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Falvo v. Pejepscot Ind. Pk.
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Decision:  1997 ME 66
Docket: SAG-96-412
Submitted on briefs February 7, 1997
Decided April 4, 1997




	[¶1]  Plaintiffs appeal from a judgment entered in the Superior Court
(Sagadahoc County, Brodrick, A.R.J.) denying plaintiffs' action seeking a
declaration that they had acquired certain property by adverse possession. 
On appeal plaintiffs argue that the court erred in finding that they failed to
prove all the elements of an adverse possession claim.  They also argue that
the court's denial of their motion to amend the complaint was an abuse of
discretion.  We conclude that the court did not abuse its discretion in
denying plaintiffs' motion to amend, and that the evidence does not compel
a finding that plaintiffs proved all the elements of an adverse possession
claim.  Accordingly, we affirm the judgment.
	[¶2]  The following facts were presented at the trial:  Plaintiffs Joanne
M. Falvo, Craig A. Lucas, June F. Ford, and Catherine M. Osborne (now
deceased) are the adult children of plaintiff Joseph Lucas ("Mr. Lucas"). 
The children are the current record owners of a house on a 1/4 acre lot (the
"Lucas property") at the end of Jones Road in Pejepscot Village, Topsham. 
The lot has been in the possession and title of the Lucas family since 1925
when Mr. Lucas's parents purchased it.  Defendant is the current record
owner of a 250 acre parcel of land (the "mill property") that surrounds the
Lucas property on three sides.{1} The fourth side of the Lucas lot borders
Jones Road and the neighboring Thurlow lot.  
	[¶3]  The mill property surrounds, and is part of, an area known as
Pejepscot Village, that is comprised of a cluster of twenty homes, a post
office/store, and an elementary school.  The mill owners ran the village as a
"company town" for many years.  Although a few mill workers, like the
father of Mr. Lucas, owned their homes, the mill owned most of the houses
in the village and rented them to mill workers or their families without
written leases.  Most of the village residents used portions of mill property
surrounding their lots for gardens, septic tanks, garages, sewer lines,
outbuildings, wood storage, and recreation space. 
	[¶4]  Mr. Lucas worked for the mill for forty-six years, and except for a
six-month period in 1929, he has lived in the village for over seventy years. 
Mr. Lucas moved out of his parents' home when he married and lived in
various rented houses in the village until he purchased the neighboring
Thurlow property in 1960.  In 1963 he moved to his father's home and
rented out the Thurlow property.  
	[¶5]  Mr. Lucas and his father placed stone monuments to mark the
boundaries of the Lucas property in 1933.  The markers conformed to the
description in the father's original 1925 deed.  Mr. Lucas acquired title to
the Lucas property upon his father's death in 1967.  In 1984 he sold the
Thurlow property reserving a small strip of land to enlarge the Lucas
property.  He placed an iron pipe to mark the new boundary with the
Thurlow property.  In 1989 he sold the Lucas property to plaintiffs, his adult
children.  This conveyance was accomplished with the help of an attorney,
and the deed description tracked the boundaries established by the original
	[¶6]  The Lucas family has occupied and used an area of land within
the mill property on all three sides of their deeded property since 1925. 
They claim this area by adverse possession referring to it as the area within
the "mow limits."  They have kept the area mowed, using it for recreation,
storage, septic, and gardening purposes.  They have continuously maintained
gardens, a horseshoe pitching area and several lawn ornaments within the
mow limits.  In 1933 Mr. Lucas's father installed a septic tank and drain
field within the mow limits.  Mr. Lucas replaced the septic system in 1967. 
The Lucases also raised chickens and built two hen houses within the mow
limits, replacing the hen houses with a storage shed in 1965.  
	[¶7]  Plaintiffs filed a complaint to quiet title and to obtain a
declaration that they are the lawful owners of the land within the mow
limits.  After the first day of a two-day, jury-waived trial, plaintiffs moved to
amend their complaint to allege a prescriptive easement claim for the septic
system.  The court denied the motion as untimely.  At the conclusion of the
trial, the court found that plaintiffs' possession and use of the disputed land
were actual, open, notorious, continuous and exclusive for the statutory
twenty-year period.  It denied plaintiffs' claim, however, because it found
that plaintiffs failed to prove that their possession and use were hostile and
under a claim of right.  The court also noted that an amended complaint
alleging a prescriptive easement would fail for the same reason the adverse
possession claim failed.  Plaintiffs now appeal.
	[¶8]  A party claiming title by adverse possession under the common
law must prove that their possession and use of the property were "actual,
open, notorious, hostile, under a claim of right, continuous, and exclusive for
a period of at least twenty years."  Solomon's Rock Trust v. Davis, 675 A.2d
506, 509 (Me. 1996).  The elements of adverse possession must be
established by "clear proofs of acts and conduct fit to put a person of
ordinary prudence, and particularly the true owner, on notice that the estate
in question is actually, visibly, and exclusively held by a claimant in
antagonistic purpose."  Id.  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."  Emerson v. Maine Rural Missions Ass'n, 560
A.2d 1, 2 (Me. 1989).  
