Furber v. Colby

f ' I f

STATE OF !-.1A.INE SUPERIOR COURT PlSCATAQUIS¹ SS. CivTLACr£0N DOCKET NO l\E-08-006

CONAN FURBER,

Plaintiff, RECEiVEO & ALEO V. ORDER GORDON COLBY,

Defendant. PISCATAQUIS (?OUNTY · Cler ('s Office

Hearing was held and memoranda filed by December 24, 2009. The plaintiff ~v,.11:; pre~cnl and represented by counsel, Sean Farris, Esq., while the defendant \vas prcscnl ,md represented by counsel, Andrew Sparks, Escr. In this litigation, pbi.ntiff seek., a judgment, pursuant to counts for declaratory judgment, quiet title, and injunctive relief, declnring that the defendant has no right to use the Furber Farm Rd., so-cc11lcd, and enjoi11ing him from using the road. Defendant has count~rclaimcd, asking the court lo dedJrc that the disputed road is subject to .l public easement, or il pn:sti:iplive easement that pem1its his use.

Defendant purchased a parcel of land in Kingsbury, Maine, including· bluebcny land, in September of 2005. Having a background in the business, he plarmed to lwrvcst blueberries, using a rough road for access know as the Furber Farm RJ. Plaintiff mvns the bnd on both sides of the road from the point that it depmis Rt. 16 to where it enlt'rn defendant's parcel. After defendant purchased the parcel he sent a crew to \vork 011 !he blueberry land. The a-ew gained access via the Furber Fann Rd ., but: plilintiff confronted them, insisting that he owned the roild, that they didn't have permit;~;ion to use it, ,md that they were trespassers. The defendant had purchased the land from Lois \V0t-cl:ster, as personal representative 0£ the estate of her husband, A!t(m Worcester. As h'ill be described in greater detait the Worcester family had raked bluc:bcnics rm tltc

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pared since 1957, using the Furber Farm Rd. for access. The plaintiffs falhcr bec<1mc the

01,,vner of the Furber parcel in 1956, and upon his death in 1969, his lht·cc children,

inlwriled it. The plaintiff eventually acquired his siblings' interests in the property,

b(;-:comi11g sole owner.

Abandonment

Plaintiff does not assert that there was a formal county or munici.pul drnmrc or

the Furber Fc1rm Rd. but insists that it was either statutorily . abc.1m{one1.L. ur c1band(med ,1ccording to the doctrine of common Jaw abandomnent.

Plaintiff maintains thilt The Fw·ber Rd. was statutorily abarnlcmcd prior to 1976

because neither the Tm·vn of Kingsbury nor County of Piscataquis had maintained thL·

road for 30 or more consecutive years prior to 1976. This argument is ba icd on tl1c 0

applirnbility of 23 M.R.S.A. § 3028, which provides that there is a rebultable

presumption of abandomnent raised if it can be shown thc1.t a road has not: bel~ll kq,t

pa1::sable by molor vehidQ at town expense for a period of thirty conscnitive years. The

Court finds that this statute does not apply to the abandonment i.ssues in this case

because it WilS enacted in 1976 and only a retrospective application of the stntute rnuld

achieve the result argued by plaintiff.1 When a road is closed by abnndonmcnl pri.ur Lo

the effeclive date of 23 M.R.S.A. § 3028, the closure is controlled by common l.:iw ,:md a

court cannot apply the provisions of stntutory abandorunent. Martin ·o. Bu.mluw1, Ci31

A.2d 1239, 1241 (Me. 1993).

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conclusion "vhcn 1<1.ck of public maintenance, as ivell as nonuse, is rn11sid!-:rcd. z A:: J

result ii[ ~1 common la,;.v discontinuance, all rights to the former \-Vay paS$Cd to tlw

01..vncrs of the land tl,at abutted the centerline of the way. Piper v. Vorliet!~~, 130 Me. 305,

310, 155 A 556,559 (1931).

Prescriptive Ensement

The party asserting a prescriptive easemenl must prove conlinuout; use, for i.ll

least tvventy years, tmdcr a claim of right adverse to the owner, with hi~: knowledge ,md

acquiL~,-::ccnce, or by a use so open, notorious, visible, and uninterruplcd that knowle<lijc

and acqui.escence ""ill be presumed. Gliddt'n v. Belden, 6&1 A.2d 1306, 1317 (Mr.. 1996).

"Where there has been urnnolested, open and continuous use of a way, for twenty years

or more, with the bt0wledge and acquiescence of the owner of the ~crvlent estate, Lhc

use i;,vill be presumed to have been adverse ,md under a claim of right." Jucob.c; v.

Bvomer,267 A.2d 376, 378 (Me. 1978). (quoting Burnham v. Bimzluun, no Me. ,109, 156 A 823 (1931)). Acquiescence has been defined as passive as~ent or submission tci use, ,tY

distinguished from the granting of a license or permis.sion in which !he case the use can continue only as long as the owner conlinues to consent. Pace v. Carter, 390 A.?.d 505, 507 (1978).

