The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss CIVIL ACTION
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WILLIAM PENFOLD,
Plaintiff
ORDER ON MOTION FOR
v. SUMMARY JUDGMENT
PEACE PIPE SHORE ROAD
OWNERS' ASSOCIATION et al.,
Defendants
This matter is before the court on defendant Peace Pipe Shore Road Owners'
Association (Peace Pipe),s motion for summary judgment. Peace Pipe argues that the
plaintiff cannot hold Peace Pipe liable for any damage caused by water runoff resulting
from Peace Pipe's road repair work because of a waiver of liability provision in the
plaintiff's deed. The plaintiff, William Penfold, counters that the deed provision waives
only claims arising from repairs undertaken upon the road itself, and alleges that part
of the repair work that caused damage to him was undertaken upon his private land,
rather than upon the common roadway. For the following reasons, the motion is
denied. 1
FACTS
In the summer of 2008, Peace Pipe hired a contractor to perform culvert and
drainage work on Peace Pipe roads, including on a roadway abutting the plaintiff's
property, in connection with a grant and construction planning from the Kennebec
County Soil and Water Conservation District. (Def.'s S.M.F. CJICJI 6-8; Pl.'s Opp. S.M.F. CJICJI
I Because the parties' arguments on summary judgment are limited to the effect of the deed's language,
the court similarly limits its analysis and does not address the substance of the plaintiff's claims.
1
6-8.) This work was performed because, in the opinion of Peace Pipe, it was necessary
and useful for the beneficial use of Peace Pipe roads, streets, avenues, and ways, which
had been subject to erosion and puddling. (Def.'s S.M.F. <]I 9; Pl.'s Opp. S.M.F. <]I 9.)
The plaintiff has raised an issue of fact regarding whether the work included
excavation upon his property, and whether the road culvert extended onto his property.
(Pl.'s Opp. S.M.F. <]I12, Penfold Aft. <]I<]I 2, 3.) When the plaintiff arrived at his camp in
the spring of 2009, he noticed an eighteen-inch wide stream of water flowing under his
camp. (Def.'s S.M.F. <]I 11; Pl.'s Opp. S.M.F. <]I 11.) He traced the water flow back to a set
of culverts that had been installed during the 2008 road work. (Def.'s S.M.F. <]I 12, as
qualified by Pl.'s Opp. S.M.F. <]I 12; Penfold Dep. at 19:1-2 [referring to "the culvert"].)
The plaintiff noticed that the concrete supports of his camp had moved and were
leaning. (Def.'s S.M.F. <]I 11; Pl.'s Opp. S.M.F. <]I 11.) The drainage of water onto the
plaintiff's property continued throughout the balance of 2009, causing serious structural
damage to the plaintiff's property. (Def.'s S.M.F. <]I 13, Penfold Dep. at 35:17-36:6,?
According to the plaintiff, the camp is no longer safe to stay in due to the structural
damage. (Def.'s S.M.F. <]I 14; Pl.'s Opp. S.M.F. <]I 14; Penfold Dep. at 36:7-36:10.)
On December 10, 2009, the plaintiff filed a three-count complaint, in which he
alleged trespass, diversion of surface water, and negligence. On August 2, 2010, Peace
Pipe moved for summary judgment on the basis that the plaintiff's deed prohibited his
recovery for any damage to his property resulting from roadway construction that was,
in the view of Peace Pipe, necessary or advantageous.
The original deed from the grantor, Parker Lake Shores, Inc., to Raymond W.
