FREDERICK B. LINCOLN et al.
HAROLD BURBANK II et al.
Briefs: May 26, 2016
Burbank II, Esq., appellant pro se
Burch, Esq., Weiss & Burch, PA, Bath, for appellees
Elizabeth Smith et al.
J. Shub, Esq., Preti Flaherty Beliveau & Pachios, LLP,
Portland, for appellees Frederick B. Lincoln etal.
SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and
Harold Burbank II appeals from a judgment of the Superior
Court (Penobscot County, A. Murray, J.)  finding
in favor of the owners of neighboring properties on their
claims for a prescriptive easement, declaratory judgment,
conversion, and punitive damages; and  finding in favor of
co-owners of property with Burbank on their cross-claim for
partition by sale of that property.
Burbank is the owner of what the court found to be a 1/18
interest in a coastal property in Northport (the
"Burbank property"]. The Burbank property is owned
in joint tenancy by fourteen owners, all of whom were
defendants at trial. At the trial, Harold Burbank II acted as
counsel for four defendants: himself, his father
Harold Burbank I, his sister Lori Darnell, and his brother
David Burbank (collectively "the Burbank
The plaintiffs-Frederick B. Lincoln, Norman Moscow, Eleanor
Moscow, Joan R. Kosel, Bruce C. Gerrity, John Fleming, and
Suellyn Fleming (collectively "the Neighbors"]-are
the owners of a cluster of properties neighboring the Burbank
property, who successfully asserted that they had acquired an
easement over a portion of the Burbank property.
The other ten owners of the Burbank property-Elizabeth Smith
as Trustee of The Russell Smith Estate Reduction Trust,
Sandra Tozier, Suzette Cyr, Christopher Smith, Nathanial
Jennings, Susannah Corona, Luther Jennings, Rebeccah
Jennings, Pamela Sullivan, and Sonia Burbank (collectively
"the Co-owners"], were also named as defendants.
The Co-owners attempted to settle with the Neighbors and
later cross-claimed against the Burbank Defendants for
partition by sale of the Burbank property.
Harold Burbank II is the only party appealing. He argues that
• the evidence was insufficient to support the trial
court's finding of a prescriptive easement;
• the trial court erred and abused its discretion by
granting partition by sale of the Burbank property;
• the trial court erred as a matter of law by finding
Burbank liable for conversion;
• the trial court should have bifurcated the trials on
the Neighbors' and the Co-owners' claims;
• the Neighbors and the Co-owners lacked standing to
bring their respective actions;
• the trial court's grant of a prescriptive easement
constitutes a taking in violation of the Fifth Amendment to
the United States Constitution;
• the trial court erred by declining to reopen the
record and permit the testimony of an additional witness who,
although present at trial, was not called to testify; and
• the trial court failed to address several affirmative
The trial court issued a thorough, carefully considered
judgment, supported by extensive findings and conclusions and
accurate legal analysis. Because the court did not err when
it granted a prescriptive easement or ordered partition by
sale of the property, and because the remainder of
Burbank's arguments are either improperly raised,
meritless, or both, we affirm the judgment and, on separate
motions of the Neighbors and the Co-owners, we order
sanctions against Burbank pursuant to M.R. App. P. 13(f).
The court found the following facts by a preponderance of the
evidence, and these facts are supported by the trial record.
See Androkites v. White, 2010 ME 133, ¶¶
12, 14, 10 A.3d 677.
The Burbank property in Northport has been owned by various
members of the Burbank family since 1940. In 1993, Phyllis
Burbank gifted the Burbank property to her nineteen
then-living children and grandchildren, including Harold
Burbank II, as joint tenants. The gift was made by warranty
deed, and the property was transferred in fee simple with no
reservation of any right or interest in the property. At the
same time, Phyllis Burbank executed a will leaving certain
stock to a trust to be used for maintenance of the property.
Phyllis Burbank died in 1996.
The Burbank property is on Penobscot Bay, and until 2012
there were two sets of stairs on the property leading down an
embankment to a beach. One set of stairs was used by Phyllis
Burbank and her family. The other set of stairs, which we
will refer to as "the Neighbors' stairs, " led
to a path running over a portion of the Burbank property and
onto the abutting property. The Neighbors used the path and
the Neighbors' stairs to access the beach from their
cottages, which are located in a group abutting or near to
the Burbank property. The two sets of stairs led to opposite
sides of a largely impassable gully that separates the
Burbank property from the Neighbors' properties.
The path and the Neighbors' stairs had been in place
since at least the early 1930s and had been used continuously by
the Neighbors and their predecessors to access the beach
since that time. The Neighbors and their predecessors
maintained the Neighbors' stairs. A person using the path
is clearly visible to people at the cottage located on the
Burbank property. No owner of the Burbank property ever gave
permission for the Neighbors to use the path and stairs, nor
did any owner prohibit use of the path and stairs until the
1990s. At least twenty years of continuous use by each
Neighbor had occurred before any signs were posted indicating
a lack of acquiescence to the Neighbors' use of the path
[¶11] Beginning in the late 1990s, some of the owners of
the Burbank property began posting no trespassing signs on
the path; other owners of the Burbank property opposed
posting the signs and removed them.
In April 2012, Harold Burbank II discovered that vegetation
had been removed from the Burbank property and contacted the
Maine Department of Environmental Protection [DEP] and the
Northport Code Enforcement Officer to ask whether the cutting
constituted a violation of shoreland zoning regulations.
Burbank also inquired whether it was a violation to have two
sets of stairs leading to the beach on the property. Burbank
persistently requested that the Town issue a notice of
violation requiring that one of the sets of stairs be
removed. The Town eventually issued a notice of violation in
July 2012. The notice of violation required that one set of
stairs be removed by August 31, 2012. The Code Enforcement
Officer testified that this was the first time in his twelve
years as a code enforcement officer that a landowner had
self-reported a violation.
Burbank did not communicate with the other owners of the
Burbank property or the Neighbors prior to seeking and
securing the issuance of the notice of violation. When they
learned of the notice of violation, at least one other owner
of the Burbank property told Burbank not to remove the
Burbank did not inform the DEP or the Town that the stairs
had been in place prior to the enactment of the shoreland
zoning regulations, or that the Neighbors had a potential
claim to the stairs. When the DEP learned these facts, it
informed Burbank that the stairs might constitute a legal
nonconforming structure and requested that removal of the
stairs be put on hold. The DEP sent a letter to the Town and
a copy of the letter to Burbank suggesting that the stairs
predated the 1992 enactment of Northport's shoreland
zoning regulations and requesting that enforcement be put on
hold. Burbank responded by suggesting that he would sue the
Town if it did not continue enforcement efforts. The Town did
not withdraw the notice of violation, but it did not take any
In September 2012, Burbank, acting on his own, tore out and
removed the stairs. Burbank did not notify the Neighbors or
the other owners of the Burbank property prior to removing
the stairs. The court specifically found that Burbank
"used the Town to advance his own agenda to remove the
The Burbank property is currently owned by fourteen people.
The court found that many of the owners "can no longer
tolerate owning the property with certain of the other
co-owners." There had been ongoing conflicts among the
owners since Phyllis Burbank's death, and family members
had discussed partitioning the property since 2005 or 2006.
The trial court found that there were a number of reasons the
Co-owners were seeking partition, and that the reasons
"centered on perceptions that Harold Burbank II wanted
to control the property, his lack of meaningful
communications with others, his lack of respect for the views
of the other owners of the property, and his unilateral
action" in obtaining the notice of violation and tearing
out the Neighbors' stairs. The court found that there is
a clear inability to communicate among the owners of the
Burbank property and ...