ORDER ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY
MaryGay Kennedy Justice.
the court is Defendants' motion for partial summary
judgment regarding a right-of-way in Durham, Maine.
Babcock, the owner of two abutting properties, died intestate
in 2003. (Def's' S.M.F. ¶¶ 1-2, 15.) After
numerous meetings of his heirs, in 2004 the properties were
conveyed to the current owners, Plaintiff Jerel Babcock and
Defendant Kimberly Allen, by the personal representative (PR)
for the estate, Wilbert Babcock. (Def's' S.M.F.
¶¶ 20, 22.) The deeds included language whereby the
"Allen Property" was burdened by a right-of-way to
benefit the "Babcock Property" "for ingress
and egress and utility service... on or beside an existing
unpaved roadway." (Def's' S.M.F. ¶ 27.)
December 8, 2015 (amended on December 16, 2015), Plaintiffs
filed a complaint asking the court, inter alia, to
determine the location and width of the right-of-way. (Count
I; Pl.'s Compl. 5.) On January 25, 2016, Defendants
answered and filed counterclaims. On February 2, 2016,
Plaintiffs answered Defendants' counterclaims. On
February 10, 2017, Defendants filed a motion for partial
summary judgment on Count I of Plaintiffs' complaint.
Defendants assert there is no genuine issue over the width of
the right-of-way granted to Plaintiffs by the deeds.
(Def's' Mot. Summ. J. 15.) Plaintiffs filed their
opposition on March 13, 2017, and Defendants replied on March
Standard of review
judgment is appropriate, if based on the parties'
statement of material facts and the cited record, no genuine
issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Beal v. Allstate
Ins. Co., 2010 ME 20, ¶ 11, 989 A.2d 733; Dyer
v. Dep't of Transport, 2008 ME 106, ¶ 14, 951
A.2d 821. "[A] fact is material if it could potentially
affect the outcome of the case." Reliance Nat'l
Indem. v. Knowles Indus. Sews., 2005 ME 29, ¶ 7,
868 A.2d 220. A genuine issue of material fact exists where
the fact finder must choose between competing versions of the
truth. Id. (citing Univ. of Me. Found, v. Fleet
Bank of Me., 2003 ME 20, ¶ 20, 817 A.2d 871). When
deciding a motion for summary judgment, the court reviews the
materials in the light most favorable to the non-moving
party. Dyer, 2008 ME 106, ¶ 14, 951 A.2d 821.
The party opposing a summary judgment must point to specific
facts showing that a factual dispute does exist in order to
avoid a summary judgment. Watt v. Unifirst Corp.,
2009 ME 47, ¶ 21, 969 A.2d 897; Reliance Nat'l
Indem., 2005 ME 29, ¶ 9, 868 A.2d 220. The evidence
offered to establish a dispute as to a material fact
submitted in opposition to a motion for summary judgment,
"need not be persuasive at that stage, but the evidence
must be sufficient to allow a fact-finder to make a factual
determination without speculating." Estate of Smith
v. Cumberland Cnty., 2013 ME 13, ¶ 19, 60 A.3d 759.
issue for which Defendants seek judgment is the width of the
right-of-way burdening the Allen property. Defendants assert
that the deeds granted an approximately 10-foot-wide
right-of-way, similar in width to the referenced
"existing unpaved roadway." (Def's' Mot.
Summ. J. 15.) Plaintiffs assert the right-of-way is at least
50 feet wide. (Pl.'s Opp. 2.) At the time of the
conveyance and since, the Durham Back Lot Development
Ordinance required the lots of owners lacking frontage on a
Town accepted road to be legally accessible by a 50-foot wide
right-of-way deeded to the owners in order for them to
develop the lots. (Pl.'s Opp. S.M.F. ¶
The Babcock property is landlocked. (Pl.'s S.M.F. ¶
3.) Hence, without a 50-foot wide easement, Plaintiffs'
cannot build. Plaintiffs argue that the grant of the right to
install utility service indicates their lot can be developed,
and that the right-of-way is at least 50 feet wide to satisfy
the Ordinance. (Pl.'s Opp. ¶ 3.)
construction of language creating an easement is a question
of law. Sleeper v. Loring, 2013 ME 112, ¶ 10,
83 A.3d 769. The cardinal rule for deed interpretation is the
expressed intention of the parties, gathered from all parts
of the instrument, giving each word its due force, read in
the light of existing conditions and circumstances, and
looking at the instrument as a whole. Id. ¶ 12;
Jordan v. Shea, 2002 ME 36, ¶ 14, 791 A.2d 116;
Fine Line, Inc. v. Blake, 677 A.2d 1061, 1063 (Me.
1996). When interpreting a deed whose terms are not
ambiguous, there is no speculation about the grantors'
actual or probable objectives, and the court relies solely
upon the language found in the deed. Sleeper, 2013
ME 112, ¶ 16, 83 A.3d 769.
the deeds expressly state the permissible uses for the
right-of-way as "ingress and egress and utility
service" (Def's' S.M.F. ¶ 27.) However, the
width is described only as "on or beside an existing
unpaved roadway." (Def's' S.M.F. ¶ 27.)
Defendants assert this language unambiguously states that the
parties intended for the right-of-way to be not wider than
the referenced roadway. (Def's' Mot. Summ. J. 7.)
Plaintiffs do not dispute the deeds are unambiguous, or the
width of the referenced roadway, but assert that the words
"on or beside" were not intended to limit the
right-of-way to the 10-foot width of the referenced roadway.
(Pl.'s Opp. 2-3.)
the materials in a light most favorable to Plaintiffs, the
court does not agree that the plain language of the deeds
("on or beside an existing unpaved roadway") limits
Plaintiffs' right-of-way to the 10-foot width of the
referenced roadway, as asserted by Defendants. The words
"on or beside" demonstrate the intent of the
grantor to grant not only the width of the referenced
roadway, but some amount "beside" it as well. There
remains a genuine issue of material fact as to the exact
width of the right-of-way that was intended by the parties to
the deed. Therefore, a summary judgment is denied. See
Saltonstall v. Gumming, 538 A.2d 289, 290-291 (Me.
motion for partial summary judgment on Count I of