Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fissmer v. Smith

Superior Court of Maine, Cumberland

October 11, 2018

LESLIE FISSMER, Individually and as Trustee of the LESLIE S. FISSMER REVOCABLE TRUST, PATRICIA and REED GRAMSE, KAREN and WILLIAM BURKE, and ROBERT SIEGEL, Plaintiffs
v.
DAVID D. SMITH, CUNNERLANE, LLC, and CUNNER LANE II, LLC, Defendants.

          JUDGMENT AND ORDER

          Lance E. Walker, Justice Maine Superior Court

         Before the Court is Plaintiffs' complaint against Defendants David Smith and Cunner Lane, LLC for declaratory judgments as to the location of a private road known as Cunner Lane; that Plaintiffs' properties are benefitted by a prescriptive easement over Cunner Lane; that Defendants' easements were terminated through abandonment or adverse possession; and that Plaintiffs have obtained title to certain properties by adverse possession (Counts I through V). Plaintiffs also allege common law trespass (Count VI). Mr. Smith and dinner Lane, LLC filed a counterclaim for declaratory judgment as to the location of Cunner Lane (Count 1), nuisance (Count II), and declaratory judgment as to Counterclaim Plaintiffs' right to clear Cunner Lane of obstructions (Count III).[1] This complaint and counterclaim were docketed as number RE-16-292.

         Defendant Cunner Lane II, LLC filed a complaint, as amended, against Plaintiffs for declaratory judgment as to Cunner Lane II, LLC's ownership rights to Cunner Lane and other private roads. This complaint was docketed as number RE-17-243. Plaintiffs thereafter filed a complaint against Cunner Lane II, LLC for declaratory judgment of title by adverse possession, docketed as number RE-17-255.

         The three actions were consolidated and litigated under docket number RE-16-292. A bench trial was held on June 18, 2018. The parties thereafter filed written closing arguments.

         I. FACTS

         The Court makes the following fact findings based on the record of this case, including evidence received at the bench trial. The parties' properties are situated on or near Hannaford Cove in Cape Elizabeth, Maine. Principally at issue in this case is title to a private road known as Cunner Lane and an adjoining five-foot-wide strip of land ("the five-foot strip") running alongside the road. The road is located between Defendants' lot (to the east and southeast of the road) and Plaintiffs' lots (to the west and northwest of the road). Defendant Cunner Lane II, LLC claims to hold fee simple title to the entire disputed area pursuant to a 2017 deed from the subdivision developer. Plaintiffs contend that a substantial portion of the disputed area has, for more than 60 years, formed the outermost edge of each of their front lawns.

         Each of Plaintiffs' properties was originally deeded from the Harry E. Baker Co. ("HEB") in accordance with a 1929 plan of land ("1929 Plan") recorded in the Cumberland County Registry of Deeds at Book 19, Page 5. (See Defs.' Ex. 13.) The 1929 Plan contains a twenty-foot corridor, designated "Cunner Lane," on the easterly side of Plaintiffs Fissmer and Burkes' lots and curving around the southeasterly side of Plaintiffs Gramses' lot. (Id.)

         Plaintiff Leslie Fissmer lives at 20 Cunner Lane, the southernmost of Plaintiffs' lots, which is designated Lot 14 on the 1929 Plan. Her source deed, dated July 18, 1929, granted title to her lot from HEB to Carroll S. Chaplin. (Defs.' Ex. 16.) The deed also grants several rights-of-way, including rights-of-way "over the right of way as now travelled along the easterly side of said lot above described and over said proposed roads on the easterly and southerly side of said lot." (Id.) The deed refers to the "Plan of Land ... made for said Harry E. Baker Co. ... dated July 1929, to be recorded in said Registry of Deeds, on which Plan the above described lot is designated as lot No. 14." (Id.) On October 28, 1942, Chaplin conveyed back to HEB a "strip of land five feet in width measured at right angles to the westerly line of Cunner Lane as delineated" on the 1929 Plan, reserving a right-of-way over the five-foot strip. (Defs.' Ex. 18.) The deed states: "The purpose of this conveyance being that said strip of land may be included in and made a part of said Cunner Lane and of said proposed road, thereby increasing the width thereof to twenty-five feet." (Id.) On November 7, 1985, the lot was deeded to Robert J. Fissmer and Leslie S. Fissmer. (Defs.' Ex. 15.) The 1985 deed grants the lot conveyed by the 1929 deed, together with the rights-of-way, excepting and reserving the five-foot strip. (Id.) On September 8, 2008, Ms. Fissmer deeded the lot to herself as Trustee of the Leslie S. Fissmer Revocable Trust. (Defs.' Ex. 14.) The deed again conveys the lot and rights-of-way conveyed in the 1929 deed, excepting the five-foot strip. (Id.)

