Engelhardt v. Ross

STATE OF MAINE SUPERIOR COURT PENOBSCOT, SS. Docket No. RE-2016-0054

Robert G. Engelhardt, Sr. and ) Simone A Engelhardt, ) Plaintiffs, ) ) ) V. ) Opinion and Judgment ) ) Hugh Arnold Ross and ) Georgia M. Ross, ) Defendants. )

Introduction

This case presents a dispute over a lakeside right of way. Trial was held on August 21 an 22, 2017, at which Plaintiffs were represented by Attorneys Barry Mills and Zachary McNaUy, and Defendants by Attorney Michael Devine. Post-trial arguments have been submitted and the matter is in order for decision. The court thanks counsel for thorough and organized presentations both at trial and in their arguments.

Factual Review and Analysis

The parties own adjacent lots with cottages on the north shore of a pond in Plymouth, Maine, referred to in Plaintiffs' deed as "Gray Pond" and in Defendants' deed as "Round Pond, also known as Gray Pond." Both lots were originally held by a man named Angus Dow and members of hi family. Each was conv yed several times over the course of years, with title eventually vesting in the parties. I ' Defendants' property is the westerly of the parties' lots. The sequence of transfers by which it vested in them is as follows;

• • Warranty deed from Angus Dow to Roger Dow, dated 2/24/1981 and recorded in the Penobscot County Registry of Deeds at Book 3161, Page 46 (Pl. Ex. 10); • Warranty deed from Roger Dow to Lewis Dow, 11/4/1991, recorded at B. 4940, P. 25 (Pl. Ex. 11 ); • Warranty deed from Lewis Dow to Robert A. Dow, dated 9/8/1997, recorded at B. 6532, P. 218 (Pl. Ex. 12); • Municipal Quitclaim deed from the Inhabitants of the Municipality of Plymouth i¹ to Robert A. Dow, dated 9/11/2002, recorded at B. 8354, P. 61 (Pl. Ex. 14); l • Quitclaim deed from Robert A. Dow to Stanley E. Tusinski and Lisa M. Tusinski, J dated 9/11/2002, recorded at B. 8354, P . 63 (Pl. Ex. 13); and I l

• • Warranty deed from Stanley E. Tusinski, Jr., and Lisa M. Tusinski to Arnold Ross and Georgia M. Ross, dated 3/7/09, recorded at B. 11689, P. 326 (PL Ex. 15).

Plaintiffs' property comprises two contiguous parcels, a southerly one on the shore together with a wedge-shape lot to its north. Plain tiffs' chain of title is therefore more elaborate than Defen danh/. The sou therly, shore, lot was first conveyed by warran ty deed from Angus Dow to Elton and Betty Erskine, dated 12 /28/1960, recorded at B. 1823, P. 124 (PL Ex. 1). The northerly, wedge-sh aped lot was co nveyed by Angus Dow to Elton E skine by warran ty deed dated 9 / l / 1969, recorded at B. 2223, P. 778 (Pl. Ex. 2). Thereafter, title to the two properties merged in a chain comprising the following:

• • Warranty deed from Elton and Betty Erskine to Stanley and Eva Shorey, dated 5/ 7/1985, recorded at B. 3863, P. 211 (Pl. Ex. 3); • Warran ty deed from Stanley and Eva Shorey to Pamela F. Shorey, dated 9/8/1992, recorded a t B. 5155, P. 362 (Pl. Ex. 4); and • Warranty deed from Pamela F. Shorey to Robert G. Engelhardt, Sr., and Simone A. Engelhardt, dated 5/5/1994, and recorded at B. 5616, P. 322 (Pl. Ex. 5).

Both plaintiffs also own property immediately to the east of the lots at issue in this case (Of. Ex. 12t and Plaintiff Simone Engelhardt owns a large, irregularly shaped lot that borders on the property con veyed by the deed in Df. Ex. 12. The westward point of this lot is the tip of a wedge which almost reaches the shore; from that poin t, the lot extends north and eastward to the intersection of the Dow and N orth Shore Roads. The latter property is called "The Three Bears Lot." On it sit seasonal cabins Plaintiffs wish to rent to others at a profit. (The configuration of all properties at issue is depicted in Df. Exs. 18 and 18A.)

