Carter v. Voncannon

1

2024 ME 65

JOHN M. CARTER et al. v. MICHAEL A. VONCANNON et al.

No. BCD-22-403

Supreme Court of Maine

August 20, 2024

Argued September 12, 2023

Gordon R. Smith, Esq. (orally), and Keith E. Glidden, Esq., Verrill Dana, LLP, Portland, for appellants John M. Carter and Christine C. Carter

David A. Soley, Esq. (orally), and Glenn Israel, Esq., Bernstein Shur, Portland, and Joseph L. Cahoon, Jr., Esq., Richardson Whitman, Large &Badger, Portland, for cross-appellants Michael Voncannon and N. Kermit Voncannon

Christopher E. Pazar, Esq., Drummond &Drummond, LLP Portland, for crossappellants Zachary Rogers and Kathryn Rogers as Trustees of the Nancy C. Rogers Irrevocable Trust

Panel STANFILL, C.J., and MEAD, CONNORS, LAWRENCE, and DOUGLAS, JJ. ^[*]

LAWRENCE, J.

[¶1] John M. Carter and Christine C. Carter (the Carters) appeal from a judgment entered by the Business and Consumer Docket (Murphy, /.) after a bench trial on a variety of claims and counterclaims concerning the use and ownership of certain property in the Holiday Beach neighborhood in Owls Head. Michael A. Voncannon and N. Kermit Voncannon (the Voncannons) and Zachary Rogers and Kathryn Rogers as Trustees of the Nancy C. Rogers Irrevocable Trust (the Rogerses) cross-appeal from the same judgment regarding the court's determination that the Carters have superior title to Austin Avenue, a "paper street" appearing on plans depicting the Holiday Beach neighborhood. We affirm the judgment.

I. BACKGROUND

[¶2] This case involves a dispute over the ownership and boundaries of two proposed, unaccepted ways-known as "paper streets"^[1]-that transect several lots of land in the Holiday Beach neighborhood of Owls Head. The lots are owned by the Carters, the Voncannons, and the Rogerses.^[2]

[¶3] The first of the two paper streets, Austin Avenue, runs roughly north to south and lies between the eastern boundary of the Carter lot and the western boundaries of the Voncannon lot and the Rogers lot. The Voncannon lot and the Rogers lot abut opposite sides of the second paper street, referred to as "the Reserved Way," which runs east to west. The Voncannon lot and the Rogers lot are bounded to the east by Holiday Beach Road. Provided here for illustrative purposes only, Figure 1 depicts the locations of the lots and the paper streets.

(Image Omitted)

Figure 1

[¶4] In its November 12, 2022, judgment, the court found the following facts, which are supported by competent record evidence. See Fissmer v. Smith, 2019 ME 130, ¶ 40, 214 A.3d 1054.

A. Chain of Title

[¶5] The Holiday Beach neighborhood was created out of a forty-acre tract that was originally acquired by Daniel Pierce via a deed (the Pierce deed) from Sarah Perry on June 23, 1866. The Pierce tract was bounded to the east by the high-water mark of Owls Head Harbor, and to the north by the line separating the neighborhood from land formerly owned by Harrison Emery, known as the Emery line.^[3] In the 1880s, Pierce subdivided his property and sold many of the resulting lots.

[¶6] Pierce first conveyed a lot by deed to J.H. Flint (the Flint deed) on July 3,1884. Other lots in the area were later located using references to the Flint lot. The Flint lot is now part of the Voncannon lot. The Flint deed described the northeast corner of what is now the Voncannon lot as located

[a]t a stake and stones in an angle formed by the junction of two reserved roads[,] one running on the westerly shore of Owls Head [H]arbor, the other running westerly from said shore road parallel with the Harrison Emery line, the point of junction being three hundred and sixty[-]six feet from the Emery line and two rods from the edge of the bank; thence North 77 degrees West, or parallel with the Emery line on the south side of the second named reserved street one hundred and three feet....

The road "running on the westerly shore" is now Holiday Beach Road, and the reserved road "running westerly from said shore road" is the Reserved Way.

[¶7] Pierce later conveyed parcels by deed to Benjamin Williams on August 22, 1884 (the 1884 Williams deed), and April 13, 1885 (the 1885 Williams deed). The 1884 Williams deed describes the southern boundary of the Williams lot, which is now part of the Rogers lot, as running "[e]asterly by said reserved street [running parallel to the said Emery line] one hundred feet to first bound," with the first bound being "three hundred and thirty-three feet from the Emery line at the junction of two reserved streets." The reserved street described as running parallel to the Emery line is the Reserved Way, meaning the southern boundary of the Williams lot was the northern edge of the Reserved Way, located thirty-three feet, or two rods, north of what is now the Voncannon lot. Neither Pierce nor his successors in title ever conveyed Austin Avenue or the Reserved Way.

