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Striefel v. C-K-L footnoes and attorneys.
Attorney for plaintiff:	

Athony J. Giunta, Esq.	
P O Box 735
Ellsworth, ME 04605-0735	
	
Attorney for defendants:

Nathaniel R. Fenton, Esq.
Fenton Chapman Fenton Smith & Kane, P.A.
P O Box B
Bar Harbor, ME 04609-0020
FOOTNOTES******************************** {1} . Adverse possession has been aptly described as "a doctrine of ancient vintage and somewhat amorphous scope." Smith v. Tippett, 569 A.2d 1186, 1189 (D.C. 1990) (discussing medieval origin of adverse possession). All fifty states have enacted some version of the adverse possession doctrine, see Thomas J. Micelli & C.F. Sirmans, An Economic Theory of Adverse Possession, 15 INT'L REV. L. & ECON. 161, 161 (1995), which has come under increasing criticism by courts and commentators. See, e.g., Grace v. Koch, 692 N.E.2d 1009, 1012 (Ohio 1998) (stating that adverse possession "results in a legal titleholder forfeiting ownership to an adverse holder without compensation"); William G. Ackerman & Shane T. Johnson, Outlaws of the Past: A Western Perspective on Prescription and Adverse Possession, 31 LAND & WATER L. REV. 79, 95 (1996) (advocating legislative abolition of adverse possession doctrine). {2} . 14 M.R.S.A. § 810-A (Supp. 1998). {3} . Under certain circumstances, however, an adverse possessor's occupancy of a portion of a unitary tract of land may constructively extend to the entire tract. See, e.g., Inhabitants of Town of Island Falls v. A. K. R. Inc., 157 Me. 147, 150, 170 A.2d 395, 397 (1961). {4} . For example, the MacLeod family used the parcel as, inter alia, a driveway, lawn, and garden. They raked and mowed the parcel, trimmed bushes and lilacs, maintained a compost pile, and formed a rock garden. Brignull's father stored wood and building materials on the parcel, and plowed or shoveled the parking area in the winter. Her mother planted forsythia bushes. When Brignull was in high school, her family stored a twelve-foot sailboat on the parcel. They often kept a picnic table there. The MacLeods played with their dog and walked it on the parcel. The MacLeod children and their neighborhood friends played on the parcel, and skated on it when it froze in the winter. Brignull's own children later played in the parcel, and continued to skate on the parcel when it froze in the winter. {5} . An adverse possession claimant would fail to satisfy the visibility element if the encroachment covered a relatively small portion of the adjoining owner's land and the fact of the intrusion was not readily apparent to the naked eye, but would require an on-site survey to discern (e.g., in urban areas where boundary lines are infrequently delineated by markers). See, e.g., Mannillo v. Gorski, 255 A.2d 258, 263 (N.J. 1969). In such circumstance, "[t]he only method of certain determination would be by obtaining a survey each time the adjacent owner undertook any improvement at or near the boundary, and this would place an undue and inequitable burden upon the true owner." Id. at 263-64. However, the MacLeod family's encroachment was readily apparent to the naked eye. {6} . According to BLACK'S LAW DICTIONARY 1063 (6th ed. 1990), "notorious" possession and use are "so conspicuous that [they] are generally known and talked of by the public or the people in the neighborhood." {7} . Some courts and commentators fail to distinguish between the elements of hostility and claim of right, or simply consider hostility to be a subset of the claim of right requirement. See, e.g., Johnson v. Stanley, 384 S.E.2d 577, 579 (N.C. Ct. App. 1989) (stating, with regard to prescriptive easements, that "adverse," "hostile," and "claim of right" are, "for the most part, synonymous" under North Carolina law). To avoid redundancy and pursue clarity, however, the better practice is to distinguish between these two elements. Under Maine law, the two elements are distinct. See Falvo, 1997 ME 66, ¶ 8, 691 A.2d at 1243. {8} . In Central Maine Power Co. v. Rollins, 126 Me. 299, 302, 138 A. 170, 172 (Me. 1927) (quotations omitted), we stated: It is elementary law . . . that adverse possession which will ripen into title must be under a claim of right. Not every unlawful entry into lands of another will work a disseizin, and dispossession is not necessarily disseizin. To make a disseizin, the possession taken by the disseizor must . . . [import] a denial of the owner's title in the property claimed, otherwise[,] however open, notorious, constant and long continued it may be, the owner's action will not be barred. {9} . Historically, two distinct lines of thought have emerged regarding the intent necessary to establish title by adverse possession in mistaken boundary cases. According to the minority or Maine rule, based on Preble v. Maine Cent. R.R. Co., 85 Me. 260, 264, 27 A. 149 (1893): "[O]ne who by mistake occupies . . . land not covered by his deed, with no intention to claim title beyond his actual boundary, wherever that may be, does not thereby acquire title by adverse possession to land beyond the true line." In contrast, the majority or Connecticut rule, based on French v. Pearce, 8 Conn. 439 (1831), recognizes adverse possession even when the occupancy began as a result of a mistaken, rather than intentional, trespass. Section 810­p;A of Title 14 provides: § 810­p;A. Mistake of boundary line establishes hostility If a person takes possession of land by mistake as to the location of the true boundary line and possession of the land in dispute is open and notorious, under claim of right, and continuous for the statutory period, the hostile nature of the claim is established and no further evidence of the knowledge or intention of the person in possession is required. 