	[¶9]  First, plaintiffs argue that the court applied an erroneous legal
standard by requiring them to give "unusual notice" of their claim to
defendant, and by creating a "company town exception" to the notice
requirement.  Contrary to plaintiffs' contention, the court properly
considered all the surrounding circumstances, including "the nature of the
land ... its surroundings and various other circumstances," to determine
whether plaintiffs' acts were sufficient to put defendant on notice of a
hostile claim of right.  Id.  In considering the "other circumstances"
referred to in Emerson, the court considered the fact that Pejepscot Village
was a "company town."  The court found that the mill owners allowed and
encouraged workers to use company property adjacent to their homes, and
never refused permission for such use.  The court also found that Mr. Lucas
and his father used the land "exactly as every one else was using it."  The
court concluded that if they had asked permission, the mill would have
granted it.  In these circumstances, the court ruled that "an ordinary man of
prudence in the company's management would not be put on notice of the
[plaintiffs'] 'antagonistic purpose.'"  The court concluded that plaintiffs
would have had to have "done something unusual" to supply the requisite
notice, such as posting the land, building a fence, or giving written notice. 
The court reached this conclusion by applying the correct legal standard to
an unusual set of facts and circumstances.
	[¶10]  Next, plaintiffs argue that the court's lack-of-notice
determination is not supported by competent evidence in the record, and
that the evidence compels a contrary finding.  Plaintiffs have the burden of
establishing "by clear proofs of acts and conduct" each of the elements of an
adverse possession claim.   Solomon's Rock, 675 A.2d at 509.  The court's
determination that plaintiffs failed to meet its burden of proof will be
reversed on appeal only if the evidence compels a contrary finding.  Id.  In
support of their argument plaintiffs contend that, unlike other residents,
they never sought permission from the mill for their use of mill land, and
that their open and notorious use of the land over 70 years was more than
enough to put a prudent person on notice.  
	[¶11]  There is evidence in the record that suggests that plaintiffs
used company land in the same manner as other residents, that no residents
were denied permission to use the land, and that plaintiffs complied with
the mill owners' customary request that residents keep the mill property
clean and neat.  The evidence also establishes that plaintiffs marked their
deeded land with cement monuments, never marked the boundaries of the
mow limits, and never paid taxes on the land within the mow limits. 
Contrary to plaintiffs' contention, the evidence does not compel a finding
that their use of the land was hostile.
	[¶12]  Plaintiffs' final argument, that the court abused its discretion by
denying their oral motion at trial to amend the complaint, is without merit. 
Leave to amend "shall be given when justice so requires."  M.R. Civ. P. 15(a). 
The decision to deny a request to amend a pleading, however, rests with the
sound discretion of the court.  Kelly v. Michaud's Ins. Agency, Inc. 651 A.2d
345, 347 (Me. 1994).  The denial of such a request will be reversed on
appeal only if the moving party clearly demonstrates a manifest abuse of
discretion and the necessity to grant the motion to prevent injustice.  Id. 
Plaintiffs' have failed to meet their burden in both respects.  
	[¶13]  First, they have failed to demonstrate a manifest abuse of
discretion.  A claimant asserting a prescriptive easement must prove that
the true owner knew of the adverse claim and acquiesced.  Glidden v.
Belden, 684 A.2d 1306, 1317 (Me. 1996).  "Proof of the owner's
acquiescence is an essential element in the establishment of a prescriptive
easement."  Id.  "On this point, the acquisition of an easement by
prescription differs, in Maine, from the acquisition of title by adverse
possession."  Pace v. Carter, 390 A.2d 505, 507 n.2 (Me. 1978).  Amending
the complaint in mid-trial to allege a new claim with an additional element
of proof could have prejudiced defendant, who had already completed cross-
examination of several key witnesses.  Therefore, we cannot conclude that
the court abused its discretion by denying plaintiffs' motion.  Hamor v. Maine
Coast Memorial Hosp., 483 A.2d 718, 720 (Me. 1984) (the imminence of a
scheduled trial was sufficient justification for denial of a motion to amend).	
	[¶14]  Plaintiffs have also failed to demonstrate the necessity of
granting the motion to prevent injustice.  The court ruled that the
prescriptive easement claim would have failed for the same reason the
adverse possession claim failed, lack of notice of a hostile claim of right. 
Plaintiffs have failed to provide any authority or evidence to compel a
contrary determination.
	The entry is:
					Judgment affirmed. 

Attorney for plaintiffs: Peter C. Fessenden, Esq. P O Box 429 Brunswick, ME 04011 Attorneys for defendant: Ronald P. Lebel, Esq. William H. Stiles, Esq. Skelton, Taintor & Abbott, P. A. P O Box 3200 Auburn, ME 04212-3200
FOOTNOTES******************************** {1} Since 1925 the mill property has been owned successively by Pejepscot Paper Company, the Hearst Corporation, St. Raymond Paper, Swiss Bank, and now Pejepscot Industrial Park, Inc. We refer to the owners collectively as the "mill owners" and their land as the "mill property."