May 1, 2014
CEDAR BEACH/CEDAR ISLAND SUPPORTERS, INC., et al., Plaintiffs
CHARLES H. ABRAHAMSON, et al., Defendants and WELLS FARGO BANK, N.A., Party-in-Interest
PLAINTIFFS AND DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Nancy Mills, Justice, Superior Court.
Before the court is plaintiffs' motion for partial summary judgment. Plaintiffs argue defendants cannot raise a genuine issue of material fact regarding whether a notice posted in 1962 on property now owned by the Abrahamson defendants prevented the public from acquiring an easement by prescription over a portion of Cedar Beach Road on Bailey Island in Harpswell, Maine. Plaintiffs ask for a ruling that the 1962 notice does not apply to the Cedar Beach Road. Defendants ask for a ruling that the notice does apply to Cedar Beach Road. For the following reasons, the motions are denied.
In their amended complaint, plaintiffs seek a declaratory judgment that the public has acquired a right to use Cedar Beach Road on Bailey Island by prescription, count I, or custom, count II. In defendants' answers, the 1962 notice is raised as an affirmative defense to the acquisition of a prescriptive easement.
In 1957, Julia Sturtevant and Meredith Starbranch acquired a cottage and all the land surrounding the cottage and adjoining Cedar Beach Road on Bailey Island. (Supp. S.M.F. ¶ ¶ 1-2.) In 1961, Ms. Sturtevant and Ms. Starbranch acquired Cedar Beach Road; the deeds contain the language, " subject to the rights of others in common to use said Beach Road as a right of way." (Supp. S.M.F. ¶ ¶ 8-11.) On December 27, 1961, Ms. Sturtevant and Ms. Starbranch conveyed a portion of their land and a right of way over Cedar Beach Road to Margaret E. Seamans. (Supp. S.M.F. ¶ ¶ 12-13.) Ms. Sturtevant and Ms. Starbranch retained a 2.71 acre parcel, referred to as the " Ridge Lot" in the Seamans deed. (Supp. S.M.F. ¶ 14.) The deed to Ms. Seamans contained language that the grantors reserved rights to connect utilities, " to two houses on the Ridge Lot, the area retained by the Grantors, and buy water service ... if at any time in the future houses are built on said retained area which consists of 2 3/4 acres on the eastern shore of Fresh Water Cove." (Supp. S.M.F. ¶ 15.) The deed also contained language that referred to Cedar Beach Road as a parcel separate from the Ridge Lot. (Supp. S.M.F. ¶ 16.)
In September 1962, Ms. Starbranch posted a " Notice to Prevent Acquisition of Right of Way or Easement" on her property and filed the notice in the Cumberland County Registry of Deeds.  (Supp. S.M.F. ¶ 19.) In her affidavit, Ms. Starbranch states she posted notices, " to prevent acquisition of a right-of-way or other easement in or over her land in conspicuous places upon her land commonly known as the 'Ridge' property, that being the lot of approximately 2 3/4 acres on the shore of Fresh Water Cove." (Supp. S.M.F. ¶ 20; Abrahamson Opp. S.M.F. ¶ 20; Gables Opp. S.M.F. ¶ 20.) She also refers in her affidavit to two photographs. (Abrahamson & Gables Add. S.M.F. ¶ 34; Pls.' S.M.F. ¶ 19, Eisenstein Aff. Ex. G.) There was a chain across Cedar beach Road connecting two posts during the 1962 notice period. (Abrahamsons & Gables's Add. S.M.F ¶ ¶ 35, 38.)
On October 24, 2012, plaintiffs filed their complaint, which they amended on April 3, 2013. Defendant Gables, LLC filed a motion to intervene, which was granted on April 8, 2013. Plaintiffs filed their motion for partial summary judgment on December 5, 2013. Defendant Gables and defendants Abrahamsons filed separate oppositions to plaintiffs' motion for summary judgment. On April 11, 2014, the Court granted defendant Gables's motion to supplement the summary judgment record with the affidavit of Harry Starbranch, the son of Meredith Starbranch.
1. Standard of Review
Under Rule 56, a party may move for summary judgment on a claim " or any part thereof." M.R. Civ. P. 56(a). " Summary judgment is appropriate when there is no genuine issue of material fact that is in dispute and, at trial, the parties would be entitled to judgment as a matter of law." Fitzgerald v. Hutchins, 2009 ME 115, ¶ 9, 983 A.2d 382 (citing Dyer v. Dep't of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821). " An issue is genuine if there is sufficient evidence supporting the claimed factual dispute to require a choice between the differing versions; an issue is material if it could potentially affect the outcome of the matter." Brown Dev. Corp. v. Hemond, 2008 ME 146, ¶ 10, 956 A.2d 104 (citing Univ. of Me. Found, v. Fleet Bank of Me., 2003 ME 20, ¶ 20, 817 A.2d 871).
Defendants " bear the burden of making a prima facie showing of each element of" their defense. Rutland v. Mullen, 2002 ME 98, *1 8, 798 A.2d 1104; see also Martinez-Rodriguez v. Guevara, 597 F.3d 414, 419 (1st Cir. 2010) (" With respect to each issue on which the nonmoving party has the burden of proof at trial, that party must 'present definite, competent evidence to rebut the motion.'") To avoid summary judgment, the non-moving party cannot rely " merely upon conclusory allegations, improbable inferences, and unsupported speculation." Dyer, 2008 ME 106, ¶ 14, 951 A.2d 821 (quoting Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir. 2007)).