The Cow·t finds thnt for a period of at least twenty ye.irs beginning in 1976, mL•mbcrs of the Worcester family continuously used the Furber Rd. to conduct

2 Thi s court i11tcrprcts the "intentional and voluntary desertio11" aspect of comrnon Jaw abandm11uc11t as the failure of the appropriate public authority to keep a road pussablc by mai nr;iining it with the use of public funds . rn Lamb, the court ~1atetl that 23 M.R.S .:\ . 302X. 1hc :,;tat utt: thiH cstablii;ht:d tlic rebutn.1.bl c presumption of discontinuance by ubnndonment 011 a slwwi11y. tlt:1t: a road had uot been kept passable. by motor vehicles for a pcriud of 30 c:oHscrnti vc y~::1rs. 111t·rely coclifit:tl one aspect of the common law abamlonmcnt doctrine. r.. .1111h, GOG A.2d at 1047. !'his i: au obviou · reference to the dese rtion aspect of 1'hc commoll I w princi ple. Jn Shudw 1 v. Town of Skowhegan, 1997 ME 187 ,, 5, tlie lower court·~ analysis or tlt c common law ab:.11H.lunment doctrine fo cuse0 heavily on that road' s co11diti on a11d tltc lack of put lie expcmliture to keep it passable, a well as eviuence uf uonuse .

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cummen:i,111.,lueberry activities each August. 3 This use included using the road for

access to Lhe blueberry land for land maintenance and raking acbvities and for

tr,msporting the berries after raking. The duration of the use each yeJr was

approximately thirty days. No family member sought permission to 1.1se the 1Tli1d zmd

no family member received permission. Plaintiff argues that his uncle's installation of a

sign nt the beginning of the Furber Fann Rd. that says "pass at your own risk" ,md the

installJtfon of a gate in the same general location i.s evidence of pl!rmissivc use. The

Courl disagrees. The wording on the sign does not constitute a specific grant of

pcnnission, but only serves to indicate that its installer was attempting lo c1bsolvc

him~;elf of liability if a person ,vere injured while on tl1c road. The gate, installed in

1990, may have been erected to exclude intn1dcrs, but was totally incffecl.ive in

pr12vl~rtling the Worcesters from using the road. The Court concludes that either it

wasn't locked, or was easily circumvented.

BcJscd on the above analysis, the Court finds that the dcfcndanC pursuant to his

counlerdt-1im, has established the existence of a prescriptive easement over that pL)rlion

of the dcfend,mts' [and known as the Furber Fann Rd. that is necessary to gain ac:rc~s lo

his blul~bcrry field. He has proved continuous use of 81c disconbnued Fur!Jl~r F.:irm Rd.

by his predecessors in title for at least twenty yenrs, under a claim of right advcr~:c to

the ov,mer, by a use so open, visible, notorious and urunterrupted thut knmvlcdge .:md

acquiescence is presumed. /

JUse prior to 1974 would not have b~en adverse because the .Furber Rd. remairn:d a public way until then.

The entry is:

Judgment for the defendant on Counts I, II, and Ill of plaintiff's complaint.

Judgment for counterclaim plaintiff Colby on Count II of his countcrcbims ,md

he shall be awarded his costs. Judgment for counterclaim defendant Furber on

count:ercli:iims I and UI:1

Dated: August 25, 2010

) 4 The Court is not certain that Count III and Count II allege different caus~s of action. To the extent that Count III alleges a different cause of action, it fails.

Footnotes

[1] If the court found that the statutory abandonment statute applied, it would r~sult in tltt: rl'tcr1tion of a publtc casement in the way that was abandoned, which would be of no assistance to plai11tiJT. According to 23 M.R.S.A. § 3028, a way abandoned pursuant to the i,ircsumption ha~ ) the s::ime status as a road discontinued by a municipality pursuant to 23 M.R.SA . § 3026. The public re1,uus an easement when a road is closed in this manner. 23 M.R.S~J.\. § 3026. Next, the Couit turns to the issue of .-..vh ether tfo-: Furber Fnrm Rd. had been closed according to principles of common law abandonment prior to 1976. Under L!ic doctrine of common law abandonment," a presumption of a public intent to ab,:mdon ,1 ro,1d may be raised by evidence of nonuse for 20 ye,u·s or more, intentional ,md voluntary desertion of the road, or acquiescence, even for a few yec1rs, in the discontinuance of an old road combined with the use of a new road." f.amb v. Tuwll of New Sltarun, 606 A.2d 1042, 10,16 (Me. 1992). This presumption can be n:Gulted by other evidence of a contrary intent on the part of the public. Id. Based on the evidence admitted at trial the Court concludes that: s111cc approximately 1950 members of the general public have used the Fu.rucr Farm Rd. infrequenUy and that neither the County nor town h.is maintained it. M.embcrs of the Worcc·stcr and Hilton family used it for access to their property, im:Judin:; the blueberry land purchased by defendant. Sportsmen used the road occasionally, .:.is did vbitors lo a small cemetery i'lccessed from the main road by the Furber Farm Rd. Although pdssablE:. 1 by nwst vehicles, the road fell into disrepair over the years and there is no evidence tbal the to,.,vn maintained it, plowed it in winter, or expended funds to have it maint;-1i1.1cd. At times it consisted of two parallel ruts surrounded by bushes, but thl' road wa~; improved privately in the early 1970's by the Diamond },latch Cornp,rny so that its timber harvesters could haul wood on the road. The Worcester and Furbers have abl) worked l:o maintain the ruad and spent sums on m.;:iintcnance. Based on thi~ dc~criptinn of both the general public's nonuse as well as the town's desertion of tbe nxld thwugh lack of maintenance, the Court concludes that the rocid was aba11doncd prior lo 197(j according to the common l,nv doclrine of abandomnent. Although thjs result m.1y be difficult tu reach based on nonuse alone, as argued by defendant it is a compelling )