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,
DAVID D. SMITH and CUNNER LANE, LLC, Defendants.
Plaintiffs-Kelly McDonald, Esq. Defendants-Alan Atkins, Esq
& Aaron Mosher, Esq.
ORDER ON MOTION TO DISMISS
Lanee Walker Justice, Maine Superior Court.
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.
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.
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
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 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.
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.
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.
Maine Rules of Civil ...