Ricci v. Godin

• Citation: 523 A.2d 589
• Parties: Gary RICCI v. Robert GODIN et al.
• Decision Date: 02 April 1987
• Court: Maine Supreme Court

Page 589

523 A.2d 589

Gary RICCI v. Robert GODIN et al.

Supreme Judicial Court of Maine.

Argued Jan. 9, 1987.

Decided April 2, 1987.

Joseph M. Jabar (orally), Daviau, Jabar & Batten, Waterville, for plaintiff.

Albert L. Bernier (orally), Marden, Stevens, Bernier & Stevens, Waterville, for defendant.

Before McKUSICK, C.J., and NICHOLS, WATHEN, GLASSMAN, SCOLNIK and CLIFFORD, JJ.

CLIFFORD, Justice.

The plaintiff, Gary Ricci, appeals a judgment of the Superior Court, Kennebec County, establishing the boundary between two parcels of land located in Rome, one owned by Ricci, the other by Robert and Muriel Godin, adjoining and to the east of Ricci's land. ¹ Ricci contends that the court's finding regarding the location of the disputed boundary was clearly erroneous. We agree and vacate for further proceedings.

Ricci and the Godins own adjoining parcels of land in Rome. Both parcels were once part of a tract owned by George Tibbetts and are bounded on the north by Route 225. Ricci acquired his land directly from Tibbetts by deed dated May 13, 1977. The Godins acquired their land by deed dated April 16, 1981, from James Inglis, who had acquired it from Tibbetts by deed dated January 19, 1976.

The 1976 deed from Tibbetts to Inglis described the parcel conveyed as follows:

Beginning at an Iron Pin set in the ground in the Southerly side of Route # 225 ... and then going in an Easterly direction and along the Southerly side of Route # 225 for a distance of 1013 feet, more or less, to another Iron Pin set in the ground in the said Southerly side; thence turning and going in a Southerly direction and across land owned by the Grantor and along an Old Wire Fence and Spotted Trees for a distance of 1232 feet, more or less, to a Spotted Birch Tree; thence turning and going across the Grantor's land in an Easterly direction for a distance of 1200 feet, more or less, to the Iron Pin and the Point of Beginning in the Southerly side of Route # 225. ²

(Emphasis added.)

The description in the 1981 deed from Inglis to the Godins also used the iron pin as the point of beginning. The northern boundary in that deed followed Route 225 for a distance of 506.5 feet, then went in a straight line in a southerly direction to the spotted birch mentioned in the 1976 Tibbetts to Inglis deed and returned along the land of Ricci to the "iron pin marking the point of beginning." The same iron pin used in the 1976 Tibbetts to Inglis deed and in the 1981 Inglis to Godin deed was likewise used as the point of beginning in the 1977 deed conveying the western portion of the Tibbetts tract to Ricci. Thus all of the descriptions relevant to the location of the boundary refer to the very same iron pin as the point of beginning.

Near the Ricci-Godin line is a tote road entering on Ricci's side of the boundary from Route 225, leading in a southerly direction, and curving slightly towards the Godins' parcel and then back towards the interior of Ricci's property. Ricci uses this tote road as a driveway.

In 1984 Ricci and Richard Godin hired Michael Witham, a surveyor, to survey the Godins' land and to establish the common boundary. The Godins were felling trees near the eastern edge of the tote road, and Ricci was concerned that the Godins were cutting on his property. After a cursory search Witham was unable to find the iron pin mentioned as the point of beginning in all the relevant deeds and accordingly sought to reconstruct its location by measuring 1013 feet westward from the second iron pin mentioned in the 1976 Tibbetts to Inglis deed marking the northeastern corner of Inglis' parcel.

Refusing to accept Witham's conclusions regarding the Ricci-Godin boundary, the Godins hired their own surveyor, Vern Pinney, who also sought to reconstruct the location of the iron pin used as the point of beginning by measuring westward, as had Witham. Instead of using the second iron pin mentioned in the 1976 Tibbetts to Inglis deed as the starting point of his survey, as Witham had done, Pinney measured from the intersection of the old wire fence, mentioned in the 1976 Tibbetts to Inglis deed, with the right of way of Route 225. Pinney's survey placed the intersection of the boundary and Route 225 about 30 feet west of Witham's location. Robert Godin, who had last seen the iron pin point of beginning in the fall of 1983, had driven a pipe into the ground near, as he later testified, its original location. This pipe was farther west than Pinney's boundary location. Pinney did not use Godin's pipe in his calculations, though he did mark its location on the survey plan he prepared for the Godins.

Ricci then brought a three-count complaint against Richard and Robert Godin. In Count I Ricci sought damages for trees the Godins had felled on his land. See 14 M.R.S.A. § 7552 (Supp.1986). Count II of Ricci's complaint was treated by the court as seeking a judgment declaring the common boundary. ³ In Count III, Ricci sought to enforce the agreement on the part of Richard Godin to contribute toward the cost of the Witham survey. Robert, Richard and Laurel Godin counterclaimed in two counts, Count I being treated by the court as a complaint for declaratory judgment as to the boundary location. Count II requested damages for trespass and the cutting and removal of timber.

At trial, the realtor who had sold all of the parcels carved from the Tibbetts' tract, Tibbetts' grandson, who had built the tote road in the 1970's, and the parties testified with near unanimity regarding the location of the missing iron pin described as the point of beginning in the relevant deeds. Furthermore, Tibbetts' grandson, who had visited the premises the day before trial and had seen the iron pipe driven by Robert Godin, testified that the pipe was "very near" the location of the original iron pin. All of the witnesses, including those who located the missing iron pin, testified that the tote road was on Ricci's parcel. The evidence also established the existence of another, interior iron pin about 150 feet from Route 225 on the eastern edge of the tote road. This pin was not mentioned in any of the relevant deeds, and no evidence was adduced to indicate its significance.

The court rejected the conclusion of the two surveyors, ⁴ Witham and Pinney, finding that lay testimony had established with reasonable certainty the location of the missing iron pin. Then, relying on Pinney's survey plan, admitted as defendant's exhibit # 1, which showed both the iron pipe Robert Godin had driven and the interior iron pin, the court declared that the boundary extended in a line from the spotted birch tree, intersected the interior pin, and continued to Route 225. The boundary thus established bisects the tote road.

With the boundary established, the court found against Ricci on Counts I and II of his complaint, and awarded him $600 toward the cost of the Witham survey on Count III. ⁵ The court found against the Godins on their counterclaim seeking damages, but for the Godins on that part of the counterclaim treated as a petition for declaratory judgment. Ricci appealed the judgment to this court.

I.

The physical disappearance of the iron pin point of beginning did not terminate its status as a...