Wallingford v. Kennedy

• Decision Date: 15 June 2000
• Citation: 753 A.2d 493,2000 ME 112
• Parties: Dorothy WALLINGFORD v. Sharon KENNEDY et al.
• Court: Maine Supreme Court

753 A.2d 493

2000 ME 112

Dorothy WALLINGFORD¹ v. Sharon KENNEDY et al.²

Supreme Judicial Court of Maine.

Argued January 4, 2000.

Decided June 15, 2000.

Joel C. Martin (orally), Michael K. Martin, Petruccelli & Martin, LLP, Portland, for plaintiff.

Theodore H. Kurtz (orally), Kurtz & Perry, South Paris, for defendants.

Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

DANA, J.

[¶ 1] Ivan and Dorothy Wallingford appeal from a judgment entered in the Superior Court (Androscoggin County, Studstrup, J.) finding for Sharon Kennedy and Robert Foss on the Wallingfords' trespass claims and finding for Sharon Kennedy on her counterclaim seeking a declaratory judgment that she is the owner of the parcel of property in dispute between the parties. The Wallingfords argue that the court erred when it determined the boundary between the Wallingfords' and Kennedy's land. We agree and vacate the judgment.

I. STATEMENT OF FACTS

[¶ 2] In 1987, the Land Tree Corporation, which is owned by Robert Foss and his wife through its parent corporation, acquired a piece of land in the Town of Minot. In the fall of 1993, Foss looked into building a house for his daughter, Sharon Kennedy, on a triangular piece of land that he believed was part of the parcel acquired in 1987. He asked George Courbron to identify the boundary lines of the property for him.

[¶ 3] Courborn had previously prepared a subdivision plan for one of the prior owners of the parcel. Using that plan, as well as tax maps and deeds, Courbron drew up a plan for Foss. Courbron, however, indicated that he had merely traced the disputed boundary from a tax map and that he had not actually surveyed the boundary in question according to standard boundary survey procedures.

[¶ 4] With the plan indicating that the disputed parcel was part of the parcel acquired by Land Tree in 1987, Foss hired a company to clear the land. After the company began cutting timber on the land, Ivan Wallingford noticed the operation. Ivan was under the impression that the triangular piece of land being cleared was part of a piece of property that belonged to him and his wife. Ivan approached the individuals doing the cutting and asked them to stop. Although the parties differ as to the details, Ivan and Foss spoke with one another sometime shortly thereafter. Foss referred Ivan to Courbron, but the dispute remained unresolved after Ivan and the surveyor met. Because of the dispute, Foss built the house on an undisputed portion of the property owned by Land Tree. In 1995, Land Tree conveyed the 1987 parcel to Sharon Kennedy.

[¶ 5] In 1997, the Wallingfords filed a complaint against Kennedy and Foss seeking damages for trespass, punitive damages for cutting timber, and a declaratory judgment regarding the ownership of the property. Kennedy filed a counterclaim seeking a declaratory judgment regarding the ownership of the disputed parcel. Land Tree filed a complaint against the Wallingfords for, inter alia, intentional interference with its contractual relations. The cases were consolidated.³

[¶ 6] The following evidence was introduced at trial: In 1957, Lucien Bardier owned two abutting parcels in Minot, one of which he transferred to John Wallingford, and the other he transferred to John G. and Eugene O. Wallingford. In the deed to John G. and Eugene O. Wallingford, the relevant boundary in the northern corner of the property was described thus:

On the north by York Road so-called

On the east by land of the Foster Lumber Co.

On the north by old Town road now discontinued

On the east by land of John Wallingford⁴

Neither party disputes the fact that the York Road referred to in this deed is the same road that the Wallingfords now claim marks the boundary between their property and that of Kennedy. The above boundary call resulted in the disputed triangle of property being included in the parcel of land transferred to John G. and Eugene O. Wallingford. In 1962, these two parcels were conveyed in one deed to John Wallingford Fruit House, Inc. (Wallingford Fruit House) excepting a parcel not relevant to this appeal. Ownership of the two parcels was thereby reunified. The only descriptions of the two parcels in the deed to Wallingford Fruit House refer back to the deeds from Lucien Bardier.

