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Fissmer v. Smith

Supreme Court of Maine

August 8, 2019

LESLIE S. FISSMER et al.
v.
DAVID D. SMITH et al.

          Argued: May 16, 2019

          Kurt E. Olafsen, Esq. (orally), Olafsen & Butterfield LLC, Portland, for appellants David D. Smith, dinner Lane, LLC, and dinner Lane II, LLC

          Kelly W. McDonald, Esq. (orally), and John B. Shumadine, Esq., Murray, Plumb & Murray, Portland, for cross-appellants Leslie S. Fissmer, Karen A.B. Burke, William A. Burke, Patricia M. Gramse, Richard R. Gramse, and Robert E. Siegel

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          GORMAN, J.

         [¶1] David D. Smith, Cunner Lane, LLC, (collectively, Smith) and Cunner Lane II, LLC, (Cunner Lane II) appeal from a judgment entered by the Superior Court (Cumberland County, L. Walker, J.) after a jury-waived trial on a variety of claims and counterclaims concerning the use and ownership of certain property in Cape Elizabeth. Leslie S. Fissmer, [1] Karen A.B. Burke, William A. Burke, Patricia M. Gramse, Richard R. Gramse (collectively, the Cunner Lane Owners), and Robert E. Siegel cross-appeal from the same judgment with regard to the court's determination declaring Cunner Lane II the owner of certain property as shown on a 1929 subdivision plan. We affirm the judgment in part and vacate in part. In addition, because a judgment declaring ownership by adverse possession must clearly describe the boundary lines of the adversely possessed property so as to sufficiently establish those lines on the face of the earth, we remand for further proceedings.

         I. BACKGROUND

         [¶2] The parties to this appeal are neighbors in Cape Elizabeth with land abutting Cunner Lane, [2] a paved private road that provides access to the neighborhood. An earlier dispute between Smith and Fissmer arose in 2015 when Smith attempted to build a house on his property. See generally Fissmer v. Town of Cape Elizabeth, 2017 ME 195, 170 A.3d 797. That dispute was resolved in 2017 but, in August of 2016, while it was still pending, Fissmer initiated an action against Smith in the Superior Court, seeking, inter alia, a declaratory judgment that Fissmer holds title by adverse possession to portions of Smith's property.[3] In November of 2016, Fissmer's neighbors- the Gramses, the Burkes, and Siegel-joined her complaint as plaintiffs. Smith counterclaimed, seeking, inter alia, a declaratory judgment as to the location of Cunner Lane.

         [¶3] In September of 2017, Cunner Lane II, a Maine limited liability company wholly owned by Smith, filed a separate complaint against the Cunner Lane Owners and Siegel, seeking a declaratory judgment that it owned private roads in the neighborhood-Cunner Lane, Brook Road, and Sunrise Drive-as well as certain five-foot-wide strips of land that run alongside segments of those roads. The Cunner Lane Owners and Siegel then filed a complaint against Cunner Lane II, seeking a declaratory judgment that they hold title by adverse possession to certain property allegedly owned by Cunner Lane II. In November of 2017, the court consolidated the three actions.

         [¶4] After a jury-waived trial, the court considered the parties' claims, including their assertions of title acquired through the Paper Streets Act (PSA), 23 M.R.S. §§ 3027, 3031-3035 (2018); 33 M.R.S. §§ 460, 469-A (2018), and adverse possession. In its judgment dated October 11, 2018, the trial court made the factual findings referred to in this opinion, all of which are supported by competent record evidence. See Dupuis v. Ellingwood, 2017 ME 132, ¶ 3, 166 A.3d 112. As we explain in the discussion section below, the court, however, made some errors in its application of the PSA to these facts, and because of this, additional litigation may be required. See infra ¶¶ 22-38. In addition, the judgment contains no legal descriptions of the boundaries it established.

         A. Facts Relevant to the Paper Streets Act

         [¶5] Cunner Lane, as it now exists, is located between Smith's lot and the Cunner Lane Owners' lots. A 1929 subdivision plan (the 1929 Plan), created for and showing the property of the Harry E. Baker Company (HEB), designated a twenty-foot-wide corridor as "Cunner Lane." Provided here for illustrative purposes only, Figure 1 below depicts the relevant features of the 1929 Plan.

         (Image Omitted)

         The Cunner Lane Owners' original lots are all located within the boundaries of the subdivision contemplated by the 1929 Plan.[4] Smith's property, although shown on the 1929 Plan, is not a part of the contemplated subdivision.

         [¶6] Additionally, the 1929 Plan depicted, but did not name, portions of two proposed roads-also twenty feet wide-turning off of Cunner Lane. The proposed road between Lot 1 and Lily Pond Lot on the 1929 Plan encompasses what is now a private road known as Brook Road. The proposed road abutting Lot 14 to the south is now brush and a grass foot path, but the parties refer to it as Sunrise Drive, as do we.

         1. The Fissmer Lot

         [¶7] Fissmer's lot is the southernmost of the Cunner Lane Owners' lots and is designated as Lot 14 on the 1929 Plan. Fissmer's source deed granted title to the lot from HEB to Carroll Chaplin on July 18, 1929. Although the deed also granted "the right of way as now travelled along the easterly side of [the] lot. .. and over [the] proposed roads on the easterly and southerly side [Cunner Lane and Sunrise Drive, respectively] of [the] lot," this conveyance occurred before the recording of the 1929 Plan.[5] In 1942, Chaplin conveyed back to HEB a "strip of land five feet in width" at the edge of the property abutting Cunner Lane and Sunrise Drive as delineated on the 1929 Plan, "[t]he 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 [Sunrise Drive], thereby increasing the width thereof to twenty-five feet." Despite this deed reference, the five-foot-wide strip was not included on the recorded 1929 Plan as part of the proposed ways, and no amended plan was ever recorded. Chaplin did reserve a right-of-way over the five-foot-wide strip.

