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Jordan v. Shea
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 36
Docket:	Han-01-25
on briefs:	November 30, 2001
Decided:	February 25, 2002




	[¶1]  Kenneth and Stephen Shea appeal from a judgment entered in the
Superior Court (Hancock County, Mead, C.J.) interpreting an easement deed in
favor of Patrick Jordan and granting Jordan and Eberhardt Duschek an
easement by necessity over the Stabawl Road in Hancock.  The Sheas argue
that the Superior Court erred in: (1) reforming the easement deed when an
action for reformation was not pled; (2) finding that Jordan did not have the
right to use the "woods road" by prescription; and (3) finding an easement by
necessity over Stabawl Road.  We affirm in part and vacate in part.
	[¶2]  In 1940, Emmons Shea, the predecessor-in-interest to Kenneth
and Stephen Shea, acquired a twenty-eight acre parcel of land in Hancock. 
Emmons Shea sold six of those acres to a third person in 1948, creating what
is now known as Jordan's little lot.  Ultimately, after a series of transactions,
Lucia Merritt acquired Jordan's little lot in 1988.  Lewis and Sarah Smith, the
parents of Lucia Merritt, purchased the parcel of land north of the Shea
property, now known as Jordan's big lot, in 1945.  Merritt inherited Jordan's
big lot in 1996, selling both that parcel and Jordan's little lot to Patrick Jordan
two years later. 
	[¶3]  In 1966, Eberhardt Duschek purchased the parcel of land located
east of the Shea property and south of Jordan's big lot.  Both Duschek and
Kenneth Shea testified that access to Duschek's property has always been over
Stabawl Road, which runs east-west along the border between the Sheas'
property, Jordan's little lot, and Duschek's property.  
	[¶4]  The Hancock County Commissioners formally abandoned Stabawl
Road as a public way from the Ellsworth/Hancock town line eastward into
Hancock in 1946, causing title of that portion of the road to revert to the
abutting landowners to the centerline.  However, until 1998, all the parties
were under the mistaken impression that the road was a public road.  In 1998,
the Superior Court (Mead, J.) declared the Hancock portion of Stabawl Road to
be private and found that "no easement by prescription in favor of the public in
general" had been created.  City of Ellsworth v. Shea, CV-96-50 (Me. Super. Ct.,
Hancock Cty., Sept. 11, 1998).  That judgment, to which Duschek and Shea
were parties, was not appealed.
  	[¶5]  Stabawl Road is used as access to the woods road, which runs
north-south along the Shea-Duschek boundary and provides access to Jordan's
big lot.  Historically, members of the public used the woods road without
question for hunting and hauling wood.  Kenneth Shea testified that Emmons
Shea and the Smiths were under the impression that the woods road was on
the Shea property.  This was first questioned in 1967 when, notwithstanding a
surveyor's conclusion that the woods road was on Shea property, Duschek
determined that the woods road was on his property by walking his property
line and observing blaze marks on the left side of the road.  Duschek testified
that he discussed the blaze marks with Lewis Smith and told Smith that he
could use the woods road even though it was on Duschek's property.  Until
1996, this permission was never withdrawn.
	[¶6] After the 1967 survey, Lewis Smith apparently approached both
Emmons Shea and Duschek to receive permission to travel the woods road.  At
some time prior to 1975, Smith asked Emmons Shea to grant him an easement
over the Shea property to ensure access to Jordan's big lot.  Kenneth Shea
testified that Emmons was reluctant to grant the right of way and initially
tried to give Smith permission to haul wood over his property.  In 1975,
Emmons Shea and the Smiths entered into an agreement in which
the Smiths, as grantees, agreed that (1) they would continue to use the
existing woods road "crossing the land of the grantor," which they believed to
be on Shea's property, and (2) they would not exercise the access easement
"until the grantor," Shea, notified the Smiths to discontinue use of the
existing woods road, after which time the Smiths would only use the easement
granted by Shea. 