Penfold, Sr. and Helene D. Penfold was signed June 30, 1962 and recorded at the
2 The plaintiff did not respond to paragraph 13 of Peace Pipe's statement of material facts.
2
Kennebec County [Registry] Of Deeds, Book 1348, page 8, and provided in pertinent
part:
The grantor for itself, its successors and assigns, hereby reserves the right
without further assent or permit from the grantees or their successors in
title, to itself or to grant to any public utility company, municipality, or
water company, the right to erect and lay or cause or permit to be erected,
laid, maintained, removed or repaired in all roads, streets, avenues or
ways on which said above premises described abuts, ... water, sewer and
gas pipes and conduits, catch basins, surface drains, and such other
customary or usual appurtenances, as may from time to time, in the
opinion of the grantor or any public utility company, water company or
municipality, be deemed necessary or useful in connection with the
beneficial use of said roads, streets, avenues and ways as shown on the
[Peace Pipe Shores Plot Plan] and only in and on said land previously
described when necessary to effectuate any of the foregoing purposes and
all claims for damages, if any by the construction, maintenance and repair
thereof or on account of temporary or other inconvenience caused thereby
against the grantor or any public utility company, or municipality, or any
of its agents or servants are hereby waived by the grantees for themselves
and their successors in titie.
(Def.'s S.M.F. f{[ 2 & Ex. 1; Pl.'s Opp. S.M.F. f{[ 2.)3 The plaintiff acquired the parcel by a
deed from Raymond W. Penfold, Jr. and Patricia Penfold, signed June 28, 2002, and
incorporating in the attached description of the property that it is "subject to all rights
and restrictions as described in deed from Parker Lake Shores, Inc. to Raymond W.
Penfold, Sr. and Helene D. Penfold dated June 30, 1982 and recorded in the Kennebec
County Registry of Deeds in Book 1348, Page 8." (Def.'s S.M.F. errerr 3-5 & Ex. 2; Pl.'s
Opp. S.M.F. f{[f{[ 3-5.)
3 The deed also provides:
Reserving unto the grantor, its successors, assigns, agents, employees or any person duly
authorized by the grantor, the right to enter upon these granted premises at all
reasonable times for the express purpose of repairing, replacing and maintaining water
pipes, drain pipes and septic tanks and all appurtenances thereto.
(Def.'s S.M.F. <JI 2 & Ex. 1.) Because reference to this language was not included in the Peace Pipe's
statement of material facts, it is not part of the summary judgment record, and not properly before the
court. See M.R. Civ. P. 56(h)(1); Levine v. R.BK Caly Corp., 2001 ME 77,114,5, 770 A.2d 653, 655.
3
STANDARD OF REVIEW
Summary judgment is appropriate when the court's review of the parties'
statements of material fact and cited record evidence indicates there are no genuine
issues of disputed material fact and that the moving party is entitled to jud.gment as a
matter of law. Dyer v. Dep't. of Transportation, 2008 :tv1E 106, err 14, 951 A.2d 82L 825. A
fact is material if it can affect the outcome of the case. Id. An issue of fact is genuine if
"there is sufficient evidence to require a fact-finder to choose between competing
versions of the truth at trial." Inkel v. Livingston, 2005 ME 42, err 4, 869 A.2d 745, 747.
11 Although no longer an extreme remedy, summary judgment is 'not a substitute
for trial.'" Cookson v. Brewer School Dep't 2009 ME 57, err 12, 974 A.2d 276, 280
(quoting Arrow Fastener Co. v. Wrabacon, Inc., 2007 ME 34, If[ 18, 917 A.2d 123, 127).
"Thus, 'even when one party's version of the facts appears more credible and
persuasive to the court, a summary judgment is inappropriate if a genuine factual
dispute exists that is material to the outcome,' in which case 'the dispute must be
resolved through fact-finding,' regardless of the nonmoving party's likelihood of
success." Id. (quoting Arrow Fastener Co., 2007 ME 34, err 17, 917 A.2d at 126-27). The
nonmoving party may not rely on "conclusory allegations, improbable inferences, and
unsupported speculation" to oppose summary judgment. Dyer, 2008 ME 106, c:rr 14, 951
A.2d at 825 (quoting Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir. 2007)). r; A court may
properly enter a summary judgment in a case when the parties are not in dispute over
the facts, but differ only as to the legal conclusions to be drawn from those facts."
Tondreau v. Sherwin-Williams Co., 638 A.2d 728, 730 (Me. 1994) (citing Chadwick
BaRoss, Inc. v. T. Buck Constr., Inc., 627 A.2d 532, 534 (Me. 1993)).
