The opinion
STATE OF MAINE SUPERIOR COURT
SAGADAHOC, SS. CIVIL ACTION
Docket No. CV-2015-15
PAUL BROWN and )
CHARLOTTE BROWN, )
Plaintiffs, )
)
)
v. ) FINDINGS OF FACT AND
) CONCLUSIONS OF LAW
)
STEVEN PERRY, )
Defendant, )
)
)
V. )
)
)
LORA PERRY, CHRIS )
ENEMARK, JASON RIGGS, )
and NANCY RIGGS, )
Parties in Interest. )
A bench trial was held in this matter on July 5 and July 7, 2016, concerning a
right of way in Ge rgetown, M ine ov -r the southern portion of former Lot 2, now
owned by Defendant Steven and Party in Inter st ora Perry, giving ace ss to Webber
Road to f rm r Lot 7 of the Robinh od Trust Subdivision, now 0W11ed by Plaintiffs Paul
and Charl tt Brown and Parties in Inter st Jason and Nancy Riggs. The court also
conducted a view of th prop · rty in dispute on July 5, 2017. Durin.g the trial, the court
heard testimony from th parties and fr m Charles Collins,. a contracto and the Road
Commissioner for the Town of Georgetown. Dtrring the trial, Stev n and Lora Perry
withdrew the crossclaims that had been brought against Chris En mark and Jason and
Nancy Riggs.
Based on the evidence presented at trial and the legal arguments made by the
parties, the court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. The property rights at issue in this matter concern Lots 2 and 7 in the
Robinhood Trust Subdivision Plan approv d by th Town 0£ Georgetown Planning
Board on January 28, 1982. The riginal subdivision map i record din the Sagadahoc
County R gistry of De ds in Plan B k 19, Page 12 (D fend.ants' Exhibit 19) and further
describ din a Revision Plan recorded in the Sagadahoc County Registry of Deeds in
Plan Book 20, Page 35 (Defendants' Exhibit 20; Plaintiffs' Exhibit 1.)
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2. Lot 2 of the Robinhood Trust Subdivision Plan is bisected by a strip of
land designat d on the plan as "50' R/W." It is described by a surveyed centerline.
There is currently a traveled way that exists within the right of way designated on the
Subdivision Plan.
3. Steven and Lora Perry and Chris Enemark, collectively and separately, are
the current owners of the property described as Lot 2 on the Subdivision Plan.
4. Lot 2 is currently two lots divided by the cent rline of the sh·ip designated
on the Subdivision Plan as "50' R/W." Both Enemark (north rly portion) and Perry
(southern portion) have houses on their r spective properties that they occupy as their
residences. either currently uses the traveled way as th primary access to their h me .
5. Paul and Charlotte Brown and Jason and Nancy Riggs, collectively and
separately, are the current own rs of the pr operty described as Lot 7 on the Subdivision
Plan.
6. Lot 7 is cunently four lots. The Riggs occupy a home on ne of the lots.
The Browns own a ren tal.home on another lot. Two lots are currently vacant. The only
access to the four lots is the travelled way that exists within the right of way designated
on the Subdivision Plan.
7. The Defendants conceded at trial that the Browns and the Riggs have a
valid right of way across their property. All that is in dispute is whether the right of
way is a deeded or prescriptive easeme.nt and the extent of the easem nt r ights.
8. In reviewing the Robinhood Trust Subdivision Plan as a whole and when
considering the vidence p resented at trial, it is apparent to the court that the
designa ted "50' R/W" that bis cts Lot 2 w as inten d d by the Robinhood Tru st to b
reserv d as a right of w ay to allow access to Lot 7. Without the designa ted right of way,
Lot 7 w uld h ave been landlocked .
9. The strip of land bise ting Lot 2 is designated on the plan as "50' R/W" is
one of the ways laid out in the R binhood Trust Subdivision Plan.
10. At the time of the creation of the subdivision, there was an old woods
road in the ap proximate location of the right of way designated in the Robinhood Trust
Subdivision Plan. Glenn Baldwin, the p redece s r in title to the Perrys, used this road
as a driveway to the house he built on th southern. portion of Lot 2. The road was later
extended to Lot 7 by Neil Kinney, a former owner of the south -rn potion of Lot 7,
predecessor in title to the Browns.
11. When the errys purchased their property in 1986, they used the existing
road to access their horn as Baldwin had done.
12. Th - road, as originally u sed and later extended, became the travelled
portion of the r ight of way at issue in this case.
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13. The road currently varies in width from 9 to 12 feet and is generally flush
with the surrounding terrain.
14. As originally exis ted, a portion of the travelled way from Webber Road
veered off and out of the 50-foot strip d · signated in the Subdivision Plan.
15. In 2011, Steven Perry constructed at his own expense his own, separate
driveway from Webber Road to his home on his property outside of th so~foot
d signed right of way. Si.nee the 2011 construction, ·the Perrys no longer use the right of
way as th primary access to their hom.e. The Perrys now mak only occasional use of
the road locat din the right of way and no evidence was presented that suggests that
patte1n of use is likely to chang .
