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Morissette v. Somes
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 152
Docket:	Ken-01-79
Argued:	September 12, 2001
Decided:	November 1, 2001

Panel:WATHEN, C.J.,{*} and CLIFFORD, RUDMAN, DANA SAUFLEY, ALEXANDER, and
CALKINS, JJ.



JAMES MORISSETTE v. ELIZABETH SOMES


ALEXANDER, J.

	[¶1]  Elizabeth Somes appeals from a judgment of the Superior Court
(Kennebec County, Studstrup, J.) denying her counterclaims and entering
judgment for James Morissette on his complaint for declaratory and
injunctive relief and damages regarding a right of way, belonging to Somes,
that extends across his property.  Somes contends that the court erred in:
(1) prohibiting her from improving the right of way; (2) determining that
she committed common law trespass in stripping sod from the right of way;
(3) awarding $4933 in damages for common law trespass; and (4) awarding
treble damages and attorney fees against her, pursuant to 14 M.R.S.A.
§ 7552 (Supp. 1995), for the cutting of a tree.  We vacate and amend the
§ 7552 award.  In all other respects, we affirm.
I. CASE HISTORY
	[¶2]  Elizabeth Somes and James Morissette own lots adjacent to
Messalonskee Lake in Sidney.  Somes acquired her lot and the camp
situated on it in 1957.  Morissette acquired his lot in February 1996. 
Somes's lot is accessed by a deeded right of way, approximately eight feet
wide, passing across Morissette's lot from a camp road.  The right of way
stated in Somes's deed is as follows:
Together with the use of a right of way in common with others,
over and across premises of one Cowan along the road as already
laid out from the Pond Road, so called, to the lot hereby
conveyed, said right of way to be used by said grantees, their
heirs and assigns forever.{1}
 