4
ANALYSIS
Construction of a deed is a question of law. Silsby v. Belch, 2008 ME 104, CJI 7, 952
A.2d 218, 221. "The relevant language will be given its ordinary meaning and this
meaning governs unless there is ambiguity present." Id.; see also Pettee v. Young, 2001
ME 156, CJI 8, 783 A.2d 637, 640 ("A court construing the language in a deed must give
the words their general and ordinary meaning, and must first attempt to construe the
language of the deed by looking only within the four corners of the instrument."
(quotations and citations omitted)).
Peace Pipe advances two arguments as to why the disputed provision entitles it
to summary judgment. First, Peace Pipe suggests that, while the plaintiff may have
alleged potentially compensable damage from excavation occurring on his property, he
cannot prevail on Peace Pipe's motion for summary judgment because he did not
distinguish this damage from the noncompensable damage resulting from the roadway
excavation. 4 (Def. Rep. to Pl.'s Opp'n to Def.'s Mot. Sum. J. 2-5.) Second, Peace Pipe
contends that the deed's provisions preclude the plaintiff's recovery for any damage
resulting from road repair, regardless of whether the challenged excavation occurred on
the plaintiff's private property or the roadway. (Def. Rep. to Pl.'s Opp'n to Def.'s Mot.
Sum. J, 5.) Because the second argument is a pure issue of law, specifically, of deed
interpretation, the court will address it first.
Deed
The defendant argues that the plaintiff's predecessor waived recovery of any and
all damages resulting from construction, maintenance, or repair of the roadway,
regardless of the location of the excavation, and cites three cases in support of this
interpretation of the deed: White County v. Wooten, 132 S.E.2d 653, 657 (Ga. 1963);
4 This argument was first raised in Peace Pipe's reply memorandum.
5
Wheeler v. Tones County, 113 S.E.2d 238, 240 (Ga. Ct. App. 1960); and McCommons v.
Greene County, 184 S.B. 897, 899 (Ga. Ct. App. 1936). The language of the deed does
not support this interpretation, and the cases cited in fact support the court's
determination that the waiver provision is insufficient to rule out the plaintiff's claims
at the summary judgment stage of proceedings. All three Georgia cases concerned
plaintiffs who were grantors, and thus had greater control over the language of their
deeds than the plaintiff here, who took by succession from a grantee subject to
reservations in the original deed. See White County, 132 S.B.2d at 654; Wheeler, 113
S.E.2d at 239; McCommons, 184 S.E. at 897. Moreover, all three deeds at issue in the
Georgia cases provided:
I do further grant the right to all necessary drainage in the construction
and maintenance of said road constructed over the5 said right of way and
on my lands adjacent thereto, and also release said County6 and State
Highway Board from any claim of damage8 arising on account of
construction oe said roads or fills and10 embankments, ditches or culverts
or bridges, on account of back water, changing of courses of streams, or in
any other manner.
White County, 132 S.E.2d at 654-55; Wheeler, 113 S.E.2d at 239; McCommons, 184 S.E. at
897. The Wheeler court interpreted this language as a three-fold "release by the grantor
to the defendant and the State Highway Department for damages arising (1) on account
of construction of roads, fills, etc., (2) on account of water backing up or changing its
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course, and (3) 'in any other manner. Wheeler, 113 S.E.2d at 240. Because the damage
in all three cases was caused by the water backup, recovery for which the grantor had
5 The White County deed omits this "the." White County, 132 S.E.2d at 654.
6 The White County and Wheeler deeds do not capitalize "county." White County, 132 S.E.2d at 654,
Wheeler, 113 S.E.2d at 239.
7 The White County and Wheeler deeds refer to "Department" and not "Board." White County, 132 S.E.2d
at 654; Wheeler, 113 S.E.2d at 239.
8 The White County deed refers to "claims or damages." White County, 132 S.E.2d at 654.
9 The White County deed omits the phrase "construction of." Id.
10 The White County deed states "or" and not "and." White County, 132 S.E.2d at 654.
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expressly disallowed in the deed's language, the courts interpreted these provisions as
preventing recovery. White County, 132 S.E.2d at 655, 657; Wheeler, 113 S.E.2d at 237;
McCommons, 184 S.E. at 897, 175.