16. Steven Perry als arrang d at hi own expense for the relocation of the
b ginning portion of the travelled way for Lot 7 so that it would be wh lly within th
50-foot 1ight of way. This was done without the consent of the other parties to this
action.
17. Though the Plaintiffs claim that the rel cation of the beginning portion of
the travelled way degraded the utility of the trav lled way, the court declines to make
such a finding. Th ugh the current condition of th relocated travelled way is not in
good c ndition, the evidence pr s nted is unclear as to th condition of and utility of
the relocated travel d way when it was first consh"ucted. Th court is unable to find
that the r locat d portion of th travel way has not deteriorated in the five years since it
was constructed, as claimed by the D fendants, due to use, snow plowing, and lack of
maintenance.
18. Evidence at trial establishes a long history of conflict between Steven
Peny and other parties to thi action over the use and i1uprovement of th right of way.
Steven Perry has consistently r sisted improvements being made to the right of way
and has thr atened action to imped the use of the right of way. He has also placed
bj cts in the right of way that th c urt concludes were intended t interfer with the
use of the right of way including boulders dug up during the relocation of the
beginning portion of tbe b.·av lled way and a snowplow. He has also resisted the
removal of ·trees, stumps, and ledge that interfere with travel over the right of way and
has resisted the removal of a cut off teleph ne poll that is located at the edge of the
travelled way.
19. Steven P •rry's aggressiv behavjor over the years, and his comments at
trial, establish tl,at he is likely to continue to attempt to imp de the use of the right of
way if n t enjoined from doing s by this c urt.
20. Th r curr ntly exists a canvas shed and fence within the right of way.
These objects were placed in the right of way by Steven Perry. Based on the evidence
presented at trial, the court concludes that these objects do not interfere with the use or
3
maintenance of the right of way. In fact, the fence likely reduces the likelihood of future
conflict between the parties 1•
CONCLUSIONS OF LAW
1. The 50-foot right of way at issue in this case is one of the ways laid out in
the Robinhood Trust Subdivision Plan, which is recorded in the Sagadahoc County
Registry of Deeds. Pursuant to 23 M.R.S. § 3031(2), all own rs of land shown in th
Robinhood Tntst Subdivision Plan have acquired a privat right-of-way over the way
that is at issue in this case.
2. The Law Court's holding in Brown vs. Carson, 2012 Me. 97, 48 A.3d 224,
regui:ting all subdivision owners, a well as th ir mortgagees and lienh lders, t be
joined in litigation is inapplicable to this litigation b cause the court d clines to limit in
any way the rights of those not a party to this litigation.
3. The right of way includes th · right to install and maintain all utilities of
the typ that now, or in the future, may be typically used for residential purposes. The
current and future own r 0£ Lot 7 h ave the right to install and maintain utilities in the
right of way.
4. The Plaintiffs ar ntitled t make reasonable improven.ents to the right f
way witJ1out the consent 0£ the owners 0£ Lot 2. With the further d vel pment of L t
7, the i.Tavelled portion of th right of way is expected to need more gravel and
improvements to allow for heavier use. A road improved to a uniform width of 12 feet,
onsist nt with the r quirements f the Ge rgetown Subdivision Ordinance (Plaintiff's
Exhibit 11), with sloping on foot shoulders and oth r improvements detail din the
plru1 proposed by Charles Collins (Plaintiffs Exhibit 5) are the type of reaso abl
improvements that the Plaintiffs can make with ut th consent of the owners of Lot 2.
Given that Webber Road is only 12 f t wide in many areas near th subject pr p rtie ,
a road wider than 12 feet in the right of way w uld not be reasonable.
5. With additional use, the right of way will need to includ a hunout area
when two vehicles approach each other from opp site dir cti.ons. Defendant Perry
testified that the area near his garage is currently used for this purpos and that this
area has ad quate sightlines in both directions. Bas d on this te timony, it is ORDERED
that this area be left un bstructed to allow its continued use as a turnout.
6. The Plaintiffs have the right to maintain and repair the r ad in th right of
way by grading, 1 veling, adding gravel, repaiJ:ing potholes, removing bush and trees,
installing culverts, creating and maintaining drainage ditches and oth -r measures to
protect against water damage, ru1d the right to tak any other reasonable m asures to
n1aintain the road for its intend d ttse to access residential property.
7. The snowplow and the hall telephone poll currently impede the use of the
right of way in the winter and will impede an improv d road in the future. D f ndant
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"Good fences make good neighbours." Robert Frost, Mending Wall (1914).
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P rry i ORDERED to remov the snowplow and half tel phone p 11 within 30 days of
this order. If Defendant Perry does not d so, the Plaintiffs may remov these items and
Defendant Perry will be liable for any reasonable costs incurr d by the Plaintiffs in
doing so.
8. Defendant Perry is ENJOINED from placing any objects within th right
of way that would interfere with the us or maintenance of th road. He is also
ENJOINED from interfering with any improvements to or maintenance of the road that
is onsistent with this order.
