The opinion
STATE OF MAINE
Knoz. §.8., Clerks Office
SUPERIOR COURT
STATE OF MAINE JUN oF 2882 SUPERIOR COURT
° ” CIVIL ACTION
KNOX, ss. DOCKET NO. RE-01-022
RECEIVED AND FILED op.
Susan Guillette, Clerk
BRUCE E. PARMLEY and
MARY T. PARMLEY,
Plaintiffs
v. DECISION AND ORDER
JULES E. BERNARD, II and " ONALD L. GARBRECH!
PATRICIA W. BERNARD, . LAW LIBRARY
Defendants
JUK o*
This matter is before the court after bench trial. By warranty deed, James E.
Swaine, et al. conveyed property in Rockport to Bruce E. Parmley, et al., the plaintiffs
herein, for a parcel of land on the shore of Penobscot Bay abutting the easterly side of
U.S. Route 1. The deed indicates that the premises described was subject to a right-of-
way “having been previously granted by Russell W. Staples to Jules E. Bernard, Jr. by
deed dated September 11, 1952, and recorded in Book 326, Page 190, Knox County
Registry of Deeds."
By warranty deed, one Russell W. Staples conveyed a parcel along the shore of
Rockport Harbor to Jules E. Bernard, Jr. on September 11, 1952. This deed contained
the following:
Together with a right-of-way in common over the gravel road leading
from Route One over land of this grantor; also granting the right to the
grantee to construct a road over land of this grantor from said graveled
road to the granted premises, such road to be used in common with
others of adjoining premises.
By warranty deeds of December 13, 1993, and January 12, 1994, Jules E. Bernard a/k/a
Jules E. Bernard, Jr. conveyed said property to Jules E. Bernard, III, et al., the defendants
herein. Those deeds contain the paragraph stating:
Together with a right-of-way in common from U.S. Route One over said
Staples land, as set forth in said deed from Russell W. Staples.
Plaintiffs have filed with this court a complaint for declaratory judgment and for
injunctive relief. In their complaint, the plaintiffs allege that the defendants have
announced that they have a right to construct a road and locate utility lines down the
center of plaintiffs’ property. The plaintiffs dispute the location and assert that the road
should be constructed on the northerly bound of the property or at a location less
injurious to the plaintiffs. They support their position by alleging that there is no
definite location in the 1952 description of the right-of-way and that any reference in the
deed, to the extent there may have been an intended location, is now lost to time and
nonuse. The plaintiffs complain that defendants have trespassed and caused damage to
their property in accordance with their intention to improve a nonexistent right-of-way
and ask the court to give relief as follows:
(1) Declare that the right-of-way which defendants claim is undefined and
unlocated and that it should be located in such a way as to do the least damage to the
plaintiffs’ property, declare that the defendants have no right to pave the road, and that
defendants have no right to locate utilities along said road.
(2) Grant the plaintiffs a preliminary and permanent injunction enjoining the
defendants from constructing the road down the center of plaintiffs’ property and
placing of utilities, paving the road or otherwise trespassing.
(3) Award damages as a result of the actions of the defendants and associated
costs.
To this, the defendants have answered denying that the right-of-way is
undefined and unlocated and further assert their right to construct the driveway.
Defendants complain that they have been forced to expend resources to retain experts
to locate the right-of-way and deny that it has been lost to time and nonuse.
Defendants also dispute the proposed location by the plaintiffs as less injurious to
plaintiffs as owners of the property. The defendants deny that they will construct the
road down the center of plaintiffs' property but assert a right to construct a driveway at
the location specified in their deed as found on the face of the earth. Significantly, the
defendants request no relief other than to deny the plaintiffs’ petition, dismiss the
plaintiffs’ complaint and award defendants their costs.
To the great credit of the parties to this action and their counsel, a joint
stipulation of facts and exhibits was filed with the court. First the parties stipulate as to
the deed source of their titles to land. They further stipulate as to the precise language
giving rise to the questions at issue. They agree that there exists a gravel road running
from Route One along the plaintiffs’ southerly boundary in an easterly direction
constructed by the Swaines, plaintiffs’ predecessor-in-title, in 1972. They agree that one
Russell W. Staples was a common grantor to both parties’ title, with outparcels. Finally,
the parties stipulate as to joint exhibits 1-22.
