The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
CUMBERLAND, ss. DOCKET NO. CV 03- he
A Be ~Cu
FRANK MORANG and A fF OS
VIRGINIA MORANG,
Plaintiffs STATE OF MAINE
-umberland, ss, Clerk's Office
SUPERIOR COURT
v. UEC 17 2003 ORDER
DEIDRE MAYO and RECEIVED pe
RITA MAYO, PN
Defendants JAN 2: 2004
Before this court is Defendants, Deidre and Rita Mayo's Motion to Dismiss, pursuant to
M. R. Civ. P. 12(b)(6).
FACTS
Plaintiffs, Frank and Virginia Morang are the owners of a residence on
Birchwood Road Gray, Maine. Defendants, Deidre and Rita Mayo also reside on
Birchwood Road Gray, Maine. Defendants land abuts Plaintiffs’ property. Defendants
have erected a fence on their property that is approximately ten feet in height and is less
than one foot from the Plaintiffs property. The effect of the fence is to significantly
restrict the Plaintiffs view to the east and has caused a diminution in the market value
of their property. In addition, Defendants have caused a culvert to be built which
dumps the water drainage from their property onto the Plaintiffs property. Finally,
Defendants have also built a driveway, a portion of which is built or has deteriorated
such that large rocks and sediment are on the Plaintiffs land.
As a result of these events, Plaintiffs filed a Complaint with the Cumberland
County Superior Court on July 22, 2003. In response, on August 11, 2003, Defendants
filed a motion to dismiss.
DISCUSSION
When reviewing the Defendant’s motion to dismiss, this court will look at the
complaint in the light most favorable to the Plaintiff, taking the material allegations as
admitted. See In re Wage Payment Litigation, 2000 ME 162, J 3, 759 A.2d 217, 220.
Thus, a motion to dismiss is properly granted when it appears beyond a doubt that the
Plaintiff is entitled to no relief under the facts that might be proved in support of the
claim. Dutil v. Burns, 674 A.2d 910, 911 (Me. 1996). Rule 12(b) further provides, in
relevant part, however, that “[i]f on a motion asserting the defense numbered in (6) to
dismiss for failure of the pleading to state a claim upon which relief can be granted,
matters outside the pleading are presented to and not excluded by the court, the motion
shall be treated as one for summary judgment and disposed of as provided in Rule 56. .
“” MLR. Civ. P. 12(b).
Defendants have provided this court with a statement of material facts in
addition to their motion to dismiss. Since this constitutes information outside the
pleading that is not being excluded by the court, this Motion will be treated as one for
summary judgment, pursuant to M. R. Civ. P. 12(b).
Defendants contend that Plaintiffs Complaint should be dismissed because they
are not the proper owners of the property. Defendants assert that the Plaintiffs
obtained title by a quitclaim deed from the Town of Gray as a result of the previous
owner's failure to pay taxes in 1996. Specifically, Defendants contend that the Town of
Gray failed to comply with the statutory requirements during the foreclosure process.
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Plaintiffs, however, argue that they have legal and equitable seisin to the property, and
thus this action should proceed.
The Law Court has held that “in the absence of other evidence, the deed, itself,
raises a presumption that the grantor had sufficient seisin to enable him to convey, and
also operates the vest a legal seisin in the grantee. The deeds introduced by the
demandant, prima facie, establish his title.” Ripley v. Trask, 106 Me. 547, 550, 76 A. 951,
993. Here, there exists no dispute that Plaintiffs possess a quitclaim deed that they
procured from the Town of Gray after a tax foreclosure sale. Therefore, this court finds
that this deed is prima facie evidence of the Plaintiffs title.
In addition, although Defendants argue that Plaintiffs deed is not valid because
they have failed to confirm their title in accordance with 36 M.R.S.A. § 946, this court
disagrees. Maine Law provides, that:
[a]ny purchaser or his successors in interest from a municipality of real
estate or lien thereon acquired by a municipality as a purchaser at a sale
thereof for nonpayment of taxes, or acquired under the alternative method
for the enforcement of lines for taxes provided in sections 942 and 943,
whether in possession of such real estate or not, after the period of
redemption from such sale or lien has expired, may maintain an action for
equitable relief against any and all persons who claim or may claim some
right, title or interest in the premises adverse to the estate of such
municipality or purchaser.
36 M.R.S.A. § 946. This court finds that this provision does not mandate that a
confirmatory judgment must be filed in order for title to vest in Plaintiffs. Instead, this
section creates an equitable action for municipalities, purchasers, or successors-in-
interest to clear up issues of right, title or interest in subject property.
Despite the above analysis, this court further notes that for a claim of trespass
“possession rather than ownership is the key requirement.” 8 Thompson on Real
Property, Thomas Edition § 68.06(a)(1) at 199 (David A. Thomas ed., 1994); see also;
Thomas E. Atkinson, et al., American Law of Property, 37 (A. James Casner, ed., Little,
Brown & Co. 1954) (“One has a possessory interest as will support an action for an
intrusion upon possession when he is in physical occupation of land by right, privilege
or trespass, and intends to control the same; when he Owns a present estate in the
premises . . . and when he has a right to immediate possession of land without a
possessory estate therein.”) Moreover, a private nuisance action is available to persons
based on their possession of the property in question. See Thomas E. Atkinson, et al.,
American Law of Property, 87 (A. James Casner, ed., Little, Brown & Co. 1954) (“If
nuisance is private, it is actionable by any person having an interest in land that is
impaired. Thus, possessors with either a present estate of long or short duration, or
merely a hostile claim of right can recover damages for any interference with their use
and enjoyment of the premises.”); see also W. Page Keeton, et al., Prosser and Keeton on
the Law of Torts, § 87 at 621 (5" ed. 1984) (private nuisance action is available to
tenants). In the present case, there exists no dispute that Plaintiffs have been in
possession of the property in question since 2001, Consequently, this court finds that
Plaintiffs can maintain their trespass and nuisance claims.
WHEREFORE, this court DENIES Defendant’s Motion for Summary Judgment.
if
[Roiet A. Cole
Justicé, Superior Court
f
Dated: December (7 , 2003
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