The parties' properties are reached through an irreg ular series of roads that join and intersect at angles dictated by topography rather than plan, all of which generally connect the shoreside settlement with the Rutland Road, which in turn connects with the main road. The dispute in this case arises out of imprecise property descriptions. One feature of the imprecision is the changing and u nce tain designations of these roads, none of which were closely defined at the time of the deeds. Later, when 911 designations were required, all of the roads acquired names (but not dimensional definitions).

Plaintiffs claim a right of way over a passage, once muddy but now grassed over, extending between the parties' properties from the shore of the pond to an access road bearing the 911 designation "Dow Road." Testimony from several generations of owners and users established that the passage has in fact been used for years by Plaintiffs and th eir predecessors in title. The pa ·ties differ as to whether Plain.tiffs' deeds grant them a right of way over the passage. Fu rther, in -the even t Plaintiffs do not hold a deeded right of access, the parties disagree whe ther Plaintiffs and their predecessors in title used the passage by permission or as a ma tter of righ t.

The parties used the contested extension of the Dow Road withou t iL1.cident until Plaintiffs sought to sell the Three Bears Lot and advertised it as h aving shore access over the extension. Defendants believed this overstated Plaintiffs' rights of acces ,

which they viewed as permissive, and therefore took a number of steps to assert their exclusive control over the extension.

• • Deeded Right of Way

In the deeds submitted in evidence, the term "camp road" appears to have been used to designate what context shows are different access roads in the area, specifically tl1e Dow Road and the North Shore Road. (Similarly, as noted, the body of water on which the camps sit is variously designated as "Round Pond" and "Gray Pond.") Each ambiguous designation must be viewed in the context of the area topography as well as the series of descriptions in related deeds in order to determine exactly which road is meant by each designation. No jnterpretation can harmonjze every feature of every deed; there are simp1y t o many "camp roads/' rights of way, lost monuments, and inconsistent and incomplete forms of descTiption to permit such ad fin:itive reading.

The parties have provided colorable, differing interpretations of the ambiguous terms in the critical deeds and of the rights of way they convey. To assess which readings are more persuasive, the court must analyze the ambiguous language in conjunction with extrinsic evidence. Beckerman v. Conant, 2017 ME 142, 919, 166 A.3d 1006. Her , the extrinsic evidence largely consists of historic usage.

Plaintiffs' reading is consistent with the words used in their conveyance. The deed by which they acquired both tb lakeside and wedge-shaped lots, Pl. Ex. 5, includes two grants of rights of way. Fir t, the second parag1'aph of the deed-by which the lakeside lot was conveyed-grants "a right of way from said lot runnn"lg in a northerly direction to the Main Road leading from Plymouth to Troy ... " The third paragraph conveys the northerly, wedge-shaped lot; continuing, the fourth paragraph reads, "[a]Iso, a right or way over the road leading from said Camp Road to Gray Pond .. ." Plaintiffs assert the initial grant allows passage northward to the main road and the latt r allows passage southward to the pond on th grassy extension of Dow Road.

Defendants counter with a reading that emphasizes differing references to roads in the description of the northerly parcel in paragraph 3 of the deed:

Beginning on the Easterly side of the road which leads to Gray Pond and begins at a large rock and electric light post on the side of the Camp Road, so~called ... Defendants assert "the road which leads to Gray Pond" is the Dow Road. Thereafter, they argue that this language- "begins at a larg rock. .. "- describes the terminus of the Dow Road, "on the side of the Camp Road," rather than describing the point at which th Lot description begins. Under this reading, the "Camp Road" over which Plain tills were granted a right of way is the North Sho1·e Road, wh ·ch they must travers in order to read1 the main road. fo furtherance of their reading, Defel1dants believe the rock and light post, which cannot now be found or identified, were situated on the side of the North Shore Road. Plaintiffs believe they once lay beside the Dow Road.

