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Maine Gravel v. Haining
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Decision:		1998 ME 18
Docket:		Cum-97-23
On Briefs:		October 23, 1997
Decided :		January 23, 1998




	[¶1]  Maine Gravel Services, Inc. appeals from a declaratory judgment
entered in the Superior Court (Cumberland, Saufley, J.) declaring
defendants Philip and Eleanor Haining,{1} and Paul and Patricia Sullivan, to be
the owners of real estate located in Brunswick.  Maine Gravel contends that
the Superior Court erred in finding that defendants carried their burden of
proving adverse possession.   We discern no error and affirm the judgment.  
	[¶2]  This case involves competing claims to an unimproved ten-acre
woodlot located in Brunswick, identified as lot 3A.  The lot is bisected by a
brook.  Pursuant to 14 M.R.S.A. § 5951-5963 (1980) Maine Gravel brought a
complaint seeking a declaratory judgment that it is the owner of lot 3A and
to establish its boundary lines.  The defendants, the Hainings and the
Sullivans, filed a counterclaim seeking a declaration that they are the record
owners of lot 3A by virtue of recorded deeds, or, in the alternative, that they
have established title by adverse possession.  The court found record title to
be in Maine Gravel,{2} but concluded that the defendants had proven the
elements of adverse possession, and accordingly, declared title to lot 3A to
be in the defendants.  The court based its conclusion on the use of the land
by the Haining family consistent with ownership from 1945 forward.{3}  Maine
Gravel appeals from that judgment.
	[¶3]  Possession sufficient to establish title by adverse possession
must be "actual, open, notorious, hostile, under claim of right, continuous,
and exclusive for a period of at least twenty years."  Cates v. Smith, 636 A.2d
986, 988 (Me. 1994) (quoting Emerson v. Maine Rural Mission Ass'n, 560
A.2d 2 (Me. 1989)).  "Whether specific possessory acts are sufficient to
establish title through adverse possession can only be resolved in light of the
nature of the land, the uses to which it can be put, its surroundings, and
various other circumstances."  Emerson, 560 A.2d at 2 (citing McMullen v.
Dowley, 418 A.2d 1147, 1154 (Me. 1980)).  To establish their claim of
adverse possession the claimants must show that their use and enjoyment of
the property has been the same "in kind and degree as the use and
enjoyment to be expected of the average owner of such property."  Howe v.
Natale, 451 A.2d 1198, 1200 (Me. 1982).  A trial court's determination of
adverse possession will be upheld if supported by credible evidence in the
record.  Id.
	[¶4]  The court found that the defendants "demonstrated a consistent
use of the land under their claim of title for 20 years,"{4} and that the Haining
family treated the lot as its own since 1945.  That use has included cutting
wood for cedar posts, bridging the stream to allow foot and horse traffic,
clearing out a small picnic area, placement of a log cabin on the lot by one of
the defendants' children, and regular use of the property for such purposes
as walking, hunting, fishing and recreation.{5}
	[¶5]  There was also evidence that a person paid the Haining family to
do substantial logging on lot 3A.  Harry Crooker, father of the two principal
owners of Maine Gravel, had sought permission from the Haining family to
go on the lot to remove beaver dams in the 1960's.  Central Maine Power
Company (CMP) sought an easement over lot 3A and Roland Haining, the
father of Philip Haining, gave a quit claim deed to CMP in 1947.  The real
estate taxes have been paid by the Haining family since 1945.  Large piles of
the cord wood cut on the lot were visible by the neighbors, including Maine
Gravel's predecessors-in-interest.
	[¶6]  It is true, as Maine Gravel points out, that timber harvesting
over the statutory period does not necessarily demonstrate adverse
possession, See Webber v. McAvoy, 117 Me. 326, 329 (1918), Webber v.
Barker Lumber Co., 121 Me. 259, 265 (1922).  Such activity, however, may,
in various circumstances, demonstrate sufficient activity consistent with an
adverse claim to prove adverse possession.  McMullen v. Dowley, 418 A.2d at
	[¶7]  The defendants contend that, consistent with reasonable
forestry practices, their logging has been continuous over fifty years, and the
court found that the use made of the property by the defendants was "in
kind and degree the same as the use and enjoyment to be expected of the
average owner of such property."  Howe v. Natale, 451 A.2d at 1200. 
Moreover, defendants did far more than conduct the substantial timber
harvests.  They paid taxes on the lot, and demonstrated a "consistent" use of
the land under their claim of title for over 20 years.  See Stowell v. Swift,
576 A.2d 204, 205-206 (Me. 1990).{7}	
	[¶8]  Evidence that for over forty years, from 1945 to 1986, four
generations of Hainings used the property as if it were theirs, and paid the
taxes on it, supports the court's finding that the use of the lot made by the
defendants is sufficient to establish title by adverse possession.
	The entry is:
			Judgment affirmed.
Attorney for plaintiff: David A. King, Esq. 99 Commercial Street Bath, ME 04530 Attorney for defendants: David R. Weiss, Esq. Stinson, Lupton, Weiss & Gabree, P.A. 280 Front Street Bath, ME 04530
FOOTNOTES******************************** {1} Philip Haining has since died and Eleanor Haining, as personal representative of the Estate of Philip Haining, has been substituted as a party pursuant to M.R. Civ. P. 25(a). {2} The finding that Maine Gravel established itself to be the record title holder is not challenged by the defendants on appeal. {3} The Sullivans purchased a two-acre portion of the land by deed. They rely on the action of the Hainings to establish their claim of adverse possession. {4} In concluding that the defendants had established their adverse possession claim, the trial court did not make clear whether it was relying on 14 M.R.S.A. § 801 (1980) or the common law. The analysis of adverse possession is the same for either, however. Johnson v. Town of Dedham, 490 A.2d 1187, 1189 (Me. 1985) ("[S]ection 801 is a twenty year statute drafted in terms of an absolute statute of limitations which we have interpreted to be subject to the general elements of adverse possession.") (emphasis added). The court concluded that the defendants failed to prove their claim to adverse possession pursuant to 14 M.R.S.A. § 816 (1980) (requiring the adverse claimant to have claimed under a recorded deed), because the deed on which they relied did not adequately describe lot 3A. {5} Maine Gravel also asserts that the 1986 entry upon the property of one of its principals, Theodore Crooker, terminates the period of defendants' adverse possession, and that evidence of use of the property by defendants subsequent to that date is irrelevant. We disagree. See Gonthier v. Horne, 576 A.2d 745, 748 (Me. 1990) (claimant's acts after the statutory period "rationally could be considered indicative" of the nature of his prior holding during that period). {6} In McMullen we explained that, consistent with the precept that "each case must be separately considered on the basis of the particular circumstances presented," id. at 1152, the same degree of intermittent cutting in one location may be open and notorious, even if it would not be in a more remote location. {7} Cf. Great Northern Paper Co., Inc. v. Eldredge, 686 A.2d 1075, 1077 (Me. 1996) (A claimant's use may be intermittent and need not be constant to be continuous for purposes of establishing a prescriptive easement "if it is consistent with the normal use that an owner of the property would make and is sufficiently open and notorious to give notice to the owner of the servient estate that the user is asserting an easement.").