# Snow v. Corliss

> Superior Court of Maine · May 14, 2024

URL: https://www.frixlaw.com/law-library/cases/10806638

## Case

- **Court:** Superior Court of Maine
- **Decided:** May 14, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** M. Michaela Murphy
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. CIVIL ACTION
DOCKET NO. RE-22-37

GREGORY L. SNOW & ARLENE Q.

ee
SNOW,

ee
ORDER ON PLAINTIFFS9 MOTION
Plaintiffs/Counterclaim Defendants, FOR SUMMARY JUDGMENT

ee
Vv.

ee
JASON S. CORLISS,

ee
Defendant/Counterclaim Plaintiff.

ee
This case arises from a dispute over whether Plaintiffs/Counterclaim Defendants Gregory

and Arlene Snow (<the Snows=) have acquired easement rights over a private road owned by

Defendant/Counterclaim Plaintiff Jason Corliss (<Mr. Corliss=). The Snows have moved for

summary judgment on Count I (Implied Quasi-Easement), Count II (Prescriptive Easement), and

Count II] (Nuisance) of the Complaint, and on both counts of Mr. Corliss9s Counterclaim

(Trespass and Intentional Infliction of Emotional Distress). For the following reasons, the Court

denies the Snows9 motion with respect to Counts I-III of the Complaint and with respect to the

Trespass claim set forth in the Counterclaim. The Court, however, grants the motion with respect

to Mr. Corliss9s Intentional Infliction of Emotional Distress (<IIED=) claim.

FACTS
The following facts are contained in the summary judgment record and appear to be

uncontroverted: The Snows and Mr. Corliss own neighboring properties in Pittston, Maine. Pls.9

S.M.F. {ff 1-2. The property at issue4a 35-foot-wide strip of land containing a road (<the

Road=9)4is owned by Mr. Corliss and stretches approximately 1,160 feet from the westerly side

of Route 27 to Corliss Gravel Pit, Mr. Corliss9s gravel business located on his property. Jd. J 2-
3; Def.9s Opp. S.M.F. § 2. While the strip of land containing the Road is 35 feet wide, the Road

itself is at most 18 feet wide, and in some spots, as narrow as 14 feet wide. Def.9s Opp. S.M.F. 4

4, The Snows9 property abuts the Road to the south. Pls.9 S.M.F. 4 3; Def.9s Opp. S.M.F. § 7.

Prior to 1949, the Snows9 property and the 35-foot-wide parcel were held in common

ownership by Kenneth Esponnette. Pls.9 S.M.F. {J 4, 7. On November 17, 1949, Mr. Esponnette

conveyed <a strip of land thirty-five (35) feet in width= to James E. Murphy, Mr. Corliss9s

predecessor in title. Jd. 4 4; Snow Aff. 7 10 & Ex. 1 attached thereto. Mr. Eponnette retained

ownership of the property now owned by the Snows. Pls.9 S.M.F. {§ 5-6. Through a series of

conveyances thereafter, the Snows and Mr. Corliss ultimately acquired title to their respective

properties. Below is a summary of the respective chains of title associated with the Snows9

property and Mr. Corliss9s 35-foot-wide parcel:

35-Foot-Wide Parcel The Snows9 Property

1949: Kenneth Esponnette to James E. 1957: Estate of Kenneth Esponnette
Murphy to George E. Snow and Louise S.
Snow

1975: James E. Murphy to John Henry 1986: George E. Snow and Louise S.
Murphy Snow to Gregory and Arlene Snow

2018: John Henry Murphy to Mr.
Corliss

At some point prior to Mr. Esponnette9s conveyance to George and Louise Snow

(Plaintiff Gregory Snow9s parents), Mr. Esponnette used what is now the Snows9 property for

commercial purposes, such as removing construction material and as a market garden. Pls.9

S.M.F. §9 5, 35. After purchasing the property from Mr. Esponnette in 1957, George and Louise

Snow used the property as a family homestead and for commercial purposes. /d. 4 8. Aerial

photographs, however, reveal that the fields on the western side of the Snows9 property4to
which the Road provides access4were not maintained and were allowed to return to forest after

the early 1970s. Def.9s Opp. S.M.F. { 42.

