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Brooks v. Annis

Superior Court of Maine, Cumberland

May 18, 2016

JUSTINE CARVER BROOKS, et al., Plaintiffs
v.
WENDY ANNIS, et al., Defendants

          ANDREW SPARKS ESQ DRUMMOND & DRUMMOND LLP

          JONATHAN GOLDBERG ESQ MITTELASEN LLC

          DAVID GOLDMAN ESQ NORMAN HANSON & DETROY LLC

          SIGMUND SCHUTZ ESQ COLLEEN TUCKER ESQ PRETI FLAHERTY BELIZEAU PECHIOS LLP

          ORDER

          Thomas D. Warren Justice, Superior Court

         A non-jury trial in the above case, which originated in the Rumford District Court, was held on May 2, 2016. Plaintiffs Justine Carver Brooks and Travis Brooks contend that the court should find the existence of public and private prescriptive easements allowing them to travel and install utilities over the old Grover Hill Road in Bethel.[1] After the trial the parties filed post-trial briefs.

         The court finds as follows:

         The respective properties involved in this case are illustrated on the annotated tax map admitted as Exhibit 1, a copy of which is annexed to this order. The portion of the Old Grover Hill Road in dispute in this case ran south from the West Bethel Road (now also Route 2). The northern portion of that road (now called the Annis Road) remains a paved public road, but that portion terminates on property owned by defendants Wendy and Scott Annis. The remainder of the old Grover Road - which was discontinued as a public road more than a century ago - runs south through a portion of the Annis property. It then runs between property owned by defendant Maureen Swaine and defendant Chadbourne Tree Farms and continues to run between the Swaine property and the property now owned by the Brooks plaintiffs. This portion of the old Grover Hill roadbed is unpaved and in poor shape.

         There does not appear to be any dispute that, where the old Grover Hill roadbed runs between the Swaine and Chadbourne land, Swaine and Chadbourne own approximately to the centerline of the old roadbed. In order to access their land from the West Bethel Road, therefore, the Brooks plaintiffs would have to travel down the Annis Road to where the pavement ends and then travel over a portion of the old roadbed owned by the Annises and a portion of the old roadbed owned 1/2 by Chadbourne and 1/2 by Swaine.

         The Brooks plaintiffs purchased their lot (described as "Our Lot" in Exhibit 1) from Keith Durgin in August 2014. They were aware at the time they purchased that there was no deeded access over the old Grover Hill roadbed to the property.[2] They are seeking the right to travel over the old Grover Hill roadbed from the end of the Annis Road to their property and the right to install utilities along that roadbed based on the alleged existence of both a private prescriptive easement and a public prescriptive easement.

         A party claiming a prescriptive easement has the burden at trial of proving by a preponderance of the evidence each of 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 a use so open, notorious, visible, and uninterrupted that knowledge and acquiescence will be presumed. Androkites v. White, 2010 ME 133 ¶ 14, 10 A.3d 677. When the first and third elements are proven, a presumption will arise that the use was under a claim of right adverse to the owner. 2010 ME 133 ¶ 17.

         The Brooks plaintiffs' claim of a private prescriptive easement depends on whether Keith Durgin's use of the old Grover Hill roadbed established the necessary elements listed above. The testimony at trial established that Durgin purchased the lot now owned by the Brooks plaintiffs. which shall be referred to as the Brooks lot in this order, from the L.M Davis Lumber Company in 1992, although by agreement with L.M. Davis he may have begun logging the lot sometime before his formal purchase. In order to get access to the lot in order to cut down trees on the lot, Durgin made several improvements to the old Grover Hill roadbed (bringing in gravel and repairing a culvert) between the south end of the Annis Road and the corner of his property. During the first few years he owned the Brooks lot, his trucks travelled frequently, sometimes daily, along the old Grover Hill roadbed in order to access the Brooks lot for logging purposes. This activity was open and notorious within the meaning of Androkites and specifically was known to Oscar Annis, who then owned the property now owned by Scott and Weedy Annis.

         Durgin discussed his use of the old Grover Hill roadbed to access the Brooks lot with Oscar Annis, and Oscar Annis at least did not object.[3] Considering all of the testimony at the trial, the court finds that Durgin travelled fairly frequently over the old Grover Hill roadbed during the early 1990s and thereafter continued to access the lot on a more occasional basis except during winter months until at least 2000. Durgin's initial logging took place during the first one or two winters that he owned the lot. However, once that logging had been completed, the evidence established that the Old Grover Hill roadbed was not plowed and was generally impassable except by snowmobile when there was snow on the ground.

         There was a dispute as to whether Durgin continued to access the Brooks lot from 2000 to around 2005 for some tree-cutting and to store gravel on the lot. However, even accepting Durgin's testimony that he stored gravel on the lot and did ...


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