[¶8] The Carters purchased their lot in 2010. The language in their deed describing the lot originated in a deed dated October 29, 1969, by which Sam Pipicello conveyed parcels to Nelson R. and Dolores K. Ells (the Ells deed].^[4] In relevant part, the Ells deed conveyed

Lot[s] #4, #5, and the southwesterly portion of Lot #6 as delineated on plan of O.H. Tripp, C.E., entitled "Plan of Cottage Lots at [Holiday] Beach, South Thomaston, Maine, for sale by F.M. Smith." [the Tripp plan]

ALSO, all my right, title and interest in and to that portion of Austin Avenue, said reserve for a way not being opened and used, fronting and lying southeasterly of the parcel of land hereinabove conveyed.

ALSO, all my right, title and interest in and to a reserve for a way delineated on the aforesaid O.H. Tripp plan[,] which extends from Austin Avenue, at a point opposite the line dividing Lot #4 and Lot #5 aforesaid, to [Holiday Beach Road] and the shore, said reserve not being opened and used.

The Tripp plan referenced by the Ells deed is a generalized schematic drawing of much of the Holiday Beach neighborhood and is reproduced in relevant part in Figure 2.^[[5]]

(Image Omitted)

B. Usage of the Reserved Way

[¶9] Since 1980, the Voncannons and their predecessors-in-title have used the half of the Reserved Way abutting their property as a driveway and the only entrance to their property. Similarly, since 1934, the Rogerses and their predecessors-in-title have used the half of the Reserved Way abutting their property as a driveway and the only entrance to their property. The gravel driveways abut each other at the Reserved Way's intersection with Holiday Beach Road and then diverge to provide access to the Voncannons' and Rogerses' respective garages. Since purchasing their lots, the Voncannons and the Rogerses have always parked their cars on, and maintained the gravel surface on, their respective driveways.^[6] Since they purchased their lot in 2008, the Voncannons have also kept a backup generator on land adjacent to their house that is designated as the Reserved Way.

[¶10] Since at least the 1960s, the Voncannons, the Rogerses, and their predecessors have used the western portion and nongraveled eastern portion of the land designated as the Reserved Way as part of their yards, including by planting trees, pruning tree limbs, installing and mowing lawns, landscaping, planting and maintaining flower and vegetable gardens, composting, and using the area for picnics and storage. On plans of the area dating back to the late nineteenth century, the Voncannon house appears to slightly encroach on the Reserved Way. The Voncannons' and the Rogerses' predecessors-in-title did not, nor did they believe they needed to, seek permission of the Carters or the Carters' predecessors-in-title for these uses, and they openly spoke and behaved as if they each owned half of the Reserved Way.

[¶11] In 1999, the Rogerses' predecessor placed cinderblocks in the middle of the Reserved Way to demarcate what she and the Voncannons' predecessor considered to be the approximate boundary between their properties; more recently, the Voncannons and the Rogerses' predecessor agreed to a precise centerline based in part on land surveys. In 2019, the Carters helped replace the cinder blocks that demarcated the boundary line with stones.

[¶12] The Carters regularly interacted with the Voncannons' and Rogerses' predecessors prior to purchasing their lot in 2010.^[7] In his youth, when John Carter was in the area, he often mowed the lawn on the part of the Reserved Way that the Rogerses' predecessor believed was hers. After purchasing the Carter lot, the Carters requested the Rogerses' predecessor's permission before clearing brush or trimming the trees located on the Reserved Way and stopped doing so when that permission was withdrawn. Over the last ten years, the Carters also made some limited use of the Reserved Way as a path, mostly after being invited to do so by the Voncannons' or the Rogerses' predecessors-in-title.

C. Usage of Austin Avenue

[¶13] Austin Avenue has been, for most of its existence, an overgrown, natural hedge between various properties. The Ells deed described Austin Avenue as "not being opened and used." As far back as the late 1960s, the Voncannons' and the Rogerses' predecessors considered Austin Avenue their property to the centerline. Beginning in 2016, the Voncannons' and the Rogerses' predecessors cleared some of the brush so that they could use their part of Austin Avenue for planting lawns, shrubs, and flowers. Prior to these improvements, the Voncannons had made some use of Austin Avenue by mowing portions of it and maintaining a fenced-in compost pile.

[¶14] When the Carters began clearing the hedges, also in 2016 they marked the centerline of Austin Avenue with stakes and directed their son to clear the brush only to the west of those...