Opinion

Jean Dupuis v. Stanley G. Ellingwood

  • 166 A.3d 112
  • 2017 ME 132
  • 2017 Me. LEXIS 137
  • 2017 WL 2773934
Court
Supreme Judicial Court of Maine
Filed
Jun 27, 2017
Status
Published
Author
Gorman
On the bench
Saufley, Alexander, Gorman, Jabar, Hjelm, Humphrey
Cited by
10 cases
Authority
More cited than 59.6%

The opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2017 ME 132

Docket: Ken-16-326

Submitted

On Briefs: May 25, 2017

Decided: June 27, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

JEAN DUPUIS

v.

STANLEY G. ELLINGWOOD et al.

GORMAN, J.

[¶1] Jean Dupuis appeals from a judgment of the Superior Court

(Kennebec County, Murphy, J.) declaring the ownership of and easement rights

to certain property on Dupuis’s complaint against Stanley G. Ellingwood and

Sylvia C. Ellingwood. Dupuis contends that the court erred by concluding that,

except for a limited area where a structure had been built, the Ellingwoods’

express easement to lakefront property in Readfield has not been

extinguished either by the Ellingwoods’ abandonment of the easement or by

Dupuis’s adverse possession of the easement. We affirm the judgment.

I. BACKGROUND

[¶2] On November 28, 2012, Dupuis initiated an action in the Superior

Court against the Ellingwoods in which he sought a declaratory judgment that

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he owns title to certain lakefront property and that any easement rights the

Ellingwoods once may have had to that same property have been

extinguished.1

[¶3] After a jury-waived trial, by judgment dated March 30, 2016, the

court made the following factual findings, which are supported by competent

record evidence. Dupuis and the Ellingwoods own property on Lake

Maranacook in Readfield, in “what the parties sometimes refer to as the

Touisset Point Development.” Dupuis is the title owner of two unnumbered

lots in the development. He purchased an unnumbered lot to the west of

Lot 13 in 1996 and a second unnumbered lot to the east of Lot 14 in 2000;

together, the two lots constitute what was identified on the original plan as

the “Beach Area.” Each lot has one hundred feet of shore frontage. The 2000

conveyance was subject to the following language in Dupuis’s deed: “This

conveyance is subject to rights, if any, others may have to use the beach

area . . . .”

[¶4] In 1969, the Ellingwoods acquired Lots 33-38 in the same

development with the following language in their deed: “Also conveying to the

1 Barbara Dupuis was also a plaintiff when the initial complaint was filed, but she conveyed her

interest in the property to Jean Dupuis while these proceedings were pending. Dupuis also named

Karen L. Libby, Linda J. Libby, and Ellen M. Libby as defendants. None of these persons is a party to

the current appeal.

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grantees and those claiming under them the right of joint use with the said

grantor and those claiming under him of the private beach area to be

constructed. Such area to contain 100 feet of lake frontage.” The court

concluded that the Ellingwoods enjoy an express easement to use the Beach

Area based on this language in their deed to Lots 33-38, in combination with

the language of Dupuis’s 2000 deed.

[¶5] The court next considered whether the Ellingwoods’ easement had

been extinguished—either by their abandonment of the easement or by

Dupuis’s adverse possession of the easement. First, the court determined that

the Ellingwoods, by their own concession, had abandoned that portion of the

easement on which structures are located. The court determined, however,

that Dupuis failed to prove the Ellingwoods’ abandonment of the shorefront

portion of the Beach Area.

[¶6] As to Dupuis’s claim that he extinguished the Ellingwoods’

easement to the shorefront portion of the Beach Area by adverse possession,

the court found that Dupuis was on notice from his 2000 deed that others

claimed the right to use the Beach Area, and that Dupuis’s recognition of those

rights was further demonstrated by his attempts to obtain deeds from

neighbors releasing their interests in the Beach Area. Based on these findings,

4

the court concluded that Dupuis failed to establish that he possessed the

easement “under a claim of right.” The court therefore entered a judgment in

favor of the Ellingwoods declaring that they have the right to “access the

beach area so long as their use of this express easement remains reasonable

as required by law.”2

[¶7] The court denied Dupuis’s motions for further findings of fact and

conclusions of law, see M.R. Civ. P. 52(b), and to reconsider, see M.R Civ. P.

59(e). Dupuis appeals.

II. DISCUSSION

[¶8] There is no dispute that Dupuis owns title to the Beach Area.

