The opinion
STATE OF MAINE . SUPERIOR COURT
CIVIL ACTION
DOCKET NO. RE-01-56
YORK, ss.
ARA MANOUGIAN and
TONI MANOUGIAN,
Plaintiffs
FINDINGS OF FACT -
“ AND
CONCLUSIONS.
DONALD L. GARBRESAT-
LAW LIBRARY
GAIL M. EJDYS,
JAN 9 2003
Defendant
This case involves claims and counterclaims relating to a disputed area of land
AO Bae *
along the common boundary between the Manougian and Ejdys properties. At
parties stipulated that the Manougians were the legal owners of the disputed area and
Ms. Ejdys’ counterclaim for adverse possession was tried. For reasons stated below, I
find and conclude that her claim should succeed.
FINDINGS OF FACT
1. The Plaintiffs, Ara and Toni Manougian (hereinafter “Manougian”) purchased
their summer home on the Nubble Road in York, Maine on July 2, 1994. At the
time, the abutting property to the west was owned by Julie and George Powell.
The Powells subsequently sold their property to the United States of America in
1995, and the USA sold the property to the Defendant and Counterclaim
Plaintiff, Gail Ejdys (hereinafter “Ejdys”), on March 19, 1996.
2. By Stipulation, the parties agreed that the boundary line running between their
properties from the ocean side to Nubble Road, as is stated in Ejdys deed and in
the Manougians’ deed, is correctly depicted in the 1976 Pappas /Houliares
survey, obtained by a Manougians’ predecessor in interest, and in the 1985
Powell/Moran survey, obtained by an Ejdys’ predecessor in interest. By so
stipulating, the parties agreed that the Manougians had met their burden by
establishing legal title to the triangular parcel. What remains to be decided is
whether or not Ejdys has met her burden of proving she has now established
superior title to the same triangular parcel by meeting the elements of either
adverse possession or title by acquiescence as asserted in her Counterclaim.
. The Manougians commenced this action after Ejdys removed two standing
sections of existing split rail fencing on Manougian property, and some aged
shrubbery on the westerly side of that fencing, and replaced same with chain link
fencing and new plantings. Ejdys also closed off access to the triangle parcel by
the new fen cing at a right angle to her home. Ejdys testified that the
chain link fence is located in the same position as the old split rail fencing.
Ms. Ejdys argues that the present location of a fence situated between the parties
at the adjoining southerly corners is now the actual boundary. With regard to
these contentions, the Court finds as follows:
a. Anne E. Brown purchased the Ejdys’ property in May of 1962. At the time
~of ther purchase, a wooden fence of a distinctive “Y-shape” design existed
along the entire southerly (Ocean) side of the property, as well as up the
westerly side. In addition, the same fence turned and ran approximately
16 to 17 feet along the easterly (Manougian) side.
b. At that time, and until the Manougians installed a split rail fence in 2000,
the remaining area between the two houses was marked with shrubbery,
by a staircase installed by Ms. Brown, and otherwise by lawn area.
c. Anne Brown’s testimony was credible. She testified that she believed the
fence on both the easterly and westerly side of her property marked the
true boundaries. When she testified that she intended to occupy the
property described in her deed, I find that she meant the property that she
and her family actually used and not simply what a survey would reveal
was described in the deed. She and her family occupied the premises, and
she personally provided lawn care. She mowed the lawn area to the
inside of the fence, weeded the area and maintained it. At no time did
anyone attempt to interrupt her possession of the property. Anne Brown
sold the property to George and Julie Powell in October of 1975.
d. George Powell testified’ that the same fence existed when he bought the
975. Mr. Powell’s testimony concerning the fence was
credible. He indicated that a “Mugo pine” was situated in the corner of
the fenced area, inside the fence. Mr. Powell replaced the “Y-shaped”
fence with 1) a split rail fence on the easterly and southerly sides, and 2) a
stockade fence along the westerly side. He did the work himself over
time. The new fence was located in the same place as the old one. Mr.
Pappas, the former owner of the Manougian property, at one point
disputed the location of some portion of the common bound. However
the fence was not moved and Powell continued to maintain the new fence
without interference. He mowed the grass between the houses. He
believed he owned all of the property lying to the west of the 16 feet of
fence between the two properties. The Powells sold the property to the
United States of America in November of 1995. The fence between the
* Mr. Powell’s deposition was admitted over objection.
two properties was part of a larger “fencing scheme” of enclosure, and
clearly designated a line of occupation to all the world. Adverse
possession of the corner in question was established no later than 1982.
