Hodgdon v. Campbell

• Decision Date: 20 February 1980
• Citation: 411 A.2d 667
• Parties: Richard S. HODGDON, Jr. v. Sterling F. and Norma L. CAMPBELL
• Court: Maine Supreme Court

Page 667

411 A.2d 667

Richard S. HODGDON, Jr. v. Sterling F. and Norma L. CAMPBELL

Supreme Judicial Court of Maine.

Feb. 20, 1980.

Preti, Flaherty & Beliveau, Thomas A. Cox (orally), Arthur A. Peabody, Portland, for plaintiff.

Kelly, Remmel & Zimmerman, Graydon G. Stevens (orally), Portland, for defendants.

Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS and GLASSMAN, JJ.

GLASSMAN, Justice.

The defendants, Sterling and Norma Campbell, seasonably appeal from a judgment of the Superior Court, Lincoln County, entered following acceptance of a reference's report pursuant to M.R.Civ.P. 53(e)(2). This report upheld the position of the plaintiff, Richard Hodgdon, Jr., who sought by way of declaratory judgment to quiet title to a parcel of land contiguous to the property of the defendants. The defendants argue that the Superior Court erred in accepting the report and in entering judgment thereon because the referee incorrectly interpreted language in a deed and because his finding as to the location of the disputed boundary was against the weight of the evidence. We affirm the judgment.

The plaintiff and the defendants own adjoining parcels of land on Sawyer's Island in Boothbay. The plaintiff's land lies to the east of the defendants' property. Both waterfront parcels were originally part of a larger tract owned by Lydia Linekin. In 1919, Linekin conveyed to Fred Higgins the lot now owned by the defendants. The Linekin-Higgins deed, substantially identical to all deeds in the defendants' chain of title, bounded and described the land as follows:

Beginning on the southerly side of the town road leading northerly from so-called Sawyer's Island bridge in a stone wall at a point where it intersects said road, said wallmarking the easterly line of land formerly of Albert Lewis, but now of Mrs. Vis; thence southerly by said wall to the shore opposite Indiantown Island; thence easterly by the shore one hundred fifty feet to an iron bolt in the ledge; thence northerly parallel with said wall to a bolt in a rock on the southerly side of said road ; thence northerly and westerly by said road to point begun at, including the shore adjoining the lot as described . . . . (Emphasis added).

The property owned by the plaintiff was part of a parcel of land conveyed in 1952 by Linekin's successor-in-title, Everett Freeman Linekin, to Richard Swett, who subsequently conveyed the bulk of this property to the plaintiff by successive warranty deeds in 1972. The description of the property in the Linekin-Swett deed relevant to this litigation is as follows:

Beginning at an iron pipe on the west side of said Town Road and being on the south side of a private road leading to the dwelling of Fred A. Higgins; thence South 10o West by land of said Higgins 950 feet, more or less to an iron pipe on the shore opposite Indian Town Island ; thence southeasterly along said shore 231 feet to a stake on the shore; thence North 25o East 370 feet to another stake near the western edge of an oak grove . . . . (Emphasis added).

Stipulating that these deeds principally control the resolution of the controversy, the adjacent lot owners disputed the location of their common boundary the third call in the Linekin-Higgins deed and the first call in the Linekin-Swett deed. Specifically, the parties contested the locus of the southern terminus of this boundary line, which forms the southwestern corner of the plaintiff's property and the southeastern corner of the defendants' lot. This disagreement extended to the correct course of the defendants' southerly lot line the second call in the Linekin-Higgins deed.

On October 28, 1976, the plaintiff filed a complaint in the Superior Court, seeking a declaration as to the location of the disputed boundary line and that title to his property be quieted. The case was referred by agreement of the parties. Following hearing, the referee found for the plaintiff and the Superior Court accepted the referee's report and entered judgment thereon.

At the outset, we call attention to the form of action used in this case. An action for declaratory judgment is an appropriate vehicle for establishing rights in real property. The Declaratory Judgments Act, 14 M.R.S.A. §§ 5951-63, is remedial in nature and should be liberally construed to provide a simple and effective means by which parties may secure a binding judicial determination of their legal rights, status or relations under statutes and written instruments where a justiciable controversy has arisen. See Berry v. Daigle, Me., 322 A.2d 320, 325 (1974); 14 M.R.S.A. § 5954. The statute does not create a new cause of action; its purpose is "to provide a more adequate and flexible remedy in cases where jurisdiction already exists." Casco Bank & Trust Co. v. Johnson, Me., 265 A.2d 306, 307 (1970); Berry v. Daigle, supra, 322 A.2d at 326; Walsh v. City of Brewer, Me., 315 A.2d 200, 209-10 (1974). A source of jurisdiction to quiet title is found in 14 M.R.S.A. §§ 6651-61. The arcane intricacies found in the procedural requirements of these provisions represent a trap for the unwary. See 2 R. Field, V. McKusick & L. Wroth, Maine Civil Practice §§ 80A.6, 80A.6a (2d ed. 1970). A proceeding for declaratory relief brought in accordance with the civil rules of procedure is a particularly efficacious method for quieting title to real property, especially in the frequently litigated boundary line dispute case. See Smith v. Varney, Me., 309 A.2d 229, 231 (1973) (per curiam); Socec v. Maine Turnpike Authority, 152 Me. 326, 331, 129 A.2d 212, 215 (1957).