	[¶7]  In 1996, Stephen Salsbury, a surveyor hired by Lucia Merritt,
concluded that the woods road was on Duschek's property.  Merritt's attorney
then approached Duschek and requested that he deny Merritt permission to
use the woods road so as to trigger the deeded right of way across the Sheas'
property.  Duschek subsequently signed a letter drafted by Merritt's attorney
withdrawing his permission.  He also placed boulders on the northern end of
the woods road between his property and Jordan's big lot.
	[¶8]  Lucia Merritt then initiated a lawsuit against Kenneth and
Stephen Shea to clarify her access to Jordan's big lot.  The second amended
complaint, substituting Patrick Jordan as plaintiff, sought a declaratory
judgment to establish (1) the existence, location and rights of the easement
deed over Shea property, and (2) a right of way over Stabawl Road on Duschek,
Shea and/or Babcock{2} property by adverse possession.  The Jordan complaint
also alleged (1) the existence of an easement over the woods road on Duschek
property by adverse possession, and (2) a prescriptive easement, implied
easement, easement by necessity and/or easement by adverse possession over
Stabawl Road on Duschek, Shea and/or Babcock property.   
	[¶9]  The Sheas answered, counterclaimed seeking a declaration that
Jordan be allowed to use the woods road by prescriptive easement and to quiet
title, and filed a third-party complaint against Duschek alleging damages as a
result of Duschek's denial of the use of the woods road.   Duschek, as a third-
party defendant, counterclaimed alleging he had a right of way over Stabawl
Road by adverse possession and sought a declaratory judgment to that effect. 
That counterclaim also served as a third-party complaint against Babcock
regarding, Babcock's portion of Stabawl Road.
	[¶10]  At the close of the evidence in the nonjury trial, Duschek's
counsel orally moved to amend the pleadings to permit a claim for a public
easement over Stabawl Road.  The court denied this motion, finding that the
"issue of public easement was not raised in the pleadings or any pre-trial
submissions and is not properly before the court."  Such a claim had also been
rejected in the 1998 judgment.
	[¶11] The Superior Court found that: (1) the use of Stabawl Road and
the woods road "cannot ripen into any right pursuant to the doctrines of
adverse possession or easement by prescription" because Stabawl Road was
used under the mistaken belief that it was a public road, and the woods road
was used under the mistaken impression that it was on the Sheas' property; (2)
the condition triggering Jordan's express easement over the Sheas' property
had been met and the easement had ripened as pled in the second amended
complaint; and (3) an easement by necessity existed in favor of Jordan and
Duschek over Stabawl Road.{3}  
	[¶12]  The court's order indicated that it was entering judgment on the
various claims in accordance with its determinations,{4} but it also requested
that a declaratory judgment be drafted.{5}  The court subsequently adopted
proposed findings of fact and conclusions of law contained in a final argument
submitted by Jordan.  The Sheas then filed a notice of appeal.  The Sheas filed
a second notice of appeal after the Superior Court entered a final judgment
incorporating its memorandum of decision, as supplemented by the adopted
findings of fact.  The two appeals were consolidated.
	[¶13]  Where a declaratory judgment was requested, the court should
have issued such a judgment, stating succinctly in one place the relief it was
granting.  The practice used here of a generalized memorandum of decision,
later supplemented by incorporating findings submitted by one party, creates a
risk of subsequent confusion in a case where the parties had sought a clear
resolution of conflicting property claims.  Where a declaratory judgment is
sought, particularly in property cases, the court's final judgment should
include a clear statement of the relief awarded and the rights declared. 
Because the trial court's collective orders do constitute a final judgment, we
proceed to address the merits of the appeal.

A.	The Express Easement

	[¶14]  Construction of the language in a deed is a question of law,
which we review de novo.  Stickney v. City of Saco, 2001 ME 69, ¶ 53, 770 A.2d
592, 610.  The scope of a party's easement rights must be determined from the
unambiguous language on the face of the deed.  Id.  Only if language in a deed
is ambiguous may a court consider extrinsic evidence to determine the intent
of the parties.  Id.   
