TRESPASS AND THE SURVEYOR | EASEMENTS BY ACQUIESCENCE AND ESTOPPEL
TRESPASS AND THE SURVEYOR
EASEMENTS BY ACQUIESCENCE AND ESTOPPEL
Maine Society of Land Surveyors
Fall Meeting 2010
Presented by Robert J. Piampiano
Piampiano Law Offices
Attorney at Law 45 Forest Falls Drive
Yarmouth, Maine 04096
207-846-4500
Cumberland Boundary Survey
Professional Land Surveyor
Yarmouth, Maine 04096
207-846-4000
TRESPASS AND THE SURVEYOR
A. Introduction. The practice of surveying often requires a surveyor or an assistant to locate and take measurements of monuments, buildings, stone walls, or other objects located on land owned by someone other than your client, or in situations where the ownership is uncertain. Maine surveyors are often hired to resolve boundary disputes in which litigation is imminent or has already started. In fact, the majority of trespass actions filed in Maine courts are brought as part of litigation to determine title to land. (See Maine Tort Law, 2004 Edition, by Simmons, Zillman and Gregory, § 5.01). The final resolution of who owns what, and therefore who trespassed and who did not, rests on a court decision that may not occur for two or three years. Yet the surveyor has to take to the field now, often at the request of one of the parties where the other party is hostile. This presentation will discuss the rights, obligations, and liabilities of a surveyor when the surveyor or persons working for the surveyor cross onto land of another for purposes of surveying.
B. Typical Surveying Situations. How many of you have found yourself in any of these situations:
1. Your client hires you to survey a particular parcel, thinking that he owns it. You go on the property and determine that it is owned by his neighbor, who was not contacted before you started work. Is this trespass? Who is liable?
2. You are running a traverse line along a steep slope on your client’s property near the boundary. You slip and fall, sending some of your equipment down the slope onto the land of the abutting property owner. If you retrieve it, is this trespass?
3. You are surveying a parcel owned by your client, but go onto an abutting parcel to locate some old iron pins. Jones, who claims to own the abutting parcel and has lived on it for years, sues you in trespass. A title search shows that Jones does not own the property. Will Jones win?
4. Assume that Jones claims ownership, but does not have record title, lives in California, and has not visited the property for years. Will Jones win?
5. Assume that Jones does have record title, but lives in California and has not visited the property in years. No one else has lived on the property. Will Jones win?
6. Your client hired a logger to cut trees and showed him where he thought the line was, but you determine after the cutting that the logger has gone over the line and cut some of the neighbor’s trees. Is your client liable in trespass? If so, does the neighbor get double or triple damages?
7. You go onto a piece of property to survey and the party who rents the property has a field for his horses comes out and orders you to get off. What do you do?
8. You send a letter under the new statute that permits surveyors to enter on land of another to the owner of an abutting parcel, using an address you got from the phone book. The letter comes back as undelivered. Are you liable in trespass if you enter the property?
9. You have complied with the new statute that permits surveyors to enter on land of another by sending a proper notice to the abutting landowner. When you get to the abutting parcel, you find that you need to cut a sight line back to the last traverse point, which is on your client’s land. Can you cut without liability? Can you put a new iron spike as a traverse point on the abutting parcel?
10. When you get to the abutting parcel referred to in Number 9, you start looking for an old pipe shown on a prior survey. It is not visible, but your metal detector gives a strong signal in the area where you expected to find it. Can you dig to find the pipe?
11. When you get to the abutting parcel referred to in Number 9, you go into an old barn by opening an unlocked door to get a better sight line to a monument you need to locate. What is your liability?
12. Having complied with the statute, you send your LSIT out to an abutting parcel to complete fieldwork on a project. The parcel contains a pond of less than 10 acres stocked with trout. On his lunch break, the LSIT takes out his fly rod and starts fishing, and is observed by the owner, who files a trespass action against the LSIT, you and your client. What are the liabilities of the defendants?
C. Trespass- A Bit of History. The law of trespass developed in medieval England as part of the common law. In ancient England, the king held the fee title to all land, and the great land barons were mere tenants, who had the “use” of the land. In 1536, however, the barons forced King Henry VIII to enact the Statute of Uses, which converted these “uses” to fee title giving them absolute ownership. The concept of trespass as a civil action predated the Statute of Uses and the creation of rights of ownership, and therefore, the essence of trespass was considered to be an interference with the right of possession, not necessarily ownership. Therefore, a person who is in legal possession of property by virtue of a lease, or constructive possession by virtue of a deed, or actual possession by virtue of adverse possession, can bring suit in trespass against another person who does not have any possessory rights, or whose right to possession is weaker.
In medieval England, the tort of trespass was considered to be an intentional tort, of which there were two primary forms. The first, trespass quare clausum fregit (“breaking the close”) was the form of action used when an individual entered upon the land of another without right or permission to do so. It was based on the legal fiction that a person’s property is surrounded by an invisible legal barrier, which is “broken” when trespass occurs. This form of trespass did not require actual damages to the property. Even if no damage occurred, nominal damages would be awarded as a deterrent to interfering with the owner or possessor’s right to use and enjoyment of the property. If actual damage did occur, the owner or possessor could recover these damages as well.
The second type, trespass de bonis asportatis (“entering and carrying away”) was used when someone came on the land and took something away, such as when timber was cut on another’s land. This is sometimes referred to as “trespass to chattels.” Under our modern law, both types of trespass are still recognized, and the modern term “trespass” includes both types. In Maine, a claim of trespass can be based on either the common law or on specific statutes, which are discussed below. The statutory forms deal primarily with situations where something has been removed or taken away, and are thus modern versions of the ancient tort of trespass de bonis asportatis.
D. What Is A Trespass?
Keeping in mind that trespass developed historically as an intentional tort to protect possessory rights to property, the definition and elements of trespass are as follows:
- Entry.
- Upon land owned or possessed by another.
- Without right or privilege to do so.
For a good discussion of the definition and elements of trespass, see Collomy v. S.A.D. 55, 710 A. 2d 893 (Me. 1998).
1. The Requirement of Entry with Intent. Since trespass is an intentional tort, it requires that entry on the land owned or possessed by another be with intent. An accidental or involuntary entry is not a trespass. Hayes v. Bushey, 160 Me. 14 (1964).
