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Dowley v. Morency
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 137     
Docket:	Was-98-703
Argued:	September 7, 1999
Decided:	September 27, 1999


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



MARION DOWLEY et al. v. RAYMOND MORENCY et al.

ALEXANDER, J.
	
	[¶1]  Both parties appeal the judgment entered in the Superior Court
(Washington County, Marden, J.) establishing the location of their common
boundary and granting a prescriptive easement to the plaintiffs, Marion
Dowley and her cotenants{1} (the Dowleys), to use a driveway, parking area,
and footpath existing, in part, on land owned by the defendants, Raymond
and Diane Morency.    
	[¶2] The Dowleys contend that the court's determination of the
common boundary was erroneous because it was not determined according
to the doctrine of acquiescence and because the placement of the boundary
was not supported by evidence in the record.  The Dowleys also argue that
the court erred by failing to grant them title to the disputed land, claiming
that the court's factual findings legally establish title by adverse possession,
not merely a prescriptive easement.  The Morencys assert that the court's
grant of a prescriptive easement over their land was erroneous because they
performed sufficient acts prior to the ripening of the easement to interrupt
the running of the prescriptive period.  Because we find neither legal nor
factual error in the Superior Court's well-reasoned judgment, we affirm.
I. STATEMENT OF FACTS
	[¶3]  The Dowleys and the Morencys own large, adjoining tracts of
land in Cutler.  The two lots share a common boundary approximately one
mile in length in a generally southeasterly direction beginning at Route 191
in Cutler and ending at Holmes Cove on the Atlantic Ocean.  The Dowleys
own the northerly lot and the Morencys the southerly lot.  The Dowleys'
summer residence is situated near the shore and in close proximity to the
boundary line.  The Dowley deeds describe the common boundary as follows,
beginning at the southeasterly end:  
[From] a point where the extension of a right angle line
described in a deed to Mabel L. Gessner . . . strikes the
shore; thence running N 58° 31' 06" W along the
easterly line of land now or formerly of Raymond and
Diane Morency, 5,047 feet, more or less, to a cedar post
inscribed "Gessner & Wolf 1963" on the South side of
State Highway 191°. 
The Morency deed describes the boundary, beginning from the opposite,
northwesterly end, as running:
[From] a cedar post scribed "Gessner & Wolf 1963";
thence turning and proceeding South Forty Three
Degrees Forty Six Minutes Forty Seconds East a distance
of 5,100 feet to a monument which is to be set; thence
still on the same course a distance of 10 feet, more or
less, to the waters of the Atlantic Ocean at Holmes Cove
at low water mark.
The compass bearings contained in the Dowley and Morency deeds are
based on surveys conducted by the parties prior to their respective
acquisitions.  Predecessor deeds in their chains of title describe the
boundary simply as a line running at "right angles" to the road and toward
the shore.  
	[¶4]  A 1968 survey of the Dowley lot, then owned by one Wardrop,
depicts the boundary as a straight line stretching from a cedar post at the
road to another post located at the shore.  A 1967 letter from Mr. Wardrop
reveals that the shore post was driven in 1963 and that the boundary was
marked in that year by a line slashed through the alders at the shore and
onward toward the road.  There currently stands at the roadside a cedar
post on which is inscribed "Gessner & Wolf 1963."  There is no longer a
post at the shore.  The 1968 survey indicates that the boundary was marked
by orange paint along its entire length.   Presently, the orange paint "blaze
line" no longer extends along the entire boundary, but remains only on the
northwesterly half of the boundary where the terrain is characterized by
forest growth.   
	[¶5]  In 1969, George Dowley, Marion Dowley's husband, began
utilizing the northerly property as a summer residence.  He testified that
both posts existed in 1969, but that the shore post had decomposed and
disappeared sometime prior to 1985.  Between the winter of 1969 and the
spring of 1970, George Dowley constructed a dirt driveway and parking area
to service his summer cabin at the shore.  The Dowleys have used the
driveway and parking area since that time and improved them with gravel in
1987.  George Dowley testified that ever since he acquired the lot he had
mowed the area up to the shore post and beyond.