	[¶15]  The easement deed provides:  
The Grantees, by acceptance of delivery of this deed, covenant
and agree for themselves, their heirs and assigns, that they will
continue to use the existing woods road crossing the land of
the Grantor as access to their said lot and that they will not
exercise the easement hereby granted until the Grantor, his
heirs andassigns [sic], notifies them to discontinue the use of
said existing road after which they will use only the easement
hereby granted.
	[¶16] Both the Sheas and Jordan agree that the language of the deed
does not contain a patent ambiguity, nor does the easement deed contain a
latent ambiguity.  See Wallingford v. Kennedy, 2000 ME 112, ¶ 15 n.7, 753 A.2d
493, 497 n.7 ("A latent ambiguity is an uncertainty which does not appear on
the face of the instrument, but which is shown to exist for the first time by
matter outside the writing when an attempt is made to apply the language to
the ground." (internal quotation marks omitted)). 
	[¶17]  Although the deed is clear and unambiguous, the Superior Court
found that it did not embody the true agreement between Emmons Shea and
Lewis Smith because they misunderstood "exactly who owned the land where
the woods road was located."  The Superior Court construed the language in
the easement agreement, concluding that the single term "grantor" referred to
two different property owners, with Duschek the "grantor" for purposes of
terminating use of the woods road, and Shea the "grantor" for purposes of
imposition of the easement on his property as a result of Duschek's action.
	[¶18]  Extrinsic evidence contradicting the parties' intention as
manifested by the unambiguous language of a deed may only be considered in
an action for reformation.  Perreault v. Toussaint, 419 A.2d 1009, 1011 (Me.
1980).  Reformation is an equitable remedy by which an instrument may be
corrected when a mistake is discovered so as to reflect the real intention of the
parties.  Robert Treat Whitehouse, Equity Jurisdiction Pleading and Practice in
Maine § 548 (1900).  Although Jordan did not expressly plead reformation, the
evidence presented by both parties at trial generated the issue of mutual
mistake.   Reformation was therefore tried by consent.  See Bernier v. Merrill Air
Eng'rs, 2001 ME 17, ¶ 22, 770 A.2d 97, 105 (noting that issues are tried by
consent where it appears from the record that both parties consented to a trial
of the issue).
	[¶19]  The testimony presented at trial supports the conclusion that
Emmons Shea and Lewis Smith labored under a mutual mistake regarding the
true owner of the woods road.  See Sargent v. Coolidge, 433 A.2d 738, 740 n.3
(Me. 1981) (parol evidence admissible to prove mutual mistake).  
	[¶20] However, the Superior Court incorrectly determined the intent of
the parties in executing the easement deed.  A party's intent to contract is a
question of fact reviewed for clear error.  Forrest Assocs. v. Passamaquoddy
Tribe, 2000 ME 195, ¶ 9, 760 A.2d 1041, 1044.  Other than the testimony that
the Sheas and the Smiths had been friends for years, there is no evidence that
Emmons Shea intended to grant an easement across his land regardless of who
owned the woods road, or that he intended to permit a stranger to the
transaction to act in his place as "grantor" to trigger the right of way easement.  
	[¶21]  Absent extraordinary circumstances, not present here, a deed
may not be reformed to make a stranger an active party to the transaction.  In
the agreement, if Duschek is "the grantor" to terminate use of the woods road,
then he would also have to be "the grantor" to accept imposition of the
resulting easement.  He may not be "the grantor" for one purpose but not the
other.  The Superior Court could not reform the deed to reflect that Duschek,
in place of Shea as grantor, could exercise the power Shea reserved to himself
to take actions that would trigger the grant of the easement in place of use of
the woods road.