Because the court is bound by the pleadings, particularly in an action such as this
with numerous issues potentially before the court, it is important to define the nature of
the question and the burdens attendant to the two parties. A complaint for declaratory
judgment is an appropriate vehicle for establishing rights in property. The Declaratory
Judgments Act, 14 M.R.S.A. §§ 5951-5963, "is remedial in nature and should be liberally
construed to provide a simple and effective means by which parties may secure a
binding judicial determination of their legal rights, status or relations under statutes and
written instruments where a justiciable controversy has arisen." Hodgdon v. Campbell,
411 A.2d 667 (Me. 1980).
The pleadings seek to quiet title which jurisdiction is found in 14 M.R.S.A. §§
6651-6661. Under such pleadings, the plaintiff argues that the defendants have the
burden of proving the location of their easement or right-of-way. The defendants
argue to the contrary, that plaintiffs have the burden of proving their right to a
declaratory judgment as to the rights of the parties. Inasmuch as it is vital, in a case
such as this, that the court not over-decide or go too far in its judgment thereby acting
beyond the pleadings and deciding issues not before it, the court first examines, as a
matter of law, the issue of burden of proof.
As Hodgdon v. Campbell tells us at page 670, the allocation of the burden of proof
in declaratory judgment actions has been the subject of pointed commentary and
debate! In the Hodgdon case, the Court found the plaintiff to bear the burden of proof
"not because he filed the action for declaratory judgment but because the plaintiff in a
quiet title action has the burden of proving better title than that of the defendant."
Hodgdon v. Campbell, 411 A.2d at p. 671. This statement of law must be considered in
light of LaBelle v. Blake, et al., 714 A.2d 145 (Me. 1998) which places the allocation of the
burden of proof in declaratory judgment actions where a party asserts an affirmative
defense of the existence of an easement on the defendant.
1 The Maine Law Court goes on, however, to conclude that by a
preponderance of the evidence, “both fairness and the nature of
declaratory relief dictate that the allocation of the burden of
proof in declaratory judgment actions must be determined by
reference to the substantive gravamen of the complaint. The party
who asserts the affirmative of the controlling issues in the case,
whether or not he is the nominal plaintiff in the action, bears
the risk of nonpersuasion." Id.
In the instant case, the defendants have not asserted a defense of location of the
easement but have denied that the easement cannot be located on the face of the earth.
Under the circumstances, the court concludes that the burden on the defendants is not
one of proof, but a burden of going forward with evidence to dispute the assertions by
the plaintiff seeking the declaration of their right.2. Therefore, the court is satisfied that
the plaintiffs have the burden of proving the nonexistence of the deeded monument
giving rise to the authority in the court to provide equitable relief.
Plaintiffs’ prayer for relief in determining the location of a right-of-way by way
of injunctive relief is premised upon the principles of Perkins v. Perkins, 158 Me. 345, 184
A.2d 678 (Me. 1962) wherein the court held that in the absence of evidence specifically
projecting onto the ground a fixed and definite usage commonly accepted by the
parties of adjoining tracts of land as a right-of-way, the owners of the dominant lot are
entitled to a way located "so as not to be unreasonable inconvenient or injurious to the
[owner] of the servient lot but to be reasonably suitable and convenient to themselves,
having reference to purposes of way, situation of lots, and all other circumstances
existing when the will was drafted." The Perkins court went on to say that “if the object
of the grant of the right-of-way is stated or known from surrounding circumstances,
quality and quantity of right-of-way or passage may be determined by finding the
reasonable way or passage which will give effect in concrete form to the presumed
object or intention [of the grantor]." (Perkins v. Perkins, 158 Me. at 350).
In that regard, the court also notes Davis v. Bruk, 411 A.2d 660 (Me. 1980). In that
case, the trial court found that while the deeds did not fix the exact location of the right-
2 Unfortunately, this may raise the issue as to whether this
declaration can be res judicata as to the exact location, if
found, of defendants' right-of-way.
of-way, at a particular point the location of the right-of-way was fixed and had not
varied. Upon the request of the defendant for a unilateral relocation of easements
where there is inconvenience, the court declined to authorize the trial court to order
relocation.
The one final observation of law prior to a discussion of the evidence is the
question of the nature of burden of proof in such an action. This court finds no
authority for anything other than a preponderance of the evidence in such a situation
and further concludes that circumstantial evidence is clearly allowed to establish the
basis for declaratory judgment.