         Plaintiffs Karen and William Burke live at 7 Brook Road. Their lot is located between the Fissmer lot and the Gramse lot and is designated Lot 1 on the 1929 Plan. The Burkes' source deed, dated April 4, 1931, conveys their lot from HEB to Thomas Smiley, as well as several rights-of-way including rights-of-way "to the shore at said Hannaford Cove, over a road to be laid out by said [HEB] and ... over said road as now travelled along the easterly side of said lot above described." (Defs.' Ex. 21.) On July 15, 1932, Smiley deeded back to HEB a "strip of land five feet in width measured at right angles to the westerly line of Cunner Lane as delineated" on the 1929 Plan, reserving a right-of-way over the five-foot strip. (Defs.' Ex. 23.) The deed states: "the purpose of this conveyance being that said strip of land may be included in and made a part of said Cunner Lane." (Id.) On August 26, 2005, the lot and all rights-of-way were deeded from Jerry W. and Wendy S. Peterson to William A. Burke, excepting the five-foot strip. (Defs.' Ex. 20.) On April 11, 2009, William A. Burke conveyed the property to Karen A. B. Burke, again along with all rights-of-way and excepting the five-foot strip. (Defs.' Ex. 19.)

         Plaintiffs Patricia and Reed Gramse live at 12 Cunner Lane, on the lot designated the Lily Pond Lot on the 1929 Plan. The southeasterly side of their lot forms a curve abutting the disputed area. Their source deed, dated June 8, 1933, conveys the Lily Pond Lot from HEB to Marcia S. Quimby. (Defs.' Ex. 26.) This deed excepts and reserves a five-foot strip abutting Cunner Lane. (Id.) The deed grants a number of rights-of-way, including over Cunner Lane and the five-foot strip. (Id.) On August 5, 1988, Paul A. and Lila M. Wray conveyed the lot, including the rights-of-way and excepting the five-foot strip, to R. Reed and Patricia M. Gramse. (Defs.' Ex. 25.)

         Defendants' lot is situated on the easterly side of Cunner Lane. Defendants' source deed, dated November 10, 1920, grants the property from Albert F. Hannaford to The Venerable Cunner Association and Propeller Club. (Defs.' Ex. 28.) The deed grants a right-of-way "over the private road as now located ... adjoining said land hereby conveyed on the westerly and northwesterly lines thereof." (Id.) On January 23, 1998, the lot was conveyed from John P.M. Higgins and Ellen M. Higgins, Trustees of the Robert A. G. Monks Trust, to David D. Smith, also granting the right-of-way "over the private road as now located." (Defs.' Ex. 29.) On February 18, 2010, David D. Smith conveyed a portion of the lot, along with the right-of-way "over the private road as now located," to Cunner Lane, LLC. (Defs.' Ex. 30.)

         In 1998, in anticipation of building a wall around his property, Mr. Smith commissioned a survey of the area, including the boundaries of his property, Plaintiffs' properties, and Cunner Lane. (See Trial Tr. 183:8-18.) The survey indicated that Cunner Lane is actually located several feet west and northwest of the now-paved road, placing part of the paved road on Mr. Smith's lot and part of the actual Cunner Lane on Plaintiffs' front lawns.[2] Mr. Smith wrote a letter informing Douglas Snow, a predecessor-in-interest to the Burkes, of the mistaken boundary issue. (Defs.' Ex. 37.) While the letter requests Mr. Snow to contact his neighbors about the issue, Mr. Smith did not follow up to find out if the letter had been distributed and took no other action to remedy the mistaken boundary issue prior to commissioning another survey in 2016. (Trial Tr. 195:15-196:8.)

         At trial, John Swan, the licensed land surveyor who conducted the 2016 existing conditions survey, testified as to the locations of the boundaries of each party's property and the location of Cunner Lane according to the record deeds. (See Defs.' Exs. 1, 2.) Plaintiffs have not contested Mr. Swan's testimony or the validity of the 2016 existing conditions survey.

