United States District Court, D. Maine
FINDINGS OF FACT AND CONCLUSIONS OF LAW
C. Nivison, U.S. Magistrate Judge.
matter involves a dispute regarding the future ownership of
two parcels of land and the improvements thereon in
Georgetown, Maine. Plaintiffs ask the Court to order
Defendant, in her capacity as personal representative of the
Estate of Elizabeth Hersant, to sell her interest in Lot 38
on Marrtown Road in Georgetown to Plaintiff Margaret Winn and
sell her interest in Lot 39 on Marrtown Road to Plaintiff
Douglas Kulis. Defendant seeks the equitable partition of Lot
38 and the statutory partition of Lot 39.
Court conducted a bench trial at which the parties presented
the testimony of witnesses, including expert witnesses, and
other evidence. Following the trial, the parties filed
consideration of the evidence presented at trial, the Court
finds the following facts:
38 on Marrtown Road in Georgetown, Maine is a 4.1 acre
parcel. Plaintiff Margaret Winn (Margaret) owns 25% of the
lot, Party-in-Interest Orin Winn (Orin) owns 50% of the lot,
and Defendant Katherine Winn (Katherine or Defendant) owns
25% of the lot as tenants in common.
39 is a 25-acre parcel on Marrtown Road. Plaintiff Douglas
Kulis (Douglas) owns 75% of the lot and Katherine owns 25% of
the lot as tenants in common.
Margaret and Orin are cousins. Margaret is Douglas’
mother. Elizabeth Hersant (Elizabeth) was Margaret’s
sister. Katherine is Elizabeth’s daughter. Elizabeth
died on June 28, 2016.
lots, which have frontage on the Kennebec River, were
purchased in 1947 by Clifton Winn, Helen Winn, and Orin Winn
(the father of the party-in-interest).
the time of the purchase, there were two structures on Lot 38
– referred to as the big house and the little house
(i.e., the old store). Practically, neither structure is
has exclusive use of and pays the taxes assessed on the big
house. Until her death, Elizabeth had exclusive use of the
or about the 1950s, the owners of the property, in an effort
to provide for the next generation, leased four sublots on
Lot 38 to their children: Elizabeth, Margaret, Orin, and
Douglas Winn (Orin’s brother). Margaret was the only
person to build a structure on her leased sublot.
leases expire in 2044 or upon the death of the lessee.
Because Elizabeth and Douglas Winn are deceased, only two
leases remain on Lot 38.
There are no structures on Lot 39. Lot 39 has a rugged
terrain and has been used for hunting and harvesting wood.
39 had been classified as tree growth for tax purposes, but
was later changed to open space. As the result of the change
from tree growth to open space, a tax penalty in excess of
$40, 000 is due if the property is sold.
39 is burdened by a well easement and a septic easement for
Douglas’ nearby property. The lot is also burdened by a
well easement for Margaret’s structure on Lot 38.
Defendant’s expert (appraiser) witness, Jane
Furbeck-Owen, assessed the value of Lot 38 between $725, 000
and $750, 000, and Lot 39 at between $325, 000 and $350, 000.
Plaintiff’s expert (appraiser) witness, Kenneth
Charest, assessed the value of Lot 38 at $495, 000, and Lot
39 at $100, 000, after accounting for the $40, 000 tax that
would be due upon sale because the property had previously
been classified as tree growth. Katherine testified she
believed the value of Lot 38 to be $825, 000 and Lot 39 to be
between $325, 000 and $350, 000.
According to Mr. Charest, while Lot 39 had frontage on the
Kennebec River, because of the steep topography of the lot to
the river, when valuing the property, it is appropriate to
compare the property to sales of property with a water view.
At least one of the comparable sales properties used by Mr.
Charest in his appraisal included some water frontage. Lot 39
has approximately 600 feet of frontage on the Kennebec River.
Mr. Charest did not believe it was necessary to limit the
comparison to the sales of waterfront property because the
frontage was “fairly poor and tough to access.”
Mr. Charest, however, did account for the water frontage to
some degree when assessing the value of Lot 39.
Charest determined the best use of Lot 38 was as a family
compound on an effective site of approximately two acres. The
effective site was less than the total acreage of the lot
because of topography and wetlands issues. Mr. Charest
considered the Lot 38 water frontage to be tidal because it
“flats out” at low tide. The lack of access to
the water from the property when the area “flats
out” decreases the value of the property.
Furbeck-Owen’s appraisal business primarily consists of
the appraisal of waterfront properties. In assessing Lot 39,
Ms. Fubeck-Owen applied an adjustment of $25, 000 to account
for the change of the lot’s classification from tree
growth to open space. Ms. Furbeck-Owen determined that the
highest and best use for Lot 39 was for future development of
an estate property that because of its size could support a
primary dwelling. She also placed value on the privacy
associated with 25 acres of land.
her assessment of Lot 39, Ms. Furbeck-Owen used sales of
properties with water frontage. On average, the properties
used by Ms. Furbeck-Owen as comparable sales for Lot 39 were
closer in proximity to Georgetown than the properties used by
her assessment of the value of Lot 38, Ms. Furbeck-Owen used
the four comparable sales that Mr. Charest used and two other
comparable sales. Ms. Furbeck-Owen made different adjustments
than Mr. Charest based on the amount and type of water
frontage, the recreational utility and actual views. Although
Ms. Furbeck-Owen accounted for the leases on Lot 38 in terms
of the privacy interest of a potential buyer, she did not
otherwise account directly for the likely length of the
leases and the impact of the burden on the potential sale
price of Lot 38. Ms. Fureck-Owen did not consider the Lot 38
water frontage to be tidal because a dock (pier) could be
constructed to allow access to the water in low tide.
Given the topography of Lot 39, the area for access to and
construction of improvements on the property is very limited,
and the access to the water frontage is challenging.
According to Defendant’s expert (surveyor) witness,
John Wood, Lot 39 could be physically divided. Mr. Wood did
not provide a basis for his opinion, nor did he ...