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McGeechan v. Sherwood
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 188
Docket:		Pen-99-324
Argued:		January 6, 2000
Decided:		October 30, 2000

Panel:WATHEN, C.J., and CLIFFORD, DANA, SAUFLEY, ALEXANDER, and CALKINS,
JJ.
Majority:WATHEN, C.J., and CLIFFORD, DANA, SAUFLEY, and CALKINS, JJ.
Concurrence/Dissent:         ALEXANDER, J.

RAYMOND McGEECHAN et al. v. MARY H. SHERWOOD et al.


CLIFFORD, J.

	[¶1]  Mary H. Sherwood appeals from a judgment entered in the
Superior Court (Penobscot County, Mead, J.) that declares the boundary
between two properties located in Hampden, one parcel owned by
Sherwood, the other by Raymond and Carolyn McGeechan.  Sherwood
contends that the trial court improperly decided for the McGeechans on
declaratory judgment and quiet title claims by (1) failing to properly apply
the standard rules of construction for the location of the boundary lines, and
(2) incorrectly concluding that the McGeechans owned the area of land
known as the Paper Mill Road.  Sherwood also contends that the court erred
in finding that the McGeechans' parcel is benefitted by an easement over
Sherwood's property.  In a cross-appeal, the McGeechans contend that the
trial court (Marden, J.) erred in granting a summary judgment in favor of
Sherwood and co-defendant Bangor Real Estate on their claim of intentional
interference with an economic relationship arising out of Sherwood's
purchase of part of her land from the Ellis family.
	[¶2]  We agree with the McGeechans that the trial court properly
identified and declared the point at which the east-west boundary between
the two properties begins, and we affirm the court's location of the
east-west boundary line that runs from the "point of beginning" to the
northern terminus of the boundary between the two properties.  We also
affirm the trial court's conclusion that the McGeechans' land is benefitted by
an easement across what is identified as the Old Grist Mill Road and the
Paper Mill Road.{1}  We agree with Sherwood, however, that the court
erroneously concluded (1) that the Paper Mill Road, which lies along the
parties' shared north-south boundary, is in the McGeechans' chain of title,{2}
and (2) that Sherwood's title does not include the Paper Mill Road.
	[¶3]  On the McGeechans' cross-appeal, we vacate the summary
judgment entered against the McGeechans on their claim of intentional
interference with an economic relationship because there exist genuine
issues of material fact that must be resolved by a factfinder.
I. BACKGROUND
	[¶4]  In the 1800s, a road formed the entire southern and western
boundary of what is now the Sherwood parcel, located north and east of
property owned by the McGeechans.{3}  The road was single and continuous,
but was identified by different names, most commonly the Old Grist Mill
Road and the Paper Mill Road.{4}
	[¶5]  The parties have established the location of the segment of the
road as it runs west along the southern boundary of the Sherwood parcel,
forming the parties' shared north-south boundary, frequently referred to in
this litigation as the Paper Mill Road.  There is disagreement, however, as to
who owns that segment of the old roadway, both parties claiming that the
Paper Mill Road is in their chain of title.{5}
	[¶6]  The parties also agree on the northern terminus of the road. 
They disagree, however, as to where that road turns from the southern
boundary of the Sherwood parcel and heads north, that point being the
disputed "point of beginning" located by the trial court.  They also disagree
on the precise path the road, generally referred to as the Old Grist Mill
Road, travels as it runs northerly from the point of beginning to reach the
agreed upon northern terminus.  That line represents their shared east-
west boundary.
	[¶7]  Finally, although the parties agree that Sherwood retains title to
the part of the road known as the Old Grist Mill Road, which runs along the
parties' shared east-west boundary, the McGeechans also claim the benefit
of an easement in that road.  The McGeechans alternatively assert, in the
event they are not determined to be the owners of the Paper Mill Road, that
their property benefits from a deed easement in the Paper Mill Road.  With
this general background in mind, we now turn to the events which gave rise
to this appeal.
	[¶8]  The McGeechans purchased a twenty-five-acre parcel of land in
Hampden in 1981.  In July of 1995, they learned that an adjacent four acre
parcel was being sold by the Ellis family and that David Caliendo of Bangor