Plaintiff Gregory Snow, who received title to his family property in 1986, lived on the lot

until 19874first residing in the Snow family homestead and later residing in a mobile home that

was placed on site. Pls.= S.M.F. §§ 9, 10, 12. After 1987, the Snows rented their property and

mobile home to various tenants. /d. J 13. In 2014, the Snows9 property shifted from a rental

property back to family use, with the Snows9 daughter, Abby, and son-in-law moving to the

property. Jd. §§] 14-15. Abby and her husband have continued to reside on the property to this

day in a house near the entrance of the Road and approximately 300 feet from Route 27. Jd. { 15;

Def.9s Opp. S.M.F. J 7. From 1957 to present, the Snow family, as well as their friends, guests,

tenants, and invitees, have visibly and openly used various portions of the Road for residential

and recreational purposes and to enter their property at various access points. Pls.9 S.M.F. [J 16-

17, 30, 34.

John Murphy, Mr. Corliss9s predecessor in title, acquired title to the 35-foot-wide strip of

land from his father in 1975. Jd. § 19. John Murphy was aware that the Snows used

approximately 25 feet of the Road to access the Snow residence from Route 27, though Mr.

Murphy never gave them permission to do so. Id. J] 22-23, 25; Pls.9 Ex. C at 43. Although John

Murphy left Maine in 1965, he visited the property every few years from 1965 until an

indeterminate year in the <[19]909s.= Pls.9 S.M.F. § 21. Whenever he visited, he would place

chains to prevent access to the Road; the chains, however, were always removed. /d. 4 24.

Shortly after Mr. Corliss acquired his property in 2018, he erected a barricade, including

two chains and a gate, and installed rocks to prevent the Snows from using the Road. Jd. J 19,
40. The Snows commenced this action after Mr. Corliss refused to remove the obstructions. /d.

49 43, 45.

Count I of the Complaint seeks, inter alia, a declaration that the Snows have an implied

quasi-easement for driving and walking over the Road for all residential purposes and other uses

consistent with the Snows9 and their predecessors9 past uses. In Count II, the Snows seek a

declaration that they have acquired a prescriptive easement for driving and walking over the

Road to access their property for all residential purposes. Count III alleges Nuisance based on a

theory that Mr. Corliss damaged a culvert, which caused ground water to back up and infiltrate

the Snows9 well. Mr. Corliss has counterclaimed, asserting claims of Trespass and IIED against

the Snows. The Snows thereafter moved for summary judgment on all counts of the Complaint

and Counterclaim.

STANDARD OF REVIEW

<Summary judgment is appropriate when review of the parties9 statements of material

facts and the referenced record evidence indicates no genuine issue of material fact that is in

dispute, and, accordingly, the moving party is entitled to judgment as a matter of law.= Dyer v.

DOT, 2008 ME 106, 4 14, 951 A.2d 821; M.R. Civ. P. 56(c). <A fact is material if it has the

potential to affect the outcome of the suit, and a genuine issue of material fact exists when a fact-

finder must choose between competing versions of the truth, even if one party9s version appears

more credible or persuasive.= Angell v. Hallee, 2014 ME 72, J 17, 92 A.3d 1154 (quotation

marks omitted).

<In addition to the specific facts set forth by the parties, [the court] will consider any

reasonable inferences that a fact-finder could draw from the given facts.= Curtis v. Porter, 2001

ME 158, 4 9, 784 A.2d 18. Although the court will not speculate, it <accord[s] the nonmoving
party the full benefit of all favorable inferences that may be drawn from the facts presented.= Jd.

(quotation marks omitted). <When facts or reasonable inferences are in dispute on a material

point, summary judgment may not be entered.= Jd.

DISCUSSION

I. Implied Quasi-Easement (Count I of the Complaint)

First, the Snows seek summary judgment on their Implied Quasi-Easement claim set

forth in Count I of the Complaint. The Law Court has recognized two types of implied

easements: implied easements by necessity and implied easements created by, or arising from, a

prior quasi-easement. Northland Realty, LLC v. Crawford, 2008 ME 92, § 12, 953 A.2d 359. The

latter type of easement4which is at issue here48depends on both a preexisting use of the land

and the intent of the grantor at the time of conveyance.= Jd. 4 13. To establish the existence of an

implied quasi-easement at the summary judgment stage, there must be no genuine issue of

material fact with respect to the following elements:

(1) the property when in single ownership [was] openly used in a manner
constituting a <quasi-easement,= as existing conditions on the [conveyed] land
that are apparent and observable and the retention of which would clearly benefit
the land [retained]; (2) the common grantor, who severed unity of title, ...
manifested an intent that the quasi-easement should continue as a true easement,
to burden the [conveyed] land and to benefit the [retained] land; and (3) the
owners of the [retained] property ... continued to use what had been a quasi-
easement as a true easement.