2. 1962 Notice
By statute, a landowner may prevent others from acquiring rights through adverse use by posting a notice as follows:
If a person apprehends that a right-of-way or other easement in or over his land may be acquired by custom, use or otherwise by any person, class of persons or the public, he may give public notice of his intention to prevent the acquisition of such easement by causing a copy of such notice to be posted in some conspicuous place upon the premises for 6 successive days . . . . A certificate by an officer qualified to serve civil process that such copy has been served or posted by him as provided, if made upon original notice and recorded with it, within 3 months after the service or posting in the registry of deeds for the county or district in which the land lies, shall be conclusive evidence of such service or posting.
14 M.R.S. § 812 (2013). In this case, there is no " certificate by an officer qualified to serve civil process, " which would be " conclusive evidence" of posting. (Supp. S.M.F. ¶ 20.) Accordingly, defendants must raise a genuine issue of material fact that the 1962 notice was " posted in some conspicuous place upon the premises for 6 successive days" to avoid summary judgment. 14 M.R.S. § 812.
Plaintiffs argue the evidence shows Cedar Beach Road and the Ridge lot are separate parcels. They argue that, because the 1962 notice refers only to the Ridge lot, the notice did not prevent the public from acquiring rights over Cedar Beach Road. Plaintiffs support this argument by stating the Road lot and the Ridge lot, if taken together, would constitute approximately 3 acres. The notice references a 2 3/4 acre lot, which is closer in size to the 2.71 acres of the Ridge lot alone.
Defendants claim the notice applied to all of Ms. Starbranch's property, including Cedar Beach Road. (Abrahamsons & Gables's Opp. S.M.F. ¶ 22.) They argue first that the statute does not require a precise description of the land posted. 14 M.R.S. § 812. The statute requires a person who is concerned about an easement " in or over his land" to post a notice is some conspicuous place. In her affidavit, Ms. Starbranch states she " posted two notices of her intention to prevent the acquisition of a right-of-way or other easement in or over her land in conspicuous places . . . ." The affidavit itself raises a genuine issue of material fact regarding whether the notice applied to Cedar Beach Road.
Defendants also argue that because the Road lot abutted and is contiguous to the remainder of the Sturtevant/Starbranch property, the lots merged. See Fitanides v. Holman, 310 A.2d 65, 67 (Me. 1973). Accordingly, defendants argue the notice applied to all of the Sturtevant/Starbranch land. Plaintiffs filed a motion to strike this legal argument pursuant to Rule 12(f). M.R. Civ. P. 12(f); see also M.R. Civ. P. 56(i)(1). Rule 12(f) applies to pleadings. Further, defendants are not proposing a new cause of action; they are stating the law. Defendants have not waived the ability to argue the law.
Defendants next rely on the proposed expert testimony of Attorney Ronald Bissonnette. Defendant Gables designated real estate attorney Ronald Bissonnette as an expert. After reviewing the documents in this case, he opined: " a prudent attorney skilled and experienced in examining title could not conclude that the 1962 Notice does not encompass, include, or refer to the earth described as the Beach Road owned by Meredith Kells Starbranch and Julia Sturtevant at the time of the 1962 Notice." (Abrahamson Add. S.M.F. ¶ 32; Gables Add. S.M.F. ¶ 31.) He further states that " the Notice could very well pertain to the Beach Road, thereby foreclosing any opportunity to claim an easement. . . ." (Abrahamson Add. S.M.F. ¶ 33; Gables Add. S.M.F. ¶ 32.) Finally, he states, " the  letter leads me to conclude that the 1962 notice was intended to include the Beach Road, although that is a factual determination that I would leave to the factfinder." (Pls.' Am. Reply S.M.F. ¶ ¶ 31-32.)
Under Rule 702 of the Maine Rules of Evidence, if " specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert . . . may testify thereto in the form of an opinion or otherwise." M.R. Evid. 702. " Although the expert need not be able to state his opinion with any special degree of certainty, he must be able to provide some insight beyond the kind of judgment an ordinarily intelligent juror can exert." State v. Woodbum, 559 A.2d 343, 346 (Me. 1989). When applying Rule 702, " the trial court must consider whether the matter is beyond common knowledge so that the untrained juror will not be able to determine it intelligently and whether a person with specialized knowledge can give a helpful opinion." Pelkey v. Canadian Pac. Ltd., 586 A.2d 1248, 1254 (Me. 1991). The issue is whether a " notice [was] posted in some conspicuous place upon the premises for 6 successive days." That matter is not beyond common knowledge.
Finally, defendants rely on the supplemental affidavit of Harry Starbranch, Meredith Starbranch's son. Although Attorney Starbranch does not have personal knowledge of the 1962 posting, he states in his affidavit that his family " consistently and regularly attempted to prevent the general public from using Cedar Beach Road as an access to Merry's Cove or Cedar Beach . . . ." (H. Starbranch Aff. ¶ 6.); Gilbert v. Curtis, 37 Me. 45, 49 (1854). He states further, " the only access to the cove or the beach was along the road." (H. Starbranch Aff. ¶ ¶ 7, 15.) Based on Mr. Starbranch's testimony, a genuine issue of material fact has been raised regarding whether the 1962 posting to apply to Cedar Beach Road.
The entry is
Plaintiffs' Motion for Partial Summary Judgment is DENIED.
Defendants' Motion for Partial Summary Judgment is DENIED.