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Lilly v. Town of Westport Island

Superior Court of Maine, Lincoln

April 4, 2018

LESLIE B. LILLY et al., Plaintiffs,
TOWN OF WESTPORT ISLAND et al., Defendants.

          Justin Andrus, Esq., Mark A. Bower, Esq., William H. Dale, Esq., Edward Dardis, Esq. Howard & Bowie, PA.


          Daniel I. Billings, Justice.

         This 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.


         Plaintiff 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.[1]

         Plaintiff 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."

         On 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.

         At the 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.

         The 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).

         The 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).

         No 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.

         The 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).

         At 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).

         During 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).

         Judgment 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 ...

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