	[¶6]  In October of 1986, immediately prior to their purchase of the
southerly parcel, the Morencys hired AWI Engineering Co. to ascertain the
boundaries.  Mr. Morency testified that he watched while the AWI surveyor
placed markers on the ground every fifty or sixty feet and that the markers
ran along a line in front of the Dowley cabin and over part of the driveway
and parking area.  Sometime in 1987 after the Morencys purchased the lot,
Mr. Morency inspected the disputed area and observed that the AWI
markers had been removed. 
	[¶7]  In 1994, George Dowley commissioned a survey from Huntley
Surveying & Engineering.  After conducting the survey, Huntley informed
Mr. Dowley that the boundary was closer to his cabin than Mr. Dowley
thought.  The Huntley surveyor determined the trajectory of the boundary by
simply continuing the trajectory of the upland paint line toward the shore. 
In addition, the surveyor mapped out a "disputed" triangular region starting
at the southerly terminus of the blaze line, running along the course of the
blaze line to the shore, turning and running with the shore to the point Mr.
Dowley later marked with an iron stake, and then returning to the blaze
line's terminus.  The Huntley survey depicted a portion of the Dowley
driveway and parking area as resting within this disputed area.
	[¶8]  In April of 1995, the Morencys commissioned their second
survey, this time hiring Civil Consultants.  Not long thereafter, George
Dowley's daughter, who was visiting the cabin, informed him that there
were nine wooden posts running over and across the southern end of the
driveway and the parking area.  George Dowley testified that the posts were
marked "Posted.  No Trespassing," and that they were removed because
"they were interfering with . . . access and egress to [the] property." 
	[¶9]  In March of 1996, the Dowleys filed a complaint seeking, in
two counts, to quiet title and obtain a declaratory judgment establishing the
parties' common boundary along a trajectory that would encompass the
driveway and parking area.  In a third, alternative count, the Dowleys sought
an easement through adverse possession to preserve their use of the
driveway and parking area.{2}  The Morencys answered with a counterclaim
for trespass and for a declaratory judgment establishing the boundary
according to their Civil Consultants' survey.  Against these claims, the
Dowleys asserted the adverse possession statute of limitations defenses.{3} 
After a nonjury trial, the Superior Court entered judgment in favor of the
Morencys with respect to the boundary and in favor of the Dowleys on their
prescriptive easement claim.
II. THE BOUNDARY DISPUTE
	[¶10]  The parties agree that their deed descriptions are incapable of
resolving their dispute and that the court was required to look to extrinsic
evidence for the proper placement of the boundary.  There is also no dispute
that the blaze line marks the common boundary along the forested terrain. 
The Dowleys argue that the boundary changes course at the end of the blaze
line and continues along a new, more southerly trajectory to the iron stake
driven by Mr. Dowley in 1996 at the point he claims the shore post once
stood.  The Morencys argue the boundary runs in a straight line on the
trajectory determined by Civil Consultants.
	[¶11]  In cases involving boundary line disputes, suits properly may
be commenced as either quiet title, 14 M.R.S.A. § 6651-6661 (1990
& Supp. 1998), or declaratory judgment claims, 14 M.R.S.A. §§ 5951-5963
(1980).{4}  Whichever approach is taken, the party asserting the affirmative of
controlling issues in the case bears the risk of nonpersuasion.  See Markley
v. Semle, 1998 ME 145, ¶ 5, 713 A.2d 945, 947 (quoting Hodgdon
v. Campbell, 411 A.2d 667, 670-71 (Me. 1980)).  In a boundary dispute, that
party bears the burden of proving the boundary's location and that his title is
superior.  See id. (citing Hodgdon, 411 A.2d at 671); Ollison v. Village of
Climax Springs, 916 S.W.2d 198, 203 (Mo. 1996) (en banc); Chappell v.
Donnelly, 439 S.E.2d 802, 805 (N.C. Ct. App. 1994)).  
	[¶12]  The court found that "the boundary is a straight line.  This
conclusion is indisputably determined by the source deeds."{5}  In addition to
the deeds describing the boundary in a single call for a straight line, both
parties' surveyors testified that the common boundary is a straight line.  The
court concluded that the proper trajectory of the line corresponds with the
course described in the Civil Consultants' survey.  