	[¶3]  In the spring of 1996, Morissette began constructing a home
on his lot.  In the course of construction, Morissette planted a new lawn in
front of his home which rendered Somes's right of way invisible.  Morissette
also erected a stone retaining wall and a fence that interfered with Somes's
access to her right of way.  In the course of construction, Morissette
trespassed onto Somes's property cutting trees and vegetation.  
	[¶4]  Somes brought an action against Morissette to prohibit
interference with her right of way and recover damages for the right of way
obstruction and trespass and tree cutting on her property.  
	[¶5]  On May 19, 2000, the Superior Court entered a judgment
which: (1)  determined that Somes's right of way was as indicated in a 1999
survey; (2) prohibited Morissette from interfering with Somes's right of way;
(3) determined that Morissette's retaining wall encroached upon Somes's
right of way and required that he move it; (4) awarded Somes double
damages, totalling $13,110, pursuant to 14 M.R.S.A. § 7552 (Supp. 2000)
for negligent trespass and cutting of trees and vegetation on Somes's
property; (5) awarded trespass damages of $300 for improper placement of
the retaining wall; and (6) awarded Somes $5000 toward her attorney fees
based on the finding of the § 7552 violation.  In its findings supporting this
judgment, the court determined that Somes's right of way was "a very
humble thoroughfare" of "two ruts or worn down areas with grass growing
between them."  
	[¶6]  After the May 19, 2000, judgment, which was not appealed, it
appears that neither party took any action to further identify the right of way
on the face of the earth or remove the obstruction which the court had
found to exist.  Morissette planted several trees in or near Somes's right of
way established in the May judgment.  Somes's relatives engaged in an act of
self-help by entering Morissette's property, removing a tree, bulldozing a
path across Morissette's front lawn, and placing gravel where a sodded lawn
had previously existed.  Morissette then commenced the action which led to
this appeal.  
	[¶7]  After a trial, which incorporated the entire record of the
previous proceeding, the court entered a judgment which: (1) found a
common law trespass in the bulldozing of a portion of Morissette's lawn;
(2) awarded $4933 as damages to support resodding of the bulldozed area;
(3) barred Somes from crossing the resodded area for six weeks; (4) found
that Somes acted "willfully" in cutting a tree on Morissette's property in the
vicinity of the right of way; and (5) awarded $200 in damages, tripled to
$600, plus $3500 in attorney fees pursuant to 14 M.R.S.A. § 7552.  
	[¶8]  The net monetary effect of the award was to return to
Morissette approximately half of the damages and attorney fees he had
previously been ordered to pay to Somes.  From this action, Somes filed this
appeal.
II. DISCUSSION
	[¶9]  Somes contends that her actions in entering and removing the
sod from Morissette's lawn was necessary to facilitate access to her property
along the right of way determined by the court.  However, nothing in the
record suggests that, at any time, Somes's right of way was an improved,
graveled roadway.  What the court found in its May judgment was, in
essence, that Somes had a right of way to traverse grass or a lawn on
Morissette's property.  The right of way that was found could have been
maintained by driving vehicles across the Morissette lawn without the
further improvements attempted by Somes.  
	[¶10]  The Superior Court determined, pursuant to Davis v. Bruk,
411 A.2d 660 (Me. 1980), that Somes's effort to place gravel on the right of
way would be a "material change in the surface of the right of way creating
an added burden on the Morissette estate."  The reasonableness of
improvements or repairs made by the owner of the dominant estate on an
easement for a right of way is a question of fact for the trial court.  Hultzen v.
Witham, 146 Me. 118, 125, 78 A.2d 342, 345-46 (1951).  Accordingly, the
trial court did not err in finding that Somes's effort to replace sod with
gravel would unreasonably burden Morissette's estate and that Somes's
actions constituted an improper, unilateral material change in the right of
way.  With this finding made, the court also did not err in finding that
restoration of the grass was appropriate to return Morissette's lawn and the
right of way to the condition most nearly similar to the nature of the right of
way that the court had previously found to exist.  These findings support the
court's determination that Somes engaged in a common law trespass.  See
Reed v. A. C. McLoon & Co., 311 A.2d 548, 552 (Me. 1973) (stating that
"excessive use of the easement created by the deed is a trespass"). 
	[¶11]  Beyond challenging the common law trespass finding, Somes
also challenges the reasonableness of the $4933 damage award.  We have
stated that a damage award will not be disturbed unless there is no basis in
the record to support it and that reasonableness, not mathematical
certainty, is the criteria for determining whether damages are awarded
appropriately.  Jenkins, Inc. v. Walsh Bros., Inc., 2001 ME 98, ¶ 18, 776
A.2d 1229, 1235-36.  Morissette's damages witness stated that the costs
that he projected for lawn replacement were principally for the area
stripped within the right of way.  He also stated that some costs were for
damages to other areas affected by tire tracks incidental to stripping the
right of way area.  The trial court did not err in awarding damages based on
Morissette's witness's rough estimate of lawn repair and replacement costs
where it was indicated that the repair and replacement cost for areas
outside the stripped right of way were minimal.  
	[¶12]  While the damages for resodding were based on a finding of
common law trespass, the award of treble damages and attorney fees
incident to cutting the tree appears to have been based on 14 M.R.S.A.