Both parties presented experts who provided analysis of the conditions found on
the land in question. The experts were well qualified in the field of engineering and
surveying. The plaintiffs’ evidence established that the lands contained many gravel
deposits consistent with a "graveled" road. Under such circumstances, the plaintiffs
present, there can be no “the graveled road" because the existence of multiple roads
makes it impossible to determine which is the road in the mind of the grantor of the
right-of-way. Further, it appears undisputed that a road presented by the defendants
as "the graveled road" ceases to exist 500 feet from U.S. Route One. Plaintiffs’ evidence
also suggests that the examination of soils concludes that the glacial till, a natural
substance, is very similar to the gravel fill, which would have been necessary to create a
road of such a description. This conclusion is based upon a number of tests conducted
by plaintiffs’ experts. Plaintiffs challenge defendants’ experts by suggesting that the
surveyors and engineers were limited in their research by mandate from the
defendants to only substantiate one road rather than conducting an independent
evaluation of a comparison of the single road to all others in the area. The plaintiffs also
argue that the grantor under the circumstances would not so divide his property as to
locate a right-of-way essentially down the middle of a large parcel of land.
The defendants’ evidence establishes that there can be identified a graveled road
consistent with conditions existing at the time of the grantor's deed because the result
of their test pits substantiate the existence of a road as seen from other corroborative
evidence, most notably a 1989 plan for Swaine by Richards, Cranston & Chapman, the
findings of Ingraham as noted on his plan of May 11, 2001, as incorporated into the
Ingraham sketch plan for the defendants dated July 13, 2001, the site plan of Cole
Engineering containing location of test pits dated August 21, 2001, and a 1956 aerial
photograph of the land in question. Defendants’ witnesses testified as to consistency
from all of these exhibits concluding the one-time existence of a graveled road
containing a layer of 10 to 10 1/2 inches of gravel over natural soil running
approximately 8 or 9 feet in width and evidenced by a comparison of old and young
growth in the same location providing the appearance of a "hallway" along the line in
question.
Defendants’ presentation was not without attacks on credibility as pointed out
by the plaintiffs. It is undisputed that the graveled layer disappears some distance from
U.S. Route One and that defendants’ experts conducted a minimum of research and
investigation with respect to other apparent roads. The 1956 aerial photo was taken
some four years after the deed granting the right-of-way. Not all test pits are
consistent with the precise location of the road. One would assume that it would be self
defeating for a landowner to create a right-of-way down the middle of his property.
The court is satisfied that there is, in fact, a definable location to "the graveled
road" as stated in Staples deed. The court takes judicial notice that in 1952 a large
wooded parcel such as that in question would have been more marketable and useable
as a wood lot then as valuable Maine coastal shorefront property. It is obvious that the
many gravel deposits and "apparent" roads would be created for purposes of
harvesting of wood and that a main road down the middle of such a large wood lot
would make economic sense. There is also evidence that a road may have been used to
access property to the north indicated by a small bridge over a stream and a break ina
stone wall. This would be consistent with "in common with others” language of the
right-of-way. Further, the road found by defendants’ experts ultimately ends in a
location near the plaintiffs’ shorefront parcel making it consistent that plaintiffs, or their
predecessors-in-title, would have utilized the road to access their shorefront property.
Most importantly, an examination of the 1956 aerial photo makes it abundantly clear
that there was a single, very dominant and highly visible graveled road commencing at
U.S. Route One and running through the property in a well defined area as outlined in
joint exhibit 5, Exploration Location Plan, by Summit Engineering Services dated
5/11/01. The court finds the location consistent with the use of the property and the
access of Swaine prior to building a graveled driveway along the southerly boundary of
the property. Under these circumstances, the court is satisfied that the plaintiffs have
not met their burden of establishing by a preponderance of the evidence that the
graveled road constituting the lawful right-of-way of the defendants cannot be located
and has disappeared from nonuse.?
3 In the event the court is in error, as a matter of law, as
to the burden of proof, the court is also satisfied that the
defendants have established it more likely than not that the
remnants of the graveled road as presented by their evidence is
the graveled road intended in the deed language and the location
of the lawful right-of-way.
However, this does not terminate the court's responsibility in this case. The first
issue within the court's responsibility as a court of equity is to conclude the status of the
right-of-way with respect to the 500 feet from the located monument to U.S. Route
One. The court is satisfied from the aerial photograph that the gravel road in question
found its way to U.S. Route One at the same location as the existing gravel driveway is
now situated joining that location somewhere in the vicinity of the extreme curve of the
driveway approximately 250 feet from U.S. Route 1.4 Secondly, to the extent the stated
right-of-way existed at an undetermined location from the graveled road to the location
of defendants’ premises, the equitable principles as presented by plaintiff in Perkins v.