However, the “intent” required is minimal. It is the intent to be on the property you have entered, NOT the intent to enter on property that you know or believe to be owned or possessed by another. U.S. F. & G. v. Goodwin, 950 F. Supp. 24 (D. Me. 1996). Therefore, entry upon land of another under the negligent or mistaken belief that your client owns the property or that entry is lawful is still trespass.
2. Upon Land Owned or Possessed By Another. Since the essence of trespass is an interference with the right of use and possession, a trespass action can be maintained by (1) an owner; (2) a tenant or lessee; (3) an easement holder; (4) a licensee; (5) a mortgagee, or: (6) a person who has acquired non-record possessory rights by adverse possession, prescription, estoppel, acquiescence, or other possessory interests, so long as those possessory interests are stronger than any claimed by the trespasser. Therefore, a person in actual possession of the property without record title can maintain a trespass action against someone who is a mere trespasser with no right of possession. Tobey v. Dinsmore, 114 Me. 126, 95 A. 506 (Me. 1915).
Conversely, it is a defense to trespass if the plaintiff cannot show ownership, or a right to possession which is better than any claimed by the trespasser. Ripley v. Trash, 106 Me. 547 (1910).
The plaintiff in a trespass action must be in actual or constructive possession. Howe v. Farrar, 44 Me. 233 (1857). Therefore absence of actual or constructive possession is a defense. If the plaintiff has record title, but is not actually residing on the property, the law will imply that the plaintiff has constructive possession unless the defendant can prove otherwise. Thurston v. McMillan, 108 Me. 67, 78 A. 1122 (Me. 1911).
3. Without Right Or Privilege To Do So. The essence of trespass is an unauthorized entry on land of another. Foley v. H.F. Farnham Co., 188 A. 708, 135 Me. 29 (1936). No trespass occurs if the entry is with permission, or with a legal right to do so. A legal right to enter may be based on a deed establishing better title, an easement, a lease, a license, a valid non-record possessory claim based on adverse possession, prescription, estoppel, acquiescence or similar theories, or on a statute. Title 32 M.R.S.A. § 13913, a copy of which is attached, creates a limited right for surveyors and their assistants to enter property for purposes of surveying if certain pre-conditions are met. This statute will be discussed shortly. However, if a person enters land under the authority of law for a particular purpose, against the will of the occupant, but then uses this entry for some other purpose, or enters a part of the land where entry is not allowed, or damages or abuses the land, the original lawful entry becomes unlawful “ab initio” (as if it had been a trespass from the beginning). Boston and Maine R.R. v. Small, 85 Me. 462 (1893); Norton v. Craig, 68 Me. 275 (1878); Hatch v. Rose, 107 Me. 182, 77 A. 716 (Me. 1910).
If a surveyor enters property on the direction or authority of a client, and a trespass occurs, both the surveyor and the client would be jointly and severally liable for any trespass. Glidden v. Belden, 684 A. 2d 1306 (Me. 1996).
E. Damages For Trespass- How Much Are You Liable For?
In the common law form of trespass, the plaintiff is entitled to recover nominal damages even if no actual damages are done. Rollins v. Blackden, 112 Me. 120 (1874). If actual harm is done, actual damages are usually determined by the difference in value of the land before and after the damage. Borneman v. Milliken, 123 Me. 488. 124 A, 200 (Me. 1924). Where trees have been cut and removed, the value of the timber removed can be used as the measure of damages. Longfellow v. Quimby, 33 Me. 457 (1851). Punitive or exemplary damages, including attorneys’ fees, are usually not recoverable, unless the plaintiff can show conduct that was so egregious and outrageous as to be malicious and in bad faith. Soley v. Karil, 2004 ME. 89, 853 A. 3d 755. However, in most cases where actual damages occur or timber has been cut, the statutory forms of trespass discussed below are used, because the statute does provide for double and treble damages and some attorneys fees.
F. Statutory Forms of Trespass.
Maine has two statutory forms of civil trespass, and a specific statute covering land on which ten acres or more of wood is cut. All require some form of actual damage to be applicable. Maine statutes and common law also provide for criminal trespass in certain circumstances. Copies of these statutes are attached.
1. 14 M.R.S.A. § 7551-B is a general trespass statute that covers damage to specific types of property, including fences, gates, glass, roads, ditches, signs or any structure on the property, or the depositing of litter. Damages include actual damages, either measured by replacement value or cost of repair, and reasonable attorneys’ fees. Double damages are awarded if the damage was caused “intentionally.”
2. 14 M.R.S.A. § 7552 covers trespass which has resulted in damage or loss of agricultural products, Christmas trees and evergreen boughs, or forest products including timber. It also covers disturbing, removing, or destroying:
“any lawfully established transit point, reference point, stake plug, hub, guardstake, bench mark, pipe, iron, concrete post, stone post or other monument of any railroad, highway, public utility or other engineering location or survey or any such monument marking the bounds of public or private property.”
Damage to agricultural or forest products are measured by either the value of the products themselves, or the diminution in value of the land, whichever is greater. Where lost trees are involved, the owner may claim the cost of regeneration of the stand in lieu of other damages.
Normally, double damages are awarded where the trespass and damages resulted from negligence or without fault. If the trespass and damages were “intentional or knowing,” treble damages are awarded. In either case, professional fees, including surveyor’s costs, fees of a licensed professional forester, and attorneys’ fees are awarded up to 50% of the amount of damages recovered plus interest, if the defendant has written notice or actual knowledge that a claim is being asserted.
3. 14 M.R.S.A. § 7552-A requires that any person cutting wood on 10 or more acres of property “clearly mark any property lines within 200 feet of the area to be cut.” If the boundary is not marked, and if unauthorized cutting occurs on an abutting parcel, the owner who failed to mark the lines is liable in double damages to the abutting landowner, in addition to any damages the abutting landowner may get under § 7552. Thus, for cuts of 10 or more acres, failure to properly mark the boundaries could lead to damages which are quintupled.
4. What is “Intentional or Knowing” For Purposes of the Statutes?
In order to obtain double damages under § 7551-B, the damages must have been caused “intentionally.” Under § 7552, the normal recovery is double damages. Treble damages are recovered if the defendant “intentionally or knowingly” causes damage.
a. Knowingly. The term “knowingly” as it appears in § 7552, has been a part of the statute for several years. In Fraser v. Barton, 628 A. 2d 146 (Me. 1993), the Maine Supreme Court held in a case involving a wrongful timber cutting claim under § 7552 that:
“For defendants to have acted knowingly, they must have been subjectively aware that the cutting was Improperly occurring on another’s land.”
