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McGeechan v. Sherwood, part 2

[¶35]  Because both parties claim title to the Paper Mill Road, they
each bear the burden of establishing title to the parcel.  See McGrath v.
Hills, 662 A.2d 215, 217 (Me. 1995).

	1.  SHERWOOD'S CLAIM OF OWNERSHIP BY DEED

	[¶36]  Sherwood's claim of title to the Paper Mill Road is based on the
conveyance of what became the property of Ellis, bought from Ellis by
Sherwood, described in the 1875 deed from the Estate of Benjamin Crosby
to Barker Emery.  We review for clear error the court's determination that
the boundaries described in the 1875 deed do not include the Paper Mill
Road.  See Coombs v. Grindle, 1998 ME 230, ¶ 7, 718 A.2d 1107, 1108.  In
construing a deed, we seek to give effect to the intent of the parties to the
deed.  St. Pierre v. Grondin, 513 A.2d 1368, 1370 (Me. 1986).  "To
ascertain that intention, we take the instrument as a whole, and apply the
positive rules of deed construction."  Kinney v. Cent. Me. Power Co., 403
A.2d 346, 349 (Me. 1979).  The rules of construction require that "every
call in the description of the premises in the deed must be answered,"
Herrick v. Hopkins, 23 Me. 217, 219 (1843), unless absurd results are
achieved thereby.  Kenney, 403 A.2d at 350.  When a deed contains
competing calls, all ambiguities are resolved "'against the grantor and in
favor of the grantee.'"  St. Pierre, 513 A.2d at 1370 (quoting Kinney v.
Central Me. Power Co., 403 A.2d at 350).
	[¶37]  Further, in reviewing the deed, reliance is placed not only on
the language of the deed, but also on "the inferences which may properly be
drawn from stipulated or undisputed facts. . . ."  Kinney, 403 A.2d at 350. 
Our review of the record leads us to conclude that the conveyance described
in the 1875 deed to Sherwood's predecessor in title includes the Paper Mill
Road.
	[¶38]  The boundary description in the deed begins with the disputed
point of beginning on the "southerly side of the Paper Mill road" 1074 5/10
feet from the General Crosby old brick store, a point that the trial court
properly located.  From that point, the boundary runs north, then east, and
then:
southerly by . . . the heirs of Hodgman to Hodgman south-west
corner and the old Grist Mill road.  Thence by the north line of
the old Grist Mill road to the Paper Mill road.  Thence across
said Grist Mill road to the southerly line thereof and land of J.R.
Holt.  Thence westerly by said Holt land to the point begun at.{15}

	[¶39]  The trial court correctly determined from the 1875 deed the
location of the point of beginning, but whether the description in that deed
includes the Paper Mill Road involves a different analysis.
	[¶40]  In concluding that the 1875 conveyance did not include the
Paper Mill Road, the trial court disregarded the final call in the 1875 deed
that describes the southerly boundary of the parcel as running "westerly by
said Holt land to the point begun at."{16}
	[¶41]  The trial court adopted the Avery plan that depicts the
boundary of the 1875 conveyance as crossing what is referred to as the Grist
Mill Road from its northerly to its southerly side directly to the point of
beginning, excluding from the conveyance, and thus from Sherwood's
ownership, the entire portion of the Paper Mill Road that the Avery survey
depicts as lying east of the point of beginning.
	[¶42]  Such a reading construes the deed against the grantee,
disregards the deed's final call, and is inconsistent with what the other
evidence shows to be the apparent intent of the grantor.
	[¶43]  Not only is there nothing in the record to indicate that the
grantor would have intended the final call in the 1875 deed to have no
meaning, there are strong indications that it would have been the intent of
Benjamin Crosby's estate to convey title to the Paper Mill Road in that 1875
deed.
	[¶44]  The parcel conveyed by the 1875 deed would be landlocked
without access to the road, yet the deed makes no reference to reserving
any easement across the road, leading to an inference that the grantor
intended to convey the road along with the parcel.  That conclusion finds
further support in the fact that Benjamin Crosby, who owned the parcel until
his death, had conveyed the two adjacent parcels and had explicitly
excluded the road from those conveyances.  At the time of Benjamin
Crosby's death, the land conveyed by the 1875 deed was the only parcel
along the entire road that he still owned.  It would make little sense for his
estate to convey the parcel without also conveying title to, or at least an
easement to use, the Paper Mill Road.  Accordingly, the likely intent of the
grantor of the 1875 deed would be to include the Paper Mill Road in the
conveyance.
	[¶45]  The construction given to the deed by the trial court ignores
that likely intent and disregards the final call.  There is, however, a plausible
reading of the description that is consistent with that intent, and that gives
meaning to the final call in the deed.  That reading takes into account that
over the years the roadways in the area have been known by a number of
different names.
	[¶46]  The single, continuous roadway that divides what are now the
Sherwood and McGeechan properties was originally known as the Old Grist
Mill Road.  Over time, portions of the road were referred to in deeds and
records by different names:  the Mill Road, the Paper Mill Road, and the
Town Road.  There is another road with a similar name that borders the
Sherwood parcel and intersects with the road with the differing names. 
That other road, referred to in an 1834 deed as "a new road," had become
known as the Little Paper Mill Road by 1864, and is depicted on the Avery
survey as "The Little Paper Mill Road."  The Little Paper Mill Road runs
north and south, and intersects with what is now referred to as the Paper
Mill Road, at the southeast corner of the Sherwood parcel.
	[¶47]  Recognizing that the natural intent of the grantor would be to
convey the entire strip of road that ran along what has now become the
parties' shared boundary, the most plausible reading of the last reference in
the deed to the Paper Mill Road, where the line runs by the north line of the
Old Grist Mill Road and crosses from the north to the south side of the Old
Grist Mill Road, is that the reference was intended to be to the Little Paper
Mill Road.  See St. Pierre, 513 A.2d at 1370.  In other words, the true intent
of the grantor is reflected in the deed being read as follows:
One parcel beginning on the southerly side of the Paper Mill
Road 1074 5/10 feet westerly from the Genl. Crosby old brick
store at the land of the heirs of Major Crosby . . . . [Description of
the northern boundary].  [T]hence southerly . . . by the heirs of
Hodgman to Hodgman southwest corner and the old Grist Mill
road.  Thence by the north line of the old Grist Mill road to the
[Little] Paper Mill road.  Thence across said Grist Mill road to
the southerly line thereof and land of J.R. Holt.  Thence westerly
by said Holt land to the point begun at.

