The opinion
STATE OF MAINE SUPERIOR COURT
HANCOCK, SS. CIVIL ACTION
Docket No. RE-00-15 ,
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Linda Carter Burroughs,
Plaintiff
Vv. Decision and Judgment
Acadia Investments, Inc., DONALD L. GARBRECHT
Defendant LAW LIBRARY
SEP 23 2n00
Hearing in this matter was held on August 12, 2002. The plaintiff, a
representative of the defendant and counsel for both parties were present.’
The parties own adjacent parcels of real property located on Ash Place in Bar
Harbor. The street address for the plaintiff’s parcel is 22 Ash Place, and the defendant’s
is 20 Ash Place. The common boundary of the parcels is the northern side of the
plaintiff’ s property and the southem side of the defendant’s. The length of that common
boundary is nearly two hundred feet. The plaintiff alleges that through adverse
possession, she also owns a strip of property roughly ten feet in width that runs along the
entire length of her northem boundary, extending that far into the defendant’s lot. The
record shows — and the plaintiff does not dispute — that her record title included in the
relevant deed descriptions does not encompass that disputed area. Thus, record title to
that property lies with the defendant.
' In its present posture, this case involves one plaintiff and one defendant. This action
was filed by the present plaintiff and her father, Harlan Carter. Mr. Carter died during
the pendency of this case. The suggestion of death did not seek to substitute another
party to represent any continuing interest that Mr. Carter’s estate might represent.
Further, the prior owner of the defendant’s parcel, Lura Jones, was originally
named as a co-defendant. The plaintiff voluntarily dismissed any claim against her early
on in these proceedings, presumably because she conveyed her interest in the property to
the remaining defendant very close in time to the date when the plaintiff commenced this
action.
“To successfully acquire title by adverse possession, the adverse possessor must
prove by a preponderance of the evidence possession for a 20-year period that is actual,
open, visible, notorious, hostile, under a claim of right, continuous and exclusive.”
Loavenbruck v. Rohrback, 2002 ME 73, J 11, 795 A.2d 90, 93. The claimant must
establish these elements by a “fair preponderance of the evidence,” which means simply a
preponderance of that evidence. Streifel v. Charles-Keyt-Leaman Partnership, 1999 ME
111,93, 733 A.2d 984, 988. Here, the defendant does not appear to seriously challenge
the plaintiff's adverse possession analysis, and the evidence nonetheless establishes
affirmatively that the plaintiff has acquired an ownership interest in part ~ but not all -- of
that area through adverse possession.
There are three distinct sections of the disputed strip of realty that must be
analyzed separately in the context of the plaintiff’s adverse possession claim. First, the
plaintiff has established each element of a claim of adverse possession to that portion of
the disputed area that runs between Ash Place and the location where a maple tree stood
in very close proximity to the sunroom of the house on the defendant’s property.” This
front (westerly) section of the disputed area is lawn. The plaintiff and her parents, when
they occupied the house now owned by the plaintiff, maintained that grassy area as if it
were their own and in a way that satisfies the elements of a claim for adverse possession.
In 1978, the plaintiff’s father noticed a pin in the location where the southwest corner of
20 Ash Place is located, according to the record description of that property. He then set
his own pin at the spot where he believed that his northwest corner was located. This
second pin is approximately ten feet north of the pin that correctly reflects the record
boundary. The court concludes that even though Mr. Carter was mistaken regarding the
location of his northwest corner and therefore of the location of the northern boundary of
his property, he did not intend to occupy the disputed property conditionally. His
discovery of the more southerly pin (the one that correctly depicts the northwest corner of
22 Ash Place) constituted a message that he did not own north of a line that extended
* After the defendant purchased the property, its principal cut down the maple tree
because it was in poor condition and threatened the house located on the defendant’s lot
-- and, presumably, the house on the plaintiff’s own lot. The remainder of the maple tree
has regenerated into something resembling a bush or shrub. Its location is therefore
apparent.
from that location. In the face of this message, he manifested an intention to assert
ownership beyond that point. “If... a party claiming through mistake has an absolute
intent to claim the land, his possession is adverse to the true owner.” Emerson v. Maine
Rural Missions Association, Inc., 560 A.2d 1,3 (Me. 1989). As in Emerson, the
plaintiff’s predecessor in interest asserted title to the disputed property even knowing of
circumstances that this assertion was challenged. Jd. Therefore, the plaintiff at bar has
proven “the requisite ‘absolute intention’ necessary to constitute adverse possession.” Id.
However, the plaintiff has not acquired the remainder of the disputed section
under principles of adverse possession. After the plaintiff’s father acquired 22 Ash Place
in 1978, he piled stumps, brush and other vegetative debris within the rear section of the
disputed area, which is the easterly end. He did this to create a barrier that would make it
difficult for people present on the land at 20 Ash Place from crossing over onto the
boundary (as he believed it to be) onto his property +The evidence does not reveal when
he began that practice, and the plaintiff therefore has failed to establish at least the
temporal element of an adverse possession claim for that portion of the disputed property.
Finally, the middle section of the disputed property is overgrown with bushes. At
one point, the plaintiff’ s predecessor in interest maintained a rock garden in that area.
