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Wairren-White v. Sullivan

Superior Court of Maine, Cumberland

August 17, 2017

NATHANIEL WARREN-WHITE, et al., Plaintiffs/Counterclaim Defendants,
MARTINA SULLIVAN, Defendants/Counterclaim Plaintiff

          Plaintiffs-Michael Vaillancourt, Esq. Defendant-Andrew Sparks, Esq. and Bruce McGlauflin, Esq.


          Lance E. Walker, Justice Maine Superior Court.

         Hearing was held over the course of two days on the complaint and counterclaim. The parties were present with counsel. Counsel completed post-trial briefing by April 1, 2017.

         I. FACTS

         The plaintiffs, Nathaniel and Elizabeth Warren-White, and the defendant, Martina Sullivan, own abutting parcels of property in Freeport. This action centers on the location of a common boundary line that delineates the southern side of the Warren-White's property and the northern side of Sullivan's property; the parties each claim ownership to an area of land that lies between the boundary lines that they separately promote, referred to as the "abandoned road". The parties agree that under Maine law, each party owns to the centerline of the abandoned road, unless Plaintiff can establish title acquired to some part or the entire southerly portion of that land through adverse possession[1]. Accordingly, the parties seek a declaratory judgment establishing the location of that boundary line. Additionally, the Warren-Whites claim that they have acquired title to the disputed area of land through adverse possession. For the reasons set out below, the court concludes that the Warren-Whites have established ownership by adverse possession. As a result of the rights the Warren-Whites have acquired in this way, the court further concludes that proof of adverse possession gives the Warren-Whites title to the property.

         Sullivan acquired title to property known as 104 South Freeport Road, in Freeport, Maine on or about June 5, 1998. The Warren-Whites acquired title to three parcels of real property known as 17 Church Road in Freeport, Maine on or about October 21, 2005. Prior to purchasing their property, the Plaintiffs observed that the boundary line shared with the Sullivan property extended along a line between two large maple trees, and along an old stockade fence that ran a partial distance on the same line between the two trees. That line is also notable by reference to wire and wooden fence remnants and lilac bushes. This was well supported by the weight of the most credible testimony of Plaintiffs, Barker, and Flynn. This line is consistent with the southerly boundary line of the "Abandoned Road" as depicted on the Parker survey or what the parties have referred to as the "Shared Boundary Line". In October 2005, lawn, flower gardens, landscaping trees, apple trees and other plantings, beds, a brush pile and the stockade fence were sited along the Warren-White side of the Shared Boundary Line. The driveway accessing the Plaintiffs' property, which was built in the late 1970s, ran along their side of the Shared Boundary Line, all of which formed the basis for the Plaintiffs to reasonably believe that was, in fact, their boundary line.

         By contrast, Ms. Sullivan had not formed any belief to the contrary. In fact, the evidence at trial conclusively demonstrated that she and her immediate predecessor in interest also believed that her northerly property line was the Shared Boundary Line.

         II. ANALYSIS

         A. Adverse Possession

         In order to establish ownership of property on the basis of a claim of adverse possession, the claimants must prove that their use of her land was, over a period of at least twenty years, actual, open, visible, notorious, hostile, under a claim of right, continuous and exclusive. Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME 111, P6, 733 A.2d, 984, 989. Proof of these elements is by a preponderance of the evidence. Id., P3, 733 A.2d at 988.

         The prior owner of the Warren-White property, Inga-Lil Kunkle built the residence and the driveway in 1977 and 1978. The lawn was installed on the property soon after the home was constructed. Kunkle and her agents openly used and maintained the property up to the Shared Boundary Line from the late 1970s until 2005 by mowing and raking the lawn, trimming and maintaining the trees and other plantings, maintaining a brush pile, using the driveway to access the property and plowing the driveway. Sullivan's predecessor in title, Sharon and Jeff Flynn gardened up to, but did not exercise any dominion beyond the old stockade fence and other fence remnants situated along the Shared Boundary Line. Flynn would occasionally seek permission from Kunkle to use the southerly side of the stockade fence for gardening. Sullivan did not use or maintain any of the property within the Abandoned Road with the exception of the small section of property to the south of the easterly end of the old stockade fence.