Connolly v. Maine Cent. R. Co., 2009 ME 43, { 8, 969 A.2d 919 (alterations in original)

(quotation marks omitted).

Here, the Snows have failed to meet their burden on the second element. The summary

judgment record does not allow the Court to conclude that when Mr. Esponnette conveyed the
35-foot-wide strip of land to James Murphy in 1949, Mr. Esponnette intended to retain an

easement over the 35-foot-wide parcel for the benefit of the property he continued to hold.

There is no deed language indicative of such an intent. See Pls.9 S.M.F. 7 4; Snow Aff. 4

10 & Ex. | attached thereto. To the contrary, the Esponnette-to-Murphy deed indicated that the

conveyance of the 35-foot parcel was <free of all encumbrances.= /d.; see also Northland Realty,

2008 ME 92, ¢ 15, 953 A.2d 359 (finding <no evidence . . . of the grantor's intent to retain a

quasi-easement as a true easement= where the <conveyance expressly covenanted that the

[property] was 8free of all encumbrances9=).

The only other evidence in the record that is arguably indicative of Mr. Esponnette9s

intent4including (1) evidence that Mr. Esponnette used what is now the Snows9 property for

commercial purposes and (2) evidence that the Snows9 predecessors used the 35-foot parcel to

access their property some eight or more years after the Esponnette-Murphy conveyance4does

not compel an inference that Mr. Esponnette intended to retain an easement over the 35-foot-

wide parcel. See Curtis, 2001 ME 158, J 9, 784 A.2d 18 (<When . . . reasonable inferences are in

dispute on a material point, summary judgment may not be entered.=). Accordingly, the Court

declines to enter summary judgment on the Snows9 Implied Quasi-Easement claim.

II. Prescriptive Easement (Count II of the Complaint)

The Court likewise declines to enter summary judgment on the Snows9 Prescriptive

Easement claim. Acquisition of an easement by prescription requires proof of <continuous 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.= Dowley v. Morency, 1999 ME 137, § 23, 737 A.2d 1061.

<Acquiescence by the owner to the use is essential, and in this regard, the acquisition of an
easement by prescription differs from the acquisition of title by adverse possession.= /d.

Acquiescence implies <passive assent or submission to the use, as distinguished from the

granting of a license or permission given with the intention that the licensee's use may continue

only as long as the owner continues to consent to it.= Jd. (quotation marks omitted).

<[A] prescriptive easement may [] be interrupted by proof of nonacquiescence.= /d. For

instance, the Law Court has held that a property owner9s placement of a barrier, such as a chain-

link fence, constitutes an indication of nonacquiescence sufficient interrupt a prescriptive

easement claim. Cedar Beach/Cedar Island Supporters, Inc. v. Gables Real Estate LLC, 2016

ME 114, 99 22-25, 145 A.3d 1024:!

In this case, the summary judgment record contains evidence of nonacquiescence

sufficient to defeat the Snows9 summary judgment motion. The record reveals that from 1965

until an indeterminate year in the 1990s, John Murphy, then-owner of the Road, visited his

property every few years and attempted to prevent access to the Road by placing a chain across

it. Pls.= S.M.F. 9 21, 24. Though the chains were always removed, Mr. Murphy would replace

the chains each time he was in Maine until he stopped visiting the property in the 1990s4

' Although Cedar Beach addressed a public prescriptive easement, a party seeking to
establish such an easement must prove4as with a private prescriptive easement4that the use
was <with the owner's knowledge and acquiescence= or <so open, notorious, visible, and
uninterrupted that knowledge and acquiescence will be presumed.= 2016 ME 114, § 11, 145 A.3d
1024 (quotation marks omitted). And while there are some differences between the private and
public prescriptive easement standards, these differences primarily relate to the <adversity=
element, not the <acquiescence= element. Jd. { 14 (<In the case of a private prescriptive
easement, adversity is presumed if the claimant shows that he has used the property continuously
for twenty years and the owner has acquiesced. ... However, when a party is claiming the
existence of a public prescriptive easement, the party must prove adversity because the public
recreational use of private uncultivated lands is presumed to be permissive.=). Accordingly, the
Court finds Cedar Beach9s discussion of acquiescence/nonacquiescence instructive.
perhaps as late as 1999. Pls.9 S.M.F. § 21; Pls.9 Ex. C at 23, 25, 53-54. Mr. Murphy did not visit

the property in the new millennium, but shortly after Mr. Corliss acquired the 35-foot-wide strip

of land in 2018, Mr. Corliss placed a barrier across the Road to block access. Pls.9 S.M.F. 4 19,

40.

