LESLIE B. LILLY et al., Plaintiffs,
TOWN OF WESTPORT ISLAND et al., Defendants.
Andrus, Esq., Mark A. Bower, Esq., William H. Dale, Esq.,
Edward Dardis, Esq. Howard & Bowie, PA.
ORDER ON DEFENDANT-TOWN'S MOTION FOR
I. Billings, Justice.
matter is before the Court on Defendant Town of Westport
Island's Motion for Reconsideration of this Court's
Jan. 30, 2018 Judgment after Trial.
AND PROCEDURAL BACKGROUND
Leslie Lilly owns property located on Baker Road in the Town
of Westport Island ("the Town"). Baker Road runs
from State Route 144, crosses a bridge, passes the
Plaintiffs' barn, then continues on toward a
neighbor's property. The section of the road which runs
from the center of the bridge to the Plaintiffs' barn is
the focus of this matter. The Town claims a public easement
exists over this section of Baker Road, while Plaintiffs
claim it is a private way.
Lilly's property formerly belonged to Robert Woods Baker
and Margaret H. Baker, who conveyed it to Marine Research and
Development Corp. in 1964. The Town foreclosed upon the
property while it was owned by Marine Research for unpaid
taxes in the years 2011/12, 2012/13, and 2013/14. The Town
then conveyed the property to Plaintiff Lilly in 2014. In
both the deed from the Bakers to Marine Research and the deed
from the Town to Plaintiff Lilly, the descriptions read:
"EXCEPTING from the above [metes & bounds
description] (1) the town roads."
Sept. 30, 2015, Plaintiffs filed a complaint seeking
declaratory judgment regarding the parties' rights to the
disputed section of Baker Road and an injunction against the
Town, along with an appeal pursuant to M.R. Civ. P. 80B.
After cross-motions for summary judgment were denied, a bench
trial was held before this Court on Oct. 5 & 6, 2017.
time of trial, the Town's first witness, Selectman George
Richardson, had held his selectman's post for 22
consecutive years. (Trial Transcript "Tr." 15). He
therefore had the ability to testify as to his knowledge of
maintenance on Baker Road as far back as 1995. Yet his
testimony revolved around a complaint about maintenance on
Baker Road in 2000 (Tr. 18-20), the chain of title of
Plaintiff Lilly's property (Tr. 20-24), and the length of
Baker Road as maintained by the Town (Tr. 26-64), without any
specific testimony regarding 1995-1997.
Town's second witness, Garry Cromwell, was elected the
Town's road commissioner in 1997 and privately owns a
company that contracts to perform most of the Town's road
maintenance. (Tr. 71-73). His testimony as a Town official
therefore only went back to 1997. Further, he stated that his
private company worked for two prior Town road commissioners
before 1997, but he does not remember for how many, or which,
years. (Tr. 81-82).
Town's third witness, James Cromwell, worked for Garry
Cromwell performing maintenance on town roads beginning in
2002. (Tr. 88-89). He further testified that he worked for
Frank Cromwell from 1988-1998, and he performed maintenance
on Baker Road while employed there. (Tr. 88-89). Before
questioning James Cromwell on his employment with Frank
Cromwell, and after Plaintiffs' objection, the Town's
attorney agreed stated: "I am pleased to limit Mr.
Cromwell's testimony to the years 1997 forward . . .
We've got 1997 frankly to 2017, I am pleased to limit his
testimony just to that time." (Tr. 91).
further witnesses called by the Town had personal knowledge
to testify as to the maintenance of Baker Road before 1997.
Minimal evidence of maintenance before 1997 was elicited
through Plaintiffs' witnesses.
Town's Exhibits #14 and #16 were excluded at trial.
Exhibit #14 is a MDOT document showing the distance of Baker
Road as measured by MDOT. (Tr. 34-35). Exhibit #16 is a MDOT
document showing the road mileages as measured by the State
Mileage Collector within the Town, which MDOT uses to
determine how much funding to give the Town for road
maintenance. (Tr. 56, 58). The Town offered both exhibits
under the business records and public records exceptions to
the hearsay rule, M.R. Evid. 803(6), (8). (Tr. 52, 54, 59,
60). Exhibit #14 was excluded for lack of proper foundation,
since no MDOT employee had testified that it was prepared in
the ordinary course of MDOT business. (Tr. 54-55). Further,
Exhibit # 14 was found not to fall under the public records
exception to the hearsay rule because it is not a public
record of the Town. (Tr. 55). Exhibit #16 was excluded for
lack of a sufficient basis. (Tr. 64). This Court remarked
that the Town made several assumptions not supported by the
evidence while offering Exhibit #16. (Tr. 62).
trial, this Court voiced its concern to the Town's
attorney that the prescriptive period may have ended at the
time this case was filed in 2015, so the calculation of 20
years could not include 2015-2017 while the case was pending.
(Tr. 133-140). In response, the Town's attorney argued
that 2015-2017 counted toward the prescriptive period because
Plaintiffs actively prevented the Town from performing
maintenance. (Tr. 133-140).
closing arguments, this Court engaged in a discussion with
Plaintiffs' attorney, indicating that it was
contemplating the merger doctrine. (Tr. 289-291). The
Town's attorney had an opportunity to speak shortly after
but did not argue against merger. (Tr. 289-291).
After Trial was entered on Jan. 30, 2018, finding that the
Town did not establish a public easement by layout &
acceptance; that the doctrine of merger extinguished any
easement by prescription that may have existed; and that the
phrase "EXCEPTING . . . town roads" was
insufficient to prove the existence of a public easement. For
these reasons, the ...