The court agrees that "the road which leads to Gray Pond" is the way now designated the Dow Road. Good drafting would have precluded two references to the same road in a singl de cdption, one "the road which leads to Gray Pond" and the other "the Camp Road, so-called." This imprecision undermines Plaintiffs' proposed reading.

The problem is not, however; resolved by Defendants' pr £erred reading. The North Shore Road does extend to a property on the shme of Gray Pond (see Pl. Ex.19) but the Dow Road, as extended at the time of Plaintilfs' deed, literally extended to the shoreline. Further, Defendants' proposed reading wouJd grant Plaintiffs a right of way over the Dow Road but not over the North Shore Road, both of which they must traverse to reach the main road. The record did not illuminate what rights of passage shorefront owners actually had over either the Dow Road or the North Shore Road at the time the lots were conveyed. Presumably, passage was not unrestricted-otherwise, there would have been no need for a right of way of any kind from Plaintiffs' shoreside lot to the main road-but the extent of any restrictions wa not addressed in the record and therefore cannot determine the court's reading of the problematic provisions in the deed.

The history of usage is helpful in interpreting the deeds. The record establishes that the parties' pr · decessors in Litle extended th camp road now known as the Dow Road fr m a point north of both properties along a line between them, all the way to the shore of Round Pond. The purpose of the extension was to allow access to the shore for disabled family members to swim, as well as for others to launch boats and otherwise use the shore.Line for recreation. The existence of shore alterations that would now not be allowed without an environmental permit, together with testimony that the rest of tbe shoreline is generally marshy and not ec1sily accessible for swimming, reinforce this conclusion.

Based on the deeds, the photographs, the survey materials, and the remini, cences of witnesses who have intimate historical familiarity with the two cottages and their uses, the court makes the following findings of fact:

1. The parties' predecessors in title, by agreement, established a right of way extending from the camp road now lmown as the "Dow Road," outhward to the shore of Round Pond; 2. The southern terminus of the right of way is a visible opening in the vegetation at the shore of the pond; 3. The property line between the parties is the midpoint of the right of way; 4. The right of way extends 9 1t2 feet to either side of the midpoint, thus burdening each landowner equalJy; 5. The purposes for which the right of way was established include swimming, launching watercraft, and other traditional lakesid recreational u.ses; 6. The persons by which the right of way may be used include the parties and their guests.

Prom these find in.gs, the court concludes Plaintiffi:; have proved tl1ey have a deeded right of way to the water, as well as the length and width of the right of way and the purposes for which it was granted . See Drummond v. Foster, 107 Me. 401, 78 A. 470 (1910).

• • Right of Way by Prescription

Plaintiffs argue .further they have established by prescription the right to use the grassy extension of the Dow Road. The court concludes this argument has merit and provides an alternate basis for the relief Plaintiffs seek.

To establish a prescriptive easement pursuant to 14 M.R.S. § 812 (2009), Plaintiffs must prove (1) continuous use for at least twenty years; (2) under a claim of right adverse to the owner; (3) with the owner's knowledge and acquiescenceI or with a use so open, notorious, visibleI and uninterrupted that .knowl dge and acquiescel1ce wiU be presumed. Androkites v. White, 2010 ME 133I 1<[ 13-14, 10 A.3d 677.

Familial and friendly relations among the owners to these adjacent properties over the generations made the question of use as a matter of right versus permission academic w1til recently, and it is likely that no owner of any affected property gave the issue a second thought until the immediate controve.rsy erupted. The weight of the evidence establishes, with particular emphasis being given to Plaintiffs' longer tenUl'e in their propertyI that they have established all three elements. The contested use has been continuous for over twenty yeaJ·s, it has been exercised under a claim of right, and it was met with acquiescence until the immediate dispute arose.

Because Plaintiffs have established. they hold a right of way both as specified in their deed and by prescription, judgment will enter in their favor on Count I of their complaint.