Perkins must guide the court. The plaintiffs presented no evidence as to its minimized
disruption of the value of its property other than a proposed road running along the
northerly bound of the property in question. Inasmuch as the location of the old road
bed already impacts on the approximate middle of the land in question, it would appear
from the evidence that the Ingraham proposal as displayed in joint exhibit 6, sketch
plan for Jules and Pat Bernard, Route 1, Rockport, Maine, July 13, 2001, proposing a
driveway from the existing monument to Route 1 into the existing plaintiffs’ driveway
and from the existing monument to defendants’ land on the easterly side is the location
least unreasonably inconvenient or injurious to the plaintiffs’ property.
Finally, the court must address the issue of the extent of defendants’ rights with
respect to the right-of-way. Plaintiffs complain that they believe that defendants intend
to pave the right-of-way for use as a driveway and to run buried utility lines along the
same. In this regard, the court looks for guidance to Maine law as found in Littlefield v.
4 The location at its intersection with U.S. Route One is most
obvious from the 1956 aerial photograph.
Hubbard, 120 Me. 226 (1921) and more recently, Davis v. Bruk, 411 A.2d 650 (Me. 1980) to
determine, whether under the circumstances, such a right of utility placement and
improvement is consistent with the deeded right-of-way. The principle of Littlefield v.
Hubbard is that, in the absence of more specific circumstances, a simple easement for a
right-of-way does not permit the grantee to "disturb the soil upon the fee" of the owner
of the servient estate. Littlefield v. Hubbard, 120 Me. 230, as cited in Davis v. Bruk, 411
A.2d 666. In Davis, the Court concluded that "even though the paving of a right-of-way
may presumably suit the convenience of the owners of the dominant estate and
provide some economic benefit, nevertheless, such material change in the surface of the
_ right-of-way may give rise to an added burden on the servient estate, such as
subjecting it to rapid transit of motor vehicles near the defendant's home and posing
safety problems to the occupants thereof of which a country way may not generate."
Id. This suggests to this court that it must examine the circumstances of the right-of-
way in its present environment to determine whether there is sufficient evidence to
allow the defendants to "disturb the soil upon the fee" any more than is reasonable
given ail the environmental circumstances.
The defendants’ proposed driveway will run a distance in excess of 1,500 feet
through a wooded area located between the shorefront property of the plaintiffs and
the highway. From the evidence it is clear that the area of the right-of-way has grown
in and reforested to the extent that the roadway could not be identified without specific
investigation and therefore the plaintiffs are entitled to an undeveloped forest lot.
Further, notwithstanding a reasonable expectation of a paved driveway as it might exist
in more urban or suburban areas, unpaved rights-of-way or driveways are the norm in
woodland residential properties in Maine. The presence of a paved driveway through
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the plaintiffs’ woodlot under all of the circumstances as they now exist would constitute
an unreasonable burden on the land and interference with plaintiffs’ ability for
enjoyment of their property. To the extent utility lines would be carried by poles along
the driveway, it, too, would be contrary to the rights of defendants in their right-of-
way. Having received no evidence in regard to whether such would be the case in the
event the utility lines were buried beneath the land of the right-of-way, to the extent
they do not interfere with plaintiffs’ use of their land, the court renders no prohibition.
For all the reasons cited herein, the entry will be:
The court DECLARES that there does exist a defined right-of-way
as stated in deed of Staples to Bernard, Knox County Registry of Deeds
Book 326, Page 190, and conveyed to defendants by Knox County
Registry of Deeds, Book 1774, Page 16, and Book 1784, Page 224, as
located on Exploration Location Plan dated 5/11/01 by Summit
Engineering Services; it is FURTHER DECLARED that defendants may
utilize the existing right-of-way and a reasonable extension thereof
consistent with the terms of the right-of-way as outlined in Sketch Plan for
Jules and Pat Bernard, Route 1, Rockport, Maine, Knox County, July 13,
2001, by Landmark Corporation; said right-of-way must remain as a
graveled road with no more than 10 1/2 inches of gravel bed with any
utilities to be underground within the limit of disturbance of the proposed
driveway; defendants are enjoined from paving said driveway by creating
any surface other than the 10 1/2 gravel bed ata width not to exceed 9
feet.
Dated: June__4 _, 2002 _ fll Ee
“Donald H. Marden
Justice, Superior Court
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