	[¶13]  Because the determination of the court as to the location of
the boundary is a question of fact, the applicable standard of review is clear
error.  See Coombs v. Grindle, 1998 ME 230, ¶ 7, 718 A.2d 1107, 1108; 
Baptist Youth Camp v. Robinson, 1998 ME 175, ¶ 7, 714 A.2d 809, 812 (Me.
1998); Rhoda v. Fitzpatrick, 655 A.2d 357, 360 (Me. 1995).  "This Court
will affirm the trial court's findings on appeal unless 'there is no credible
evidence on the record to support them . . . or . . . the court bases its
findings of fact upon a clear misapprehension of the meaning of the
evidence.'"  Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME 111,
¶ 10, 733 A.2d 984, 990 (quoting Rhoda  655 A.2d at 360). 
	[¶14]  Given the deferential standard of review and the evidence
admitted, including the deeds' singular call for a straight boundary line, the
existence of the blaze line as indicative of the boundary's trajectory, the
supportive testimony of the surveyors, and the survey conducted by Civil
Consultants, it was not error for the court to find the boundary as it did. 
	[¶15]  The Dowleys also argue that they were erroneously held to a
higher burden of proof by clear and convincing evidence pursuant to the
doctrine of acquiescence.  This argument confuses the quiet
title/declaratory judgment aspect of the Dowleys' case with the related, but
distinct, doctrine of acquiescence.  The location of the boundary did not
have to be proven by either party by clear and convincing evidence.  The
Dowleys, as plaintiffs, were put only to the preponderance of the evidence
burden of proof.  However, having found that the boundary was not proven by
the Dowleys to be located as they claimed, the court was left with the
inquiry of whether or not the Dowleys could prove a contrary boundary
under the doctrine of acquiescence. 
	[¶16]  To obtain title by acquiescence, a party must establish four
elements by clear and convincing evidence:  
1) possession up to a visible line marked clearly by
monuments, fences or the like;  

2) actual or constructive notice to the adjoining
landowner of the possession;  

3) conduct by the adjoining landowner from which
recognition and acquiescence not induced by fraud
or mistake may be fairly inferred;  

4) acquiescence for a long period of years such that
the policy behind the doctrine of acquiescence is
well served by recognizing the boundary.
See Crosby v. Baizley, 642 A.2d 150, 153-54 (Me. 1994).  See also Davis v.
Mitchell, 628 A.2d 657, 660 (Me. 1993); Marja Corp. v. Allain, 622 A.2d
1182, 1184 (Me. 1993);  Calthorpe v. Abrahamson, 441 A.2d 284, 289 (Me.
1982).  A boundary by acquiescence may be proven even where the deed
description is clear and the legal boundary is known.  See Davis, 628 A.2d at
659.  The requirement of a monument, fence, or the like indicates that the
mere cutting of grass is insufficient to produce a visible line of occupation. 
See Crosby, 642 A.2d at 154;  Davis, 628 A.2d at 660.
	[¶17]  In its order, the court found that the yellow post at the shore
once marked the boundary, but it was "not satisfied that the iron pipe has
been proven by a fair preponderance, much less to a clear and convincing
level, to be at the location of the stake."   Without the shore post or any
other monument, fence, or the like serving as indicia of a line of occupation,
the court properly determined that the Dowleys' claim for a boundary by
acquiescence failed.
III. ADVERSE POSSESSION
	[¶18]  The Dowleys assert that the existence of the driveway and
parking area within the disputed area for a period in excess of twenty years
should entitle them to title by adverse possession to the entire area, not just
to use of the driveway, parking area, and footpath.  The court determined
that the evidence could not support a claim to title because "the driveway is
not precisely defined in the area in dispute."  
