Attorney for: ROBERT COVINO, Attorney for: JANET COVINO,
Attorney for: ALLEN R GOODRICH,
Plaintiff's Attorney: AARON K BALTES.
bench trial was held in this matter on September 15, 16, and
29, 2016 concerning a dispute over the boundary between the
parties' properties located on the Five Islands Road in
Georgetown, Maine. Based on the evidence presented at trial
and the legal arguments made by the parties, the court makes
the following findings of fact, conclusions of law, and
judgment on specific claims.
Claims for Declaratory Judgment
parties have brought claims for Declaratory Judgment asking
the court to declare that they are the record owner of the
property in dispute. Both parties provided expert testimony
from surveyors to support their claims. Ultimately, the court
finds the opinion of both surveyors to be unpersuasive.
court is unable to rely upon the opinion of the
Plaintiffs' expert, John Wood, for several reasons.
Surveyor Wood reaches his conclusion, in large part, by
relying on an unrecorded survey that was completed in 1973 by
Allen Hey. The Hey survey is fatally flawed and unreliable
because it establishes the line in the area in dispute
primarily based on monuments not referenced in any deed.
Wood's opinion offered at trial is also contradicted by
the notes included in the survey he produced, by written
statements made to the Plaintiffs, and by his earlier work on
the westerly boundary of the Covino property.
court is also not persuaded by the testimony of the
Defendant's expert, Bruce Martinson. Surveyor
Martinson's opinion rests on a conclusion that "the
Maine road leading to Five Islands Harbor" referenced in
the 1898 deed describing the parties' common boundary was
relocated between 1898 and 1934. Surveyor Martinson describes
rocks lying between the Five Islands Road and a large ledge
near the Covinos' driveway as "visible remnants of
old road bed." The court rejects this characterization.
There is no evidence that supports a conclusion that the road
was relocated between 1898 and 1934 and the terrain in the
area in question suggests that such a relocation is unlikely.
The court also rejects the Defendant's contention that
the X in the ledge located more than 100 feet south of the
Five Islands Road is "the cross (x) in a rock"
referenced in the deed.
these reasons, both parties have failed to establish by a
preponderance of the evidence that they are the record owner
of the property in dispute. As a result, the court declines
to enter judgment for either party on the competing claims
for declaratory judgment and those counts are dismissed. For
the same reasons, the Plaintiffs have also failed to
establish their claims in Counts II and III of their
complaint by a preponderance of the evidence and the court
declines to enter judgment on those counts and those counts
are also dismissed.
Common Law & Statutory Adverse Possession Claim
claiming title by adverse possession pursuant to the common
law must prove by a preponderance of the evidence that its
possession and use of the property were: (1)
"actual"; (2) "open"; (3)
"visible"; (4) "notorious"; (5)
"hostile"; (6) "under a claim of right";
(7) "continuous"; (8) "exclusive"; and
(9) of a duration exceeding the twenty-year limitations
period. Falvo v. Pejepscot Indus. Park, 1997 ME 66,
P8, 691 A.2d 1240, 1243. "Whether specific acts are
sufficient to establish the elements of adverse possession
can only be resolved in light of the nature of the land, the
uses to which it can be put, its surroundings, and various
other circumstances." Id. (internal quotations
on the evidence presented at trial, the court finds the
Covino driveway was located in its current location in the
1940s. In 1969, the top of the Covino driveway was paved and
tire tracks were paved running most of the way down the hill.
In 2011, the entire driveway was paved by the Co vinos at a
cost of approximately $9000. The improvements made to the
driveway are of the type that would be made by an owner, not
the type of use that would be expected by a guest or
occasional recreational user. Since at least 1966, the
driveway has been the only means of vehicular access to the
Covino property and has been consistently used by the Covinos
to access their property since that time.
Covinos bought out the interests of other family members in
the property in 1966. From that time until the early 1980s,
the Covinos and their daughters would typically come to the
property most weekends from May to October, as well as
spending at least one week at the property during the summer.
Since the early 1980s, the weekend use of the property has
been less, in the range of six to ten weekends most years.
The Covinos also regularly parked at the foot of the driveway
and slightly to the east of the driveway at the bottom of the
times since 1966, the Covina's have maintained the land
in dispute as their own, storing boats on the property;
landscaping the property in question; and conducting their
summer recreational activities in the disputed area just as
they did on the undisputed portions of their property. From
1957 to 1980, a portion of the cabin on the property was
located in the disputed area. From 1989 to 2013, the
Defendant was paid by members of ...