         [¶8] A 1985 deed conveyed this lot and the rights-of-way to Robert and Leslie Fissmer. In 2008, Leslie Fissmer deeded the lot and the rights-of-way as conveyed in the original source deed to herself as trustee of the Leslie S. Fissmer Revocable Trust.

         2. The Burke Lot

         [¶9] The Burkes' lot is located between the Fissmer lot and Brook Road and is designated as Lot 1 on the 1929 Plan. Their source deed conveyed their lot from HEB to Thomas Smiley in 1931. This deed also granted rights-of-way "over said road as now travelled along the easterly side of said lot [Cunner Lane] ... and over said proposed road on the northerly side of said lot [Brook Road]." In 1932, Smiley deeded back to HEB a "strip of land five feet in width" at the edge of the property abutting "Cunner Lane as delineated" on the 1929 Plan, "the purpose of this conveyance being that said strip of land may be included in and made a part of said Cunner Lane." This five-foot-wide strip was not included as part of Cunner Lane on the recorded 1929 Plan, and no amended plan depicting Cunner Lane as a twenty-five-foot-wide way was ever recorded. Smiley did reserve a right-of-way over the five-foot-wide strip. In 2005, the lot and all rights-of-way were deeded to William Burke. On April 11, 2009, William Burke conveyed the lot and the rights-of-way to Karen Burke.

         3. The Gramse Lot

         [¶10] The Gramses live on what was designated as the "Lily Pond Lot" on the 1929 Plan, to the north of Brook Road and the Burkes. Their source deed conveyed the lot from HEB to Marcia Quimby in 1933; the deed excepted and reserved title to a five-foot-wide strip abutting Cunner Lane as depicted on the 1929 Plan but did include rights-of-way over Cunner Lane and the five-foot-wide strip. A 1988 deed conveyed the lot, again excepting the five-foot-wide strip, to the Gramses, along with rights-of-way to the twenty-foot-wide corridor and the five-foot-wide strip.

         4. The Siegel Lot

         [¶11] The trial court made limited factual findings as to Siegel's lot; Siegel purchased the property in 1972, has lived there full-time ever since, and has walked along Cunner Lane almost daily while living there.[6]

         5. Smith's Property

         [¶12] With Cunner Lane to the west and the Atlantic Ocean to the east, Smith's original lot-as deeded to him in 1998-is now two lots. In February of 2010, Smith conveyed a portion of his original lot to Cunner Lane, LLC; Smith retained the remaining portion of his parcel. The original lot's source deed conveyed the property from Albert F. Hannaford to "The Venerable Cunner Association and Propeller Club" in 1920 and granted a right-of-way "over the private road as now located ... adjoining said land hereby conveyed on the westerly and northwesterly lines thereof." Although the original lot is not a part of the 1929 subdivision, the lot is marked as "The Venerable Cunner Asso. and Propeller Club" on the 1929 Plan.

         [¶13] In May of 2017, HEB conveyed to Cunner Lane II title to Cunner Lane, Sunrise Drive, and Brook Road, all as depicted on the 1929 Plan, as well as title to the five-foot-wide strips abutting certain segments of these roads. B. Facts Relevant to Adverse Possession

         [¶14] In 1998, Smith commissioned a survey of his property. That survey indicated that large sections of the twenty-foot-wide corridor labeled Cunner Lane on the 1929 Plan were actually located several feet west and northwest of the present-day Cunner Lane-placing part of the existing road on Smith's property and part of the twenty-foot-wide corridor on the Fissmer, Burke, and Gramse lots. Sometime after that survey was completed, Smith paved Cunner Lane where it then existed on the earth.[7]

         [¶15] The disputed property, for purposes of the adverse possession claims, does not include the paved way, but does include portions of the twenty-foot-wide corridor designated as Cunner Lane on the 1929 Plan, as well as the five-foot-wide strips of land located between that twenty-foot-wide corridor and the Fissmer, Burke, and Gramse lots as deeded.[8] Provided here for illustrative purposes only, Figure 2 below depicts the disputed property.

         (Image Omitted)

         Referring to the criteria set out in our cases-twenty years of possession and use of another's property that was actual, open, visible, notorious, hostile, under a claim of right, continuous, and exclusive-the trial court made scores of factual findings concerning the Cunner Lane Owners' use of their respective properties as lawns and gardens. Weeks v. Krysa, 2008 ME 120, ¶ 12, 955 A.2d 234. Each finding is supported in the record. See Dupuis, 2017 ME 132, ¶ 3, 166A.3d 112.

         C. The Trial Court's Conclusions

         [¶16] After a thorough review of the evidence presented, the trial court ruled on each of the claims. The court ultimately concluded that Cunner Lane II holds title, in fee simple, to the twenty-foot-wide corridor designated as Cunner Lane on the 1929 Plan, as well as to the five-foot-wide strips of land directly to the north and west of that corridor, but also concluded that the Cunner Lane Owners own the disputed property up to the paved ...


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