	[¶19]  A party asserting an adverse possession claim must prove their
claim by a fair preponderance of the evidence.  See Striefel, 1999 ME 111,
¶ 3, 733 A.2d at 984, 988;  Stowell v. Swift, 576 A.2d 204, 205 (Me. 1990); 
Milliken v. Buswell, 313 A.2d 111, 117 (Me. 1973).  Acquisition of title by
adverse possession requires possession for a 20-year period that is actual,
open, visible, notorious, hostile, under a claim of right,{6} continuous, and
exclusive.  See Striefel, 1999 ME 111, ¶ 6, 733 A.2d at 989 (outlining the
elements and defining their meaning in detail);  Falvo v. Pejepscot Indus.
Park, 1997 ME 66, ¶ 8, 691 A.2d 1240, 1243.  "Whether specific acts are
sufficient to establish the elements of 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."  Falvo, 1997 ME 66, ¶ 8,
691 A.2d at 1243 (internal quotations omitted).
In the abstract, what acts of dominion will result in
creating title by adverse possession is a question of law. 
In this field, the powers of the court are primary and
plenary.  Whether those acts were really done, and the
circumstances under which they were done, raise
questions of fact.  In this field, the powers of the
factfinder, in the first instance, are primary and plenary.    
Striefel, 1999 ME 111, ¶ 7, 733 A.2d 989 (quoting Webber v. Barker
Lumber Co., 121 Me. 259, 262, 116 A. 583, 587 (1922)).
	[¶20]  The evidence establishes that, other than mowing grass, the
Dowleys only use of the land was as a driveway and parking area servicing
their cabin.  The driveway and parking area are situated on only a fraction of
the disputed area.  Thus, the court's failure to grant the Dowleys' title to the
entire disputed area was not legally erroneous.   
IV. PRESCRIPTIVE EASEMENT
	[¶21]  The Morencys claim that the court's factual findings establish,
as a matter of law, conduct on their part and knowledge on the Dowleys part
sufficient to terminate the prescriptive easement.  Their argument is based,
in part, on the following passage from the Decision and Order of the
Superior Court:
When Mr. Morency, with the assistance of A.W.I.
Engineering placed the markers along the line in 1987,
it was a clear attempt to put Dowley on notice of the
assertion by Mr. Morency of his property rights.  Such
action at approximately 17 years from the date of the
installation of the driveway would have ended the period
of adverse use had it been enforced.  If Mr. Morency
physically blocked the use of the driveway based on the
markers, it would have terminated the period of adverse
use prior to the completion of 20 years.
The Morencys argue that the marking of the line was enough and that
requiring them to physically block the Dowleys' use of the driveway is
contrary to both Maine law and public policy.  
	[¶22]  The Morencys' second claim of error is based on the following
finding:
The placement of markers in 1987 by the defendants
with their surveyor and subsequent disappearance causes
the court to reasonably infer that the plaintiffs were well
aware of the acknowledged disagreement as to the
appropriate location of the property line . . . .
The Morencys argue that such knowledge, existing during the prescriptive
period, prevents a prescriptive easement from arising.  The Dowleys argue
that mere marking of the ground and notice of adversity are insufficient at
law absent a showing of an interruption of use.   
	[¶23]  Neither party is correct.  Acquisition of an easement by
adverse possession requires proof of:
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.  Acquiescence by the owner to the use is
essential, and in this regard, the acquisition of an
easement by prescription differs from the acquisition of
title by adverse possession.  
Shadan v. Town of Skowhegan, 1997 ME 187, ¶ 6, 700 A.2d 245, 247. 
Interruption of a claimant's use or possession will cease the running of the
prescriptive period for either a prescriptive easement or a claim of adverse
possession.  We have held that a landowner must perform "some unequivocal
act of ownership" that interrupts the claimant's use and possession in order
to prevent the ripening of an adverse claim to title.  See Irving Pulp
& Paper, Ltd. v. Kelly, 654 A.2d 416, 418 (Me. 1995) (quoting 2 C.J.S.
Adverse Possession § 170).  But a prescriptive easement may also be
interrupted by proof of nonacquiescence.  See Town of Manchester v.
Augusta Country Club, 477 A.2d 1124, 1130 (Me. 1984).
Acquiescence by the owner to the use is essential, and, in this
regard, the acquisition of an easement by prescription differs
from the acquisition of title by adverse possession.  Pace v.
Carter, 390 A.2d 505, 507 n.2 (Me. 1978); Dartnell v.
