Asch v. Doherty

ROGER P. ASCH Plaintiff, v. THOMAS P. DOHERTY, Defendant.

SUPERIOR COURT CIVIL ACTION DOCKET NO. RE-18-92

Superior Court of Maine

Entered on the Docket: August 19, 2020

August 17, 2020

For Plaintiff: J William Druary, Jr., Esq.

and Christopher Pazar, Esq.

For Defendant: David Sherman, Esq.

STATE OF MAINE

CUMBERLAND, ss.

ORDER

The present action concerns a boundary dispute between Plaintiff/Counterclaim Defendant Roger P. Asch ("Mr. Asch") and Defendant/Counterclaim Plaintiff Thomas P. Doherty ("Mr. Doherty").

On September 27, 2019, the court conducted a site-view of the parties' properties and shared common boundary at issue. On January 14, 2020, the court presided over a one-day bench trial and heard testimony from Plaintiff and Defendant.

I. Findings of Fact

The parties are adjoining landowners. Mr. Asch owns real property located at 80 Brackett Street in Portland, Maine ("80 Brackett" or the "Asch Property"). Mr. Asch and his former wife, Sara E. Rogers Asch ("Ms. Rogers"), acquired title to 80 Brackett in July 2005 from Robert McArdle and Richard Rothlisberger, who acquired title by deed dated May 17, 1990.¹ (Jt. Ex. 1-3.)

Mr. Asch shares a common boundary with Mr. Doherty, who resides at 187 Danforth Street ("187 Danforth" or the "Doherty Property"). (Stipulations ¶¶ 1-2.) Mr.Doherty acquired title to 187 Danforth by deed dated June 9, 1999, from Adelaide Curran, who is now deceased. (Jt. Ex. 5.)

The present dispute arose after Mr. Asch replaced an existing wooden fence that separated their yards with a new wooden fence. (See Jt. Ex. 6A-1-14 (old fence); Jt. Ex. 6B-1-29 (new fence).) Prior to the dispute, both parties were in agreement that the existing wooden fence separating their properties was in "rough shape" and that it should be replaced. Neither party was aware of the exact location of their deeded property boundary. Mr. Doherty now claims that Mr. Asch moved the new fence closer to his property.

The parties' stipulated that their deeded common boundary line is accurately depicted in an August 17, 2017 survey by R.W. Eaton Associates (hereinafter the "Eaton Survey"). (Jt. Ex. 8; Stipulations ¶¶ 4-5.) Joint Exhibit 8 depicts the strip of land in dispute, which is approximately 79 feet in length and 9.6 inches to 17 inches wide.

Image materials not available for display.

(Jt. Ex. 8.)

Having failed to resolve their disagreement, the parties now claim ownership to three distinct areas of land abutting their common boundary (collectively the "Disputed Land"): (1) the strip of land behind Mr. Doherty's garage, in the southeast corner of the Asch Property; (2) the strip of land beneath the fence and between the true boundary line and the new fence; and (3) the strip of land between the true boundary in Mr. Asch's driveway and the foundation of Mr. Doherty's residence. (Tr. 37.)

Mr. Asch commenced this action on March 26, 2018, based on the following causes of action: (Count I) a declaratory judgment confirming that he has fee title to the Disputed Land; (Count II) common law adverse possession; (Count III) statutory adverse possession; (Count IV) prescriptive easement; (Count V) boundary by acquiescence; and (Count VI) a permanent injunction enjoining Mr. Doherty from using the Disputed Land and ordering him to remove a picket fence he installed along the driveway and behind the garage.

Mr. Doherty's counterclaim asserts: (Count I) declaratory judgment confirming that he owns the Disputed Land and that the fence installed by Mr. Asch encroaches upon his property; (Count II) trespass; and (Count III) injunctive relief ordering Mr. Asch to remove the fence, and to cease his trespass and any activities that interfere with the use of his property.

In lieu of live testimony, the court admitted the deposition testimony of Joseph Curran, the son of Adelaide Curran, who resided at 187 Danforth from 1972 until the "early to mid-nineties," and the deposition testimony of Robert McArdle who resided at 80 Brackett from May 1990, until July 2005.

A. McArdle Ownership: 1990-2005.

i. Fence Area Robert McArdle, Mr. Asch's immediate predecessor-in-title, testified that when he purchased 80 Brackett in 1990, a metal chain link fence existed between the corner of the of the garage and residence. (McArdle Dep. 12.) He believed that the metal fence was owned by Ms. Curran, Mr. Doherty's immediate predecessor-in-title. (McArdle Dep. 25.) In the early 1990's, Mr. McArdle approached Ms. Curran about replacing the metal fence with a new wooden fence. He recalls that, although Ms. Curran did not object to the idea, she did not contribute to the cost of installing a new fence. (McArdle Dep. 26.) When asked whether it was his "understanding that [Ms.] Curran gave you permission to put a new fence in the same location as the old-chain link fence," he replied "Yes." (McArdle Dep. 56.)