• • Nuisance

17 M.R.S. § 2701 provides that "Any person injured in .his comfort, property or the enjoyment of his estate by a common public or a private nuisance may maintain against the off 1der a civil action for his damages tmless otherwise spe ially provided." The elements of a private nuisance at common law are:

(1) "[t]he defendant acted with the intent of interfering with the use and enjoyment of the land by those entitled to that use/' with intent meaning only that "the defendant has created or continued the condition causing the interference with full knowledge that the harm to the plaintiff' interests are occurring or are substantially certain to follow"; (2) there was some interference of the kind intended; (3) the interference was substantiaJ such that it caused a reduction in the value of the land; and (4) the interference "was of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land."

Tohnston v. Me. Energy Recove1y Co., Ltd. P'ship, 2010 ME 52, ~ 15, 997 A.2d 741, quoting Charlton v. Town of Oxford, 2001 ME 104, <[ 36, 774 A.2d 366. Plaintiffs argue Defendants inflicted a pr.ivate nuisance when they posted a no trespassing sign in the middle of the op ning of the grassy extension to the shore of the

lake, blocked the grassy extension with vehicles, and otherwise made the use of the right of way inaccessible. The court agrees.

Plaintiffs' calculation of their damages based on the nuisance was not persuasive. They believe they lost rental income due to their dispute with Defendants but provided no documentation of, e.g., interested parties who declined to rent cabins on the Three Bears Lot because of the pending dispute. Likewise, Plaintiffs established they were inconvenienced by Defendants' blockage of the right of way but al. o effectively mitigated their darnages by securing access to the lake through the hospitality of neighbors. Although Plainti£fs' testimony demonstrated their dispute with Defendants has been vexing and inconvenient, they are entitled only to minimal monetary relief.

Judgment Judgment shall enter in favor of Plaintiffs on Count I of the complaint, as follows:

1. Robert G. Engelhardt, Sr. and Simone A. Engelhardt have a right of way, established by deed and by prescriptive use, extending from the southerly end of a camp road in Plym uth, Penobscot County, Maine, called the "Dow Road/' to the shore of Gray Pond (also known as RoW1d Po11d).

2. This right of way is appurtenant to the r al estate described in a deed from Pamela F. Shorey to the Engelhardts, dated May 5, 1994, recorded i.n the Penobscot County Registry of Deeds in Book 5616, Page 322.

3. The right of way is the westerly half of a 19-foot-wide passage, the center line of which is the common bOLmdary beh-veen the property described in the Engelhard ts' deed and the property described in a deed from Stanley E. Tusinski, Jr., et. al., to Arnold Ross and Georgia M. Ross, dated March 2, 2009, recorded in the Penobscot County Registry of Deeds in Book 11689, Page 326. The passage con tituting the right of way is a gravel road, now grassed over, situated between the two properties. Its southern terminus is an opening to the shore of Gray Pond. Its path is generally northerly, pa1,·all J to a Line of trees on the Engelhard ts' property, extending to the poin.t where the nol'thwest corner of the Engelhard ts' property and the northeast corner of the Rosse ' property meets the southern end of the Dow Road.

4. The right of way is for pedestrian and vehicular travel between the pond and Dow Road to facilitate swimming, fishjng, launching and hauling boats, and other recreational activities incident to the use and enjoyment of a lakeside camp. The right of way exists for the benefit of the Engelhardt , their family members, and their guests.

5. Hugh Arnold Ross (also known as Arnold Ross) and Georgia M. Ross are enjoined from interfering with use of the right of way as specified in this judgment.

6. This judgment shall operate directly on the land.

Judgment shall enter in favor of Plaintiffs on Count II in the amount of $1,000, plus interest and costs.

The Clerk may incorporate this Judgment upon the docket by reference. Dated: January 5, 2018

Jus tice, Maine Superior

ORDER/JlJDGME~T ENTERED COURT DOCKET ON: i - Cj. \ ~sirn

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Footnotes

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