         Through the entirety of Plaintiffs' ownership of their property until the present dispute arose in 2015, Plaintiffs' contractors and tenants all used and maintained the property up to the Shared Boundary Line. The overwhelming credible testimony supporting this conclusion was supplied by Plaintiffs, Curtis, Montgomery and Joyce. Although Plaintiffs spent several years sailing around the world, they spend considerable time back at their Freeport residence during each of those years. Moreover, the evidence supports that the historical dominion and control of the disputed property continued to be exercised during that time. The fortuity that recent photographs depict overgrowth in the abandoned road area is of no moment to the analysis. The evidence demonstrates that Plaintiffs stopped tending to the disputed area when tensions arose between them and Sullivan. Moreover, Sullivan's own testimony offered to counter the overwhelming testimony supporting a finding of adverse possession was not convincing, to say the very least of what might be said of it. She argues that Plaintiffs never actually used any portion of the abandoned road, which is a claim that is substantially undermined by her testimony that she could not see over the growth to make any such observations. The Plaintiffs' driveway is in the abandoned road area, which Sullivan surely must have observed in use by Plaintiffs.

         These findings demonstrate that the Warren-Whites (and their predecessors) occupancy of the disputed area was actual: they controlled the land in fact, and they did so in a way that has been consistent with the nature and potential use of the property. See Striefel, 1999 ME 111, P9, 733 A.2d at 989. This is revealed in their ongoing use of the property and their dominion over the property. The overt and actual use of the property by the Plaintiffs -- and the complete absence of any comparable conduct by Defendant or her predecessors in interest result-- in the conclusion that the Warren-Whites have actually possessed the property in a way that is sufficient to establish this element of their claim for adverse possession.

         The Warren-Whites, and predecessors in interest, used the property in an open, visible and notorious way. They did not attempt to conceal their use of the properly, and their use was sufficient to provide any other person with notice that a claim of ownership based on any record title was in jeopardy. See Striefel,1999 ME 111, P11, 733 A.2d at 991. Additionally, the Plaintiffs' use of the property was hostile because they did not seek or obtain permission of any other person to use and occupy the land. See id., P13, 733 A.2d at 991. The testimony that Mrs. White sought permission from Sullivan to trim some vines in 2011 does nothing to undermine the court's conclusion. Plaintiffs explained that they discussed some vines that their contractors had cut due to the fact that they had grown over the Shared Boundary Line onto Plaintiffs' property. Plaintiffs recalled that the contractors may have mistakenly cut vines that were across the Shared Boundary Line on the Sullivan properly but in any case never asked permission to to trim vines that originated on the Sullivan property but that were encroaching on the Warren-White properly. The foregoing findings regarding the dominion of the disputed property by Plaintiffs' predecessors in interest support this conclusion for the relevant time period. Sullivan also argues that the type of use put to the disputed properly by Plaintiffs is not sufficient to put the title owner on notice of adversity. The cases to which Sullivan cite are inapposite. Moreover, it is the sum total of all of the uses described herein that clearly provided notice to Sullivan. Moreover, the contention that the disputed properly was a tangle of vines an weeds is as overwrought as it is inconsistent with the evidence the court found to be most credible; to wit, the testimony of Plaintiffs, Ms. Barker, and Ms. Flynn, among others. All testified convincingly that while the southerly portion of the Shared Boundary Line, the Sullivan propery, was a tangle of vegetation, the property to the north of that line was completely and continuously maintained to include gardens, ornamental trees, shrubs, ground cover, lilac hedges, lawn, brush pile. To the extent there is any overgrowth in the abandoned road area, the court ...

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