While the removal of the chains may be considered an act of adversity, <the placement of

[the chains] conversely constitute[d] an indication of nonacquiescence.= Cedar Beach, 2016 ME

114, | 24, 145 A.3d 1024. The chains and other barriers placed by Mr. Murphy and Mr. Corliss,

even if they were removed after only a few days, sufficiently interrupted any prescriptive period.

See id. The summary judgment record does not establish, without dispute as to material fact, that

the Snows and their predecessors adversely used the Road for a 20-year period that was

uninterrupted by these acts of nonacquiescence. Accordingly, summary judgment must be denied

with respect to the Snows9 Prescriptive Easement claim.

III. Nuisance (Count III of the Complaint)

The Snows ask the Court to enter summary judgment on their claim of Nuisance, which

alleges that Mr. Corliss damaged a culvert and caused ground water to back up and infiltrate

their well. To prevail on a claim of Nuisance, the Snows must prove, among other elements, that

Mr. Corliss <acted with the intent of interfering with the use and enjoyment of the land.= West v.

Jewett & Noonan Transp., Inc., 2018 ME 98, § 14, 189 A.3d 277.

Here, the affidavits submitted by Mr. Corliss generate a genuine issue of material fact as

to whether the defendant, when causing damage to the culvert, acted with the intent of interfering

* The summary judgment record is unclear as to the exact year in the 1990s that Mr.
Murphy stopped visiting Maine and replacing the chains. In the face of such an ambiguity, the
Court will <accord [Mr. Corliss] the full benefit of all favorable inferences that may be drawn
from the facts presented.= Curtis, 2001 ME 158, § 9, 784 A.2d 18 (quotation marks omitted).
with the Snows9 use and enjoyment of their land. See Corliss Aff. J 14; Coutts? Aff. §§ 2-3, 5-6

(suggesting that any interference with the culvert was done inadvertently and as part of Mr.

Corliss9s efforts to prevent the Road from eroding and that Mr. Corliss engaged a contractor to

perform a proper repair). Summary judgment therefore cannot be entered on the Snows9

Nuisance claim.

IV. Trespass (Mr. Corliss9s Counterclaim)

Because genuine issues of material fact exist as to whether the Snows enjoy easement

rights over the Road owned by Mr. Corliss, the Snows are not entitled to summary judgment on

the claim of Trespass set forth in the Counterclaim. See supra §§ I-II.

V. ITED (Mr. Corliss9s Counterclaim)

Finally, the Snows seek summary judgement on Mr. Corliss9s claim of IIED, which

requires proof of the following elements:

(1) the defendant intentionally or recklessly inflicted severe emotional distress or
was certain or substantially certain that such distress would result from her
conduct; (2) the conduct was so extreme and outrageous as to exceed all possible
bounds of decency and must be regarded as atrocious, utterly intolerable in a
civilized community; (3) the actions of the defendant caused the plaintiff's
emotional distress; and (4) the emotional distress suffered by the plaintiff was so
severe that no reasonable person could be expected to endure it.

Curtis, 2001 ME 158, § 10, 784 A.2d 18 (quotation marks omitted) (alteration omitted).

Specifically, the Snows argue that Mr. Corliss9s claim fails on the fourth element, noting

that it is undisputed that the only symptoms Mr. Corliss has suffered are sleeplessness and

anxiety for which he has not received a diagnosis. See Pls.9 S.M.F. § 47. The Snows furthermore

3 In responding to Paragraph 41 of the Snows9 Statement of Material Facts, Mr. Corliss
cites to the Affidavit of Gary Choate. It appears, however, that Mr. Corliss intended to cite to the
Affidavit of Dan Coutts, as the Coutts Affidavit addresses the subject of the culvert. The Court
therefore understands Mr. Corliss9s citation to the Choate affidavit to be a mistake.
point out that it is undisputed that Mr. Corliss never sought treatment for his anxiety or

sleeplessness from a medical professional. Id. § 48.

Mr. Corliss responds with his own affidavit, which reaffirms that he has continued to

suffer anxiety and sleeplessness and also states that <[t]he situation has caused conflict with my

wife and we experience anxiety that interferes with our ability to function normally.= Def.9s Opp.

S.M.F. § 31; Corliss. Aff. § 13. The Court must therefore decide whether Mr. Corliss has

established a prima facie case with respect to IIED9s fourth element. See Curtis, 2001 ME 158, §

10, 784 A.2d 18; Corey v. Norman, Hanson & DeTroy, 1999 ME 196, 4 9, 742 A.2d 933.