Also, see Bonk v. McPherson, 605 A. 2d 74 (Me. 1992). The Court further held in Fraser that “knowledge that might lead an ordinary and prudent person to make further inquiry is insufficient.” It would therefore appear to be very difficult to meet the “knowing” standard of Section 7552.
b. Intentionally. There are no cases interpreting the “intentional” requirement of § 7551-B or § 7552. It is uncertain if the “intentional” standard is the same in both statutes (where one statute awards double damages and one awards treble damages), and uncertain if the general intent required to prove trespass (the intent to be on the land without the intent to trespass) is sufficient.
The “intentional” requirement for treble damages under § 7552 is relatively new. A prior version of the statute allowed treble damages if the defendant acted “willfully or knowingly”. See Trembley v. DiCicco, 623 A. 2d 141 (Me. 1993)[1] It is generally accepted that the “intentional” standard is a lesser standard than the “willful” standard that it replaced, which required proof that the trespass was committed with “an utter and complete indifference to and disregard for the rights of others.” Thus, it appears that under the “intentional” standard of the current statute, treble damages can be awarded for conduct that is even less than “an utter and complete indifference to and disregard for the rights of others. Until there is case law interpreting the meaning of “intentional” in these statutes, surveyors and others must assume that it is now easier to get treble damages for trespass.
5. Tile 17-A M.R.S.A. § 402 makes trespass a criminal offense if any dwelling place, locked or barred structure, or property that has been posted properly, is entered without license or privilege to do so. Entering a dwelling place is a Class D crime punishable by imprisonment up to 1 year and a $2,000 fine. All other violations are Class E crimes, subject to imprisonment for up to 6 months and a $1,000 fine.
G. 32 M.R.S.A. § 13951: Surveyor’s Limited Right of Entry.
As previously discussed, it is a defense to a claim of trespass if the person entering the land does so pursuant to statutory authority, even if the person owning or occupying the land does not consent.
Effective May 15, 2003, 32 M.R.S.A. § 13951 became law and gives surveyors a limited right of entry if certain preconditions are met. A copy of the statute is attached. If the terms and conditions of the statute are not followed, then a surveyor or his crew entering on to the land of another without permission is trespassing.
1. What Does the Statute Allow? The statute allows a professional land surveyor or the surveyor’s assistants, without the consent of the owner or person in possession, to enter or cross any lands necessary to perform surveying services. The term “surveying services” is not defined, but it is clear that under the statute the right of entry is limited both as to persons who may enter and the purpose for which they may enter. If the person entering the property was not a licensed surveyor or working under the direction of a surveyor, entry would constitute a trespass. If the person entering the property does anything other than surveying work, the entry would become a trespass “ab initio” under the Boston and Maine R.R. v. Small case discussed previously.
The scope of surveying services that are allowed, however, is not clear. The statute specifically prohibits any action that intentionally damages, injures, destroys or moves any “object, chattel or item,” or entering any building or structure used as a residence or storage without the express permission of the landowner or person in possession. This raises the question of whether sight lines may be cut, whether subsurface pipes or monuments can be dug up, or what type of traverse or control points may be put in the ground. These activities are clearly part of typical “surveying services” which are allowed by the statute, but may create some damage or movement to land or items on the land. At a minimum, any control points should be temporary or below grade, and significant trees, branches, or brush should not be cut on land where permission has not been obtained.
If branches or brush are cut and it is determined that this exceeds the scope of permitted activities, then the surveyor may be liable for double or treble damages and attorneys’ fees under 14 M.R.S.A. Sections 7551-B or 7552.
2. What Must Be Done Before Entry?
A. Written Notice. If a surveyor intends to use the statute as the basis for authority to enter, before entry occurs, the surveyor must “make reasonable effort to notify the landowner”. The statute does not specify what “reasonable effort to notify” might be in every case, but does specify two methods that will constitute reasonable notice. The two methods are:
(1) Written notice delivered by hand to the landowner or to the landowner’s residence at least 24 hours in advance of entry, or;
(2) Written notice mailed by first class mail, postmarked at least 5 days prior to entry. The statute provides that the surveyor may rely on the address of the landowner listed in municipal tax records for purposes of sending notice. Note that the statute does not require certified or registered mail, but some proof of mailing, such as a copy of the letter and the envelope, should be kept by the surveyor.
B. What Type of Notice is Sufficient? The statute does not specify what type of notice should be given. Presumably, it should advise the landowner of the fact that you may be coming onto the property to do survey work, that no damage will be done, that persons coming on the property will have proper identification, and providing a telephone contact number. A sample letter which should meet the requirements of the statute is attached. In addition to providing notice, this letter invites the abutting landowner to provide information in the form of old surveys, identifying the location of existing boundary markers, or other information that may be helpful to your survey work.
3. After Entry Occurs. After a surveyor or his assistants have entered on the property, the right to remain is conditioned on the surveyor or his assistants:
(1) Carrying proper identification, which must be displayed upon request; and
(2) Complying with all necessary federal or state safety rules and regulations.
If any of these ongoing conditions are violated, then the entry would constitute a trespass.
4. How Useful Is the Statute? At the time it was proposed, 32 M.R.S.A. § 13912 was not popular with many people. Since it was passed, it continues to be the subject of discussion at the legislature. Any cases of significant abuse would harm its chances to remain on the statute books. The statue itself, as detailed above, gives only a limited right of entry and leaves many questions unanswered.
Therefore, entering land of another with permission, if it can be obtained, is always better than relying on the statute. The statute should be used only when other options are not available, and if it is used, it should be followed strictly.
Any violation of the statute is likely to be viewed by a court as a trespass for which the surveyor, and the surveyor’s client, will be held liable. If trees or shrubs are cut or damaged, or the soil disturbed, that liability may include double or triple damages and attorneys’ fees.
EASEMENTS BY ACQUIESCENCE OR ESTOPPEL
A. Introduction. Surveyors are familiar with the fact that property rights in Maine do not always rest on record title in the form of deeds or easements properly recorded in the Registry. Often such rights are based on actual use and possession over long periods of time which have been accepted or gone unchallenged by the record title holder. Various theories of possession are recognized in Maine, including adverse possession, prescriptive easements, parol agreement, practical location, acquiescence, and estoppel.