§ 7552 (Supp. 1995).  Section 7552(2)(A) (Supp. 2000) provides that,
without permission of the owner, a person may not "[c]ut down, destroy,
damage or carry away any forest product, ornamental or fruit tree,
agricultural product, stones, gravel, ore, goods or property of any kind from
land not that person's own . . . ."   Section 7552(4)(B) provides that a person
who "intentionally or knowingly violates subsection 2 is liable to the owner
for 3 times the owner's damages as measured under subsection 3 or $500,
whichever is greater."  Section 7552(5), as amended in 1996, limits
recovery for attorney fees and other professional services to an amount that
"may not exceed 50% of the damages recovered pursuant to subsection 4
plus interest on the damages."
	[¶13]  The court appears to have relied on an earlier version of
§ 7552, before its revision{2} in 1996, although neither party raises this issue
on appeal.  Section 7552 formerly stated that "[i]f such an act or such acts
are committed willfully or knowingly, the defendant is liable to the owner in
treble damages, and, in addition, for the cost of any professional services
necessary for the determination of damages, for attorney's fees, and for
court costs." 14 M.R.S.A. § 7552 (Supp. 1995) (emphasis added).  In its
order, the court found: 
It is difficult to determine from the evidence whether the tree
Somes had taken down was actually in the right-of-way as
located on the Wendell Survey.  Whether or not it was in the
right-of-way, it was not in the area that Somes had begun using
as the right-of-way and was taken down without warning or
notice to Morrissette.  
The court further stated:
The court also concludes that by pulling down the tree on
Morrissette's property, Somes violated 14 M.R.S.A. § 7552
(count IV).  The statute provides several alternatives for
measuring damages, but the only evidence on the subject was
that the tree would cost $200 to replace.  Since this action was
taken "willfully," Morrissette is entitled to treble damages or
$600.  Morrissette is also entitled to payment of that portion of
his attorney's fees attributable to the statutory violation.  The
court finds that portion to be $3,500.
Thus, the record indicates that the trial court quoted the "willful" language
from the prior version of § 7552, rather than the present "intentional and
knowing" language.  The court also apparently relied on the unlimited
attorney fees provision in the prior law.  Somes objects to the tree cutting
and attorney fees award, but does not address reliance on the older version
of § 7552.  Accordingly, we must determine whether the court clearly erred
in finding that Somes's willful conduct violated § 7552 and in its award of
attorney fees.  See Lamson v. Cote, 2001 ME 109, ¶ 10, 775 A.2d 1134,
1137 ("[w]e review the court's application of law for clear error"); Tremblay
v. DiCicco, 628 A.2d 141, 144 (Me. 1993) (stating, under prior version of
the statute, that "[t]he determination by the trial court as to whether
conduct is willful or knowing within the meaning of § 7552 is a question of
fact and will not be set aside unless clearly erroneous").  
	[¶14]  Under the prior version of the statute, we stated that
"willfully" under § 7552 requires a lesser degree of culpability than
"knowingly" but embraces conduct which displays utter and complete
indifference to and disregard for the rights of others.  Bonk v. McPherson,
605 A.2d 74, 77 (Me. 1992); Accord Glidden v. Belden, 684 A.2d 1306,
1319 (Me. 1996).
	[¶15]  Here the evidence indicates that after the Somes v.
Morissette judgment, Morissette planted the tree in an area that the trial
court could not determine to be inside or outside of the right of way that it
had recently determined Somes had a right to use and could use but for
Morissette's obstructions.  In these circumstances, Somes's conduct cannot
be found to display utter and complete indifference to and disregard for the
rights of others, the "willfulness" standard, and certainly not the greater
culpability required for a knowing or intentional finding.  The trial court's
finding that Somes acted "willfully" was clear error and must be vacated. 
Thus, Morissette is not entitled to treble damages pursuant to § 7552(4)(B).
	[¶16]  Morissette may recover the damages allowable for Somes
cutting a tree on Morissette's land without permission, violating
§ 7552(2)(A), but with damages measured according to the negligent or
without fault standard of § 7552(4)(A).  That standard allows double
damages, here $400, plus attorney fees pursuant to § 7552(5).  By operation
of § 7552(5) (Supp. 2000), the award of attorney fees is limited to $200,
fifty percent of the $400 damages award.  The award of $3500 for attorney
fees was not authorized by the governing statute.
	The entry is:
Judgment vacated.  Remanded to the
Superior Court to recalculate the
damages and attorney fees awarded
pursuant to 14 M.R.S.A. § 7552 in
accordance with this opinion.  In all
other respects the judgment is affirmed.
                                                   	
Attorneys for plaintiff:

Peter S. Plumb, Esq.
Michael D. Traister, Esq. (orally)
Murray Plumb & Murray
P O Box 9785
Portland, ME 04104-5085

Attoneys for defendant:

Robert J. Ringer Jr., Esq. (orally)
Jabar Batten Ringer & Murphy
One Center Street
Waterville, ME 04901
FOOTNOTES******************************** {*} Wathen, C.J., sat at oral argument and participated in the initial conference but resigned before this opinion was adopted. {1} . The right of way was intended to serve as access for three adjacent camp lots. However, the owner of the furthest of the three lots now accesses his property from another direction, and the owner of the middle lot constructed a road in 1949, which is presently used for access to that lot. {2} . See P.L. 1995, ch. 450, § 2 and P.L. 1995, ch. 585, §§ 2-4 which adopted the basic form of § 7552, effective July 4, 1996, as it exists today.