B.  	Woods Road

	[¶22]  The Sheas contend that the Superior Court erred in finding that
Jordan did not have a prescriptive easement over the woods road.  The Superior
Court's conclusion may be vacated only if the evidence before it compelled a
contrary holding.  See Glidden v. Belden, 684 A.2d 1306, 1316 (Me. 1996).  "The
party asserting an easement by prescription must prove continuous use for at
least 20 years under a claim of right adverse to the owner, with his knowledge
and acquiescence, or a use so open, notorious, visible, and uninterrupted that
knowledge and acquiescence will be presumed."  Stickney, 2001 ME 69, ¶ 16,
770 A.2d at 601 (internal quotation marks omitted).  
	[¶23]  To use property "under a claim of right," a claimant must be in
possession as the owner, intending to claim the land as his own, and may not
be "in recognition of or subordination to [the] record title owner."  Id. ¶ 20, 770
A.2d at 602.  The claimant's use of the property is adverse to the owner when
the claimant disregards the owner's rights entirely and uses the land as though
he were the true owner.  Id. ¶ 21.  Relevant to these determinations is the
prescriptive user's state of mind.  Glidden, 684 A.2d at 1317.
	[¶24]  The use of the woods road did not ripen into an easement by
prescription.  Duschek testified at trial that Lewis Smith sought, and he
granted, permission to use the woods road.  Seeking permission not only
evinces a recognition of Duschek's status as title owner, but it negates the
prescriptive user's claim that use of the property was adverse to the owner.  See
Stickney, 2001 ME 69, ¶ 21, 770 A.2d at 602 (noting that use of property is
adverse when the owner has not given permission for that use).  This failure to
establish that use of the property was under a claim of right adverse to the
owner is fatal to the claim for a prescriptive easement.

C.	Stabawl Road

	[¶25]  The Superior Court found that Jordan and Duschek had an
easement by necessity over the portion of Stabawl Road owned by Babcock and
the Sheas.  Because Duschek did not allege an easement by necessity in his
complaint or make a motion to amend the pleadings to include that issue, the
Superior Court properly considered the issue only if it was tried by express or
implied consent pursuant to M.R. Civ. P. 15(b).{6}  See Inniss v. Method Buick-
Opel, Inc., 506 A.2d 212, 218 (Me. 1986). Here, the easement by necessity issue
was before the court on Jordan's pleading, but Jordan based his claim on a
different chain of title than Duschek.	
	[¶26]   An easement by necessity is created only when: (1) a grantor
conveys a parcel of land out of a larger, divided parcel; (2) the conveyed lot is
"landlocked" by the grantor's surrounding land; and (3) relief in the form of an
easement across the grantor's retained land is available.  Shadan v. Town of
Skowhegan, 1997 ME 187, ¶¶ 8-9, 700 A.2d 245, 248; Amodeo v. Francis, 681
A.2d 462, 465 (Me. 1996).  
	[¶27]  The evidence did support the easement by necessity finding for
Jordan.  When Jordan's little lot was conveyed in 1948, it was landlocked by
the other parcel owned by Shea, because, as established by the 1998 judgment,
title to Shea's share of Stabawl Road reverted to him upon the road's
discontinuance in 1946.  Even if Duschek had properly asserted easement by
necessity, the evidence was insufficient to establish such an easement for
Duschek.  There is no evidence that Duschek's parcel was created from a
division of the Sheas' parcel, the land over which he is seeking an easement. 
The determination that Duschek possessed an easement by necessity over the
Sheas' portion of Stabawl Road was therefore in error.
	[¶28]  Duschek contends, in the alternative, that the evidence
presented at trial established the existence of a public, prescriptive easement{7}
over Stabawl Road.  This argument, advanced by counsel for the first time
during closing arguments, was rejected by the Superior Court because the
"issue of public easement was not raised in the pleadings or any pre-trial
submissions."  Because Duschek amended his answer in 1999 to include the
adverse possession counterclaim and third-party complaint, but did not seek to
advance a public prescriptive easement claim until after the close of evidence a
year and a half later, we cannot find that the Superior Court abused its
discretion in denying Duschek's motion to amend.  See Bahre v. Liberty Group,
Inc., 2000 ME 75, ¶ 7, 750 A.2d 558, 560.  
	[¶29]  Even if the claim was properly alleged, the Superior Court
previously decided the identical issue.  In 1996, Duschek and the Town of
Ellsworth filed a declaratory judgment action against Kenneth Shea, among
others, asking the court to declare that the Stabawl Road was a public road. 