The problem for the surveyor is that because such rights are unrecorded, and usually are not asserted until a boundary dispute arises, the exact nature, location, and extent of such property interests are often undetermined when a survey is first done. It is not the job of the surveyor to determine whether such rights have been acquired, or to determine the full extent of the property they cover. That is ultimately a legal question for lawyers and the courts.
However, under current Standards of Practice for Maine surveyors, the surveyor is required to locate and show on a survey any apparent possession boundaries or visible encumbrances, such as a road, stone wall, drainage ditch, septic field, or other areas that may evidence actual possession by someone other than the record title owner. (See Chapter 90, Standards of Practice, Part 2, Technical Standards, § 6(2)). Although the surveyor should not give legal advice or make legal decisions, the surveyor’s work is nevertheless invaluable in assisting lawyers and judges to do so. In deciding what to show on a survey, surveyors must have a general working knowledge of the various theories by which possessory interests can be acquired and recognized in Maine, and the fact that it is relatively easy in this State to acquire such interests.
And, consistent with our discussion of trespass, it is important to understand that if such possessory interests are acquired, a valid possessory interest recognized by a court is a defense to trespass. Therefore, it is very common for non-record possessory interests to be asserted and determined in the context of trespass and quiet title actions.
One common misconception is that it takes 20 years of open, notorious, hostile possession to acquire any legal rights. WRONG. Maine law is clear that such rights can be acquired in much shorter periods of time without hostility. This presentation will address two theories of possession, acquiescence and estoppel, that allow for acquisition of interests, either in the form of fee title or an easement, in a very few years.
B. Acquiescence. Under Maine law, a party asserting a legal interest in property by acquiescence must prove four elements by clear and convincing evidence:
1. Possession up to a visible line marked clearly by monuments, fences or the like.
2. Actual or constructive notice to the adjoining landowner of the possession.
3. Conduct by the adjoining landowner from which recognition and acquiescence not induced by fraud or mistake can be fairly inferred.
4. Acquiescence for a “long period of years” such that the policy behind the doctrine is well served by recognizing the boundary.
See Downey v. Morency, 737 A. 2d 1061, 1999 ME 137; Stickney v. City of Saco, 770 A. 2d 592, 2001 ME 69; Calthorpe v. Abrahamsen, 441 A. 2d 284 (Me. 1982).
The essence of acquiescence is that the “passive assent or submission to use” by the abutting property owner creates “consent by silence” from which it may be fairly implied that an implicit agreement has been reached regarding the location of the boundary. It differs from adverse possession, in that there is no “hostility” since an implied agreement is involved. It differs from parol agreement in that there is no affirmative “laying out” or agreement as to the location of the line. Town of Manchester v. Augusta Country Club, 477 A. 2d 1124 (Me. 1984); Dartnell v. Bidwell, 115 Me. 227, 98 A. 743 (Me. 1916). A boundary by acquiescence may be proven even if the deeds clearly indicate the location of the boundary in a different place. Downey v. Morency, 737 A. 2d at 1067.
To prove acquiescence, “possession up to a visible line marked clearly by monuments, fences, or the like” is required. However, unlike adverse possession or prescription, uninterrupted or exclusive possession is not required. Possession is sufficient if it “provides notice of the claim” Marja Corp. v. Allain, 622 A. 2d 1182, 1185 (Me.1993). Where adverse possession or prescription is claimed, mistake as to the location of a boundary does not destroy “hostility.” See Title 14 M.R.S.A. § 810-A. Where acquiescence is alleged, mistake as to the location of a boundary would appear to be a defense.
The requirement of a clearly marked visible line can be met by an old roadway, Marja, 622 A. 2d at 1184, or a hedge, Davis v. Mitchell, 628 A. 2d 657, 660 (Me. 1993), but the edge of a hayfield without further monuments, or the mere cutting of grass is insufficient to prove a visible line of occupation. Crosby v. Baizley, 642 A. 2d 150.153 (Me. 1994); Davis, 628 A. 2d at 660.
One important difference between acquiescence and adverse possession or prescription is that no particular period of years is required to establish acquiescence. A period of years such that “the policy behind the doctrine of acquiescence is well served by recognizing the boundary” is sufficient. The public policy to be served is the prevention of “unsettling established property boundaries.” Calthorpe v. Abrahamson, Id. Cases in Maine have recognized boundaries by acquiescence based on possession for as little as 6 or 7 years.
Therefore, although acquiescence must be proven by “clear and convincing evidence,”[2] possessory rights based on this doctrine can be acquired in a relatively short period of time.
C. Estoppel. Another theory of possession that does not require a particular period of years or “hostility” is estoppel, sometimes called “equitable estoppel” or “estoppel in pais.” It can be used to acquire either a fee interest or an easement, and, if recognized by a court, is a defense to a claim of trespass.
1. Elements of Estoppel. The essence of estoppel is that a record owner or person in possession is prevented from asserting title or possession when, by his or her conduct, another person is induced to act to their detriment. Intent to deceive or harm the other person is not required. Conduct may be affirmative or passive. Silence or failure to act may be sufficient when the duty to speak to protect one’s legal rights is evident from the circumstances. Estoppel, like acquiescence, must be proved by clear and convincing evidence. Littlefield v. Adler, 676 A. 2d 940 (Me. 1996); Stickney v. City of Saco
, 2001 ME 69, 770 A. 2d 592. The elements of estoppel are:
(1) Action or inaction by the party against whom the estoppel is asserted;
(2) Reasonably relied upon by the party asserting estoppel;
(3) To the detriment of the party asserting the estoppel.
See Young v. Brennan, 105 Me. 494 (1909);
2. A True Story. In 1992 the Posts, from Pennsylvania, purchased a lakefront lot with an old cottage at Little Sebago Lake. Their neighbors were the Gales, from Arizona, who purchased the abutting lot in 1975. For twelve years the parties were friends, meeting often during the summer months, keeping in touch during the winter. In 2004, the Posts decided to tear down the old cottage and build a new year round house, oriented to the southwest to take maximum advantage of passive solar features, with lots of glass in front. This placed their unobstructed view of the lake across a corner of the Gale’s property. Before starting to build, the Posts developed detailed architectural plans showing the orientation of the house, which they shared with the Gales, seeking their suggestions for improvement. The Gales commented on the solar features and recommended that the Posts add more glass in front to improve the view and solar gain, suggestions which the Posts incorporated into the final plans and orientation. The Posts had another view of the lake more to the northwest, but chose to sight the house using the view across the Gale’s property.
