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Everly v. Fowler

Superior Court of Maine, Kennebec

June 18, 2015

MICHAEL T. EVERLY, Plaintiff,
v.
CLYDE A. FOWLER, JR., Defendant, and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. as nominee for TAYLOR, BEAN & WHITTAKER MORTGAGE CORP., et al. Parties in Interest.

DECISION AND ORDER ON MOTION TO DISMISS

Hon. M. Michaela Murphy Justice, Superior Court

This matter is before the Court on Defendant Clyde A. Fowler's motion to dismiss for failure to join indispensible parties under M.R Civ. P. 12(b)(7). Plaintiff Michael Everly brought an action alleging four counts against Defendant Fowler: Count I: Nuisance; Count II: Declaratory Judgment; Count III: Injunction; and Count IV: Easement by Prescription.

BACKGROUND

The Complaint, taken as true, sets forth the following facts. Plaintiff sues Defendant Fowler for violating Plaintiff's express easement to use a certain Lot # 3 of a subdivision known as Tobey's Belgrade Lakes Development. In this subdivision, there are approximately 133 lots, and 56 lot owners. Some, but not all, of the lots in the subdivision are on the shore of Long Pond.

Plaintiff owns Lot # 81 and Lot # 82, which are back lots and not on the shore. Defendant Fowler owns Lot # 120 and Lot # 3 (to which Plaintiff purportedly has easement rights). Lot # 3 is on the shore of Long Pond, but Lot # 120 is not.

Plaintiff's deed ostensibly shows the existence an easement: "Also conveyed hereby is a right-of-way over Third Street and Lake Shore Drive to Lot #3 -Beach Lot, and the right to the use of said Lot #3 -Beach Lot, for Beach purposes at your own risk." Importantly, it seems that all back lots in the subdivision were sold with this easement. Complaint ¶ 8. In fact, advertising materials for the development indicate that buyers will have easement rights to Lot #3.

Defendant Fowler's deed to Lot # 3 recognizes the existence of Plaintiff's easement. It reads,

Excepting from this conveyance all rights of way and all other rights conveyed by the said Tobey Lumber Company herein prior to this date, whether the deeds given by said Tobey Lumber Company have been recorded in the.. .Registry of Deeds or not and reserving from this conveyance to said Tobey Lumber Company, its successors or assigns, .. .the right to the use, in common with others, of Lot #3(three) as delineated on said Plan for beach purposes.

Id. ¶ 30.

When Defendant Fowler purchased Lot # 3, he allegedly cleared the lot of trees, excavated thirty percent of the lot, excavated pavement that went to the water, installed a fence across the right of way, placed a boulder in the right of way, employed a dog to discourage use of the right of way, played loud music when Lot owners came to use the right of way, and performed other actions that upset the Plaintiff's prior unencumbered use of Lot # 3 for boating and swimming.

Plaintiff sues to enforce his express rights and his prescriptive rights to Lot # 3. Plaintiff specifically prays that Defendant Fowler be enjoined from interfering with Plaintiff's rights to Lot # 3 and to deconstruct any structures that he has erected. In addition, Plaintiff sues for nuisance damages. In the instant motion, Defendant Fowler moves to dismiss for failure to join all other subdivision lot owners as necessary parties (hereinafter referred to as "the 56 Additional Lot Owners").

DISCUSSION

1. Join ...


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