Real Estate was the listing agent.  They contacted Caliendo and informed
him of their interest in the property.
	[¶9]  Raymond McGeechan obtained a seller's disclosure for the Ellis
property from Sherwood, a real estate broker with Bangor Real Estate, and
Sherwood listed McGeechan on the prospect sheet for the property.{6} 
Sherwood did not inform McGeechan that she, too, was interested in the
property.  Sherwood informed Caliendo of her interest in the property and
arranged to view the property at the same time as the McGeechans.  
Neither Caliendo nor Sherwood disclosed to the McGeechans that Sherwood
was a potential purchaser.
	[¶10]  The McGeechans allege that Sherwood remained within
hearing distance while they viewed the property.  After touring the
property, Raymond McGeechan asked Caliendo if there were any other
offers on the property and Caliendo responded in the negative.  McGeechan
openly discussed with Caliendo the terms of their proposed offer of
$30,000, and Caliendo stated that he thought the offer would be acceptable
to the seller.  McGeechan also informed Caliendo that the offer was intended
to start a dialogue to negotiate with the Ellis family regarding the terms of
the purchase.  The McGeechans submitted a signed offer that Sherwood also
signed as a witness.{7}
	[¶11]  One day after the McGeechans signed their offer, Sherwood
prepared her own offer of $35,000.  Caliendo did not inform the
McGeechans of Sherwood's offer, nor did Caliendo inform Mr. Ellis that the
McGeechans were prepared to pay more than $30,000 for the property. 
Caliendo submitted the $30,000 McGeechan offer and the $35,000
Sherwood offer to Ellis, and Ellis accepted Sherwood's offer.
	[¶12]  Subsequent to Sherwood's purchase of the Ellis property, a
survey of the property conducted for Sherwood by Richard Day, a licensed
professional land surveyor, concluded that the McGeechans' driveway and
utility pole encroached on the Sherwood parcel.  Sherwood sent a letter to
the McGeechans informing them of the encroachments and giving them
permission to continue to use the property for those purposes only.
	[¶13]  Believing that the driveway and utility pole were on their own
property, the McGeechans hired Michael Avery, also a licensed professional
land surveyor, to survey their property.  Avery concluded that the
McGeechans owned their driveway and the utility pole.  He also concluded
that Day's survey had inaccurately located the western boundary of the
Sherwood parcel and had ignored the fact that title to that part of the road
identified as the Paper Mill Road was held by the McGeechans.{8}
	[¶14]  The McGeechans filed a complaint in the Superior Court for a
declaratory judgment to define the boundary between the two properties. 
The complaint included a claim for trespass{9} and to quiet title to the
property.  The McGeechans also alleged that Sherwood and co-defendant
Bangor Real Estate intentionally interfered with the McGeechans' economic
advantage and relationship with the Ellis family in their attempt to purchase
the Ellis property.
	[¶15]  Following discovery, Sherwood moved for a partial summary
judgment, arguing that the McGeechans could not establish an intentional
interference with an economic relationship absent some evidence of fraud,
and there was no fraud.  The Superior Court (Marden, J.) concluded that the
McGeechans had failed to present sufficient evidence to show interference
with an economic relationship because, as a matter of law, the alleged
conduct of Sherwood and Caliendo did not rise to the level of "active
concealment" that is required to prove fraud.  Accordingly, the court
entered a summary judgment in favor of Sherwood on that claim, which is
the subject of the McGeechans' cross-appeal.
	[¶16]  A bench trial was held in December of 1998 to resolve the
boundary and title claims.  In February of 1999, the Superior Court
(Mead, J.) concluded that "Plaintiffs' Exhibit D, the Avery Survey, more
appropriately establishes the location of the common boundary," and
incorporated the survey into its judgment.  The Avery survey identifies the
entire boundary between the parcels and shows the McGeechans as the
owners of the Paper Mill Road, which runs along the southern boundary of
the Sherwood parcel.  The court also agreed with Avery that the McGeechan
property benefits from an easement along the Old Grist Mill Road, which
runs along the western boundary of the Sherwood parcel.  Sherwood
appealed the judgment.
II. THE BOUNDARY DISPUTE
A.  THE SHARED EAST-WEST BOUNDARY