	[¶48]  Such a reading of the deed resolves the ambiguity in the deed
in favor of the grantee, in this case Sherwood's predecessor in title, gives
effect to each call in the deed, and effectuates what the evidence strongly
suggests to be the intent of the grantor.  That reading gives Sherwood title
to the Paper Mill Road, the strip of road that runs along the parties'
north-south boundary.
	[¶49]  Although we realize that no construction of this deed fully
resolves all ambiguities, this result comports with the requirements at law
that ambiguities be construed in favor of the grantee and best reflects what
the evidence indicates to be the intent of the grantor and harmonizes all the
calls in the deed.

	2.  THE MCGEECHAN CLAIM OF OWNERSHIP BY DEED

	[¶50]  The McGeechans contend that their title to the Paper Mill Road
derives from a deed or deeds in their chain of title.  Although the deeds in
the McGeechans' chain of title contain language that could be read as
conveying ownership of the Paper Mill Road, they point to no deed that
expressly conveys into their chain of title ownership of any part of the Paper
Mill Road.  Lacking such evidence, the McGeechans cannot rely on
"extrinsic surrounding circumstances . . . to prove conveyance of something
not expressly included in [a] deed."  Cushing v. State, 434 A.2d 486, 497
(Me. 1981).  The McGeechans failed in their burden of proving ownership by
deed to that part of the road.

