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LaBelle et al. v. Blake et al.
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision: 	1998 ME 165
Docket:	Ken-97-367
Argued:	April 7, 1998
Decided:	June 30, 1998

Panel:   ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and SAUFLEY, JJ. 


 
RICHARD LaBELLE, et al.
v.
DAVID  BLAKE, et al.
 
LIPEZ, J.

	[¶1]  David and Suzanne Blake appeal from the judgment entered in
the Superior Court (Kennebec County, Calkins, J.) declaring that they are
not entitled to use a right-of-way which crosses property owned by their
neighbors, Richard and Lois LaBelle.  The Blakes argue, inter alia, that the
court erred by determining that the LaBelles' predecessor-in-interest did
not reserve an easement appurtenant for the benefit of the Blake property. 
We affirm the judgment.
I.
	[¶2]  In the early 1970s Paris Mosher ("Paris") owned two parcels of
adjacent property near Great Pond in Rome, Maine.  See attached sketch. 
The first parcel of land, lying to the north, is known as the "woodlot" and is
not adjacent to the pond.  The second parcel of land, lying to the south, is
known as the "farm" and includes a small area known as the "beach lot." 
These parcels, as well as numerous shoreline properties that Paris had
previously sold to a developer, are accessible by Crane Lane.  Crane Lane is a
private road which begins at a nearby public highway called Jamaica Point 
Road running along the westerly border of the subject properties, crosses
the woodlot in an easterly direction towards the shoreline, and eventually
splits into North Crane Lane (servicing northerly shoreline properties) and
South Crane Lane (servicing southerly shoreline properties).  
	[¶3]  On December 24, 1974, Paris executed a deed conveying the
farm to his son, Alton Mosher ("Alton").  Nearly ten months later on October
3, 1975, Paris executed a deed conveying the woodlot to his daughter, Lois
LaBelle.{1}  In addition to reserving a right-of-way for the benefit of the
existing shoreline properties, LaBelle's woodlot deed included the following
reservation of rights:
and reserving a right of way also to the grantor herein along said
right of way from grantor's property southerly of the property
herein conveyed to the Jamaica Point Road.
LaBelle's deed was recorded on October 20, 1975; Alton's deed was
recorded later the same day.
	[¶4]  In 1989 Alton sought municipal approval to create a subdivision
called "South Jamaica Shores" on the farm property.  Because Crane Lane
crosses the LaBelles' woodlot property, Alton asked the LaBelles for
permission on behalf of the prospective subdivision lot owners to use Crane
Lane for ingress and egress to the subdivision.  The LaBelles refused to grant
permission, and the municipality therefore required Alton to construct an
alternative access road as a condition of the subdivision approval.  Alton
agreed to this condition and constructed a new road called "Crane Lane
Extension" which does not cross the LaBelles' woodlot property.
	[¶5]  In 1992 Alton sold the beach lot, which was a part of the South
Jamaica Shores subdivision, to David and Suzanne Blake. In addition to
conveying to the Blakes a right-of-way over Crane Lane Extension, the deed
also quitclaimed to the Blakes a right-of-way over Crane Lane.  Despite the
LaBelles' objections, the Blakes used Crane Lane, rather than Crane Lane
Extension, to access Jamaica Point Road.   
	[¶6]  In 1994 the LaBelles commenced an action for trespass against
the Blakes in the Superior Court.  In their answer to the complaint, the
Blakes asserted the affirmative defense that their beach lot had the benefit
of an easement appurtenant over the LaBelles' property.  During the jury-
waived trial, both parties informed the court that they sought a judicial
declaration as to whether the Blakes' use of Crane Lane is prohibited.  The
court determined that the Blakes had no right-of-way over that portion of
Crane Lane which crosses the LaBelles' property and entered a judgment in
favor of the LaBelles.  This appeal followed. 
II.
 	[¶7]  The Blakes argue that the court erred by determining that Paris
Mosher's deed to Lois LaBelle did not reserve an easement appurtenant over
the woodlot for the benefit of the farm property.{2}   In its decision, the court
first examined the sequence of Paris's deeds to his children:  in 1974 Paris
executed a deed conveying the southerly farm to Alton, and in 1975 Paris
executed a deed conveying the northerly woodlot to LaBelle.  The court then
examined the language of the reservation in the LaBelle deed:  "[R]eserving a
right of way also to the grantor herein along said right of way from grantor's
property southerly of the property herein conveyed to the Jamaica Point
Road."  The court concluded that because Paris had deeded the farm to
Alton nearly ten months earlier, Paris owned no dominant estate to which
the easement could be appurtenant.  See Gilder v. Mitchell, 668 A.2d 879,
881 (Me. 1995) (an easement appurtenant is created to benefit a dominant
estate and runs with the land).  Rather, in the absence of both a dominant
and servient estate, the reservation in the LaBelle woodlot deed simply
created an easement in gross that terminated upon Paris's death.  See
O'Neill v. Williams, 527 A.2d 322, 323 (Me. 1987) (an easement in gross is a
purely personal right, is not assignable, and terminates at the death of the
person for whom it was created).   
	[¶8]  The Blakes do not dispute the legal significance of a prior
conveyance to Alton.  Rather, they contend that the LaBelles failed to
establish that Paris conveyed the farm to Alton before he conveyed the
woodlot to LaBelle.  Observing that a deed conveys title only upon delivery,
see Hood v. Hood, 384 A.2d 706, 707 (Me. 1978), the Blakes contend that
the LaBelles failed to present evidence that the deeds were delivered at the
time of their respective executions.  In the absence of such evidence, they
argue, the deeds conveyed title only upon their respective recordations in
the registry of deeds.  It is undisputed that Alton's farm deed was recorded
after the LaBelles' woodlot deed; thus, they contend, Paris still owned the
farm at the time he conveyed the woodlot to LaBelle and could have reserved
an easement appurtenant for the benefit of the farm. 
	[¶9]  The Blakes incorrectly assign the burden of proof regarding
delivery to the LaBelles.  The LaBelles' complaint was styled as an action for
trespass, and the Blakes' answer included the affirmative defense that their
beach lot had the benefit of an easement appurtenant over the LaBelles'
property.  The Blakes had the burden of proving this affirmative defense, see
1 Field, McKusick & Wroth § 8.7 (1970); Bangert v. Osceola County, 456
N.W.2d 183, 186 (Iowa 1990), which necessarily included proving
nondelivery of the deeds at the time of their respective executions.{3}  See,
e.g, Molk v. Micklewright, 201 A.2d 183, 185 (Conn. 1964) (where the
defendant asserted affirmative defense that mortgage deed had never been
delivered to plaintiff, defendant had the burden of proving nondelivery). 
The Blakes presented no evidence to show that Paris intended to retain title
to the properties until the deeds' respective recordations on October 20,
1975.  In fact, the Blakes did not even raise the issue of nondelivery during
the Superior Court proceedings, but rather argued generally that the beach
lot was benefitted by an easement appurtenant across the LaBelles' property. 
Given the Blakes' failure to establish that Paris retained title to the
properties until the deeds were recorded -- and their consequent failure to
establish that the beach lot had the benefit of an easement appurtenant
across the LaBelles' property -- we find no error in the court's judgment.{4}   
	The entry is:
		Judgment affirmed.
                                                                                                                      