14 M.R.S.A. § 810­p;A (Supp. 1998) (emphasis added). The Legislature in drafting section 810­p;A apparently attempted by legislative fiat to depart from the Maine rule, at least with respect to the statutory provisions. According to the statement of fact accompanying the bill that resulted in the enactment of section 810­p;A: This bill adopts the position now held by a majority of jurisdictions that, if the occupancy of land beyond a true boundary line is actual, open, notorious and continuous, it is hostile and adverse even though the original occupancy took place due to ignorance, inadvertence or mistake, without the intention to claim lands of another. It thus overrules the positions adopted by the Maine courts in [Preble v. Maine Cent. R.R. Co., 85 Me. 260, 27 A. 149 (Me. 1893),] and [Landry v. Giguere, 127 Me. 264, 143 A. 1 (1928),] that "intention to hold only to [the] true boundary wherever that boundary might be defeats [a] claim of one seeking title by adverse possession to land beyond the true boundary." [McMullen v. Dowley, 483 A.2d 698, 700 (Me. 1984) (citing Landry).] L.D. 1076, Statement of Fact (116th Legis. 1993) (emphasis added). No legislative debate or committee report accompanied the bill. The only written statement in support of the enactment was from the Central Maine Title Company on behalf of the Maine Association of Realtors, which briefly stated that the provision would "help clarify the law" and align Maine with the majority of states. "Hostile" and "claim of right" are terms of art. The Legislature, in its purported attempt to "overrule" the Maine rule, inartfully provided that a mistake as to the location of the true boundary line does not preclude a finding of hostility if the adverse claimant takes possession of the land, inter alia, under a claim of right. See 14 M.R.S.A. § 810­p;A. The so-called Maine rule, however, primarily pertains to the claim of right requirement, rather than the requirement of hostility. We have heretofore cited to 14 M.R.S.A. § 810­p;A in only three cases. First, in Cates v. Smith, 636 A.2d 986, 988 n.4 (Me. 1994), we stated: We note that the Legislature has recently removed the requirement that the claimant have the specific intent to claim the land of another as articulated in [Landry v. Giguere, 127 Me. 264, 268, 143 A. 1, 3 (1928),] and [McMullen v. Dowley, 483 A.2d 698, 700 (Me. 1984)]. P.L. 1993, ch. 244, § 1 (codified at 14 M.R.S.A. § 810­p;A (Supp. 1993)) (effective Oct. 13, 1993). See also L.D. 1076, Statement of Fact (116th Legis. 1993). Because this action was filed prior to the effective date of the legislation, Cates is required to establish this adverse intent. See P.L. 1993, ch. 244, § 2 (application of Act). Second, in Crosby v. Baizley, 642 A.2d 150, 153 n.2 (Me. 1994), we stated: Recently, the Legislature enacted 14 M.R.S.A. § 810­p;A (Supp. 1993) ("If a person takes possession of land by mistake as to the location of the true boundary line and possession of the land in dispute is open and notorious, under claim of right, and continuous for the statutory period, the hostile nature of the claim is established and no further evidence of the knowledge or intention of the person in possession is required."). Although this statute deals with "mistake" in adverse possession cases, the [L]egislature expressly provided that it apply only to actions filed after October 13, 1993. Third, in Baptist Youth Camp v. Robinson, 1998 ME 175, ¶ 13, 714 A.2d at 814, we stated: Although 14 M.R.S.A. § 810­p;A no longer requires adverse possession claimants to have the specific intent to claim the land, nevertheless they must establish possession by "an actual use and enjoyment of the property which is in kind and degree the same as the use and enjoyment to be expected of the average owner of such property." Howe v. Natale, 451 A.2d 1198, 1200 (Me. 1982). Since we apply the common law doctrine of adverse possession in the present case, we need not apply the statutory provisions or further address the ambiguities of section 810­p;A. {10} . "Exclusive possession by [an] adverse possessor means that [the] adverse possessor must show an exclusive dominion over the land and an appropriation of it for his own use and benefit, and not for another." BLACK'S LAW DICTIONARY 565 (6th ed. 1990). {11} . To satisfy the burden of establishing title by adverse possession, a claimant must prove that "the estate in question is . . . visibly . . . held by [the] claimant." Falvo, 1997 ME 66, ¶ 8, 691 A.2d at 1243. "[A]dverse possession requires that acts of possession be sufficiently visible . . . ." Emerson, 560 A.2d at 3.
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