Bidwell, 115 Me. 227, 230, 98 A. 743, 745 (1916); Rollins v.
Blackden, 112 Me. 459, 465, 92 A. 521, 525 (1914). 
Acquiescence implies "passive assent or submission to the
use, as distinguished from the granting of a license or
permission given with the intention that the licensee's use
may continue only as long as the owner continues to consent
to it."  Pace, 390 A.2d at 507.  Acquiescence is "consent by
silence."   Dartnell, 115 Me. at 230, 98 A. at 745.
See id.  See also Rollins v. Blackden, 112 Me. 459, 92 A. 521 (1914);
Dartnell v. Bidwell, 115 Me. 227, 98 A. 743 (1916).  
	[¶24]  In Rollins, we held that oral and written notice from a party's
attorney to discontinue use, followed by the claimant's temporary departure,
was sufficient evidence of nonacquiescence to interrupt a prescriptive
easement.  We reserved, however, the question of whether "mere denials of
the right, and protestations against its exercise are an interruption of an
inchoate easement."  See Rollins, 112 Me. at 466-67, 92 A. at 526
(cataloguing persuasive authority for both positions).  In Dartnell, we
returned to the question left open in Rollins and concluded, "If
acquiescence is consent by silence, to break the silence by denials and
remonstrances ought to afford evidence of non-acquiescence . . . ."  Dartnell,
115 Me. at 232, 98 A. at 745.  In that case the plaintiff sent a letter to the
defendant protesting the latter's plowing of a single-lane cart path to create
a road and demanding that plowing cease.  We held that the letter of protest
was sufficient interruption to break the inchoate easement and that the
statutory method for preventing prescriptive easements, currently codified
as 14 M.R.S.A. § 812 (1980), is not exclusive.  See id.  Thus, "a notice in
writing, served or delivered, but not recorded, is sufficient if proved."  Id. 
Dartnell, then, refutes the Dowleys' contention that only actual interruption
of possession can prevent a prescriptive easement.  However, Dartnell does
not support the Morencys' claim that mere marking of a line will suffice.
	[¶25]  Section 812 states that the rightful owner "may" prevent the
acquisition of an easement by giving "public notice."  Public notice is
effective under the statute if given in one of three ways:  (1) by posting a
conspicuous notice upon the premises for six consecutive days; (2) by having
the notice served by an officer; or (3) in the case of the unorganized
territories, through recordation of the notice in the applicable county's
registry of deeds.{7}  
	[¶26]  The placement of markers by AWI in 1987 was legally
insufficient to sever the Dowleys' inchoate rights in the driveway and
parking area.{8}  Holding that the mere marking of a line, without any
communication of protest, can interrupt a prescriptive easement would be
an over-extension of the law set out in Rollins and Dartnell.  Similarly, the
vague evidence in the record of third-party communications between the
parties in 1987, albeit through a lawyer, is not legally significant because the
message was merely one of concern and invitation to discussion, not a
demand to quit or other statement of nonacquiescence.  The fact that the
Dowleys became aware of a conflicting interest in the land in no way
prevents them from obtaining a prescriptive easement.  It is very often the
case that claimants of prescriptive rights are aware of the existence of a
conflicting interest in the land they use or occupy.  Such knowledge does
not bar a prescriptive claim.   See Striefel, 1999 ME 111, ¶¶ 11, 13, 14,
733 A.2d at 990-9.
	[¶27]  Alleging factual error, the Morencys finally argue that the
record is devoid of evidence placing the driveway, parking area, and
footpath on the Morency lot for a 20-year period.  In particular, they
contend there is no evidence in the record of a footpath being used by the
Dowleys to access the cabin from the parking area.  George Dowley testified
that the driveway and parking area were built between 1969 and 1970 and
were used continuously since that time.  This evidence supports the court's
grant of a prescriptive easement.  Although the record does not appear to
contain evidence of a precise footpath being used to connect the parking
area and the cabin, it is a logical extension of the evidence that such a path
was, necessarily, utilized.  We find no error in the court's judgment in this
regard.
	The entry is: 
			Judgment affirmed.

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