Attorney for the Plaintiffs: George M. Jabar, II, Esq. (orally) Daviau, Jabar & Batten One Center St. Waterville, Maine 04901-5495 Attorney for the Defendants: Robert E. Sandy, Esq. (orally) Sherman & Sandy 74 Silver St. P.O. Box 499 Waterville, Maine 04903-0499
FOOTNOTES******************************** {1} Lois later conveyed the woodlot to herself and her husband, Richard LaBelle, as joint tenants. {2} The Blakes also challenge the court's alternative basis for its judgment, which concerned the effect of conditions contained in the South Jamaica Shores subdivision plan on the Blakes' putative right to use the LaBelles' property. Because we affirm the court's judgment on the basis of its primary rationale, we have no occasion to consider the Blakes' challenge to the court's alternative rationale. {3} We note that the LaBelles' claim, which was initially styled in the complaint as an action for trespass, took on the characteristics of an action for a declaratory judgment as the jury-waived trial proceeded. Both parties informed the court during the trial that they sought only a judicial declaration as to whether the Blakes were entering illegally upon the LaBelles' property, and the court's judgment was limited to such a declaration. Whether the LaBelles' action is framed as one for trespass or as one seeking a declaratory judgment, however, does not alter the allocation of the burden of proof regarding the existence of an easement appurtenant -- and, ultimately, delivery of the deeds. The allocation of the burden of proof in declaratory judgment actions is determined by the gravamen of the complaint. See Hodgdon v. Campbell, 411 A.2d 667, 670 (Me. 1980). "The party who asserts the affirmative of the controlling issues in the case, whether or not he is the nominal plaintiff in the [declaratory judgment] action, bears the risk of non-persuasion." Id. at 670-71. Thus, the Blakes, as the parties asserting the affirmative of the controlling issue of the existence of an easement appurtenant, bear the burden of proof on this matter. {4} Contrary to the Blakes' contention, this result does not render Paris's reservation of a right-of-way in the woodlot deed meaningless. Cf. Morrell v. Rice, 622 A.2d 1156, 1159 (Me. 1993) (inferring that deeds signed on different dates were delivered simultaneously, in order to fulfill parties' reasonable intentions). The woodlot deed successfully reserved to Paris an easement in gross. There is nothing within the easement reserved by Paris to indicate that the reserved privilege was intended to be more than a mere personal right. The retained right-of- way within the deed from Paris to LaBelle does not profess to create a benefit in favor of any land and speaks only in terms of a personal benefit "to the grantor." See, e.g., LeMay v. Anderson, 397 A.2d 984, 987 (Me. 1979). The reservation's reference to "the grantor's property southerly of the property herein conveyed to the Jamaica Point Road" can be reasonably construed as an effort to define the geographical beginning and ending points of the roadway easement, rather than as an effort to benefit the southerly farm.