The opinion
STATE OF MAINE SUPERIOR COURT
LINCOLN, SS CIVIL ACTION
DOCKET NO. RE-2016-030
SHAWN PLU11:MER, )
)
Plaintiff, )
)
V. )
) JUDGMENT AFTER
) TRIAL
MILDRED EDWARDS and )
RONALD EDWARDS, )
)
Defendants. )
The Plaintiff filed a four-count amended complaint against the
Defendants. Summary Judgment was previously entered for the Defendants on
Count II of the Amended Complaint. A trial was held on the remaining counts
on October 10 & 11, 2017. Any findings of fact contained in this Judgment are
based on the evidence admitted at trial.
At the center of this dispute is the meaning of the term "the westerly
side of the Benner Road" as used in the deeds establishing the boundary between
the parties' abutting properties.
Count I - Tresp assing
The Plaintiff's trespass claim is based on cutting of trees alleged to have
been done by, or on behalf of, the Defendants. Based on the admissible evidence
presented at trial, the location of said trees, in reference to the property line, is
unclear. However, even if the Plaintiff established that the trees in question were
located on his property, the Plaintiff has not presented sufficient admissible
evidence to establish recoverable damages under this claim. Though the
Plaintiff's claim is pled as common law trespass, the Law Court has determined
that 14 M.R.S. §7552 "replaces the common law with respect to damages to trees
from trespass." Fuschetti v. Murray, 2006 ME 100 <[ 12, 903 A.2d 848, 852. The
Plaintiff has failed to present admissible evidence to allow the court to establish
damages as recoverable under the statute. Judgment is therefore entered for the
Defendants on Count I.
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Counts ill - Declaratory Judgment & Count IV - Quiet Title
The deeds conveying the land to Plaintiff and Defendant Mrs. Edwards
use identical language to those in the original deeds from 1967 that divided
Mildred Chapman's property. Therefore, it can be presumed that the intent of
the deeds to Plaintiff and Defendant Mrs. Edwards were to grant the same land
that was intended to be granted in the original 1967 deeds. This is also
demonstrated by reference to the original 1967 deeds within Plaintiff's and
Defendant Mrs. Edwards's deeds. For this reason, the intent of the original four
devisees is transferred into the intent of the deeds to Plaintiff and Defendant
Mrs. Edwards. Thus, this Court will interpret the intent of the original four
devisees in granting the deeds to Louise Plummer and Ethel Stolte.
Preliminarily, "when a highway survey has not been properly recorded or
preserved or the termination and boundaries cannot be ascertained, the board of
selectmen or municipal officers of any municipality may use and control for
highway purposes 1 1 / 2 rods on each side of the center of the traveled portion of
such way." 23 M.R.S. § 1203. There is no recorded documentation of the town
right of way over Benner Road, and therefore, the town's right of way is 3 rods
wide, pursuant to the above statute.
A . Presence of Ambiguity
When interpreting a deed to determine the intent of the parties, the court
must construe the language to give the words their "general and ordinary"
meaning, attempting to look only within the "four corners" of the instrument.
Pettee v. Young, 2001 ME 256, «TI: 8, 783 A.2d 637; Taylor v. Hanson, 541 A.2d 155,
157 (Me. 1988). When the language of a deed is reasonably susceptible to two
different interpretations, then there is ambiguity. Friedlander v. Hiram Ricker &
Sons, Inc., 485 A.2d 965, 972 (Me. 1984). "A latent ambiguity in a deed is created
when, in applying the description to the ground, facts extrinsic to the document
controvert or in some way render unclear the deed's apparently unambiguous
terms." Taylor, 541 A.2d at 157 (internal citations omitted). In contrast, a patent
ambiguity is one which is visible from within the four comers of a document.
Bourgoin v. Fortier, 310 A.2d 618, 620 (Me. 1973). Upon the finding of a latent
ambiguity, extrinsic evidence is admissible to discern the intent of the parties.
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Norton v. Town of Long Island, 2005 ME 109 «[«[ 23, 27, 883 A.2d 889; Hennessey v.
Fairley, 2002 ME 76, «[ 21, 796 A.2d 41.
In Wallingford v. Kennedy, the court examined a deed that referred to a
road as a boundary, but when trying to locate the road on the face of the earth,
the deed could be referring to one of two routes. 2000 ME 112, «[«[ 15-16, 753
A.2d 493. In Rounds v. Ham, the court analyzed the word "road" as used as a
boundary, finding an ambiguity in whether it referred to the traveled way or the
road as laid out. 111 Me. 256,258 (1913). In both cases, latent ambiguities were
found and extrinsic evidence was admitted to resolve the ambiguity. Similarly,
here, the word "road" here does not appear ambiguous itself within the original
deeds. It is not until one attempts to apply "road" to the face of the earth that an
issue forms. When trying to physically locate the "road" on the ground, it could
refer to either the 3-rod wide right of way or the traveled way. Within the four
comers of the original deeds, there is no indication of which version of "road"
was intended. Either interpretation of the word is reasonable, as evidenced by
this portion of the lawsuit that surrounds this issue. Therefore, it appears that
"road" is latently ambiguous and extrinsic evidence should be admitted to
resolve the ambiguity and determine the intent of the parties. 1
B. Resolving the Ambiguity
Looking at the extrinsic evidence, the land was originally inherited by
four devisees, with the property devised to each roughly outlined in the Will.
The four devisees decided to solidify their property lines by creating the four
original deeds with more detailed descriptions, including the descriptions and
boundaries of the properties at issue in this case. There is no evidence that the
devisees were aided in these descriptions by either an attorney or surveyor.
There is also no evidence that a highway plan, or a plan of the area including the
1
Several Law Court cases do not distinguish between patent and latent ambiguities. See Cushing v.
State,-434 A.2d 486,494 (Me. l98l);Jordan v. Shea, 2002 ME 36, ,r 14,971 A.2d 116; see also Norton
v. Town ofLong Island, 2004 Me. Super Lexis 173, *10 (discussion of the Law Court's abandonment of
latent vs. patent ambiguities) (reversed on other grounds). When the two types of ambiguities are
not distinguished, extrinsic evidence is allowed to determine the intent of the parties. Since this is
the result generated from a finding of a latent ambiguity, it does not affect the analysis.
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devised property, was recorded with the Lincoln County Registry of Deeds at the
time the four devisees divided the property in 1967.
With this information, it is reasonable to infer that these four lay persons,
dividing property between themselves, would have intended the reference to be
to the road as they could see it in 1967, not the road as the town right of way of
which they likely would not have known given that there is no evidence of a
surveyor, attorney, or plan to inform them as such. In addition, the evidence
presented at trial establishes that as of 1967, no action had been taken to establish
the location of the town right of way. Additionally, given that other boundaries
in the original deeds refer to visible boundary markers such as a stone wall and a
utility pole, it is reasonable to infer that the four devisees would have used the
westerly side of the road as a visible marker, not the west side of the town's non
visible right of way.
It is the court's judgment, and the court so declares, that when used in the
deeds at issue in this case, the term "the westerly side of the Benner Road"
means the physical location of the paved road as it existed in 1967. In addition,
the court finds that the Defendants have no estate, right, title or interest in
property that is inconsistent with the court's finding.
Conclusion
Count I- Judgment for the Defendants.
Count II - Judgment for the Defendants.
Count III - Judgment for the Plaintiff.
Count N - Judgment for the Plaintiff.
Each party shall be responsible for their own costs.
DATE:January30,2018 ~~
Daniel I. B i l l i n g s ~
Justice, Maine Superior Court
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