justifiable inferences to be drawn therefrom, taken in the light most favorable to the plaintiffs, the parties in whose favor the verdict here was returned. Zamore v. Whitten, Me., 395 A.2d 435, 439 (1978), and cases therein cited.

The trial consumed seven court days. The area in dispute was 2.1 acres from which defendant had removed trees, topsoil and 70,481 cubic yards of gravel. The locus of the westerly bound of this parcel was the critical fact to be determined. It must be conceded that a title search was ineffective to locate this line and, therefore, other evidence was properly admitted as bearing on that issue. It would serve no useful purpose to outline in detail the testimony offered in proof of the plaintiffs' theory. In summary, the jury was justified in placing the disputed line 320 rods (5280 feet, or one mile) from and parallel to the so-called head of the "old Town Lots." There was no dispute as to where the head of the old Town Lots was on the face of the earth, an established monument traceable back to the late 1600s. The jury could reject the defendant's argument that an abutter's deed, containing a fifty-two rod call, should be followed to arrive at the disputed boundary. In addition, the locus claimed by the plaintiffs was described by several witnesses who had heard a prior owner make statements descriptive of the line.

The jury was also justified in finding that the removal of the materials from the 2.1 acres was willful, ³ thus giving foundation for the judicial imposition of "double damages."

The defendant's witness was advised, prior to any extensive removal of materials, that the line was in dispute. Defendant's employee spent a limited time in title research. He chose to rely on a 52-rod call in an abutter's deed, without abstracting the source therefor, and to ignore the protestations of others when ordering the removal of the trees, topsoil and gravel. The defendant corporation utilized only the services of this employee and sought no other verification of the boundary until after it had stripped the disputed parcel.

There was sufficient competent evidence to support the verdict.

II

Appellant argues that it was legal error not to have granted its motion for judgment n.o.v. because plaintiffs should be estopped from claiming ownership to the disputed parcel of land. ⁴

We disagree.

Appellant cites Milliken v. Buswell, Me., 313 A.2d 111, 119 (1973), in support of its position, as do the plaintiffs. A brief reversion to facts is necessary to bring the opposing positions into focus.

Appellant's employee and one of the plaintiffs met initially, at which time each made his position as to the disputed line known to the other. Later a deed was exhibited which the appellant's employee dismissed as meaningless. No affirmative action was taken by plaintiffs to prevent the subsequent removal of materials from the 2.1 acres. When that had been consummated, plaintiffs actually sold gravel to the defendant from adjoining land which they owned.

During the gravel and loam excavation process, defendant claims it removed a certain stone wall that would have been evidence to support its boundary claim. On the other hand, there was credible evidence that no such wall ever existed.

In summary, defendant claims an estoppel should arise from the inaction of the plaintiffs in face of defendant's assertion of title, its subsequent removal of the materials, and later purchase of gravel from the plaintiffs.

The plaintiffs never admitted that the defendant's locus of the line was correct. Anna Grant (deceased at the time of trial) was quoted by defendant's employee as saying, when the property line was being discussed After the cutting had started : "Okay. I don't know what else we can do about it. You say the line's up there and I say that's not right."

The appellant stresses the following quotation from Milliken, 313 A.2d at 119:

An owner is precluded under the doctrine of estoppel on the grounds of justice and equity from asserting his legal title when, by his own conduct, declarations of inaction made to or taking place in the presence of another and having a natural tendency of influencing that other's conduct, he has caused such other person to act or alter his position to his detriment. It is not necessary that the conduct creating the estoppel should involve an actual intention to mislead and deceive. If he remains silent when it is his duty to speak, as where inquiries are made of him, or if, instead of merely remaining silent, he does some positive affirmative act, even if it be mere encouragement, he subjects himself to the application of the doctrine of equitable estoppel, if such silence or active conduct would naturally have the effect of misleading or deceiving and did so, notwithstanding the fact that the truth concerning the true facts could have been ascertained by an examination of the records. . . .

The plaintiffs remind us that Milliken also holds:

The doctrine of equitable estoppel should be carefully and sparingly applied; it requires clear and satisfactory proof that there was either actual fraud, or fault or negligence equivalent to fraud on the part of the person to be estopped in concealing his title, or that he was silent when the circumstances would impel an honest man to speak, or that there was misleading active conduct of encouragement or intervention. . . .

Id. at 119.

The above rules are subject to this additional caveat:

This court has repeatedly held that in order for an estoppel to be made out 'the declarations or acts relied upon must have induced the party seeking to enforce an estoppel to do What resulted to his detriment, and what he would not otherwise have done.' (Emphasis added) Allum v. Perry, 68 Me. 232, 234 (1878).

Martin v. Prudential Ins. Co., 389 A.2d 28, 31 (1978).

When ruling on the appellant's motion for judgment n.o.v. the justice, viewing the testimony in the light most favorable to the plaintiffs (Zamore v. Whitten, 395 A.2d 435 (1978)), could rationally have determined that the plaintiffs never induced the defendant to do anything. Rather, he could conclude from the evidence that appellant's removal of trees, loam and gravel was the product of its own decision independently made by its employee. Absent an inducement of some kind by the plaintiffs, the defendant cannot claim an estoppel.

III

The justice presiding, without opinion, denied the defendant's motion for a new trial, which alleged as the reasons therefor the following:

1. That the Court erred by not sufficiently reprimanding Plaintiffs' counsel in Plaintiffs' closing argument and not sufficiently emphasizing to the jury that they should disregard the prejudicial statements made by Plaintiffs' counsel as follows:

Plaintiffs' counsel repeatedly improperly remarked on the corporate status of Defendant compared with Plaintiffs' financial status and encouraged the jury to consider that fact in their deliberation, and the Court failed to correct Plaintiffs' counsel's statements.

In his opening statement plaintiffs' counsel referred to appellant as "the big corporation" while describing one of the plaintiffs as having "limited financial resources." Defense counsel countered by saying: "We don't represent General Motors. We represent a corporation that runs a local operation here. It's engaged in turning out hard-top and products made with gravel." These comments evoked no objection from either side.

Later, plaintiff Lawrence Grant was asked on cross-examination why, if he claimed title to the 2.1 acres, he contracted with defendant to sell it additional gravel. Mr. Grant responded: "I wanted to get money enough to work on this case." Later plaintiffs' counsel, in cross-examination of appell...