Construction began in 2004, with the laying of the foundation in October. and the house was finished in early 2006. Just before Fourth of July weekend in 2006, the Posts arrived with a rental truck full of furniture for the new house. As they came up the lane and turned into their driveway toward the lake, they were in for a surprise. (See Photos attached.)
Litigation ensued and in 2008, the Cumberland County Superior Court issued its decision.
What theories did the Posts utilize in their suit against the Gales?
How did the Court rule?
What relief was granted?
What theories did the Court rely on?
© Piampiano Law Offices 2010. Individual copies may be re-printed by members of the Maine Society of Land Surveyors for personal use. Further duplication by permission only.
[1] ). In Trembley, the court stated that “willful” conduct for purposes of the former version of § 7552 meant conduct that “displays an utter and complete indifference to and disregard for the rights of others.” In Trembley, the defendant knew that the location of a boundary was in dispute, but nevertheless tore up some plants and shrubs planted by the Trembleys without obtaining a survey or getting a court determination. The Maine Supreme Court found that this action was “willful” under § 7552. In Glidden v. Belden, 684 A. 2d 1306 (Me. 1996) the court reached a similar result when the defendants, knowing that there was a dispute as to ownership of a road, bulldozed it believing that they had prescriptive rights to do so before any survey or court determination.
[2] “Clear and convincing evidence” is a higher standard of proof requiring the party asserting acquiescence to offer proof sufficient to “place in the ultimate fact finder an abiding conviction that their factual contentions are highly probable.” Randall v. Conley, 2010 ME 68.
EASEMENTS BY ACQUIESCENCE AND ESTOPPEL
Maine Society of Land Surveyors
Fall Meeting 2010
Presented by Robert J. Piampiano
Piampiano Law Offices
Attorney at Law 45 Forest Falls Drive
Yarmouth, Maine 04096
207-846-4500
Cumberland Boundary Survey
Professional Land Surveyor
Yarmouth, Maine 04096
207-846-4000
TRESPASS AND THE SURVEYOR
A. Introduction. The practice of surveying often requires a surveyor or an assistant to locate and take measurements of monuments, buildings, stone walls, or other objects located on land owned by someone other than your client, or in situations where the ownership is uncertain. Maine surveyors are often hired to resolve boundary disputes in which litigation is imminent or has already started. In fact, the majority of trespass actions filed in Maine courts are brought as part of litigation to determine title to land. (See Maine Tort Law, 2004 Edition, by Simmons, Zillman and Gregory, § 5.01). The final resolution of who owns what, and therefore who trespassed and who did not, rests on a court decision that may not occur for two or three years. Yet the surveyor has to take to the field now, often at the request of one of the parties where the other party is hostile. This presentation will discuss the rights, obligations, and liabilities of a surveyor when the surveyor or persons working for the surveyor cross onto land of another for purposes of surveying.
B. Typical Surveying Situations. How many of you have found yourself in any of these situations:
1. Your client hires you to survey a particular parcel, thinking that he owns it. You go on the property and determine that it is owned by his neighbor, who was not contacted before you started work. Is this trespass? Who is liable?
2. You are running a traverse line along a steep slope on your client’s property near the boundary. You slip and fall, sending some of your equipment down the slope onto the land of the abutting property owner. If you retrieve it, is this trespass?
3. You are surveying a parcel owned by your client, but go onto an abutting parcel to locate some old iron pins. Jones, who claims to own the abutting parcel and has lived on it for years, sues you in trespass. A title search shows that Jones does not own the property. Will Jones win?
4. Assume that Jones claims ownership, but does not have record title, lives in California, and has not visited the property for years. Will Jones win?
5. Assume that Jones does have record title, but lives in California and has not visited the property in years. No one else has lived on the property. Will Jones win?
6. Your client hired a logger to cut trees and showed him where he thought the line was, but you determine after the cutting that the logger has gone over the line and cut some of the neighbor’s trees. Is your client liable in trespass? If so, does the neighbor get double or triple damages?
7. You go onto a piece of property to survey and the party who rents the property has a field for his horses comes out and orders you to get off. What do you do?
8. You send a letter under the new statute that permits surveyors to enter on land of another to the owner of an abutting parcel, using an address you got from the phone book. The letter comes back as undelivered. Are you liable in trespass if you enter the property?
9. You have complied with the new statute that permits surveyors to enter on land of another by sending a proper notice to the abutting landowner. When you get to the abutting parcel, you find that you need to cut a sight line back to the last traverse point, which is on your client’s land. Can you cut without liability? Can you put a new iron spike as a traverse point on the abutting parcel?
10. When you get to the abutting parcel referred to in Number 9, you start looking for an old pipe shown on a prior survey. It is not visible, but your metal detector gives a strong signal in the area where you expected to find it. Can you dig to find the pipe?
11. When you get to the abutting parcel referred to in Number 9, you go into an old barn by opening an unlocked door to get a better sight line to a monument you need to locate. What is your liability?
12. Having complied with the statute, you send your LSIT out to an abutting parcel to complete fieldwork on a project. The parcel contains a pond of less than 10 acres stocked with trout. On his lunch break, the LSIT takes out his fly rod and starts fishing, and is observed by the owner, who files a trespass action against the LSIT, you and your client. What are the liabilities of the defendants?
C. Trespass- A Bit of History. The law of trespass developed in medieval England as part of the common law. In ancient England, the king held the fee title to all land, and the great land barons were mere tenants, who had the “use” of the land. In 1536, however, the barons forced King Henry VIII to enact the Statute of Uses, which converted these “uses” to fee title giving them absolute ownership. The concept of trespass as a civil action predated the Statute of Uses and the creation of rights of ownership, and therefore, the essence of trespass was considered to be an interference with the right of possession, not necessarily ownership. Therefore, a person who is in legal possession of property by virtue of a lease, or constructive possession by virtue of a deed, or actual possession by virtue of adverse possession, can bring suit in trespass against another person who does not have any possessory rights, or whose right to possession is weaker.