Dupuis also does not challenge the court’s determination that the Ellingwoods

obtained an express easement to the Beach Area by virtue of their 1969 deed

to Lots 33-38. This appeal thus entirely regards whether the Ellingwoods’

express easement to the Beach Area has been extinguished.

[¶9] Extinguishment of an easement may be established with proof of

“(1) a history of nonuse coupled with an act or omission evincing a clear

2 The parties did not raise, and therefore the court did not consider, the issue of the scope or

extent of the Ellingwoods’ easement.

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intent to abandon, or (2) adverse possession by the servient estate.”3 Laux v.

Harrington, 2012 ME 18, ¶ 21, 38 A.3d 318. Dupuis challenges the court’s

decision in the Ellingwoods’ favor as to both means of extinguishment of an

easement. Because Dupuis was the party with the burden of proof of trial4

and the court concluded that he did not meet that burden as to either means

of extinguishment, we may disturb the trial court’s findings of fact only if we

determine that the court was compelled to find in Dupuis’s favor. See

Androkites v. White, 2010 ME 133, ¶ 12, 10 A.3d 677; cf. Bolduc v. Watson,

3 Although we have traditionally referred to an easement as “abandoned” by either of these two

means, that nomenclature is inapt and confusing, especially as applied to adverse possession;

“abandonment” connotes an inquiry into the acts or omission of the easement holder, see

Gravison v. Fisher, 2016 ME 35, ¶ 52, 134 A.3d 857, whereas adverse possession is primarily

focused on the acts of the servient estate owner, see Levis v. Konitzky, 2016 ME 167, ¶ 21,

151 A.3d 20. Thus, we discuss abandonment and adverse possession as the two means by which to

“extinguish” an easement because this is the language that more accurately reflects both possible

circumstances.

4 Our notation in Gravison, 2016 ME 35, ¶ 52, 134 A.3d 857, that extinguishment by

abandonment and by adverse possession are both subject to a clear and convincing standard of

proof is a misstatement of our prior decisions. Whereas the extinguishment of an easement by

abandonment must be established by clear and convincing evidence, Stickney v. City of Saco,

2001 ME 69, ¶ 51, 770 A.2d 592, we have always held that adverse possession, including the

extinguishment of an easement by adverse possession, may be proved by the less stringent

preponderance of the evidence standard, Levis, 2016 ME 167, ¶ 21, 151 A.3d 20; D’Angelo v. McNutt,

2005 ME 31, ¶ 5, 868 A.2d 239; Striefel v. Charles-Keyt-Leaman P’ship, 1999 ME 111, ¶ 6,

733 A.2d 984. Notwithstanding our language in Gravison, we continue to adhere to the established

standard that the extinguishment of an easement by adverse possession must be proved only by a

preponderance of the evidence.

Further, although the court’s express application of the preponderance standard here—rather

than the proper clear and convincing standard—in considering the extinguishment of the easement

by abandonment was error, that error was harmless; if Dupuis did not meet his burden pursuant to

a preponderance standard, he necessarily did not meet his burden pursuant to the higher clear and

convincing standard. See M.R. Civ. P. 61; Mitchell v. Kieliszek, 2006 ME 70, ¶ 20, 900 A.2d 719

(stating that an error is harmless when it is “highly probable that [it] did not affect the outcome of

the trial”).

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639 A.2d 629, 630 (Me. 1994) (reviewing for clear error the court’s finding

that the plaintiff did meet his burden of establishing the extinguishment of an

easement).

A. Extinguishment by Abandonment

[¶10] A party asserting the extinguishment of an easement by

abandonment must establish, by clear and convincing evidence,5 a “history of

nonuse coupled with an act or omission evincing a clear intent to abandon.”

Gravison v. Fisher, 2016 ME 35, ¶ 52, 134 A.3d 857; Stickney v. City of Saco,

2001 ME 69, ¶ 51, 770 A.2d 592. An act or omission indicating the intent to

abandon “may be demonstrated only by an unequivocal act or failure to act

that is decisive and conclusive and inconsistent with the further assertion of

rights associated with the existence of the easement.” Gravison, 2016 ME 35,

¶ 52, 134 A.3d 857 (quotation marks omitted). By way of example, the intent

to abandon may be inferred from the easement holder’s failure to object to the

building of a permanent structure on the property if that structure “prevents

the enjoyment of the rights granted by the easement.” Id. (quotation marks

omitted); see Bolduc, 639 A.2d at 630; Chase v. Eastman, 563 A.2d 1099, 1102

(Me. 1989).