In this case, the relevant deed provision includes a waiver of damages from
"construction, maintenance and repair" of the relevant roadways. (Def.'s S.M.F. err 2 &
Ex. 1.) The deed does not refer to "water backing up or changing its course," as the
deeds in the Georgia cases did. See Wheeler, 113 S.E.2d at 240. This deed does not
grant permission for necessary drainage from construction and maintenance of the road
to spread to adjacent lands.
This deed's reference to "land previously described" in connection with "the
beneficial use of said roads, streets, avenues and ways," means the land being used as
roads, streets, avenues and ways. This deed's reference to "said above premises
described abuts" refers to the plaintiff's property. (Def.'s S.M.F. err 2 & Ex. 1.) This deed
specifically limits the described activities to the roadway areas by providing that such
activities may occur and damages are waived "only in and on said land previously
described," i.e., the roads, streets, avenues and ways. Id. If the deed waived rights
generally, including those to involving private property, as Peace Pipe argues, it would
be unnecessary to specify that construction could occur "only" on any specified area.
The court concludes that the deed reflects the parties' intent to permit necessary and
useful activities upon the roads, streets, avenues and ways themselves, and to waive
damages resulting therefrom.
Damages
Peace Pipe also argues that it is entitled to summary judgment because the
plaintiff has not distinguished in his summary judgment pleadings the damage
resulting from the work performed upon the roadway from the damage resulting from
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work performed upon the plaintiff's private property. The plaintiff has raised a
genuine issue of material fact regarding whether the excavation work included
excavation upon the plaintiff's private property, as well as a culvert extending from the
roadway onto the plaintiff's private property. (Pl.'s Opp. S.M.F. <JI<JI 10, 12, 16.) Citing
Mahar v. Stonewood Transport, the defendant contends that "[w]hen a cause of action
is based on the totality of conduct and the total damages resulting from that conduct,
the plaintiff has the burden to differentiate damages for events for which there is no
liability from damages for which there is liability, or forfeit the entire claim," and
summary judgment is the appropriate result in such a case. (Def. Rep. to Pl.'s Opp'n to
Def.'s Mot. Sum. J. 4.); see Mahar v. Stonewood Transp., 2003 ME 63,823 A.2d 540.
In Mahar, the Law Court entered summary judgment in favor of a corporate
defendant on the plaintiffs' claim of negligent supervision of the corporate defendant's
independent contractor or employee. l1 Id. at <JI 11, 823 A.2d at 543. The record
contained two tortious incidents involving the contractor/employee; one "might" have
been foreseeable to the corporate defendant based on prior actions of the
contractor / employee, but the other was not foreseeable. The plaintiffs based their
cause of action on both incidents and the total damages resulting from the incidents.
They did not attempt to separate the incidents. Id.
The Mahar court cited Barter v. Boothbay/Boothbay Harbor Community School
District for the general proposition that "a plaintiff seeking legal relief must plead all
theories of recovery then available to him." Barter, 564 A.2d 766, 768 (Me. 1989). Barter,
in turn, is a res judicata case, which provides in part:
[A] plaintiff seeking legal relief must plead all theories of recovery then
available to him; he cannot splinter his claim and litigate it separately in a
II "Maine has not yet recognized the independent tort of negligent supervision of an employee." Mahar,
2003 ME 63, <j[ 10, 823 A.2d 540, 543.
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piecemeal fashion by asserting in a subsequent lawsuit other grounds of
recovery for the same claim when he had a reasonable opportunity to
raise and litigate the same grounds in the former action.
On this record, the plaintiff was not required to differentiate the damages. None
of Peace Pipe's statements of material fact addresses specifically the issue of delineation
of damage amounts based on causation. (See, ~ Def.'s S.M.F. CJICJI 15, 16; Pl.'s Opp.
S.M.F. <JI<JI 15, 16.). The relative amounts ot damages attributable to the potentially
compensable private property excavation and to the noncompensable roadway
excavation represent an issue of fact for trial.
The entry is
Defendant Peace Pipe Shore Road Owners' Association's
Motion for Summary Judgment is DENIED.
Date: November 10, 2010
ancy Mills
Justice, Superior Court
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