[¶ 7] In 1984, Wallingford Fruit House conveyed the parcel formerly belonging to John Wallingford to Chuck R. Starbird, again excepting parcels not relevant to this appeal. One of the alternate descriptions of the property refers back to the Bardier deed to John Wallingford. Later that year, Starbird deeded the property back to Wallingford Fruit House, who in turn deeded it back to Starbird. The parties agree that the purpose of this series of exchanges was to correct the description of one of the excepted parcels that, as noted previously, is not relevant to this appeal. Notably, however, all three deeds continued to refer back to the original Bardier deed as an alternate description of the property. The parties do not dispute the fact that at this point in time, the York Road referred to in the Bardier deed ran along the road now claimed by the Wallingfords to mark their boundary with Kennedy and that it marked the boundary of the two parcels that had again been separated by the conveyance to Starbird.

[¶ 8] As a result of these conveyances, Wallingford Fruit House still owned the parcel of land once belonging to John G. and Eugene O. Wallingford that included the disputed triangle of land. Starbird now owned the land once belonging to John Wallingford. The next reunification of the two parcels took place in 1987.

[¶ 9] In August 1987, Starbird conveyed the parcel of property that formerly belonged to John Wallingford to Peter Wallingford. The description in the deed refers back to the deed conveying the land to him that in turn refers back to the Bardier deed. Also in August 1987, Wallingford Fruit House conveyed all of its property in the towns of Auburn, Minot and Bowdoinham to Peter Wallingford. This included the parcel of land formerly belonging to John G. and Eugene O. Wallingford that included the disputed triangle. Ownership of the two parcels was united again.

[¶ 10] All the land conveyed from Wallingford Fruit House to Peter Wallingford was described in a separate attachment incorporated by reference in the deed. Notably, also included in this attachment was a description of the property that Wallingford Fruit House had already conveyed to Starbird and no longer owned.⁵ This error would be of little consequence because Starbird conveyed the piece of property to Peter Wallingford anyway, but the description of the parcel in the attachment is not the one contained in previous deeds and it is the first description of the property that includes the disputed boundary call.

[¶ 11] When Peter Wallingford conveyed the parcel formerly belonging to Starbird to Earl and Constance Sprague, predecessors in title to Kennedy, he used the new description from the Wallingford Fruit House attachment, repeating the disputed boundary call. At the same point in time, Peter Wallingford also conveyed the parcel formerly belonging to John G. and Eugene O. Wallingford, which had heretofore included the disputed triangle, to Ivan and Dorothy Wallingford. Rather than using the same attachment, he transcribed the descriptions found in the attachment, but properly omitted the description of the Starbird parcel from the list.

[¶ 12] The parties agreed at trial, as they now do on appeal, that the deed from Peter Wallingford to the Spragues controls this dispute.⁶ The disputed boundary call reads, "thence running northwesterly on the York Road five hundred twenty-four (524) feet to land now or formerly of Timberlands, Inc." The Wallingfords argued that the reference to the York Road is to the road that the parties agree marked the boundary between the properties until 1987, resulting in the disputed triangle's inclusion in their property. Kennedy and Foss argued that the reference to the York Road is to an old road bed running between two stone walls.

[¶ 13] After hearing testimony from both parties' experts and reviewing all the evidence, the trial court found that there was a latent ambiguity in the call in the 1987 Wallingford to Sprague deed regarding which route was meant by the reference to the "York Road," specifically noting that the course of the road had been changed in 1892 creating two possible routes for the reference to the "York Road." The court also noted that the reference to the York Road in the 1987 deed to the Spragues was in a different context than the previous reference to the York Road in the 1957 Bardier deed. The court found that the reference to another monument in the 1987 deed, i.e., the reference to the land of Timberlands, was equivocal because both routes ran to the land of Timberlands. The court then concluded that the distance reference in the boundary call assumed more importance and indicated that the reference to the York Road was meant to be to the old road bed between the stone walls as argued by Kennedy and Foss.

[¶ 14] The court found for Kennedy and Foss on all the claims against them, determining that the disputed triangle belonged to Kennedy. The court also found for the Wallingfords in the action brought against them by Land Tree. Only the Wallingfords appealed.

II. THE DISPUTED BOUNDARY

[¶ 15] "The law is well established that the determination of the boundaries of property as ascertained from a deed is a question of law. Where the boundaries are of face of the earth is a question of fact and the court's factual finding in that regard will not be disturbed unless clearly erroneous." Lawton v. Richmond, 1997 ME 34, ¶ 9, 690 A.2d 953, 955 (citing Snyder v. Haagen, 679 A.2d 510, 513 (Me.1996)); see also Theriault v. Murray, 588 A.2d 720, 721 (Me.1991)

. We look initially to the face of a deed for the controlling intent of the parties....