5 See supra n.4.

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[¶11] Dupuis argues that he did establish the extinguishment of the

Ellingwoods’ easement by abandonment through the evidence that the

Ellingwoods never objected to the building of structures or other

improvements to the Beach Area, they never undertook any of their own

improvements, no Ellingwoods had used the Beach Area since the 1970s, and

the only users of any portion of the Beach Area were Dupuis and his family

members.

[¶12] As we held in Gravison, however, the court may find that a failure

to object to the building of a structure results in the extinguishment of only a

portion of the easement: “[I]f a structure obstructs only part of an easement

and the easement holder continues using other unobstructed parts of the

easement, failure to object to the structure may support a finding that the

easement holder only abandoned the part of the easement that the structure

obstructs.” 2016 ME 35, ¶ 52, 134 A.3d 857. In Chase, too, we upheld the trial

court’s determination that the failure to object to the erection of a structure

resulted in an extinguishment of only a portion of the easement.

563 A.2d at 1102-03. Consistent with Gravison and Chase, the court here

concluded, by supported findings, that the Ellingwoods’ express easement

8

concerning the Beach Area was extinguished by abandonment only where the

structures were located.

[¶13] Although Dupuis further argues that the Ellingwoods presented

no evidence of their use of the shorefront portion of the Beach Area, the

court’s findings were supported by evidence that the Ellingwoods’ son had

used the Beach Area at least until 2006. We therefore conclude that the trial

court was not compelled to find that the Ellingwoods’ easement to the

shorefront portion of the Beach Area was extinguished by abandonment. See

Androkites, 2010 ME 133, ¶ 12, 10 A.3d 677.

B. Extinguishment by Adverse Possession

[¶14] When a title owner is attempting to show the extinguishment of

an easement by virtue of the title owner’s adverse possession of the easement,

the elements the title owner must prove are identical to those an adverse

possessor must prove to deprive the title owner of a fee interest. Laux,

2012 ME 18, ¶ 21, 38 A.3d 318. Thus, it was Dupuis’s burden to establish, by a

preponderance of the evidence,6 that his use and possession of the shorefront

portion of the easement to the Beach Area was “(1) actual, (2) open,

(3) visible, (4) notorious, (5) hostile, (6) under claim of right, (7) continuous,

6 See supra n.4.

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(8) exclusive, and (9) of a duration of at least twenty years.” Levis v. Konitzky,

2016 ME 167, ¶ 21, 151 A.3d 20.

[¶15] The court determined that Dupuis failed to establish that he

possessed the easement under a claim of right. To demonstrate that he

possesses property under a claim of right, a party must prove that he “is in

possession as owner, with intent to claim the land as [his] own, and not in

recognition of or subordination to the record title owner.” Dombkowski v.

Ferland, 2006 ME 24, ¶ 12, 893 A.2d 599 (alteration omitted) (quotation

marks omitted).

[¶16] Dupuis argues that he proved that he treated the property wholly

as his own through the evidence presented at trial detailing his use of and

improvements to the property. The court, however, found that Dupuis knew

that his property was subject to the easement rights of others based on his

knowledge of the language in his 2000 deed. The court also noted that

Dupuis’s acts in obtaining release deeds from other neighbors, including his

unsuccessful attempt to obtain a release deed from the Ellingwoods,

manifested Dupuis’s recognition of others’ easement claims to the property.

Although Dupuis represents that he “requested confirmatory release deeds

from neighboring property owners in order to clear the record title so that he

10

could obtain a mortgage loan and avoid bringing this action to quiet title,” the

court was free to disregard Dupuis’s explanation and to infer that Dupuis was

aware that his use of the easement was subject to and subordinate to the

Ellingwoods’ interest, and therefore was not used or possessed under a claim

of right. See Dionne v. LeClerc, 2006 ME 34, ¶ 15, 896 A.2d 923; Dombkowski,

2006 ME 24, ¶ 12, 893 A.2d 599. The court was not compelled to find in

Dupuis’s favor.

The entry is:

Judgment affirmed.

Jon P. Plourde, Esq., and Norman J. Rattey, Esq., Skelton, Taintor &

Abbott, Auburn, for appellant Jean Dupuis

Matthew W. Evans, Esq., Palermo, for appellees Sylvia C. and

Stanley G. Ellingwood

Kennebec County Superior Court docket number RE-2012-94

FOR CLERK REFERENCE ONLY

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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