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
DAVID D. SMITH, CUNNERLANE, LLC, and CUNNER LANE II, LLC, Defendants.
JUDGMENT AND ORDER
E. Walker, Justice Maine Superior Court
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). This complaint and counterclaim were
docketed as number RE-16-292.
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.
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.
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
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.)
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.)
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.)
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.)
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.)
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. 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.
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.
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.)
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
Paper Streets Act
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.
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. §
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.
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
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' ...