The Law Court has explained that <i]t is for the court to determine whether on the

evidence severe emotional distress can be found,= and <8it is for the jury to determine whether, on

the evidence, it has in fact existed.= Bratton v. McDonough, 2014 ME 64, § 24, 91 A.3d 1050

(quoting Restatement (Second) of Torts § 46 cmt. j (1965)); see also Argereow v. Weisberg,

2018 ME 140, {ff 29-30, 195 A.3d 1210. The fourth element imposes an objective standard of

proof. Lyman v. Huber, 2010 ME 139, § 21, 10 A.3d 707. The Law Court has described the legal

standard used to assess the <severity= requirement as follows:

[W]hen . . . the existence of the fourth element cannot be inferred from the
extreme and outrageous nature of the defendant's conduct alone, a plaintiff must
prove that that her emotional distress was so severe as to have manifested
objective symptoms demonstrating shock, illness, or other bodily harm. [The Law
Court] [has] not preclude[d] the possibility that this can be achieved without the
corroborating testimony of an expert medical or psychological witness. That
possibility is, however, remote. In most instances, proof of objective symptoms
will require expert testimony to establish that the plaintiff's emotional injury
qualifies for a diagnosis such as shock, post-traumatic stress disorder, or some
other recognized medical or psychological disease or disorder. . . . This standard
prevents recovery for emotional injuries that are anything less than severe.

Id. 423.
<Emotional distress that is 8severe9 is that which is 8extremely intense.9= /d. § 21. It must

be so intense that <no reasonable person could be expected to endure it.= /d. (quotation marks

omitted). <Stress, humiliation, loss of sleep, and anxiety occasioned by the events of every day

life are endurable.= Schelling v. Lindell, 2008 ME 59, 26, 942 A.2d 1226.

Here, the Court concludes that severe emotional distress cannot be inferred from the

Snows9 conduct, which includes heated arguments with Mr. Corliss over the parties9 respective

property rights, videotaping members of Mr. Corliss9s family, and driving slowly and repeatedly

by Mr. Corliss9s home. See Lyman, 2010 ME 139, 4] 19, 24-26, 10 A.3d 707 (concluding that

the fourth element was not established notwithstanding evidence of the defendant9s tirades,

hurtful comments, and efforts to contro! [the plaintiff]'s activities and to limit her contact with

others). Accordingly, Mr. Corliss must prove that that his <emotional distress was so severe as to

have manifested objective symptoms demonstrating shock, illness, or other bodily harm.= Jd. q]

23. He has failed to do so in this case.

Mr. Corliss9s symptoms4which consist of anxiety, loss of sleep, and resultant marital

problems4do not permit a finding of severe emotional distress. See Schelling, 2008 ME 59, 4

26, 942 A.2d 1226 (<Stress, humiliation, loss of sleep, and anxiety occasioned by the events of

every day life are endurable,= and not actionable); Argereow v. Weisberg, 2018 ME 140, §§ 29-

30, 195 A.3d 1210 (<[the plaintiff's] allegations do not place her emotional distress, which takes

the form of lost wages and a strained marriage that led to counseling, at a level where it could be

characterized as 8so severe that no reasonable person could be expected to endure it9=).

Moreover, even though Mr. Corliss vaguely asserts that his anxiety has interfered with his ability

to function normally, there is no evidence that he has failed to meet the demands of everyday
living. Lyman, 2010 ME 139, ¥ 24, 10 A.3d 707. Nor did Mr. Corliss seek treatment from a

medical or mental health professional. /d.; Pls.9 S.M.F. § 48.

Thus, the Court concludes that Mr. Corliss9s symptoms, as a matter of law, are not

substantial enough to qualify as emotional distress <so severe that no reasonable person could be

expected to endure it.= Curtis, 2001 ME 158, § 10, 784 A.2d 18; see also Lougee Conservancy v.

CitiMortgage, Inc., 2012 ME 103, § 26, 48 A.3d 774.

CONCLUSION

The entry is: The Snows9 Motion for Summary Judgment is DENIED as to Counts I-III

of the Complaint and as to the claim of Trespass set forth in Mr. Corliss9s Counterclaim. The

Motion is GRANTED as to the ITED claim set forth in the Counterclaim.

The Clerk is directed to incorporate this Order into the docket of this case by reference in

accordance with M.R. Civ. P. 79(a).

Dated: rm i4 Jo ' . .
2 4 | QA a NE

Michaela Murphy ~~
Justice, Maine Superior Court

5 Jalat! Entered oa the deckeT-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10806638. Public record. Not legal advice.