Jacobs v. Boomer

Decision Date24 June 1970
Citation267 A.2d 376
PartiesKarel JACOBS and Virginia Jacobs v. Raymond BOOMER.
CourtMaine Supreme Court

Sanborn & Moreshead, by Richard B. Sanborn, Augusta, for plaintiffs.

Linnell, Choate & Webber, by Paul A. Choate, Auburn, for defendant.

Before WILLIAMSON, C. J., and DUFRESNE, WEATHERBEE, and POMEROY, JJ.

DUFRESNE, Justice.

Plaintiffs are the owners of property lying on the northerly shore of Great Pond, one of the Belgrade Lakes, so-called, in the Town of Rome, Maine, and the defendant is the joint owner with his wife of the northerly end of Hoyt's Island, in said Great Pond, situated in the Town of Belgrade, Maine. Since his purchase of part of Hoyt's Island in 1929 the defendant has maintained on plaintiffs' shore property two or three wharves where he has docked his boats, taken on supplies and passengers for transportation to the Island. The area also served as the point of return for himself, his family and guests, to reach the mainland and unload materials when necessary. Access to the public highway, Route 225 in Rome, was available through a way over plaintiffs' land known as Tracey's Lane which at the landing area ran in an east-west direction and more than one hundred feet to the north of the northerly shore line of Great Pond.

The plaintiffs' property used as landing area by the defendant and his guests was bounded on the west, by land of one Joyce one hundred eight (108) feet, more or less; on the north, by the southerly line of Tracey's Lane one hundred thirteen (113) feet; on the east, by a line projected southerly from Tracey's Lane ninety-eight (98) feet, and on the shore of Great Pond, some ninety-five (95) feet. A loop or turn-around, within the near-quarter acre of area, permitted vehicular traffic to or from the shore without interferene. Electric wires and telephone cable were maintained between the Island and the mainland, with poles and telephone equipment on the shore. The defendant made use of the plaintiffs' property in connection with his carrying on the business of renting summer cabins or lodgings to guests on Hoyt's Island. Automobiles, including that of the defendant, were garaged on land of the plaintiffs lying outside the landing area to the north of Tracey's Lane, but at times they had to be parked in the landing area when there were more vehicles than available stalls in the garages.

A dispute between the parties led to the instant complaint seeking a permanent injunction against the defendant, enjoining him from using the plaintiffs' land for the above described purposes, which use the defendant Boomer has threatened to continue. By way of counterclaim, Mr. Boomer seeks justification of his continued use of plaintiffs' property in the manner he has since 1929 on the ground that he acquired a prescriptive easement right therein and requests a judgment establishing such right and removing at the same time a cloud upon his title to the Hoyt Island property to which he asserts such easement rights are appurtenant. After hearing both the complaint and counterclaim without the intervention of jury the Justice below granted the permanent injunction limited to the reference landing area and adjudicated that the defendant had no estate or interest in said premises, allowing plaintiffs their costs. Defendant's appeal from said judgment must be denied.

In Dartnell v. Bidwell, 1916, 115 Me. 227, 98 A. 743, 5 A.L.R. 1320, this Court said that a prescriptive easement is created only by a continuous use for at least twenty years under a claim of right adverse to the owner, with his knowledge and acquiescence, or by a use so open, notorious, visible and uninterrupted that knowledge and acquiescence will be presumed. Acquiescence, the Court said, means passive assent such as consent by silence and does not encompass acquiescence in the active sense such as when a use is acquiesced in by means of the positive grant of a license or permission. Each of the stated elements of the definition of prescriptive right was said to be essential and open to contradiction. Thus, to support the defendant's claim of prescriptive easement, it must appear that his use of plaintiffs' property for the required twenty-year period was under a claim of right adverse to the owner, with the owner's knowledge and acquiescence.

In Burnham v. Burnham, 1931, 130 Me. 409, 156 A. 823, our Court further said:

'(T)he ordinary rule is that, where there has been an unmolested, open, and continuous use of a way for twenty years or more, with the knowledge and acquiescence of the owner of the servient estate, the use will be presumed to have been adverse and under a claim of right, and sufficient to create a title by prescription, unless contradicted or explained.' (Emphasis supplied.)

Whether or not the defendant's use was under a claim of right adverse to the plaintiffs was the only issue contested by the parties and decided by the Justice below. To rebut the presumption that it was adverse as contended by the defendant, a presumption which might otherwise arise from the unmolested, open and continuous use by the defendant of plaintiffs' property as an access way to and from Hoyt's Island in connection with the defendant's conduct of his summer business on the Island, the plaintiffs have offered evidence of a rental agreement existing between the defendant and the plaintiffs whereby, so they claim, in consideration of the defendant's privilege to use plaintiffs' property as an access way to and from the Island, the defendant and his guests would pay, and have paid, rent on the basis of $25.00 per car, later increased to $35.00 per car. The defendant's wife corroborated the payment of rent to the plaintiffs and their predecessor in title, associating the same with the use of plaintiffs' garages, from which it is argued that the rental agreement had exclusive reference to defendant's right to use the garages and did not purport to control defendant's rights to the use of the area as an access way for landing and docking. The plaintiff, Mr. Jacobs, however, testified that he had had some conversation with Mr. Bradley, his predecessor in title, concerning Mr. Boomer's parking and docking at the lake and that he was told of the existing arrangements with Mr. Boomer. Mr. Jacobs then informed Mr....

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29 cases
  • Almeder v. Town of Kennebunkport
    • United States
    • Maine Superior Court
    • October 16, 2012
    ... ... is acquiesced in by means of the positive grant of a license ... or permission." Jacobs v. Boomer, 267 A.2d 376, ... 378 (Me. 1970). "[T]he 'open, notorious, [and] ... visible' element of establishing a prescriptive easement ... ...
  • Almeder v. Town of Kennebunkport
    • United States
    • Maine Supreme Court
    • February 4, 2014
    ...the presumption,” such as when the user is a family member of the owner. Androkites, 2010 ME 133, ¶¶ 17–18, 10 A.3d 677 ; Jacobs v. Boomer, 267 A.2d 376, 378 (Me.1970) (stating that the presumption of adversity applies unless the use is “contradicted or explained” (quotation marks omitted))......
  • Almeder v. Town of Kennebunkport
    • United States
    • Maine Superior Court
    • October 16, 2012
    ... ... is acquiesced in by means of the positive grant of a license ... or permission." Jacobs v. Boomer, 267 A.2d 376, ... 378 (Me. 1970). "[T]he 'open, notorious, [and] ... visible' element of establishing a prescriptive easement ... ...
  • Almeder v. Town of Kennebunkport
    • United States
    • Maine Superior Court
    • January 18, 2012
    ... ... is acquiesced in by means of the positive grant of a license ... or permission." Jacobs v. Boomer, 267 A.2d 376, ... 378 (Me. 1970). "[T]he 'open, notorious, [and] ... visible' element of establishing a prescriptive easement ... ...
  • Request a trial to view additional results

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