Mr. McArdle "didn't really think about boundary lines when [he] replaced it" but believes that the new fence was installed in the same location as the old metal fence. (McArdle Dep. 25.) He believes that the wooden fence posts were approximately five to six square inches - larger than the posts supporting the old metal fence. (McArdle Dep. 57, 59.) He believes that the fence "extended a few inches . . . past the corner of [Ms. Curran's] house and . . . a few inches away from [her] house." (McArdle Dep. 23.) When asked what he understood to be the boundary line, he testified that "my assumption was that there was some number of inches from the Currans' house extending in toward our house that belonged to her, and that would have extended backwards and forward." (McArdle Dep. 13.) He believed that there would have been "enough room on the other side of [the fence] that if you had to maintain the fence, you could do that . . . I don't thinkyou're supposed to put a fence exactly on the borderline." In practice, however, he treated the fence as the boundary line.² (McArdle Dep. 60-61.)

In the early 2000s, Mr. McArdle replaced the fence a second time, again with a new wooden fence. (See Jt. Ex. 6A1-14.) He could not recall whether Mr. Doherty or Ms. Curran owned 187 Danforth, and does not recall having any discussion with either about replacing the fence a second time.³ (McArdle Dep. 27.) Mr. McArdle believes that the second wooden fence would have been installed in a "similar placement" with "three to four inches" between the fence and the corner of the residence. (McArdle Dep. 33-34.)

Mr. McArdle also planted fruit trees along his side of the fence, but could not recall whether they were planted "before or after the first or second fence." (McArdle Dep. 30; Jt. Ex. 6A-7,10.) The fence was used to "train" the trees and provide support. Mr. McArdle also installed a stone wall that runs perpendicular to the fence, he believes in the late 1990's. (McArdle Dep. 31-32; see Jt. Ex. 6A-6 (old fence with stone wall); Jt. Ex. 6B-9 (new fence with stone wall).) Mr. Asch testified that when he purchased the property the stone wall came "within a couple of inches" of the old fence. (Tr. 33.)

i. Garage Area

With regard to the disputed land abutting Mr. Doherty's garage, Mr. McArdle planted and maintained a so-called "strip garden" in the southwest corner of his property, directly up to the foundation of the garage. (McArdle Dep. 16;Jt. Ex. 6A-6.) Although Mr. McArdle does not recall having any discussion with Ms. Curran about the landscaping behind her garage, he does recall obtaining her permission to paint thebackside of the garage and install a trellis.⁴ (McArdle Dep. 15-17, 21; Jt. Ex. 6A-1, 6, 7.) When asked whether he considered the area behind the garage to be his property, he replied "Yes . . . but realistically I would have anticipated that there was a border of a certain number of inches beyond the property that was not necessarily mine." (McArdle Dep. 16-17.)

i. Driveway Area

Regarding the disputed land abutting the backside of Mr. Doherty's residence - in what is now Mr. Asch's driveway - Mr. McArdle testified that he installed a driveway in that area during his ownership. Prior to its installation, he recalls that a metal fence extended past the corner of Ms. Curran's home, facing Brackett Street, angling slightly inward toward her home. (See Jt. Ex. 6E-2, 6D-11; McArdle Dep. 36.)

Mr. McArdle testified that he obtained permission from the Public Works Department to get a "curb cut" and a letter from Ms. Curran stating that she had no objections. (Jt. Ex. 10 to Jt. Ex. 12.) He recalls obtaining Ms. Curran's permission to move the fence post that used to extend into the driveway area "eight to ten inches" closer to her home in order to accommodate the width of a car. (McArdle Dep. 40, 54-55.)

When asked whether "Ms. Curran gave [him] permission to construct this parking space in that area" Mr. McArdle replied, "Yes." (McArdle Dep. 54-55.) When asked why he thought he needed to obtain Ms. Curran's permission, he testified that his "assumption was that there was a certain amount of space from her house that was not our property,and that otherwise the driveway wouldn't have been wide enough to fit a car in." (McArdle Dep. 43.)

B. Asch Ownership: 2005 - Present

The location of the wooden fence, driveway, landscaping, trees, garden and trellis remained undisturbed at the time Mr. Asch acquired 80 Brackett in July 2005. (Tr. 31-34.) By 2017, both parties agreed that the second wooden fence, installed by Mr. McArdle, (hereinafter the "old fence") was in need of replacement. (See Jt. Ex. 6A-1-14.) Mr. Asch testified that he thought he owned the fencing that bordered all three sides of his property and felt that it was "his fence to replace."⁵ (Tr. 34-35.) Sometime in April 2017, he informed Mr. Doherty that he was going to replace the fence, to which Mr. Doherty replied, "Okay, thank you." Both parties were under the impression that it was Mr. Asch's responsibility.

By July 2017, Mr. Asch had hired a general contractor, Andrew Stone. Mr. Stone determined that he could not...