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Fissmer v. Smith

Superior Court of Maine, Cumberland

March 3, 2017

LESLIE FISSMER, Individually and as Trustee of the LESLIE S. FISSMER REVOCABLE TRUST, PATRICIA and REED GRAMSE, KAREN and WILLIAM BURKE, and ROBERT SIEGEL, Plaintiffs,
v.
DAVID D. SMITH and CUNNER LANE, LLC, Defendants.

          Plaintiffs-Kelly McDonald, Esq. Defendants-Alan Atkins, Esq & Aaron Mosher, Esq.

          ORDER ON MOTION TO DISMISS

          Hon. Lanee Walker Justice, Maine Superior Court.

         I. Background

         This case involves a dispute over the location of a deeded right of way -Cunner Lane- and the boundary lines of neighboring properties in Cape Elizabeth, Maine. Plaintiffs Leslie Fissmer, individually and as trustee of the Leslie S. Fissmer Revocable Trust; Patricia and Reed Gramse; Karen and William Burke; and Robert Siegel bring this action against defendants David Smith and Cunner Lane, LLC seeking a series of declaratory judgments and other remedies that would preserve the location of Cunner Lane as it currently exists.

         a. Procedural History

         On August, 19, 2016, plaintiff Fissmer filed a verified complaint and motion for a temporary restraining order ("TRO"). The court granted the motion and issued a TRO effective until the final resolution of this case. Defendants did not file a response to the complaint, but did move to modify the TRO. On September 9, 2016, the court granted the modification to allow installation of a water line on defendants' properties. Prior to the modification, defendant Smith, in the presence of his counsel, removed a wooden post on the subject property in violation of the TRO. In response, plaintiff sought contempt proceedings for remedial sanctions. On October 4, 2016, the court found defendants in contempt and issued sanctions.

         On November 7, 2016, Plaintiff Fissmer filed an amended complaint, which added as plaintiffs the owners of three other properties that are accessible only via Cunner Lane. Defendants filed a motion to dismiss pursuant to M.R. Civ. P. 12(b)(7) arguing plaintiffs failed to join all necessary parties, including the fee owner of the right of way and the owners of other lots benefitted by the right of way. Plaintiffs object to the motion arguing defendants failed to demonstrate that there are third parties with an interest in the litigation; to the extent that any third parties do exist, they are not necessary parties; and if third parties are necessary, the proper remedy is joinder, not dismissal of the action.

         b. Facts

         Plaintiff Fissmer owns real property situated at 20 Cunner Lane in the Town of Cape Elizabeth, Maine. Plaintiffs Patricia and Reed Gramse own the property located at 12 Cunner Lane. Plaintiffs Karen and William Burke and Robert Siegel own lots on Brooke Road, which are only accessible by way of Cunner Lane. Defendants own the properties located at 19 and 21 Cunner Lane. Parties' properties are all benefitted by a deeded right of way over Cunner Lane. Defendants assert the Harry E. Baker Company owns in fee the land burdened by the Cunner Lane easement.

         Cunner Lane has been in its present location since the 1920s. Defendants acquired their property in 1998 and shortly thereafter defendant Smith paid to have Cunner Lane paved. This dispute arose when defendants hired a company to survey their properties. The survey found the current physical location of Cunner Lane is not the location of the deeded easement. Defendants argue the survey proves the paved road is on their properties, while the deeded easement runs across property plaintiff Fissmer asserts is part of her lot.

         Defendants wish to relocate a stone wall built on their properties to the boundary between their lots and the deeded easement as shown on the survey map. The wall would block the paved lane and access to plaintiffs' properties. Shortly before the initial complaint was filed, defendant Smith began drilling holes in the road and installing cones that blocked Cunner Lane. He also represented to plaintiff Fissmer that his contractors were going to remove stones, vegetation, and earth from land she believes to be her lawn, but the survey shows as part of defendants' properties.

         For the reasons discussed below, the motion to dismiss is denied in part. The owners/possessors of any servient estates or properties abutting Cunner Lane and any unnamed lot owners/possessors with a right of way over Cunner Lane must be joined in this action as necessary parties.

         II. Discussion

         a. Maine Rules of Civil ...


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