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Part 2 of Longley v. Knapp & Town
III.
[¶14] The Longleys argue in the alternative that a public way was
created by prescriptive use. The requirements for the creation of a public
way by prescriptive use parallel those for the creation of a prescriptive
easement. See Comber v. Plantation of Dennistown, 398 A.2d 376, 378 (Me.
1979). The party asserting an easement by prescription must prove
continuous public 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." Jost v. Resta, 536 A.2d 1113, 1114 (Me. 1988) (quoting
Dartnell v. Bidwell, 115 Me. 227, 230, 98 A. 743 (1916)). Continuous public
use is not determined by "the frequency of the use, or the number using the
way, but its use by people who are not separable from the public generally." 
Town of Kennebunkport v. Forrester, 391 A.2d 831, 833 n.2 (Me. 1978). 
[¶15] The Longleys produced affiants who swore that the Town
maintained the disputed way from at least 1930 to the early 1990's. The
Longleys claim that the Town plowed the way during the winter, erected
and continues to pay for a street light located on this disputed area, and
erected a fence to prevent persons from going onto the property now owned
by Knapp. Additionally, these affiants testified that the disputed way was
used repeatedly by the public to visit the Longleys and to access property
north of the Longleys.
[¶16] A party is entitled to a summary judgment if no genuine issue of 
material fact exists and if the party, on the basis of the undisputed facts, is 
entitled to a judgment as a matter of law. See North East Ins. Co. v. Soucy,
1997 ME 106, ¶ 8, 693 A.2d 1141, 1143. We review the grant of a
summary judgment for an error of law, viewing the evidence in the light
most favorable to the party against whom the judgment has been granted. 
See Key Trust Co. of Maine v. Nasson College, 1997 ME 145, ¶ 9, 697 A.2d
408, 409. In ruling on a motion for a summary judgment pursuant to M.R.
Civ. P. 56(c), "the court is to consider only the portions of the record
referred to, and the material facts set forth, in the Rule 7(d) statements." 
Nugent v. Town of Camden, 1998 ME 92, ¶ 14, __ A.2d __ (quoting Gerrity
Co., Inc. v. Lake Arrowhead Corp., 609 A.2d 293, 295 (Me. 1992)). 
[¶17] Record evidence cited in the Longleys' Rule 7(d) motion raises
a material issue of fact as to whether a public easement by prescription was
created over the disputed way. Conflicting evidence exists as to whether the
use of the disputed way was limited to persons not generally separable from
the public. Additionally, the Longleys have produced evidence of activity by
the town facially incompatible with Knapp's claim of private ownership of
the way, namely the Town's erection of a street light and fence on the way
and regular plowing of the way. The character and continuity of use
required to create a prescriptive easement is a factual issue that, if in
dispute, as in this case, should not be resolved by a summary judgment. See
Roy v. Buckley, 1997 ME 155, ¶ 9, 698 A.2d 497, 501 ("At the summary
judgment stage of the proceeding, the court's task is not to decide any
disputed factual questions, but to determine whether the record before the
court generates a genuine issue of material fact."). 
IV.
[¶18] The property claimed to be owned by Knapp was conveyed to
her by Citicorp Mortgage, Inc. in 1994 by a deed description including the
disputed area. A year later the Town released some outstanding tax liens
using the same description as contained in the Citicorp deed. The Longleys 
argue that the court erred in its determination that they lacked standing to
seek reformation of the deed given by the Town to release tax liens on
Knapp's property. In order for a party to have standing to bring an action
seeking to reform a deed, a party must have been a party or privy to the
original deed and must show that the mistake was mutual as between the
original parties to the deed. See Jones v. Carrier, 473 A.2d 867, 869 (Me.
1984). The privity requirement "will abate only in the face of a subsequent
purchaser having notice of the defect." Id. The record supports the court's
factual findings that Knapp and the Town did not labor under a mutual
mistake in executing the quitclaim deed and that the Longleys were neither
a party nor privy to this deed. Accordingly, the trial court committed no
error by concluding that the Longleys lacked standing to seek reformation of
the deed given by the Town to Knapp. 
V.
[¶19] Finally, the Longleys argue that the trial court erred in denying
their motion to amend their complaint to include their claim that they
enjoyed a private or implied easement over the disputed way. Generally, in
the absence of undue delay, bad faith, dilatory tactics, or unfair prejudice,
courts should freely allow an amendment to a complaint. See 1 Field,
McKusick & Wroth, Maine Civil Practice § 15.3 at 302-03 (2d ed. 1981); 
Smith v. School Admin. Dist. No. 58, 582 A.2d 247, 249 (Me. 1990); M.R.
Civ. P. 15(a). We have stated, however, that when a summary judgment has
been entered, the court should be reluctant to allow the addition of a new
cause of action, particularly when the delay is unexplained. See Diversified
Foods, Inc. v. First Nat'l Bank of Boston, 605 A.2d 609, 616 (Me. 1992); but
cf. Bangor Motor Co. v. Chapman, 452 A.2d 389, 392-93 (Me. 1982) (a
finding that an action presents no case or controversy, alone, is not
sufficient to deny motion to amend). 
[¶20] The trial court, in its decision to deny the Longleys' motion to
amend, may have considered the fact that a summary judgment had already
been entered, and thus may have been disinclined to allow the amendment. 
We thus vacate the order denying the Longleys' motion to amend to provide
the trial court with an opportunity to reconsider the motion in light of the
present posture of this case.
The entry is:

Judgment vacated. Remanded for further
proceedings consistent with the opinion herein.

Attorney for plaintiffs: Ernest W. Hilton, Esq., (orally) P O Box 162 Madison ME 04950-0162 Attorneys for Defendants: Daniel J. Bernier, Esq., (orally) Marden, Dubord, Bernier & Stevens P O Box 708 Waterville, ME 04903-0708 (for Amanda Bessette) John P. Frankenfeld, Esq. Law Offices of Anthony Shusta P O Box 170 Madison, ME 04950-0170 (for Town of Anson) FOOTNOTES******************************** {1} Now Amanda E. Bessette. {2} The Longleys named the Town as the defendant and Knapp as a party-in-interest defendant. Back to beginning of this opinion Back to Opinions page