Jolicoeur v. Kennebec Water Dist.

• Decision Date: 08 April 1976
• Citation: 356 A.2d 193
• Parties: Louis H. JOLICOEUR and Claire G. Jolicoeur v. KENNEBEC WATER DISTRICT et al.
• Court: Maine Supreme Court

Page 193

356 A.2d 193

Louis H. JOLICOEUR and Claire G. Jolicoeur v. KENNEBEC WATER DISTRICT et al.

Supreme Judicial Court of Maine.

April 8, 1976.

Marcou & Marcou by Louis R. Marcou, Clyde L. Wheeler, Waterville, for plaintiffs.

Weeks, Hutchins, Frye & Welch by Miles P. Frye, Waterville, for Kennebec Water Dist.

Shiro & Jabar by Burton G. Shiro, Waterville, for Henry and Rose Manzo.

Before DUFRESNE, C. J. and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

POMEROY, Justice.

Before us for decision is an appeal from a declaratory judgment fixing the boundary line between two adjacent pieces of property, denying appellants' claim of right to injunctive relief, and denying appellants' claim for damages.

We deny the appeal.

The dispute between the parties had its genesis in a decision by the Kennebec Water District to build a water tower on a section of high ground in Winslow, Maine. Investigation by the water district determined to its satisfaction that the property on which it proposed to build the water tower was that of Henry and Rose Manzo. After negotiations seeking to acquire the property from the Manzos had failed, the water district exercised its statutorily granted right of eminent domain. The property was acquired and the Manzos were justly compensated.

Subsequently, appellants, husband and wife, brought action against the water district and Mr. and Mrs. Manzo premising their claim on the asserted conclusion that the water tower and the associated water main had been constructed at least in part on their property.

Basic to the appellants' claim to a cause of action against appellees was that the boundary separating the Manzo and Jolicoeur properties was at a place other than that which the water district had determined it to be.

By agreement of the parties, the hearing below was directed solely to the question of the true beundary line between the properties. After hearing testimonial evidence, much of it appropriately denominated 'expert', the presiding Justice found the boundary in question to be delineated by a wire fence running north-south between the properties. As of course, judgment for the appellees followed such finding.

It is agreed the boundary line in question was described in several conveyances as running North 21 East to Taylor Avenue. The sourthern terminus of the line was described as 'at a stake in the town line quite near the corner of the six acre lot and the Ira Getchell lot.' The difficulty in the case results from the fact that the terminus could not be located.

The Justice below determined that the disputed boundary was 'afloat' and concluded that the wire stock fence between the Manzo and Jolicoeur properties is 'the only thing on the face of the earth in the case that even resembles a property line between the termini suggested in the deed.' In effect, the Justice determined that the fence constituted the boundary line by acquiescence.

Appellants attack that determination on several grounds.

First, they question the conclusion that the boundary line was 'afloat.' In their view a granite post marking the north-west corner of the Ira Getchell lot meets the calls of the deed and was intended by the predecessors in interest of the disputants to indicate the sourthern terminus of the boundary in question. Appellants urge that a stone 'marker at' the corner of the Ira Getchell lot can properly be construed as a 'stake quite near' the corner; and if that interpretation is accepted and a line is drawn from the stone marker North 21 East to Taylor Avenue, much of the land taken for the water tower falls within their western boundary.

Where on the face of the earth the boundaries are located is a question of fact. Leighton v. Leighton, Me., 329 A.2d 164 (1974).

It is now established law that the findings of fact of the single Justice cannot be disturbed by this Court unless they are clearly erroneous. The burden is upon the appellants to demonstrate to us that the factual finding of the court below was 'clearly erroneous.' Findings of fact are not 'clearly erroneous' if such findings are supported by credible evidence. Leighton v. Leighton, supra, at 165-166.

The history of this land ownership is important to a clear understanding of the...