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Gravison v. Fisher

Superior Court of Maine, Knox

August 22, 2014

Beverly A. Gravison et al., Plaintiffs
Calvert M. Fisher et al., Defendants
Darlene F. Edwards et al., Third-Party Defendants
Michele E. Lawrence, Fourth-Party Defendant


Jeffrey L. Hjelm, Associate Justice Maine Supreme Judicial Court

Decision and Judgment

Hearing on all remaining claims in this action was held on March 17, 18, 19, 20 and 21, 2014. On those hearing dates, the represented parties were present with or through counsel, and the sole self-represented party, Anne Long, was also present, The trial record consists of the witnesses and exhibits, which include the trial record generated in a related cast, Edwards v. Blackman , KNOSC-RE-11-47 (Me. Super. Ct., Knox Cnty.). The exhibits also include transcribed and recorded testimony of several witnesses, which the court has considered, [1] The parties presented their arguments and developed their motions under M.R.Civ.P. 50(d) through written presentations, which the court has also reviewed.

The magnitude of record in this action is considerable. The court commends and thanks counsel and the parties for their highly effective and cooperative trial preparation, and for their well-organized presentations at trial itself.

Beverly A. Gravison, David B. Gravison, Darlene F. Edwards, Lewis M. Edwards and the Arthur Titcomb Living Trust own parcels of land on or near the southern end of Rockland Harbor in Owls Head in a neighborhood that has now been the subject of significant litigation. The Gravisons jointly own a parcel; the Titcomb Trust owns a parcel; and the Edwardses own several contiguous parcels. In this action, they seek declaratory relief establishing that the other parties in this case do not have rights or privileges to use their land, except for those undisputed rights established under Maine common law for others to use privately owned intertidal area as allowed by McGarvey v. Whittredge , 2011 ME 97, 28 A.3d 620. The respondents to these claims, Calvert M. Fisher, Wendy B. Fisher, David A. Massimi, Theresa M. Massimi, Kenneth C. Roy, Barbara J. Watrous, Nancy Ellen Wolff Bolan, Douglas E. Johnson, Leah Johnson, [2] Anne Long, Jean Perkins, Mary-Lou Moulton, Nina Paul and Michele E. Lawrence, [3] own land in the area near the parcels owned by the Gravisons, the Trust and the Edwardses. Their responsive claims include assertions of both deeded and prescriptive easements to use a way that they claim exists over the latter parties' land; and deeded and prescriptive easements to use the beach associated with that land.[4] The Gravisons have also seek to reform a deed in their chain of title so that their land would now include the intertidal area abutting their parcel that is not encompassed by the record title description, and the Edwardses have asserted a claim to reform a deed in their chain of title to eliminate a reference to the O.H. Tripp survey plan.

The court considers the Gravisons' deed reformation claim first because of the effect it may have on the scope of the prescriptive easement claims of the upland property owners. The court also considers the Edwardses' reformation claim as part of that discussion. The court then examines the upland property owners' claims of prescriptive rights and then of deeded rights.

A. Deed reformation

The Gravisons and Edwardses seek similar reformation relief affecting their record property ownership interests as shown in their deeds. Both claims are predicated on allegations of a mutual mistake between the parties to the deeds where the challenged provisions originated. To prevail on such a claim, the party seeking reformation must prove mental mistake of fact by clear and convincing evidence, " A mutual mistake is one reciprocal and common to both parties, where each alike labors under the misconception in respect to the terms of the written instalment." Baillargeon v. Estate of Dolores A. Daigle , 2010 ME 127, ¶ 16, 8 A.3d 709. A mistake may relate to the description of the property as set out in the deed. Id., ¶ 17. " Clear and convincing" evidence is proof to a high level of probability. Maine Eye Care Associates, P.A. v. Gorman , 2008 ME 36, ¶ 12, 942 A.2d 707.

(1) The Gravisons' claim for deed reformation

The Gravisons claim that their deed description should be reformed so that it includes the intertidal zone. As it stands, their seaward boundary is " the high water mark of Rockport Harbor, " Until 1998, the parcel now owned by the Gravison included the intertidal zone. That year, Robert Morell Coon, Jr., as the personal representative of the Estate of Charles W. Farber, conveyed the land to the Camden-Rockport Land Trust, now known as the Coastal Mountain Land Trust. The property description in the deed of distribution executed by Coon excluded the intertidal area. The Gravisons argue here that this reflected a mutual mistake of fact and that Coon's intent, which they argue is reflective of Farber's testamentary plan, was to convey the intertidal area along with the upland area.