	[¶17]  The property at issue in this case was originally part of two lots,
designated in the early 1800s as Lots 24 and 25.  Both Lot 24 and Lot 25
were roughly rectangular in shape and the boundary between them ran
east-west in a straight line.  Lot 24 is now owned by the McGeechans and is
located directly to the south of Lot 25.
	[¶18]  In the early 1800s, John Crosby Sr. owned all of Lot 25.  In
1820, he divided that parcel using a road to mark the boundary between the
two properties.  That road is the same road the parties are seeking to locate
in this dispute.  The road begins at the southeasterly corner of Lot 25 and
runs westerly along the boundary of Lots 24 and 25.  At some point the road
leaves that boundary and runs northerly, dividing Lot 25 into an eastern and
western parcel.  The Sherwood property lies within the eastern portion of
Lot 25, and the McGeechans own much of the western portion of Lot 25, as
well as Lot 24.
	[¶19]  Most of the physical characteristics of the road have since
disappeared.  The parties and their surveyors have agreed on the location of
the historic boundary between Lot 24 and 25 and have located the road
along that boundary, now generally known as the Paper Mill Road.  They
have been unable to agree, however, on the location of the point at which
the road (now generally known as the Old Grist Mill Road) leaves the
boundary of Lots 24 and 25 and turns to the north dividing Lot 25.  This
point has been referred to in the litigation as "the point of beginning" and is
essential to the location of the parties' shared east-west boundary.
	[¶20]  Also part of the title history is the fact that the eastern portion
of Lot 25 was later subdivided, creating several smaller parcels.  Those
parcels, including most recently the Ellis parcel, were later reunited and
now comprise the Sherwood parcel.
	[¶21]  The parties rely on two deeds in Sherwood's chain of title to
establish the east-west boundary between their properties.  The parties
agree that an 1822 deed from William Gray to Benjamin Crosby describes
their shared east-west boundary.{10}  That deed reads, in part:
Beginning at the north east corner of the Brick store owned by
John Crosby Jr. on the southerly side of the road leading to the
Old Grist Mill, thence by the southerly side of said road till it
strikes said Grist Mill Pond.
	[¶22]  The "road leading to the Old Grist Mill" is the same road that
begins at the northeasterly corner of Lot 24 and the southeasterly corner of
Lot 25, runs along the shared north-south boundary of those lots, and
ultimately turns to the north, dividing Lot 25 into an eastern and a western
part.{11}  Because the McGeechans now own Lot 24 and the western part of
Lot 25, and Sherwood owns the eastern part of Lot 25, the "southerly side"
of the "road leading to the Old Grist Mill" as described in the 1822 deed is
a monument that defines not only the north-south boundary between the
parties' properties but also their common east-west boundary.
	[¶23]   The court could not locate the monument described in the
1822 deed, the "southerly side of the road leading to the Old Grist Mill,"
however, and relied on the description in the later 1875 deed to locate the
part of the road that forms the parties' east-west boundary.  After obtaining
title to the eastern part of Lot 25 in 1822, Benjamin Crosby made several
conveyances, two of which are now part of the Sherwood parcel.  After his
death, the trustees under Benjamin's will conveyed to Barker Emery what
remained of the eastern part of Lot 25, which later became the Ellis parcel,
and is now the western most of the three parcels comprising the entire
Sherwood parcel.  That 1875 deed describes the east-west boundary by
reference to the same road as the 1822 deed, and the court determined the
location of the parties' east-west boundary by locating the point of beginning
described in the 1875 deed and connecting that point by means of a
sweeping arc to the agreed on northern terminus of the parties' boundary.{12}
	[¶24]  The "[d]etermination of property boundaries as ascertained
from a deed is a question of law."  Baptist Youth Camp v. Robinson, 1998 ME
175, ¶ 7, 714 A.2d 809, 812.  "If the language of the deed is ambiguous, and
the intention of the parties is in doubt, the court may then resort to rules of
construction and may examine the deed in light of extrinsic circumstances
surrounding its execution."  First Hartford Corp. v. Kennebec Water Dist.,
490 A.2d 1209, 1211 (Me. 1985).  The rules of construction must be
applied here, at least to the extent that they "are not absurd or manifestly
inconsistent with the parties' intentions apparent from the face of the
deed. . . ."  Snyder v. Haagen, 679 A.2d 510, 513 (Me. 1996).  The rules of
construction require a court to establish boundaries "in descending order of
control by monuments, courses, distances and quantity."  Id.
	[¶25]  The location of monuments on the face of the earth is an issue 
of fact, and "the trial court's findings as to such locations will not be 