In medieval England, the tort of trespass was considered to be an intentional tort, of which there were two primary forms. The first, trespass quare clausum fregit (“breaking the close”) was the form of action used when an individual entered upon the land of another without right or permission to do so. It was based on the legal fiction that a person’s property is surrounded by an invisible legal barrier, which is “broken” when trespass occurs. This form of trespass did not require actual damages to the property. Even if no damage occurred, nominal damages would be awarded as a deterrent to interfering with the owner or possessor’s right to use and enjoyment of the property. If actual damage did occur, the owner or possessor could recover these damages as well.
The second type, trespass de bonis asportatis (“entering and carrying away”) was used when someone came on the land and took something away, such as when timber was cut on another’s land. This is sometimes referred to as “trespass to chattels.” Under our modern law, both types of trespass are still recognized, and the modern term “trespass” includes both types. In Maine, a claim of trespass can be based on either the common law or on specific statutes, which are discussed below. The statutory forms deal primarily with situations where something has been removed or taken away, and are thus modern versions of the ancient tort of trespass de bonis asportatis.
D. What Is A Trespass?
Keeping in mind that trespass developed historically as an intentional tort to protect possessory rights to property, the definition and elements of trespass are as follows:
- Entry.
- Upon land owned or possessed by another.
- Without right or privilege to do so.
For a good discussion of the definition and elements of trespass, see Collomy v. S.A.D. 55, 710 A. 2d 893 (Me. 1998).
1. The Requirement of Entry with Intent. Since trespass is an intentional tort, it requires that entry on the land owned or possessed by another be with intent. An accidental or involuntary entry is not a trespass. Hayes v. Bushey, 160 Me. 14 (1964).
However, the “intent” required is minimal. It is the intent to be on the property you have entered, NOT the intent to enter on property that you know or believe to be owned or possessed by another. U.S. F. & G. v. Goodwin, 950 F. Supp. 24 (D. Me. 1996). Therefore, entry upon land of another under the negligent or mistaken belief that your client owns the property or that entry is lawful is still trespass.
2. Upon Land Owned or Possessed By Another. Since the essence of trespass is an interference with the right of use and possession, a trespass action can be maintained by (1) an owner; (2) a tenant or lessee; (3) an easement holder; (4) a licensee; (5) a mortgagee, or: (6) a person who has acquired non-record possessory rights by adverse possession, prescription, estoppel, acquiescence, or other possessory interests, so long as those possessory interests are stronger than any claimed by the trespasser. Therefore, a person in actual possession of the property without record title can maintain a trespass action against someone who is a mere trespasser with no right of possession. Tobey v. Dinsmore, 114 Me. 126, 95 A. 506 (Me. 1915).
Conversely, it is a defense to trespass if the plaintiff cannot show ownership, or a right to possession which is better than any claimed by the trespasser. Ripley v. Trash, 106 Me. 547 (1910).
The plaintiff in a trespass action must be in actual or constructive possession. Howe v. Farrar, 44 Me. 233 (1857). Therefore absence of actual or constructive possession is a defense. If the plaintiff has record title, but is not actually residing on the property, the law will imply that the plaintiff has constructive possession unless the defendant can prove otherwise. Thurston v. McMillan, 108 Me. 67, 78 A. 1122 (Me. 1911).
3. Without Right Or Privilege To Do So. The essence of trespass is an unauthorized entry on land of another. Foley v. H.F. Farnham Co., 188 A. 708, 135 Me. 29 (1936). No trespass occurs if the entry is with permission, or with a legal right to do so. A legal right to enter may be based on a deed establishing better title, an easement, a lease, a license, a valid non-record possessory claim based on adverse possession, prescription, estoppel, acquiescence or similar theories, or on a statute. Title 32 M.R.S.A. § 13913, a copy of which is attached, creates a limited right for surveyors and their assistants to enter property for purposes of surveying if certain pre-conditions are met. This statute will be discussed shortly. However, if a person enters land under the authority of law for a particular purpose, against the will of the occupant, but then uses this entry for some other purpose, or enters a part of the land where entry is not allowed, or damages or abuses the land, the original lawful entry becomes unlawful “ab initio” (as if it had been a trespass from the beginning). Boston and Maine R.R. v. Small, 85 Me. 462 (1893); Norton v. Craig, 68 Me. 275 (1878); Hatch v. Rose, 107 Me. 182, 77 A. 716 (Me. 1910).
If a surveyor enters property on the direction or authority of a client, and a trespass occurs, both the surveyor and the client would be jointly and severally liable for any trespass. Glidden v. Belden, 684 A. 2d 1306 (Me. 1996).
E. Damages For Trespass- How Much Are You Liable For?
In the common law form of trespass, the plaintiff is entitled to recover nominal damages even if no actual damages are done. Rollins v. Blackden, 112 Me. 120 (1874). If actual harm is done, actual damages are usually determined by the difference in value of the land before and after the damage. Borneman v. Milliken, 123 Me. 488. 124 A, 200 (Me. 1924). Where trees have been cut and removed, the value of the timber removed can be used as the measure of damages. Longfellow v. Quimby, 33 Me. 457 (1851). Punitive or exemplary damages, including attorneys’ fees, are usually not recoverable, unless the plaintiff can show conduct that was so egregious and outrageous as to be malicious and in bad faith. Soley v. Karil, 2004 ME. 89, 853 A. 3d 755. However, in most cases where actual damages occur or timber has been cut, the statutory forms of trespass discussed below are used, because the statute does provide for double and treble damages and some attorneys fees.
F. Statutory Forms of Trespass.
Maine has two statutory forms of civil trespass, and a specific statute covering land on which ten acres or more of wood is cut. All require some form of actual damage to be applicable. Maine statutes and common law also provide for criminal trespass in certain circumstances. Copies of these statutes are attached.
1. 14 M.R.S.A. § 7551-B is a general trespass statute that covers damage to specific types of property, including fences, gates, glass, roads, ditches, signs or any structure on the property, or the depositing of litter. Damages include actual damages, either measured by replacement value or cost of repair, and reasonable attorneys’ fees. Double damages are awarded if the damage was caused “intentionally.”