Noting that a split of authority exists on the issue, this Court, in American Motorists Insurance Co. v. LaCourse, Me., 314 A.2d 813, 818-19 (1974), left open the question of who bears the burden of persuasion as to the merits of a declaratory judgment action. ¹ All courts require the declaratory plaintiff to show jurisdiction, a justiciable controversy and the joinder of necessary parties. Id. at 818; see Jones v. Maine State Highway Comm'n, Me., 238 A.2d 226, 228-29 (1968). In the great majority of declaratory judgment actions, the plaintiff, as the party asserting the affirmative of the controlling issues, also assumes the burden of proving the prima facie elements of his asserted claim by a prepondeance of the evidence.

Nevertheless, situations can arise under the declaratory judgment statute in which the normal position of the plaintiff and the defendant is reversed. For example, an insurer, who would be the defendant in an orthodox lawsuit by an insured suing on the policy, can anticipate the litigation by bringing an action seeking a declaration of non-coverage. Reasoning that the plaintiff in such cases should not be saddled with the burden of proving non-liability merely because he invoked his statutory right to a declaratory remedy or that the allocation of the burden of proof should not be controlled by the form of the action, many courts place the burden of showing liability on the defendant insured on the theory that the risk of non-persuasion as to the ultimate issues in the case remains upon the party who would bear the burden had the issues arisen in an ordinary action to enforce the policy. E. g., Fireman's Fund Insurance Co. v. Videfreeze Corp., 540 F.2d 1171, 1174-76 (3d Cir. 1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977); Royal Indemnity Co. v. Wingate, 353 F.Supp. 1002, 1004 (D.Md.), aff'd, 487 F.2d 1398 (4th Cir. 1973); Traveler's Ins. Co. v. Greenough, 88 N.H. 391, 392-93, 190 A. 129, 130-31 (1937); cf. Board of Regents v. Dawes, 522 F.2d 380, 383 n.9 (8th Cir. 1975) (action by university for declaration of non-discrimination), cert. denied, 424 U.S. 914, 96 S.Ct. 1112, 47 L.Ed.2d 318 (1976); Deere & Co. v. Sperry Rand Corp., 322 F.Supp. 397, 398 (E.D.Cal.1970) (action by alleged patent infringer for declaration of non-infringement or patent invalidity), aff'd, 513 F.2d 1131 (9th Cir. 1975) (per curiam). Other courts hold categorically that the plaintiff, as the party who instituted the declaratory judgment action, always bears the burden of establishing the material assertions of his complaint. E. g., New York Life Ins. Co. v. Stoner, 109 F.2d 874, 876 (8th Cir.), rev'd on other grounds, 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284 (1940); City of Miami Beach v. New Floridian Hotel, Inc., 324 So.2d 715, 717 (Fla.App.1976); Hanover Insurance Group v. Cameron, 122 N.J.Super. 51, 55, 298 A.2d 715, 718 (1973); see First National Bank v. Malady, 242 Or. 353, 357-359, 408 P.2d 724, 726-27 (1965).

We believe that both fairness and the nature of declaratory relief dictate that the allocation of the burden of proof in declaratory judgment actions must be determined by reference to the substantive gravamen of the complaint. The party who asserts the affirmative of the controlling issues in the case, whether or not he is the nominal plaintiff in the action, bears the risk of non-persuasion. See Preferred Acc. Ins. Co. v. Grasso, 186 F.2d 987, 991 (2d Cir. 1951); Ross v. American Radiator & Standard Sanitary Corp., 507 S.W.2d 806, 810 (Tex.Civ.App.1974). In the instant case, the plaintiff bears the burden of proof not because he filed the action for declaratory judgment but because the plaintiff in a quiet title action has the burden of proving better title than that of the defendant. Compare Smith v. Varney, supra, 309 A.2d at 233, with Hann v. Merrill, Me., 305 A.2d 545, 550 (1973). See also Powell v. Trustees of Schools, 415 Ill. 236, 240, 112 N.E.2d 478, 481 (1953). This conclusion is consistent with the principle that declaratory judgment is a remedial device and does not enlarge the jurisdiction of the court. E. g., Casco Bank & Trust Co. v. Johnson, supra, 265 A.2d at 307. To adopt a per se rule that the plaintiff in a declaratory judgment action bears the risk of non-persuasion on the merits would in certain cases allow the form of the remedy to shift the burden of proof. ...