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S. D. Warren v. Vernon
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:  	1997 ME 161 
Docket:  	Som-96-681
Argued:	June 11, 1997 
Decided:	July 21, 1997

Panel:		WATHEN, C.J., and ROBERTS, GLASSMAN, RUDMAN, and LIPEZ, JJ.






S.D. WARREN CO. v. MICHAEL VERNON


WATHEN, C.J.

	[¶1] Defendant Michael Vernon appeals from the judgment entered in
the Superior Court (Somerset County, Alexander, J.) in favor of plaintiff S.D.
Warren Co. (Warren).   The court held that Warren had acquired a private
prescriptive easement across defendant's land, and that a public easement
also exists.  Vernon contends that Warren failed to prove the required
elements for either easement.  Warren cross-appeals, asserting that the
court erred by determining that its easement does not include the right to
transport herbicides.  We affirm that portion of the judgment finding a
private easement, but vacate the remainder.
	[¶2] The evidence presented to the court may be summarized as
follows:  Vernon owns a parcel of land in Brighton Plantation.  Warren owns
the property surrounding Vernon's land, and there are several other parcels
to the north that are owned by other individuals.  The Moody Corner Road
runs north through Vernon's land, Warren's land, and to the other parcels.
The road was a town way until it was discontinued in 1927 by the Somerset
County Commissioners.  Warren continued to use the road, however, to
access its land and haul wood, and the other landowners used the road to
reach their property.  Hunters also traveled on the road to access land
around Vernon's parcel.
	[¶3]  Vernon purchased his property on the road in 1980 and built a
house.  He observed Warren using and maintaining the road across his land
beginning in 1981.  In 1990, he saw several Warren trucks drive by his
house carrying 55-gallon drums.  He followed the trucks and discovered that
Warren was spraying its land with an herbicide carried in the drums.  The
next day Vernon blocked the road with his pickup truck.  Warren
commenced this action against Vernon asserting that it had acquired rights
to use the road by prescription.  The court determined that there was a
public easement over the road and that Warren had acquired a private
easement as well.  The court concluded, however, that the scope of the
easement did not include the right to transport herbicides over the road. 
Both parties appeal.  
I.
	[¶4]  Vernon contends that there is insufficient evidence to establish a
private prescriptive easement.  Specifically, Vernon argues that Warren's use
was not continuous, that there is no evidence in the record that he or his
predecessors acquiesced to Warren's use of the road, and that Warren's use
was not adverse.   We disagree.
	[¶5]  "The party asserting a prescriptive easement must prove
continuous use, for at least twenty years under a claim of right adverse to the
owner, with his knowledge and acquiescence, or by a use so open, notorious,
visible and uninterrupted that knowledge and acquiescence will be
presumed."  Glidden v. Belden, 684 A.2d 1306, 1317 (Me. 1996)
(quotations omitted).  The trial court's factual findings regarding the
elements of a prescriptive easement will be upheld unless they are clearly
erroneous.  See Gutcheon v. Becton, 585 A.2d 818, 821 (Me. 1991)
(continuity of use); Jacobs v. Boomer, 267 A.2d 376, 380 (Me. 1970)
(adversity of use); Pace v. Carter, 390 A.2d 505, 507-08 (Me. 1978)
(acquiescence).  "Even though the evidence could support an alternative
factual finding, that alone does not compel reversal of the findings below
when they are supported by competent evidence."  Blackmer v. Williams,
437 A.2d 858, 862 (Me. 1981).
Continuous Use
	[¶6]  There is competent evidence in the record to support the
court's finding that Warren's use of the road was continuous for twenty
years.  We stated in Great Northern Paper Co., Inc. v. Eldredge, 686 A.2d
1075, 1077 (Me. 1996), that: 

[A] claimant's use need not be constant to be continuous. 
Intermittent use may 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.

