MICHAEL PALMER, LORI PALMER and MARY ANN BRADSTREET, Plaintiffs
RANJIT S. GILL, GURDARASHAN GILL, PALMER POINT ROAD ASSOCIATION, Defendants BRENDA F. SKILLIN and JOHN W. SKILLIN, Plaintiffs
LORI PALMER and MICHAEL PALMER, Defendants
DECISION AND ORDER
Joyce A. Wheeler, Justice.
This litigation concerns (1) a disputed parcel of land, called in this litigation " the wedge", and (2) whether the Palmers' retaining wall encroaches on the Skillins' right of way across the Palmers' land along the shore and encroaches on the rights of the defendants to Palmer Point Road.
The Palmer Point Road neighborhood contains six homes and begins where Palmer Point Road turns off of Staples Point Road and heads towards Casco Bay with the Spears' home on the right and the Gills' home across the road from the Spears. As one moves down Palmer Point Road towards Casco Bay, on the waterfront is the Bradstreets' home on the right and across the road is the Palmers' home. At the Palmers' home the paved road ends and proceeds either to the wedge and Casco Bay or to the left along a gravel right of way that turns along the shore of Casco Bay traveling easterly across the front of the Palmers' property, the Skillins' property, ending at the Tripp's property. Until 2008, that neighborhood was relatively peaceful. The Palmers gave permission to the Spears and the Dickinsons, the Gills predecessors, and then to the Gills to access Casco Bay by crossing over the Palmer property along or near the wedge. The Spears, Dickinsons and Gills did not have waterfront property or deeded waterfront access.
The Palmer property as well as other lots located off of Staples Point Road were part of a larger tract owned by Richard Learned of New Hampshire. In the 1960's Learned subdivided the land and conveyed out about a dozen lots, some of which were accessed by the private road known as Palmer Point Road. In granting rights over Palmer Point Road to the various lot owners which were benefited by the road, Learned never conveyed the fee interest or the land under which the road runs to any of the lot owners. Nor did he convey the wedge, which was a gap created in his conveyance to the Bradstreets in the 1960's.
1. The Wedge and Palmer Point Road
The current dispute began in 2008 when two events occurred. Ranjit Gill told Michael Palmer that he does not control the wedge and the Gills have the right to access the water through the wedge without Palmer's permission. Up to that point, Michael Palmer believed he owned to the midway point of the wedge where his land met the land of his neighbors, the Bradstreets, along a line of oak trees. The Bradstreets believed they owned on the other side to the midway point of the wedge.
Although much of this dispute is about who owns the wedge, the court heard almost no evidence of anyone, not even the clammers who trespassed, actually using the wedge because it is steep and blocked by a large oak tree at the edge of the bank, making it difficult to access the water through the wedge. Almost all of the testimony is that prior to 2008 people accessed the water by walking to the east of the wedge, which is clearly Palmer property. Without clearing the oak trees and installing steps or otherwise rebuilding the bank, climbing down the wedge's embankment to the water is perilous.
Further fueling the 2008 dispute, Michael Palmer told the Gills that they did not have the right to use Palmer Point Road or the wedge. In fact, the Gills property is not located on Casco Bay and the deed for the Gill parcel does not convey an easement to Palmer Point Road or the wedge or Casco Bay. The Gills access to their property is from Staples Point Road at the end of Palmer Point Road, even though the Gills driveway is on Palmer Point Road. In contrast, the Skillins have an easement that includes Palmer Point Road and the gravel driveway along the waterside of the Palmer property to the Skillin property.
When Learned conveyed lots, he did not include the wedge or land covered by Palmer Point Road. Unbeknownst to the parties, Richard Learnard never conveyed this strip of property. A survey completed in 2010 by Mann Associates brought this fact to the attention of the homeowners on Palmer Point Road and triggered the race to get the devisees of Learnard to grant them easements over the wedge and Palmer Point Road. It is this easement that the Palmers and Bradstreets challenge in this litigation and claim they own the wedge by virtue of adverse possession.
2. The Retaining Wall and Right of Way
In the early 2000s Michael Palmer began building a retaining wall along the right of way across the front of his property. The Skillins, one of the neighbors with a right of way across Palmers' land, complained that the Palmers' retaining wall interfered with the Skillins' access to their property on their deeded right of way. The Skillins were deeded their property on September 2, 1982 and their deed described " a right of way, as now existing, to be used in common with others over land formerly of Walter S. Palmer and along the bank for pedestrians and vehicles to the lot hereby conveyed." The location of the right of way on the face of the earth was not described, other than to say along the bank. It was not until the Tripps purchased their property in 1983, that a centerline for the right of way was described in their deed. Mrs. Tripp is not a party to this action and has not complained about the location or access to the right of way. However, both the Skillins and Gills have complained about the encroachment of the retaining wall on Palmer Point Road and the Skillins right of way along the water.
3. Palmers, Gills and Palmer Point Road Association
The plaintiffs seek a declaration that (1) they are the owners of the wedge by virtue of adverse possession; (2) an easement to the wedge granted by the Road Association to the Gills is of no force and effect (Count I); and (3) enjoins the defendants from interfering in plaintiffs' rights (Count II). The Gills filed a counterclaim alleging the Palmers built a wall and this wall trespasses on Association land along Palmer Point Road (Count III) and seeking in Count IV an injunction preventing the Palmers from interfering in the Gills and the Association's rights in the easement by removing the wall and ceasing their trespassing activities.
4. Skillins and Palmers
The Skillins seek a declaration that (1) they own an easement across the right of way; (2) locates the right of way by using the Tripps' centerline (Count I); (3) enjoins the Palmers from interfering with their right of access via the right of way; and (4) requires the Palmers to relocate the wall away from the boundaries of the right of way (Count II). They seek damages in Count III for interference in the use of the right of way and in Count IV a determination of a nuisance in the Palmers' use of their property by altering the flow of water into the Skillins' property. There is no evidence as to Count IV and that count is hereby dismissed with prejudice.
The Palmers filed a counterclaim against the Skillins seeking in Count I a declaration that the Skillins have no right to drive their vehicles in a way that damages the Palmers' lawn, trees and bushes, and in Count II an injunction from infringing on the Palmers' property. The court rejects these claims because although Mr. Skillin admits that he drove intentionally on the lawn adjacent to the Palmers' land, he did not actually drive on the Palmers' land. Further, there is no evidence of any damages to the Palmers' property. Therefore, the Palmers have failed to meet their burden of proof on this claim and Counts I and II of the Palmers' counterclaim are dismissed with prejudice.
The trial occurred on October 15 - 18, 2013. The court heard testimony from a number of witnesses and accepted a number of exhibits. The court also conducted a view of the wedge, Palmer Point Road and the right of way. The following findings of facts and conclusions of law are made, in addition to findings of fact that appear in the Introduction.
FINDINGS OF FACTS