The Gravisons have not established a mutual mistake of fact to a high level of probability. Their central contention is that as part of his estate planning, Farber wanted to maximize the amount of a charitable contribution that would reduce the net amount of tax imposed on his estate. They argue that in order to accomplish this, Farber intended to give as much of the parcel as possible to the Laud Trust, because the more land his estate conveyed, there would be a corresponding increase in the amount of an estate tax exemption. In 1991, Farber had executed a will that would devise lot 63 (now the Gravisons' lot) to the Land Trust. This included a " strip of shoreline, " essentially a panhandle, in front of the land now owned by Jean Perkins. The will does not exclude the intertidal zone that Farber owned. All of Farber's other land in the Cooper's Beach area was devised to Bolan, who is related to him. As the land transfers were effected, Bolan received those land holdings other than what the estate conveyed to the Land Trust. Therefore, Bolan is the record owner of the intertidal zone associated with the Gravisons' property, because the Father estate's deed to the Land Trust did not purport to convey the intertidal area to that entity.

Farber was Bolan's second cousin once removed. There were few relations in the family. Farber himself was never married, and he had no children. Because of these circumstances, Farber was close to Bolan and her family. The evidence demonstrates that Farber wanted Bolan to participate significantly in his legacy through bequests of his land in the Cooper's Beach area. Bolan's own financial resources were limited, and Farber was concerned with her ability to pay property taxes on the land. This was part of the reason why he did not convey all of his land to her. As is noted above, Farber also sought tax relief through the charitable devise. Against this backdrop, the court gives material weight to Bolan's testimony that although he told her he was going to give the Land Trust the upland portion of the land abutting the water, he intended to reserve the intertidal area for her -- just as the deeds of distribution later provided.[5]

That the deed expressly called for a boundary along the high water mark is also evidence of Farber's underlying intent. Coon is an experience transactional attorney and worked in consultation with local counsel. Despite his present testimony about his understanding of Farber's intentions, Coon's willingness to execute a deed of distribution with the description as it stood, even to a person who is not trained in the law, has evidentiary significance. The evidence flowing from the terms of the deed is not dispositive. If it were, then an unambiguous deed could never be reformed. However, in the circumstances of this case, the court views Coon's willingness to execute such a deed as evidence that weakens a subsequent contention that he failed to carry out Farber's wishes.

The court recognizes that for Bolan, the intertidal zone in front of the Gravisons' parcel is landlocked because she cannot gain access to it without passing over land owned by others. This leads to an argument that it would not make sense for Farber to reserve that part of the land for her. However, Farber allowed Bolan and others to use his land as a means to get to the water, and in fact he made a non-binding request to the Land Trust to continue to maintain the upland portion of the lot in a way that benefitted local residents. Under these circumstances, evidence about the configuration of the land as allocated to Boland and the Land Trust is not enough to save the Gravisons' reformation claim.

The Gravisons also point to evidence that, they argue, reflects Botan's understanding that she did not acquire the intertidal zone in front of their property. The court does not place material weight on any such evidence, however, because the instant question is what land was conveyed to as a result of the cumulative effects of the deeds of distribution. She was not a party to the conveyance between the Farber estate and the Land Trust, She simply received the land that was not the subject of that land transfer, regardless of what she understood the conveyance to encompass.

Therefore, irrespective of the intention and expectation of the Land Trust as grantee, the Gravisons have failed to prove by clear and convincing evidence that the conveyance was affected by a mutual mistake that is a necessary predicate to reformation.

(2) The Edwardses' claim for deed reformation

In a conveyance that occurred in 1987, the record description for one of the five contiguous parcels of land owned by the Edwardses was supplemented with a reference to a 1934 plan created by O.H. Tripp Engineering. The lot had been created in a transaction that predated the 1934 plan, and conveyances of the lot did not refer to the plan until 1987. When the lot was created, it was described as one of the lots shown on the Blackinton Plan, which was recorded in 1924 but originally drawn in 1882. Here, the Edwardses seek to reform their deed to this parcel to eliminate that reference to the 1934 plan.

There is no evidence about how that reference came to be included in the record description of the parcel. The Edwardses' expert on title issues hypothesized that someone, perhaps a title attorney, added the reference in an attempt to be helpful and did not intend to make any changes in the nature of the grantee's ownership interests. This, however, does not enjoy sufficient factual support to constitute clear and convincing evidence that the parties to the 1987 conveyance labored under a mutual mistake of ...

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