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Dowley v. Morency attorneys and footnotes

Attorney for  plaintiffs:

Barry K. Mills, Esq.       (orally)
Hale & Hamlin
P.O. Box 729 
Ellsworth, Maine 04605 


Attorney for defendants:

Robert Mongue, Esq.      (orally)
P.O. Box 9l6
Kennebunk, Maine 04043
FOOTNOTES******************************** {1} 1. Marion Dowley's cotenants and coplaintiffs are her children, Peter Dowley, David Dowley, Luke Dowley, and Susan Dowley Merrill, to each of whom she conveyed a one-fifth interest in common. {2} . See 14 M.R.S.A. § 812 (1980). {3} . See 14 M.R.S.A. §§ 801, 816 (1980). {4} . Technically, a declaratory judgment is a type of remedy. However, we have stated that a declaratory judgment action is a suitable form of action for determining rights in real property. See Harkins v. Fuller, 652 A.2d 90, 92 (Me. 1995); Hodgdon v. Campbell, 411 A.2d 667, 669 (Me. 1980). {5} . The Dowleys argue that this finding was clearly erroneous because it reveals that the court based its judgment upon a remote, 1870 deed provided to the court in a large stack of "convenience" records, but never entered in evidence during trial. The court spoke of the source deeds in its judgment. In this light, it becomes apparent that the court relied on the fact that the line is described as a straight line in every deed in evidence. {6} . As part of the "claim of right" element, we have also required a showing of actual intent to acquire prescriptive rights when the adverse possession defense is based upon common law rather than the statute of limitations defense found in 14 M.R.S.A. §§ 801, 816. See Striefel, 1999 ME 111, ¶ 15, n.9, 733 A.2d at 992. The legislature has negated the requirement of intent for the statute of limitations defenses. See 14 M.R.S.A. § 810-A (1980). {7} . Title 14 M.R.S.A. 812 (1980) provides: § 812. Acquisition of rights-of-way and easements by adverse possession; notice to prevent No person, class of persons or the public shall acquire a right-of-way or other easement through, in, upon or over the land of another by the adverse use and enjoyment thereof, unless it is continued uninterruptedly for 20 years. If a person apprehends that a right-of-way or other easement in or over his land may be acquired by custom, use or otherwise by any person, class of persons or the public, he may give public notice of his intention to prevent the acquisition of such easement by causing a copy of such notice to be posted in some conspicuous place upon the premises for 6 successive days, or in the case of land in the unorganized territory, by causing a copy of such notice to be recorded in the registry of deeds for the county where his land lies, and such posting or recording shall prevent the acquiring of such easement by use for any length of time thereafter; or he may prevent a particular person or persons from acquiring such easement by causing an attested copy of such notice to be served by an officer qualified to serve civil process upon him or them in hand or by leaving it at his or their dwelling house, or, if the person to whom such notice is to be given is not in the State such copy may be left with the tenant or occupant of the estate, if any. If there is no such tenant or occupant, a copy of such notice shall be posted for 6 successive days in some conspicuous place upon such estate. Such notice from the agent, guardian or conservator of the owner of land shall have the same effect as a notice from the owner himself. A certificate by an officer qualified to serve civil process that such copy has been served or posted by him as provided, if made upon original notice and recorded with it, within 3 months after the service or posting in the registry of deeds for the county or district in which the land lies, shall be conclusive evidence of such service or posting. 14 M.R.S.A. § 812 (1980). {8} . We need not address the legal significance of Civil Consultant's placement of large wooden posts bearing no trespassing signs over and across the driveway and parking area. This act occurred in 1995, outside of the 20-year prescriptive period that began in the winter of 1969-70.

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