9. Defendant Perrys relocati n of the b ginning of the road to within. the
right of way was done lawfully. Because the beginning of the road WcJ.S not located
within the right of way, the consent of the oth r property owners wa not reqttir d .
10. Any conclusion about how future development of Lot 7, beyond the
existing 4 lots, would impact th right of way would be entirely speculative and the
court declin s to mak any such findings.
11. The court does not believe that there is any basis to r quire Defendant
Perry to contribute to the cost of th expected in1provements to the road or the future
maintenance of the improved r ad.
12. Each party shall pay their own costs and attorney's fees.
Any pending motions are made MOOT by this ORDER. This ORDER is a final
order of the c urt in this matter.
The Clerk is directed to incorporate this Order by reference into the docket for
this case, pursuant to Rul 79(a), Main Rules of Civil Procedure.
SO ORDERED,
~
Dated: May 15, 2017
JUSTICE, MAINE SUPE OR COURT
5
PAUL BROWN - PLAINTIFF SUPERIOR COURT
1411 WASHINGTON STREET SAGADAHOC, ss.
BATH ME 04530 Docket No BATSC-CV-2015-00015
Attorney for: PAUL BROWN
RUFUS BROWN - RETAINED
BROWN & BURKE DOCKET RECORD
PO BOX 7530
PORTLAND ME 04112-7530
CHARLOTTE BROWN - PLAINTIFF
1411 WASHINGTON STREET
BATH ME 04530
Attorney for: CHARLOTTE BROWN
RUFUS BROWN , RETAINED
BROWN & BURKE
PO BOX 7530
PORTLAND ME 04112-7530
vs
STEVEN PERRY - DEFENDANT
81 WEBBER ROAD
GEORGETOWN ME 04548
Attorney for: STEVEN PERRY
ROGER THERRIAULT - RETAINED
LAW OFFICE OF ROGER THERRIAULT
48 FRONT STREET
BATH ME 04530
LORA PERRY - PARTIES IN INTEREST
Bl WEBBER ROAD
GEORGETOWN ME 04548
Attorney for: LORA PERRY
ROGER THERRIAULT - RETAINED
LAW OFFICE OF ROGER THERRIAULT
48 FRONT STREET
BATH ME 04530
CHRIS ENEMARK - PARTIES IN INTEREST
89 WEBBER ROAD
GEORGETOWN ME 04548
JASON RIGGS - PARTIES IN INTEREST
85 WEBBER ROAD
GEORGETOWN ME 04548
Attorney for: JASON RIGGS
RUFUS BROWN - RETAINED 01/22/2016
BROWN & BURKE
PO BOX 7530
PORTLAND ME 04112-7530
NANCY PINKHAM - PARTIES IN INTEREST
85 WEBBER ROAD
GEORGETOWN ME 04548
Page 1 of 11 Printed on: 05/15/2017
BATSC-CV-2015-00015
DOCKET RECORD
Attorney for: NANCY PINKHAM
RUFUS BROWN - RETAINED 01/22/2016
BROWN & BURKE
PO BOX 7530
PORTLAND ME 04112-7530
LOANDEPOT COM - PARTIES IN INTEREST
BATH SAVINGS INSTITUTION - PARTIES IN INTEREST
PO BOX 548
BATH ME 04530
Attorney for: BATH SAVINGS INSTITUTION
BRUCE HOCHMAN - RETAINED
EATON PEABODY
PO BOX 15235
100 MIDDLE STREET
PORTLAND ME 04112-5235
FANNIE MAE - PARTIES IN INTEREST
3900 WISCONSIN AVE NW
WASHINGTON DC 20016
Attorney for: FANNIE MAE
SHANNON MERRILL - RETAINED 04/11/2016
BENDETT & MCHUGH PC
30 DANFORTH ST SUITE 104
PORTLAND ME 04101
Attorney for: FANNIE MAE
PAUL D WEINSTEIN - RETAINED 07/06/2016
BENDETT & MCHUGH PC
30 DANFORTH ST SUITE 104
PORTLAND ME 04101
Filing Document: COMPLAINT Minor Case Type: GENERAL INJUNCTIVE RELIEF
Filing Date: 08/06/2015
Docket Events:
08/12/2015 FILING DOCUMENT - COMPLAINT FILED ON 08/06/2015
08/12/2015 Party(s): PAUL BROWN
ATTORNEY - RETAINED ENTERED ON 08/06/2015
Plaintiff's Attorney: RUFUS BROWN
Party(s): CHARLOTTE BROWN
ATTORNEY - RETAINED ENTERED ON 08/06/2015
Plaintiff's Attorney: RUFUS BROWN
08/12/2015 ASSIGNMENT - SINGLE JUDGE/JUSTICE ASSIGNED TO JUSTICE ON 08/06/2015
ANDREW M HORTON, JUDGE
09/11/2015 Party(s): STEVEN PERRY
SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 09/01/2015
Page 2 of 11 Printed on: 05/15/2017