disturbed on appeal unless they are clearly erroneous."  Harborview 
Condo. Ass'n v. Pinard, 603 A.2d 872, 873 (Me. 1992).  "The physical
disappearance of a monument does not end its use in defining a boundary if
its former location can be ascertained."  Theriault v. Murray, 588 A.2d 720,
722 (Me. 1991)  The trial court "has a duty to determine, if possible, the
original location[] . . ." of the monument.  Id.
	[¶26]  The initial call in the 1875 deed refers to several monuments
that can be used to locate the point of beginning.  The deed refers to the
intersection of "the southerly side of the Paper Mill road" and "the land of
the heirs of Major Crosby."{13}  The deed also locates the point of beginning
along the southerly side of the Paper Mill Road 1074 5/10 feet west of the
General Crosby old brick store.
	[¶27]  The trial court found that the physical characteristics of the
road had disappeared, and the evidence was insufficient to indicate where
the road intersected with the "land of the heirs of Major Crosby," and
concluded that that monument could not be located.
	[¶28]  The McGeechans introduced extensive evidence, including
several deeds and historical photographs, to establish the location of the old
brick store, leading the court to find that they had proven its location "with
some precision."  We find no clear error in that factual finding.  See Harmon
v. Emerson, 425 A.2d 978, 982 (Me. 1981).
	[¶29]  Even after locating the brick store, however, the court was
unable to locate the point of beginning using monuments alone. 
Accordingly, the court adopted the Avery survey conclusion that gave effect
to the distance and course call of "1074 5/10 feet westerly from the Genl.
Crosby old brick store" to locate the point of beginning referred to in the
1875 deed.  That point is located along the historic boundary line of Lot 24
and Lot 25.  Using this point of beginning, the court also adopted the
approach taken in the Avery survey and established the western boundary of
the Sherwood parcel by connecting the point of beginning and the agreed
upon northern terminus using a sweeping arc.
	[¶30]  Sherwood contends that the court erred in its location of the
point of beginning.  She contends that the intersection of the "southerly
side of the Paper Mill Road" and "the land of the heirs of Major Crosby" is
the true point of beginning, and is a monument that she has located through
her surveyor.  Her evidence consists of prior surveys of her properties and
abutting parcels, as well as historical maps and physical evidence, such as
wheel tracks in the area.  Sherwood also claims to have found other
evidence indicating the presence of the roadway, including a stone wall, and
barbed wire fencing.{14}
	[¶31]  The McGeechans, however, offered evidence that Raymond
McGeechan cut trees in the area and was responsible for the wheel tracks
found where Sherwood claims there was physical evidence of a road bed. 
Moreover, their surveyor, Michael Avery, testified that he could find no
physical evidence of the road.  Such evidence casts doubt on Sherwood's
location of that part of the road, and the trial court was not compelled to
accept Sherwood's point of beginning location.
	[¶32]  Because the trial court's determination of the point of
beginning reflects a proper application of the rules of construction, giving
effect in descending order to located monuments, the distance call, and
finally the course call, we affirm that determination as well as the line
connecting it to the agreed on northern terminus of the boundary between
the two properties to establish the east-west boundary.

B.  OWNERSHIP OF THE PAPER MILL ROAD
 
	[¶33]  In the 1822 deed, the road is described only as "the road to the
Old Grist Mill."  It is clear that at that time, the road was fully contained
within Lot 25.  The eastern portion of Lot 25 was subsequently subdivided.
	[¶34]  Three of the parcels created by that division, including the Ellis
parcel, now comprise the Sherwood parcel and border the McGeechans'
property.  The two parcels lying to the east of the Ellis parcel were
conveyed by Benjamin Crosby during his lifetime, and those conveyances did
not include ownership of the part of the Paper Mill Road that runs along
their respective southern boundaries.  Until his death, Benjamin Crosby
remained the owner of (1) that part of Lot 25 that was later owned by Ellis,
(2) the Old Grist Mill Road that runs along the western border of the Ellis
parcel to where the road is now identified as the Paper Mill Road, and (3) all
of the Paper Mill Road that runs along the north-south border of Lots
24 and 25.  By the 1875 deed, the Estate of Benjamin Crosby conveyed the
Ellis parcel to Barker Emery.  The trial court found that the conveyance did
not include title to the Paper Mill Road.  The court further found that the
McGeechans own the Paper Mill Road.
	[¶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).

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