         On May 25, 2017, HEB, by and through its sole Director, Mary Baker Drake, conveyed to Cunner Lane II, LLC title to all of the roads shown on the 1929 Plan, including Cunner Lane, as well as the five-foot strip. (Defs.' Ex. 31.)

         II. ANALYSIS

         The disputed area in this case encompasses the paved road commonly known as Cunner Lane and the portion of Plaintiffs' front lawns abutting the pavement which, according to the existing conditions survey, is part of the actual Cunner Lane and the five-foot strip. The parties on both sides have presented argument regarding their ownership of the disputed area in accordance with the language of deeds dating back to the 1920's, as well as the Paper Streets Act, 33 M.KS.A. § 469-A (2011) ("PSA"). In the alternative, Plaintiffs argue that they have obtained title by adverse possession to their front lawns to the edge of the pavement, and to the extent Defendants claim a right-of-way over this property, such interest has been extinguished by adverse possession.

         A. Paper Streets Act

         As a threshold matter, Defendants question whether Plaintiffs' claims pursuant to the PSA are properly before the Court because they were not pleaded. Because Plaintiffs raised the PSA issue in their trial brief and again at trial, and rather than object, Defendants acknowledged they were prepared to respond to the PSA arguments (Trial Tr. 12:5-19), this issue was tried by consent. See M.R. Civ. P. 15(b). Nonetheless, for the most part, the Court finds the PSA does not aid Plaintiffs' case.

         Pursuant to the PSA,

Any conveyance made before September 29, 1987 that conveyed land abutting upon a proposed, unaccepted way laid out on a subdivision plan recorded in the registry of deeds is deemed to have conveyed all of the grantor's interest in the portion of the way that abuts the land conveyed, unless the grantor expressly reserved the grantor's title to the way by a specific reference to this reservation in the conveyance of the land.

33 M.R.S.A. § 469-A(1). Generally, landowners meeting the conditions outlined in subsection 469-A(1) are "deemed to own to the center line of the way." Id. § 469-A(6). However, such landowner owns the entire width of proposed, unaccepted way if:

A. The proposed, unaccepted way or portion of the proposed, unaccepted way is part of the subdivision and is laid out on the subdivision plan recorded in the registry of deeds;
B. The person's predecessors in title had not reserved title in the proposed, unaccepted way or portion of the proposed, unaccepted way under subsection 1 or 2; and
C. The proposed, unaccepted way or portion of the proposed, unaccepted way is bounded on the opposite side by land that is not included in the subdivision.

Id. § 469-A(6-A). The Legislature has mandated that the PSA "be liberally construed to affect the legislative purpose of clarifying the title to land underlying proposed, unaccepted ways by eliminating the possibility of ancient claims." Id. § 469-A(8).

         Although the PSA may have operated in favor of Ms. Fissmer and the Burkes based on their source deeds, the conveyance back to HEB of the five-foot strip thwarts their arguments for ownership of Cunner Lane. Ms. Fissmer's and the Burkes' predecessors deeded the five-foot strip back to HEB, reserving only a right-of-way. Although these deeds expressly state the purpose of these conveyances was to widen Cunner Lane, the five-foot strips themselves were not included on the recorded 1929 Plan as part of the proposed way. The five-foot strip was, instead, "land abutting upon a proposed, unaccepted way laid out on a subdivision plan recorded in the registry of deeds" because it abutted the proposed Cunner Lane. 33 M.R.S.A. § 469-A(1). As such, the Court agrees with Defendants that not only did HEB obtain title to the five-foot strip by these conveyances, but pursuant to subsection 469-A(6-A), HEB also obtained title to Cunner Lane.

         Plaintiffs ask the Court to apply a liberal interpretation of the statute to find that the lots conveyed to their predecessors were properties that abut a proposed, unaccepted way because it was intended that the five-foot strip become part of Cunner Lane. However, no such interpretation is necessary or warranted, as the plain language of the statute can be applied to the language of the deeds at issue to unquestionably conclude that the conveyance of the five-foot strip from Plaintiffs' predecessors to HEB fits squarely within the PSA to deem the entirety of Cunner Lane to belong to HEB.[3]

         In the conveyance from HEB to the Gramses' predecessor, HEB expressly reserved the five-foot strip. Therefore, the lot conveyed to the Gramses' predecessor never abutted the proposed, unaccepted way. The PSA does not apply to grant the Gramses title either to the five-foot strip (because it was expressly reserved in the Gramses' ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.