(Citations omitted).  According to Harry Melcher, a local resident who
worked for Warren beginning in 1946, the company's logging operations
along the road began in the 1930s.  He testified that he remembered
traveling with his grandfather, who was superintendent of Warren's
northern division, as early as 1931 to check on cutters working on Warren's
land north of Vernon's property.  Melcher testified that Warren hauled
timber over the road in the 1930s, '40s, and '50s.  He remembered
patching holes in the road with Warren's gravel sometime between 1939
and 1940.  He traveled over the road at least two to three times each year
between 1931 and 1960.  Melcher's father, two uncles, and brother were
also Warren employees who traveled over the road with Melcher at various
times while working for Warren.  Melcher recalled a cutting operation led by
George Wyman in the 1950s, and Melcher himself ran a cutting operation
north of Vernon's land from 1968 to 1969.  
	[¶7]  Norman Hayden testified that he cut wood for Warren in the area
north of Vernon's land beginning in the 1940s.  He purchased property
along the road in 1971 and at the time the southern part of the road was
covered with alders but was passable.  Two Warren employees, James
Pinkerton and Douglas Denico, testified that they used the road at least
annually beginning in 1969.
	[¶8]  Warren continued to use the road during the 1980s and until
Vernon blocked the way in 1990.  Although Warren's use of the road was not
constant during the decades after the road was discontinued in 1927, there
is sufficient evidence in the record to support the court's finding that
Warren's use was continuous for purposes of establishing a prescriptive
easement.  Great Northern Paper Co., 686 A.2d at 1077.
Acquiescence
	[¶9]  "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.'"  Town of Manchester v. Augusta Country Club,
477 A.2d 1124, 1130 (Me. 1984) (quoting Pace v. Carter, 390 A.2d 505, 507
(Me. 1978)).  A court "may presume that the owners acquiesced to the
claimant's use if the claimant can show that the use was open, notorious,
and uninterrupted."  Taylor v. Nutter, 687 A.2d 632, 635 (Me. 1996).  Here,
the court determined that Warren's use was "sufficiently regular, open,
notorious, and adverse to establish a private prescriptive easement."  There
is competent evidence in the record to support the court's finding that
Warren's use was sufficiently open and notorious to create a presumption
that Vernon and his predecessors acquiesced in Warren's use of the road. 
The witnesses testified that the road was visible, that Warren used the road
for logging in the decades after the road was discontinued, and that Warren
employees used the road to access Warren's property at least once a year
beginning in 1969.
Adverse Use
	[¶10]  Vernon contends the court's finding that Warren used the road
adversely is clearly erroneous because George Wyman, who owned Vernon's
land from 1953 to 1971, was the foreman for one of Warren's cutting
operations during the 1950s.  Vernon argues that Wyman's ownership
created implicit consent to Warren's use of the road by Wyman's crews. 
	[¶11]  Use is adverse "when a party . . . has received no permission
from the owner of the soil, and uses the way as the owner would use it,
disregarding his claims entirely, using it as though he owned the property
himself . . . ."  Blanchard v. Moulton, 63 Me. 434, 437 (1873).  Contrary to
Vernon's assertion, the court was not compelled to find that Wyman's
ownership of Vernon's parcel and his simultaneous use of the road during
that time was permissive.  Rather, the court could have found that Wyman
believed that Warren had a right to use the road,  Blackmer, 437 A.2d at
862, or that a prescriptive easement was established prior to Wyman's
ownership of the land.  Either alternative is supported by competent
evidence.
II.
	[¶12]  Warren contends the court erred when it determined that its
private prescriptive easement does not include the right to transport
herbicides.  It correctly contends that the court employed an improper
standard for determining whether such use was within the scope of the
easement.  The court concluded that "use of the right-of-way for passage of
herbicides is not established by prescription" because Warren failed to prove
that such use was "absolutely essential to its logging and woods work
practices" and because Vernon reasonably believed "that usage of the right-