	3.  THE MCGEECHANS' CLAIM OF TITLE BY ADVERSE POSSESSION

	[¶51]  The McGeechans also contend, and the court agreed, that they
established title in the Paper Mill Road by adverse possession.  In order to
establish title by adverse possession, the McGeechans had to present
evidence that they possessed the land for a twenty year period, and that the
possession was "actual, open, visible, notorious, hostile, under a claim of
right, continuous, and exclusive."  Dowley v. Morency, 1999 ME 137, ¶ 19,
737 A.2d 1061, 1068 (footnote omitted).  Whether the McGeechans' "acts
of dominion" were sufficient to create title by adverse possession is a
question of law.  See id.
	[¶52]  To support their claim for adverse possession of the Paper Mill
Road, the McGeechans offered evidence that they (1) used their driveway,
which runs across part of the Paper Mill Road to the McGeechans' property;
(2) they plowed and graded in the driveway area; (3) they installed a culvert;
and (4) their predecessor in title granted to Bangor Hydroelectric Company
an easement to place a utility pole.  The court found that the McGeechans
had sufficiently established title by adverse possession to the entire Paper
Mill Road.
	[¶53]  Although the direct evidence presented by the McGeechans
went to their use of the driveway area since the time they purchased the
land in 1981, the court could properly infer that the driveway was in
existence when the property was owned by the Chiaparas family, from whom
the McGeechans purchased, for a sufficient period of time to reach the
requisite time period.  See Blackmer v. Williams, 437 A.2d 858, 861
(Me. 1981).  Accordingly, we affirm the trial court's conclusion that the
McGeechans have acquired title by adverse possession to a portion of the
Paper Mill Road, i.e. the driveway, to which most of the evidence was
directed.
	[¶54]  The driveway, however, is only a small part of the Paper Mill
Road.  Except for the utility pole placed by Bangor Hydro Electric, there is
scant evidence of the use of the entire Paper Mill Road by the McGeechans
or by anyone else.  The trial court's finding that the McGeechans have
proven title by adverse possession to the entire Paper Mill Road lacks
support in the evidence.  See Dowley, 1999 ME 137, ¶ 20, 737 A.2d at
1068 (allowing title by adverse possession to limited area of driveway and
parking area used without granting title to entire area).  Accordingly, the
court's judgment must be amended to reflect that the McGeechans have
acquired title by adverse possession only to the area of the Paper Mill Road
over which they have maintained a driveway.
	[¶55]  Accordingly, we vacate that portion of the judgment that
declares ownership of the entire Paper Mill Road in the McGeechans.  We
remand to the Superior Court for a declaration that the area on the Avery
survey referred to as the Paper Mill Road a/k/a Town Road is owned by
Sherwood, except that portion of the Paper Mill Road in the driveway area,
which portion, by reason of adverse possession, is owned by the
McGeechans.
III. THE DISPUTED EASEMENTS
	[¶56]  The trial court found that the McGeechan property is benefitted
by an easement over the Old Grist Mill Road and the Paper Mill Road.  Deeds
in the McGeechans' chain of title refer to an easement running across the
Paper Mill Road as well as the Old Grist Mill Road.  The absence of any deed
in the record granting the McGeechans an express easement to use either
road does not prevent a finding that an easement was created either by
implication or estoppel.  See Frederick v. Consol. Waste Servs., Inc., 573
A.2d 387, 389 (Me. 1990).  The McGeechans have offered no evidence of an
easement by estoppel, but the trial court found an easement by implication
benefitting the McGeechans.  
	[¶57]  "An easement over conveyed property, although not expressly
reserved, may nevertheless be impliedly created in favor of the grantor of
the servient estate."  LeMay v. Anderson, 397 A.2d 984, 987 (Me. 1979). 
There are two types of implied easements.  "An easement may also be
impliedly created without a pre-existing use when access to the property
conveyed requires trespass."  Id. at 988, n. 3.  An implied easement may also
arise when, at the time of conveyance, "existing use is made of the servient
portion to benefit the dominant portion. . . ."  Id.  Such use is termed a
quasi-easement.  Where a quasi-easement exists, an easement over the
servient estate will be implied when, at the time the dominant and servient
portions of the property are severed, "it is reasonable to infer that the
parties to the conveyance had regarded the continuation of the use as so
obvious that it would go without saying."  Bowers v. Andrews, 557 A.2d 606,
609 (Me. 1989); LeMay, 397 A.2d at 987.  Relevant to this inquiry is the
nature of the use of the quasi-easement prior to severance from the
dominant estate and whether the continued use of the quasi-easement is
"important for the enjoyment" of the retained parcel.  Bowers, 557 A.2d at
609 (quoting 3 Powell on Real Property ¶ 411(2) (1985 & Supp. 1988);
LeMay, 397 A.2d at 988.
	[¶58]  In the early 1800s, John Crosby owned all of Lot 25.  In 1820,
he divided that parcel, retaining the western portion for himself.  At trial,
Michael Avery testified that the western parcel of Lot 25 could be accessed
only by the Paper Mill and Old Grist Mill Roads and the trial court found that
the western parcel of Lot 25 was landlocked without such access.  Because
the use of the road to access the western portion of Lot 25 was apparent and
open at the time of conveyances, and because that parcel was carved out of
the larger parcel containing all of Lot 25, the trial court's finding that the
western parcel of Lot 25 was landlocked supports its determination that the