However, that project was abandoned, and that area grew over. Neither the plaintiff nor
any of her predecessors have possessed the third, middle section of the disputed property
in a way that would support a claim of ownership by means of adverse possession to it.
Therefore, the court concludes that the plaintiff has established title by adverse
possession to the section of the disputed property, which, as described above, is between
the site of the felled maple tree and Ash Place.
The defendant contends that in the circumstances of this case, the plaintiff is
barred by the equitable theory of laches from asserting an ownership claim to any part of
its parcel.
Laches is the omission to assert a right for an unreasonable and unexplained
length of time. . . .It exists when the omission to assert the right has continued for
an unreasonable and unexplained lapse of time, and under circumstances where
the delay has been prejudicial to an adverse party, and where it would be
inequitable to enforce the right. .. .Whether the equitable doctrine of laches
applies in a given circumstance is a question of law.
Northeast Harbor Golf Club v. Harris, 1999 ME 38, | 19, 725 A.2d 1018, 1023-24
(citations omitted). Delay alone is an insufficient predicate for a claim to be barred by
laches. Longley v. Knapp, 1998 ME 142, { 10, 713 A.2d 939, 943.
Here, the record does not reveal that any delay by the plaintiff in raising an
adverse possession claim has worked to the prejudice of the defendant sufficient to bar
her claim on equitable grounds. The defendant purchased the Ash Place lot with the
intention of developing it into the site of a multi-unit residential condominium. It
acquired the property in May 2000. From the record evidence, the court infers that the
defendant and the seller entered into a purchase and sale agreement a substantial period
of time prior to the closing. In late 1999, the defendant sponsored several neighborhood
meetings to allow its principal to explain the development plans and to entertain the
' neighbors’ responses. The plaintiffs father, who then owned 22 Ash Place, was vocal in
expressing his opposition. Subsequently, in February 2000, the defendant submitted an
application for approval of the development project with the local planning board. As of
the time the plaintiff commenced this action in May 2000, aspects of the development
project had been raised at four planning board sessions. The first two and the fourth such
sessions were board meetings, and the third was a public hearing. At the second meeting,
the defendant’s application materials were found to be incomplete. After the plaintiff
filed this action, the proposed development has come up in five additional meetings. As
of the date of the trial in this case, the board has not acted finally on the defendant’s
application, and it remains pending with the municipality.
The court concludes that even if the plaintiff delayed in raising any claims to
ownership of the disputed property, the defendant has not been unfairly prejudiced by
that delay in a way that would make it inequitable to allow the plaintiff to claim
ownership in this proceeding. The plaintiff's claim that she owns part of the property that
the defendant hopes to develop clearly has added a complication to those plans, because
it could compromise the defendant’s ability to satisfy a number of requirements in the
applicable ordinances, such as coverage restrictions and setbacks. The question,
however, is not whether the plaintiff’s ownership claim would affect the defendant’ s
development plans, but whether any unreasonable delay in the plaintiff’s assertion of that
claim is unfairly prejudicial. There is no meaningful or persuasive evidence that
demonstrates, as a matter of law, that this result has obtained.
From the record evidence, one could speculate that two possible effects were
caused by a dilatory assertion of an ownership interest. First, it might be argued that if
the defendant had known of the uncertain quality of title to the disputed area, it might not
have consummated the transaction in May 2000. However, the terms of the purchase and
sale agreement are not a matter of record in this case. Therefore, the court would be
required to speculate in order to conclude that the terms of the contract contained a
condition that would have relieved the defendant of any obligation to perform under the
contract by purchasing the property. As far as this record reveals, the defendant was
contractually committed to buy the property irrespective of the initiation of claims such
as the plaintiff’s during the contract’s lifetime. Further, in the absence of any such
conditions that would have excused performance by the defendant, it would have been
subject to an action for specific performance.
The second possible effect of any delayed action by the plaintiff has been to
prolong the municipal process involving the development application. If the plaintiff’s
contention had been aired earlier in the process, then the planning board would have been
in a position to consider those ramifications. However, the plaintiff’s claim still required
resolution in the court system, and the board therefore could not have responded to the
issue definitively. Further, the evidence demonstrates that the municipal process has
been of considerable duration, and the delay of several months between the
commencement of that process and the institution of the case at bar has not been shown
to be of enough significance to bar the plaintiff’s claim here.
For these reasons, even if the plaintiff unreasonably delayed the moment when
she first publicly raised a question about ownership of the southerly strip of the property
putatively owned by the defendant, that delay does not bar her right to pursue that claim
here. The court need not and therefore does not address the questions of whether she
engaged in such a delay and whether that delay was unreasonable and unexplained.
The entry shall be:
For the foregoing reasons, judgment is entered for the plaintiff. By adverse
possession, the plaintiff owns a portion of the strip of real property described in
plaintiff’s exhibit 1 as the “contested area,” between the easterly boundary of the parcel
associated with 22 Ash Place in Bar Harbor, and the point near the sunroom of the house
at 22 Ash Place where a 7 inch maple tree (as depicted in plaintiff’s exhibit 1) is or was
located.
The plaintiff is awarded her costs of court.
/ f
Dated: August 19, 2002 Milan
Justice, Mai + Superior Court
FILED &
ENTERED
bu3 241 2002
OR COURT
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