2. 14 M.R.S.A. § 7552 covers trespass which has resulted in damage or loss of agricultural products, Christmas trees and evergreen boughs, or forest products including timber. It also covers disturbing, removing, or destroying:
“any lawfully established transit point, reference point, stake plug, hub, guardstake, bench mark, pipe, iron, concrete post, stone post or other monument of any railroad, highway, public utility or other engineering location or survey or any such monument marking the bounds of public or private property.”
Damage to agricultural or forest products are measured by either the value of the products themselves, or the diminution in value of the land, whichever is greater. Where lost trees are involved, the owner may claim the cost of regeneration of the stand in lieu of other damages.
Normally, double damages are awarded where the trespass and damages resulted from negligence or without fault. If the trespass and damages were “intentional or knowing,” treble damages are awarded. In either case, professional fees, including surveyor’s costs, fees of a licensed professional forester, and attorneys’ fees are awarded up to 50% of the amount of damages recovered plus interest, if the defendant has written notice or actual knowledge that a claim is being asserted.
3. 14 M.R.S.A. § 7552-A requires that any person cutting wood on 10 or more acres of property “clearly mark any property lines within 200 feet of the area to be cut.” If the boundary is not marked, and if unauthorized cutting occurs on an abutting parcel, the owner who failed to mark the lines is liable in double damages to the abutting landowner, in addition to any damages the abutting landowner may get under § 7552. Thus, for cuts of 10 or more acres, failure to properly mark the boundaries could lead to damages which are quintupled.
4. What is “Intentional or Knowing” For Purposes of the Statutes?
In order to obtain double damages under § 7551-B, the damages must have been caused “intentionally.” Under § 7552, the normal recovery is double damages. Treble damages are recovered if the defendant “intentionally or knowingly” causes damage.
a. Knowingly. The term “knowingly” as it appears in § 7552, has been a part of the statute for several years. In Fraser v. Barton, 628 A. 2d 146 (Me. 1993), the Maine Supreme Court held in a case involving a wrongful timber cutting claim under § 7552 that:
“For defendants to have acted knowingly, they must have been subjectively aware that the cutting was Improperly occurring on another’s land.”
Also, see Bonk v. McPherson, 605 A. 2d 74 (Me. 1992). The Court further held in Fraser that “knowledge that might lead an ordinary and prudent person to make further inquiry is insufficient.” It would therefore appear to be very difficult to meet the “knowing” standard of Section 7552.
b. Intentionally. There are no cases interpreting the “intentional” requirement of § 7551-B or § 7552. It is uncertain if the “intentional” standard is the same in both statutes (where one statute awards double damages and one awards treble damages), and uncertain if the general intent required to prove trespass (the intent to be on the land without the intent to trespass) is sufficient.
The “intentional” requirement for treble damages under § 7552 is relatively new. A prior version of the statute allowed treble damages if the defendant acted “willfully or knowingly”. See Trembley v. DiCicco, 623 A. 2d 141 (Me. 1993)[1] It is generally accepted that the “intentional” standard is a lesser standard than the “willful” standard that it replaced, which required proof that the trespass was committed with “an utter and complete indifference to and disregard for the rights of others.” Thus, it appears that under the “intentional” standard of the current statute, treble damages can be awarded for conduct that is even less than “an utter and complete indifference to and disregard for the rights of others. Until there is case law interpreting the meaning of “intentional” in these statutes, surveyors and others must assume that it is now easier to get treble damages for trespass.
5. Tile 17-A M.R.S.A. § 402 makes trespass a criminal offense if any dwelling place, locked or barred structure, or property that has been posted properly, is entered without license or privilege to do so. Entering a dwelling place is a Class D crime punishable by imprisonment up to 1 year and a $2,000 fine. All other violations are Class E crimes, subject to imprisonment for up to 6 months and a $1,000 fine.
G. 32 M.R.S.A. § 13951: Surveyor’s Limited Right of Entry.
As previously discussed, it is a defense to a claim of trespass if the person entering the land does so pursuant to statutory authority, even if the person owning or occupying the land does not consent.
Effective May 15, 2003, 32 M.R.S.A. § 13951 became law and gives surveyors a limited right of entry if certain preconditions are met. A copy of the statute is attached. If the terms and conditions of the statute are not followed, then a surveyor or his crew entering on to the land of another without permission is trespassing.
1. What Does the Statute Allow? The statute allows a professional land surveyor or the surveyor’s assistants, without the consent of the owner or person in possession, to enter or cross any lands necessary to perform surveying services. The term “surveying services” is not defined, but it is clear that under the statute the right of entry is limited both as to persons who may enter and the purpose for which they may enter. If the person entering the property was not a licensed surveyor or working under the direction of a surveyor, entry would constitute a trespass. If the person entering the property does anything other than surveying work, the entry would become a trespass “ab initio” under the Boston and Maine R.R. v. Small case discussed previously.
The scope of surveying services that are allowed, however, is not clear. The statute specifically prohibits any action that intentionally damages, injures, destroys or moves any “object, chattel or item,” or entering any building or structure used as a residence or storage without the express permission of the landowner or person in possession. This raises the question of whether sight lines may be cut, whether subsurface pipes or monuments can be dug up, or what type of traverse or control points may be put in the ground. These activities are clearly part of typical “surveying services” which are allowed by the statute, but may create some damage or movement to land or items on the land. At a minimum, any control points should be temporary or below grade, and significant trees, branches, or brush should not be cut on land where permission has not been obtained.
If branches or brush are cut and it is determined that this exceeds the scope of permitted activities, then the surveyor may be liable for double or treble damages and attorneys’ fees under 14 M.R.S.A. Sections 7551-B or 7552.
2. What Must Be Done Before Entry?
A. Written Notice. If a surveyor intends to use the statute as the basis for authority to enter, before entry occurs, the surveyor must “make reasonable effort to notify the landowner”. The statute does not specify what “reasonable effort to notify” might be in every case, but does specify two methods that will constitute reasonable notice. The two methods are:
(1) Written notice delivered by hand to the landowner or to the landowner’s residence at least 24 hours in advance of entry, or;
(2) Written notice mailed by first class mail, postmarked at least 5 days prior to entry. The statute provides that the surveyor may rely on the address of the landowner listed in municipal tax records for purposes of sending notice. Note that the statute does not require certified or registered mail, but some proof of mailing, such as a copy of the letter and the envelope, should be kept by the surveyor.
