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Lincoln v. Burbank

Supreme Court of Maine

August 30, 2016

FREDERICK B. LINCOLN et al.
v.
HAROLD BURBANK II et al.

          On Briefs: May 26, 2016

          Harold Burbank II, Esq., appellant pro se

          Jenny Burch, Esq., Weiss & Burch, PA, Bath, for appellees Elizabeth Smith et al.

          Adam J. Shub, Esq., Preti Flaherty Beliveau & Pachios, LLP, Portland, for appellees Frederick B. Lincoln etal.

          Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          ALEXANDER, J.

         [¶1] Harold Burbank II appeals from a judgment of the Superior Court (Penobscot County, A. Murray, J.) [1] finding in favor of the owners of neighboring properties on their claims for a prescriptive easement, declaratory judgment, conversion, and punitive damages;[1] and [2] finding in favor of co-owners of property with Burbank on their cross-claim for partition by sale of that property.[2]

         [¶2] 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[3] for four defendants: himself, his father Harold Burbank I, his sister Lori Darnell, and his brother David Burbank (collectively "the Burbank Defendants"].

         [¶3] 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.

         [¶4] 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.

         [¶5] Harold Burbank II is the only party appealing.[4] 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 defenses.

         [¶6] 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).

         I. CASE HISTORY

         [¶7] 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.

         [¶8] 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.[5] 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.

         [¶9] 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.

         [¶10] The path and the Neighbors' stairs had been in place since at least the early 1930s[6] 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 and stairs.[7]

          [¶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.

         [¶12] 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.

         [¶13] 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 Neighbors' stairs.

         [¶14] 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 enforcement action.

         [¶15] 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 [Neighbors'] stairs."

         [¶16] 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 ...


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