parcel is benefitted by an easement reserved by implication.  That easement,
although not expressly contained in the original deed, has appeared in all
subsequent deeds conveying the western parcel of Lot 25, and Sherwood has
offered no evidence to indicate that the easement has been terminated. 
Accordingly, the court's conclusion that the western parcel of Lot 25,
currently owned by the McGeechans, is benefitted by an easement over the
Old Grist Mill Road and the Paper Mill Road as those roads appear on the
Avery survey adopted by the trial court is not clearly erroneous.
IV. TORTIOUS INTERFERENCE WITH AN ECONOMIC RELATIONSHIP
	[¶59]  The McGeechans' cross-appeal from a summary judgment
entered against them on their claim for tortious interference with an
economic relationship.  When we review a summary judgment, we "view the
evidence in the light most favorable to the party against whom the judgment
has been granted, and review the trial court's decision for error of law." 
Estate of Althenn, 609 A.2d at 714.  If the evidence favoring the nonmoving
party is "'merely colorable, or is not significantly probative, summary
judgment'" may be appropriate.  Bouchard v. Am. Orthodontics, 661 A.2d
1143, 1145 (Me. 1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-50 (1986)).
	[¶60]  In order to demonstrate tortious interference with an economic
relationship, the claimant must show either intimidation or fraud.{17}  Petit,
688 A.2d at 430.  If the claim is based on fraud, the claimant must also show
that the claimant justifiably relied upon a false representation.  Id. 
	[¶61]  When a plaintiff, as here, "alleges a failure to disclose rising to
the level of a misrepresentation, the plaintiff must prove either (1) active
concealment of the truth, or (2) a specific relationship imposing on the
defendant an affirmative duty to disclose."  Fitzgerald v. Gamester, 658 A.2d
1065, 1069 (Me. 1995).
	[¶62]  "'Active concealment of the truth' connotes steps taken by a
defendant to hide the true state of affairs from the plaintiff."  Kezer v. Mark
Stimson Assocs., 1999 ME 184, ¶ 24, 742 A.2d 898, 905 (quoting
Fitzgerald, 658 A.2d at 1069).  In Fitzgerald, the plaintiff sought to recover
for fraud based on the claim that the seller of certain property had induced
the plaintiff to buy the property by concealing the fact that a well on the
property had been contaminated and was unsafe.  Fitzgerald, 658 A.2d. at
1068.  Upholding the judgment in favor of the plaintiffs, we concluded there
was sufficient evidence to allow a finding of active concealment.  Id. at 1069. 
Those factual elements included:  "(1) [a failure to] disclose; (2) the material
fact that the well had been abandoned due to contamination; (3) with
knowledge of the non-disclosure; [and] (4) for the purpose of inducing [the
plaintiff] to purchase the farm."  Id.  Ultimately, we also concluded that the
evidence supported a finding that the plaintiff had justifiably relied on the
failure to disclose, and suffered damage as a consequence.  Id.
	[¶63]  Taking the facts alleged in a light most favorable to the
McGeechans, Sherwood was present as the property was being shown to the
McGeechans.  She allowed herself to be identified to the McGeechans as
another broker, rather than as a potential purchaser, and she witnessed the
McGeechans' signatures on their offer.  Sherwood was present within
hearing distance of Mr. McGeechan, and her offer for the property came
shortly after she was in a position to overhear the McGeechan offer.  There
is a genuine issue of fact as to whether she was present and failed to identify
herself as a potential buyer in order to induce the McGeechans to verbally
discuss the offer they would make.  In addition, the McGeechans have
generated a factual issue as to whether Sherwood knew that her status as a
potential buyer might have materially affected the decision of the
McGeechans to discuss their offer in a place where she could overhear it. 
Finally, it may reasonably be inferred that Caliendo failed to disclose the true
reason for Sherwood's presence in order to aid her attempt to purchase the
property, and that the McGeechans justifiably relied on Caliendo's
representation to them that Sherwood was present merely as a broker to
openly discuss, to their detriment, their offer with Caliendo in the presence
of Sherwood.
	[¶64]  Both Bangor Real Estate, the seller's broker, and Sherwood, as
an employee of Bangor Real Estate, were subject to a statutory duty to treat
the McGeechans honestly.  Although the duty of a seller's real estate agent is
generally to the seller, 32 M.R.S.A. § 13273(1) (1999), the seller's agent
also has a duty to "treat all prospective buyers honestly and . . . not
knowingly give false information [to the buyer]," 32 M.R.S.A. § 13273(2)(A)
(1999).  From the evidence presented by the McGeechans, there is a
genuine issue of fact as to whether the defendants have breached this
statutory duty.  Accordingly, the court erred in granting a summary
judgment on the McGeechans' claim for tortious interference, and we vacate
that part of the judgment.
	The entry is:
That part of the judgment involving Counts I
and III declaring the common east-west
boundary between the properties of the
plaintiffs and defendant, and that the plaintiffs'
property is benefitted by an easement over the
Old Grist Mill Road and the Paper Mill Road, as
those roads appear on the land survey adopted
by the court, and that plaintiffs, by virtue of
adverse possession, own that part of the Paper
Mill Road in the area of their driveway is
affirmed.  Judgment on Counts I and III is
vacated in all other respects.  Summary
judgment as to Count IV is vacated.  Remanded
to the Superior Court for further proceedings
consistent with this opinion.

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