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Tyvoll v. Hughes

Superior Court of Maine, Somerset

September 19, 2017



          Donald H. Marden Superior Court Justice.

         James E. Tyvoll, Trustee, et al., have brought an amended complaint for a declaratory judgment under the provisions of 14 M.R.S. § 5951 et seq., in their capacity as Trustees of various Family Revocable Trusts, against Jason Hughes as President and Road Commissioner of Elm Pond Statutory Road Association. ("Association"). Plaintiffs ask the court to find and declare that the west half of T4-R16 is not a municipality but lies in an unorganized territory; that the Association is unlawful and not supported by State laws; that the defendant is without statutory authority to place a lien on property of the plaintiffs, that the lien placed by defendant against the deeds of the plaintiffs, as Trustees, are an unlawful slander of title and seek an injunction for the court to order the defendant to remove such liens, refrain from placing any further liens against property of the plaintiffs, and to pay all plaintiffs' costs and fees.

         Defendant has brought a motion for summary judgment. Defendant asserts that there are no genuine issues as to any material fact and the defendant is entitled to judgment as a matter of law based upon the pleadings, the statement of material facts, and the affidavits attached.

         In Somerset Superior Court civil action CV-13-42, Kenneth Rogers, et ah v. James Tyvoll, et ah, plaintiffs, as real estate owners in the subdivision of Township 4, Range 16, known as Elm Stream Township, brought an action against James E. Tyvoll and others for declaratory judgment, trespass, and injunctive relief. After trial, the court determined that the roads appearing on the Plan titled "A Proposed Division of Land of West Half of Township 4, Range 16 for Hughes Lumber Company, Inc., Somerset County, State of Maine, September 30, 1989, prepared by A.B. Sturgeon, Inc., Surveyors and Developers, 95 Harlow Street, Bangor, Maine, by John B. Cahoon, Registered Land Surveyor number 324, as recorded in Somerset County Registry of Deeds, September 27, 1989, and recorded in Plan B-89, page 165, " are roads to which each property owner, as recipient of a deed for a lot of land described by specific reference to said Plan, "has full rights and access to displayed roads as a private easement accompanying and part of their deed(s)." That decision dated December 22, 2015, gives rise to the present litigation regarding the responsibility for the service and maintenance of the roads in question.

         In their complaint, the plaintiffs assert that a road association was formed in 2010 in accordance with 23 M.R.S. §3101-3104, the Private Way Act, ("Act"), known as the Elm Pond Statutory Road Association. The plaintiffs declined openly and in person at a meeting called for that purpose to join as members. Plaintiffs complain that a statement of annual fees to maintain roads has been mailed to the plaintiffs in the years subsequent to the formation of the organization and that they have refused to pay, as they assert they are not members of this "statutory" road association.

         In support of their complaint, the plaintiffs assert that a "statutory" road association only applies to municipal road associations where management is under the authority of a municipality, not an unorganized territory such as Elm Stream Township which is managed by the State and the County. Plaintiffs further argue that the statutory road association is within the purview of the laws of "private ways", cited at 23 M.R.S. §§3101. (1)(A).

         In further argument of their position, the plaintiffs assert that each and every resident in the subdivision has placed their forest land under the Tree Growth Tax

          Law as found in 36 M.R.S. § 571 et seq. ("Tree Growth"). They argue the Private Way statute does not authorize the creation of a statutory road association as distinct from a voluntary road association and therefore, the actions by the president and road commissioner of this association in assessing a lien and in attempting to exact road maintenance fees is unlawful.

         The defendant argues that the present Association, formed in 2010, is a statutory road association formed pursuant to 23 M.R.S. § 3101 et seq., and that the plaintiffs own parcels of land that benefit by the roads governed by the statutory road association. Defendant argues the plaintiffs' declaration to join or not join as members is not relevant.

         The defendant admits that an "Affidavit and Notice of Nonpayment" for annual assessments, as allowed under 23 M.R.S. § 3104, was filed against the plaintiffs in the Somerset County Registry of Deeds in 2012. Defendant denies that any such filing was in contradiction of State law and by statute, such filing is not a slander of title, citing 23 M.R.S. §3104.

         The agreed facts as determined by the previous litigation are recited below. See Rogers, et al. v. Tyvoll, et al., Somerset Superior Court, CV-13-42.

         Both plaintiffs and defendants own property in the development known as Elm Stream Township. The development is a gated residential subdivision accessible off the Golden Road. It was first divided in 1989 by the Hughes Lumber Company who owned the entire western half of Elm Stream Township at that time. In 1989, Hughes Lumber Company recorded a Plan in the Somerset County Registry of Deeds, which is referred to as "the Hughes Plan" or "the Sturgeon Plan" depicting a series of road and ways over which all of the parties who own lots in the Elm Stream development had easement rights as heretofore found by this court. All parties in this matter own property that is benefitted by the roads and ways shown on the Plan. Such roads are the only access to the land of the parties to this action.

         The roads had been maintained by individuals and by a voluntary road association prior to the organization of the Association in August of 2010. It is a statutory road association. The plaintiffs have not paid any annual assessments for road maintenance since that date. At a meeting of the Association in 2012, the members voted to authorize the recording of liens against any owners pursuant to 23 M.R.S. §3104 if assessments remained unpaid after thirty day notices have been sent out. On October 10, 2012, the treasurer of the Association signed and recorded in the Somerset County Registry of Deeds eight separate "Affidavits of Nonpayment" against several lot owners on behalf of the Elm Pond Statutory Road Association. James and Angela Tyvoll, and Marjorie and Paul Beaulieu were named in two affidavits.

         In defendant's motion for summary judgment, he argues there are three issues present before this court in determining a declaration of the status of law under the facts of this case. First, can a statutory road association, formed pursuant to 23 M.R.S. § 3101 et seq., be applied to private roads that are located in the unorganized territories of Maine or is the law limited to use only in organized municipalities? Second, does the exemption in the Private Ways Act for roads that are constructed or primarily used for commercial or forest management purposes apply to residential properties that have forest management plans in place and are taxed under a reduced assessment for tree growth? Third, should the plaintiffs be liable for payment of ...

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