of-way to transport herbicides poses significant risks different from other
uses of the right-of-way . . . ."  
	[¶13]  "[T]he permissible uses of an easement acquired by
prescription are necessarily defined by the use of the servient land during
the prescriptive period."  Gutcheon v. Becton, 585 A.2d 818, 822 (Me.
1991) (quoting MacKenna v. Town of Searsmont, 349 A.2d 760 (Me. 1976)). 
When a court is asked to determine whether a particular use overburdens a
prescriptive easement, it "must balance the prior use of the right of way
established during the prescriptive period against any later changes in the
method of use that unreasonably or unforeseeably interfere with the
enjoyment of the servient estate by its current owner."  Gutcheon, 585 A.2d
at 822.  A change in the use of the dominant estate will overburden a
prescriptive right of way when the change manifests itself "in some greater
independent burden on the servient estate."  Id.  
	[¶14]  The court erred as a matter of law in its determination of the
scope of Warren's easement.  The road has been used for years to support
Warren's commercial forestry operation.  Such an operation necessarily
involves the transportation of potentially objectionable and hazardous
materials.  There is no evidence to support the conclusion that the
transportation of 55-gallon drums along the woods road results in any
greater independent burden than has existed throughout the prescriptive
period. 
III.
	[¶15] Finally, Vernon contends the court erred by concluding that
Warren has a right to use the road by virtue of a public easement.  The court
specifically found that the road was continuously used to access surrounding
land for hunting and fishing, logging and other woods operations, and by
landowners to access their property.  These uses, the court determined,
"were undertaken without specific permission of any landowners and in a
manner that was open, notorious, and adverse to anyone who might assert
title or other right to bar use of the right-of-way." 
	[¶16]  "The requirements for creation of a public way by prescription
parallel those for the creation of a prescriptive easement."  Comber v.
Plantation of Dennistown, 398 A.2d 376, 378 (Me. 1979) (citation omitted). 
We stated in Town of Kennebunkport v. Forrester, 391 A.2d 831, 833 n.2
(Me. 1978), that for purposes of establishing a public prescriptive easement,
"[t]he test of a public use is not the frequency of the use, or the number
using the way, but its use by people who are not separable from the public
generally."  In addition, "Maine stands with the minority . . . with regard to
creation of public recreation easements by prescription in wild and
uncultivated land, applying the rule that such open and continuous use raises
a rebuttable presumption that the use was permissive." Augusta Country
Club, 477 A.2d at 1130.  See also Forrester, 391 A.2d at 833 (use by public
for hunting or recreation is not sufficient to establish the adverse use
essential to a prescriptive easement).  
	[¶17]  The uses found by the trial court do not constitute adverse use
by the general public sufficient to create a public prescriptive easement. 
The only evidence regarding the general public's use of the road after the
town's discontinuance in 1927 was the testimony of Harry Melcher and
Roland Tozier, who stated that they used the road for hunting purposes, and
the testimony of Thomas Dillon, an independent logger who used the road
in the late 1980s.  Use of the road by the public for hunting or recreation is
presumed permissive, Augusta Country Club, 477 A.2d at 1130.   Dillon's
recent use of the road for logging is not sufficient to support a finding of
adverse public use for twenty years.  Furthermore, although the trial court
found that abutting landowners used the road, their travel does not
constitute use by people who are "not separable from the public generally." 
Forrester, 391 A.2d at 833 n.2.  Thus, there is no evidence to support the
court's finding of a prescriptive public easement.
	The entry is:
The portion of the judgment finding a private
prescriptive easement is affirmed.  The remainder of
the judgment is vacated.

Attorney for plaintiff: Waldemar G. Buschmann, Esq. (orally) Weeks & Hutchins P O Box 417 Waterville, ME 04903-0417 Attorney for defendant: Kim M. Vandermeulen, Esq. (orally) Vandermeulen, Goldman & Allen, P.A. P O Box 897 Augusta, ME 04332-0897