The area possessed included land lying westerly of and adjacent to the
fence that had existed between the two properties since at least 1962.
e. Possession of the area established by Brown and Powell has not been
abandoned by later owners. Ejdys bought the property with the Powell
fence intact. Her testimony and photographs are credible. They show the
split rail fence described by Powell and the new chain link fence she
installed in 1999. Although there was differing testimony concerning the
location of the new fence compared with the old fence along the common
bound, I find the new fence to be in the same location as the old fence.
Ms. Ejdys was on site when the new fence was installed; the fence
company used the old post holes. Both Brown and Powell have seen the
new fence and believe it to be in the same location as the old fences.
Although Mr. Manougian believes that the new fence encroaches further
on his property, the weight of the evidence suggests otherwise.
__ CONCLUSIONS
I conclude that Ms. Ejdys is entitled to a declaratory judgment to the effect
that she has acquired title to the disputed “Y-shaped” area by adverse
possession.
The fair preponderance of evidence demonstrates that at least since Ms.
Brown bought the property in 1962, Ms. Ejdys, or her predecessor in title,
have been in possession of the disputed area and their possession has been
actual, open, visible, notorious, hostile, under claim of right and exclusive.
Striefel v. Charles-Keyte-Leaman Partnership, et al.. 733 A.2d 984 (Me. 1999).
The Manougians seriously dispute three of the necessary elements of an
adverse possession claim, whether Ms. Ejdys has proven that her property
was held: (1) under claim of right, (2) continuous, and (3) exclusively.
The Manougians argue that Ms. Brown, when questioned by earlier
owners in the Manougian chain, asserted that she owned exactly what the
deed described. Since the parties have stipulated that legal title to the
disputed area is with the Manougians, they argue that Ms. Brown has
disclaimed any right to this area. However, as fact, I have found that Ms.
Brown was not referring simply to a deed description but rather to the actual
use of the area in question, and that she used and maintained it as her own.
Further, the Powells, Ms. Ejdys’ predecessors, were questioned by the
Pappases, the Manougians’ predecessors, about a survey showing that the
Powells were encroaching. Mr. Powell ignored this and continued to use and
maintain the disputed area as before.
The Manougians dispute that Ms. Ejdys and her predecessors
continuously occupied the disputed area. However, at various times from
1962 on both properties were used as seasonal residences. Neither was
continuously occupied throughout the period. However, occupation is
“continuous” within the context of adverse possession when it involves “the
kind and degree of occupancy (i.e. use and enjoyment) that an average owner
would make of the property”, Striefel, supra at 993. Both properties were
seasonal residences, occasionally occupied on a full-time basis. The fact that
from time to time the properties were unoccupied during the off-season does
break this continuity; nor does the several months hiatus between the Powell
and Ejdys occupancy, while the property was owned by the USA. Ms. Ejdys’
predecessors, Mrs. Brown and Mr. Powell occupied the property
“continuously”, both as a full-time and a seasonal residence for well over 20
years.
The Manougians argue that the disputed area was never closed off from
use. While true that the old fences did not run the entire length of the
disputed boundary, it is also true that Ms. Ejdys’ predecessors consistently
maintained (mowed, planted, weeded) the disputed area and that the
Manougian predecessors ignored it. “Exclusive” does not mean that others
were not permitted entry, but rather that the property was not shared with
The evidence shows that Ms. Ejdys’ predecessors exclu ively used
and maintained the disputed area.
Thus, on her counterclaim, I find and conclude that a declaratory
judgment should be entered for Ms. Ejdys on her claims to the disputed area
on the basis of adverse possession. Counsel will prepare a judgment suitable
for recording to effectuate this decision.
oLAINTIFFS:
JEFENDANT:
Dated: January bo , 2003
Paul Cadigan, Esq. i LW 2.
PO Box 116 . Arthdir Brennan
Kennebunk Me 04043 . :
Justice, Superior Court
John Kugler, Esq.
1662 Post Rd #A-5
Wells Me 04090