In 1998, the Superior Court declared:
The Stabawl Road as it traverses property within the Town of
Hancock was discontinued by the Hancock County
Commissioners and reverted to the adjoining owners, as their
interests may appear, to the centerline of said road; no
easement by prescription in favor of the public in general has been
(Emphasis added).  The failure to appeal that judgment rendered it final and
binding upon the parties.  The issue of whether a public prescriptive easement
exists over Stabawl Road was therefore resolved by the 1998 judgment. 
	[¶30] Duschek also argues that his usage of more than 20 years has
established a private prescriptive easement over the Stabawl Road.  There is no
dispute that, until 1998, all parties used the Stabawl Road believing that it
was a public way.  Citing precedent extending over more than a century, we
noted in Glidden v. Belden, 684 A.2d at 1317-18, that an essential element of a
prescriptive easement claim is a demonstrated intention by the adverse user to
claim title or a right to use property.  We also held that use of a right of way
under a mistaken belief that it is a town way or a public way precludes the user
from asserting sufficient adversity of use to claim a right of way by
prescription.  Id. at 1318.  See also Crosby v. Baiyley, 642 A.2d 150, 153 (Me.
1994); McMillan v. Dowley, 483 A.2d 698, 700 (Me. 1984); Tallwood Land & Dev.
Co. v. Botka, 352 A.2d 753, 756 n.2 (Me. 1976).
	[¶31] The adversity issue is treated the same in adverse possession
cases and prescriptive easement cases.  See Glidden, 684 A.2d at 1318 n.20;
Rollins v. Blackden, 112 Me. 459, 464-65, 92 A. 521, 525 (1914).  Thus,
Duschek's prescriptive easement claim fails.{8}
	The entry is:
The judgment is vacated insofar as it reformed the
easement deed in favor of Jordan and declares an
easement by necessity over the Sheas' portion of the
Stabawl Road in favor of Duschek.  In all other
respects, the judgment is affirmed.
Attorney for plaintiff: Jeffrey C. Toothaker, Esq. Toothaker & Chong P O Box 1084 Ellsworth, ME 04605 Attorneys for defendants: Roger G. Innes, Esq. P O Box 240 Mt. Desert, ME 04660-0240 (for Kenneth & Stephen Shea) Peter G. Roy, Esq. Roy, Beardsley, Williams & Granger, LLC P O Box 723 Ellsworth, ME 04605 (for Eberhardt & Augustine Duschek) Frank B. Walker, Esq. P O Box 29 Ellsworth, ME 04605 (for Constance Babcock)
FOOTNOTES******************************** {1} . Kenneth R. Shea, Eberhardt B. and Augustine A. Duschek, and Constance L. Babcock are also listed parties. {2} . Constance Babcock is the trustee under the will of Philip Hurley, who owns property abutting Duschek as well as a portion of the Stabawl Road. She is not a party to this appeal. {3} . Easement by necessity was pled by Jordan in Count VII of the second amended complaint. It was not, however, contained anywhere in Duschek's pleadings. {4} . The Superior Court also entered judgment in favor of Duschek on the Sheas' third- party complaint seeking money damages, finding the record "devoid of any evidence suggesting entitlement thereto." {5} . The docket entries indicate that a draft judgment was filed by counsel, but the document does not appear in the record. {6} . Maine Rule of Civil Procedure 15(b) provides: (b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining an action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. {7} . The elements required to establish a public easement by prescription mirror those for the creation of a prescriptive easement. Stickney, 2001 ME 69, ¶ 16, 770 A.2d at 601. Continuous possession and use, for purposes of a public easement, may not be established by use of the road by the abutting landowners to access their own land. Id. ¶ 18. "Rather, the test of a public use is the use of the road by people who are inseparable from the public generally; it is not the frequency of the use of the number of people using the way." Id. {8} . While access to Duschek's lot over the Shea property appears precluded by this judgment, there may be some access over the portion of the Stabawl Road on the Babcock property as that access was not subject to this appeal.