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Doukas v. Sea Otter, LLC

Superior Court of Maine, Cumberland

March 31, 2015

ANDREW B. DOUKAS WILLIAM B.DOUKAS, Plaintiffs
v.
SEA OTTER, LLC Defendant

DECISION AND ORDER

Joyce A. Wheeler Justice, Superior Court

This matter came before the court for a bench trial on plaintiffs' claim that they are entitled to a prescriptive easement over defendant's property. The parties stipulated to the extinguishment of one easement over a passageway (Count 1) and the granting of an easement for plaintiffs' stairs onto defendant's property (Count 3). This leaves for the court's resolution the claim of an easement from a passageway from the back of plaintiffs' buildings across defendant's property to Vernon Court and State Street.

Plaintiffs bear the burden of proving that they have a prescriptive easement. The plaintiffs must prove by a preponderance of the evidence sufficient facts to show the following elements: (1) continuous use for at least twenty years; (2) under a claim of right adverse to the owner; (3) with the owner's knowledge and acquiescence, or with use so open, notorious visible, and uninterrupted that knowledge and acquiescence will be presumed." Androkites v. White, 10 A.3d at 681, ¶14. The facts are not in serious dispute, but the parties dispute whether the facts establish the elements of a prescriptive easement.

(1) Continuous Use and Occupancy

"Continuous possession and use requires only the kind and degree of occupancy that an average owner would make of the property." Stickney v. City of Saco, 2001 ME 69, ¶ 18, 770 A.2d 592, 601. "[T]he twenty-year prescriptive period may be established by the tacking together of periods of use, but only by those with who the claimant is in privity." Almeder v. Town of Kennebunkport, 2014 ME 12, . "Continuous use "occur[s] without interruption. It does not necessarily require daily, weekly, or even monthly use, but instead requires only the kind and degree of occupancy (i.e., use and enjoyment) that an average owner would make of the property. The prescriptive period includes any twenty-year span in which adversity and acquiescence have been continuously maintained. Almeder, 2014 ME 139, ¶ 22 (citations and quotation marks omitted).

The court makes the following findings of fact by a preponderance of the evidence with regard to continuous use and occupancy. Plaintiffs own abutting parcels of land with improvements in downtown Portland, facing Congress Street between State Street and Vernon Place. Plaintiffs each live on the upper floors of their respective buildings. Restaurants occupy the first floors. William Doukas also has residential tenants on the upper floors. Defendant owns a parcel of land at 201 State Street with a six unit building north of plaintiffs' properties, with frontage on both State Street and Vernon Place. Plaintiffs and defendant's property share a lot line. Plaintiffs claim they have obtained over the last 30 years prescription easements along the southerly boundary of defendant's property to gain access from the rear of their lots to both State Street and Vernon Place.

William Doukas's building is located at 675 Congress Street and consists of a first floor restaurant, with four apartments on the second and third floors. The property faces both Congress and State Streets. He has lived on the third floor since 1989. He managed his mother's restaurant beginning in 1982 and then purchased in 1986 both the building and the restaurant business from his mother. William closed the restaurant in 1992 but has leased the restaurant to others over the years.

Since 1982, the restaurant operating in William's building has utilized a strip of land belonging to the defendant and its predecessors in title for deliveries and service access from the kitchen door in the rear of the restaurant to Vernon Place. The back area runs about 50 feet across defendant's property towards Vernon Place, and typically deliveries have used a bit more than the width of a large truck, approximately 16 feet, from the rear wall of the plaintiffs' buildings, to deliver supplies or provide services. The area has also been used for access and egress by owners, managers and employees of the restaurants, as well as for pedestrian access by residential tenants in William's building. According to William, he and his tenants since 1982 have utilized the area along the southern boundary line of defendant's property to gain access to State Street. Others unrelated to plaintiffs have also used this passageway as a short cut between Congress Street and State Street.

In 1989, William had a stairway erected, partially located on defendant's land (resolved by the parties' stipulation as to Count III), for such access, and later did landscaping at the edge of defendant's lot. From 1982 until 2012, tenants on a weekly basis deposited their garbage, trash and recyclables into trash bins. The tenants walk across 201 State Street to get to the trash bins on Vernon Place. With each of his tenants, William explained to the tenants where deliveries came in, and where the trash bins were. Each tenant used the rear door for deliveries of supplies from Vernon Place across 201 State Street and all used the trash bins. Suppliers such as plumbers and maintenance similarly accessed the building from the rear door. Although there are other entry doors, they require access from Congress Street where there is little or no parking for delivery trucks.

Andrew Doukas has lived on the second and third floors of 673 Congress Street since 1983, and has had his law office in the building since 1984. He has used defendant's property for access to State Street by foot since 1982, and for access to Vernon Place by both vehicle and foot since 1982. His mother purchased the property in 1981 and transferred the property to him in 1986. Andrew started using defendant's abutting lot over a period of 11 weeks in the early 80's while he gutted his property. He placed temporary dumpsters on defendant's property. Subsequent deliveries of lumber, plywood, siding, insulation, roofing, sheetrock, appliances and other supplies were delivered across defendant's lot, most commonly from vehicles entering from Vernon Place and backing up across defendant' lot to the rear of 673 Congress. Demolition and construction in the early 80's lasted over a year.

Until the defendant blocked access to her lot in November 2012, Andrew used defendant's lot to load and unload heavy equipment and/or groceries from his personal car and pick up truck, to take deliveries of bulk material (gravel, dirt, sand, bricks, wood), appliances and fuel deliveries and to do vehicle maintenance. He also used the lot for access by foot to both Vernon Place and State Street.

Plaintiff s summed up their argument, "the plaintiffs were using the most southerly portion of the defendant's land for such purposes as they needed to gain access to their properties, without deferral to how or what defendant used its property for." Plt.'s Brief. They rest on a showing of a "sufficiently regular, open, notorious and adverse use, which will allow the court to presume knowledge and acquiescence." Id. At most, plaintiffs established that the use of the defendant's property was a daily or weekly occurrence for short periods of times by plaintiffs, their tenants and their vendors.

(2) Claim of Right Adverse to Owner

"Using the property "under a claim of right" means that the claimant "must be in possession as the owner, intending to claim the last as [their] own, and may not be in recognition of or subordination to the record title owner." Jordan v. Shea, 2002 ME 36, ¶ 23, 791 A.2d 116, 122. "Adversity is established by evidence that the claimant has used the property (1) in the absence of the owner's express or implied permission, and (2) as the owner would use it, disregarding [the owner's] claims entirely, using it as though he own[s] the property himself (3) such that the use provided the owner[] with adequate notice that the owner's property rights are in jeopardy." Almeder, 2014 ME 139, ¶ 20 (quoting Lyons v. Baptist Sch. of ...


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