B. What Type of Notice is Sufficient? The statute does not specify what type of notice should be given. Presumably, it should advise the landowner of the fact that you may be coming onto the property to do survey work, that no damage will be done, that persons coming on the property will have proper identification, and providing a telephone contact number. A sample letter which should meet the requirements of the statute is attached. In addition to providing notice, this letter invites the abutting landowner to provide information in the form of old surveys, identifying the location of existing boundary markers, or other information that may be helpful to your survey work.
3. After Entry Occurs. After a surveyor or his assistants have entered on the property, the right to remain is conditioned on the surveyor or his assistants:
(1) Carrying proper identification, which must be displayed upon request; and
(2) Complying with all necessary federal or state safety rules and regulations.
If any of these ongoing conditions are violated, then the entry would constitute a trespass.
4. How Useful Is the Statute? At the time it was proposed, 32 M.R.S.A. § 13912 was not popular with many people. Since it was passed, it continues to be the subject of discussion at the legislature. Any cases of significant abuse would harm its chances to remain on the statute books. The statue itself, as detailed above, gives only a limited right of entry and leaves many questions unanswered.
Therefore, entering land of another with permission, if it can be obtained, is always better than relying on the statute. The statute should be used only when other options are not available, and if it is used, it should be followed strictly.
Any violation of the statute is likely to be viewed by a court as a trespass for which the surveyor, and the surveyor’s client, will be held liable. If trees or shrubs are cut or damaged, or the soil disturbed, that liability may include double or triple damages and attorneys’ fees.
EASEMENTS BY ACQUIESCENCE OR ESTOPPEL
A. Introduction. Surveyors are familiar with the fact that property rights in Maine do not always rest on record title in the form of deeds or easements properly recorded in the Registry. Often such rights are based on actual use and possession over long periods of time which have been accepted or gone unchallenged by the record title holder. Various theories of possession are recognized in Maine, including adverse possession, prescriptive easements, parol agreement, practical location, acquiescence, and estoppel.
The problem for the surveyor is that because such rights are unrecorded, and usually are not asserted until a boundary dispute arises, the exact nature, location, and extent of such property interests are often undetermined when a survey is first done. It is not the job of the surveyor to determine whether such rights have been acquired, or to determine the full extent of the property they cover. That is ultimately a legal question for lawyers and the courts.
However, under current Standards of Practice for Maine surveyors, the surveyor is required to locate and show on a survey any apparent possession boundaries or visible encumbrances, such as a road, stone wall, drainage ditch, septic field, or other areas that may evidence actual possession by someone other than the record title owner. (See Chapter 90, Standards of Practice, Part 2, Technical Standards, § 6(2)). Although the surveyor should not give legal advice or make legal decisions, the surveyor’s work is nevertheless invaluable in assisting lawyers and judges to do so. In deciding what to show on a survey, surveyors must have a general working knowledge of the various theories by which possessory interests can be acquired and recognized in Maine, and the fact that it is relatively easy in this State to acquire such interests.
And, consistent with our discussion of trespass, it is important to understand that if such possessory interests are acquired, a valid possessory interest recognized by a court is a defense to trespass. Therefore, it is very common for non-record possessory interests to be asserted and determined in the context of trespass and quiet title actions.
One common misconception is that it takes 20 years of open, notorious, hostile possession to acquire any legal rights. WRONG. Maine law is clear that such rights can be acquired in much shorter periods of time without hostility. This presentation will address two theories of possession, acquiescence and estoppel, that allow for acquisition of interests, either in the form of fee title or an easement, in a very few years.
B. Acquiescence. Under Maine law, a party asserting a legal interest in property by acquiescence must prove four elements by clear and convincing evidence:
1. Possession up to a visible line marked clearly by monuments, fences or the like.
2. Actual or constructive notice to the adjoining landowner of the possession.
3. Conduct by the adjoining landowner from which recognition and acquiescence not induced by fraud or mistake can be fairly inferred.
4. Acquiescence for a “long period of years” such that the policy behind the doctrine is well served by recognizing the boundary.
See Downey v. Morency, 737 A. 2d 1061, 1999 ME 137; Stickney v. City of Saco, 770 A. 2d 592, 2001 ME 69; Calthorpe v. Abrahamsen, 441 A. 2d 284 (Me. 1982).
The essence of acquiescence is that the “passive assent or submission to use” by the abutting property owner creates “consent by silence” from which it may be fairly implied that an implicit agreement has been reached regarding the location of the boundary. It differs from adverse possession, in that there is no “hostility” since an implied agreement is involved. It differs from parol agreement in that there is no affirmative “laying out” or agreement as to the location of the line. Town of Manchester v. Augusta Country Club, 477 A. 2d 1124 (Me. 1984); Dartnell v. Bidwell, 115 Me. 227, 98 A. 743 (Me. 1916). A boundary by acquiescence may be proven even if the deeds clearly indicate the location of the boundary in a different place. Downey v. Morency, 737 A. 2d at 1067.
To prove acquiescence, “possession up to a visible line marked clearly by monuments, fences, or the like” is required. However, unlike adverse possession or prescription, uninterrupted or exclusive possession is not required. Possession is sufficient if it “provides notice of the claim” Marja Corp. v. Allain, 622 A. 2d 1182, 1185 (Me.1993). Where adverse possession or prescription is claimed, mistake as to the location of a boundary does not destroy “hostility.” See Title 14 M.R.S.A. § 810-A. Where acquiescence is alleged, mistake as to the location of a boundary would appear to be a defense.
The requirement of a clearly marked visible line can be met by an old roadway, Marja, 622 A. 2d at 1184, or a hedge, Davis v. Mitchell, 628 A. 2d 657, 660 (Me. 1993), but the edge of a hayfield without further monuments, or the mere cutting of grass is insufficient to prove a visible line of occupation. Crosby v. Baizley, 642 A. 2d 150.153 (Me. 1994); Davis, 628 A. 2d at 660.
One important difference between acquiescence and adverse possession or prescription is that no particular period of years is required to establish acquiescence. A period of years such that “the policy behind the doctrine of acquiescence is well served by recognizing the boundary” is sufficient. The public policy to be served is the prevention of “unsettling established property boundaries.” Calthorpe v. Abrahamson, Id. Cases in Maine have recognized boundaries by acquiescence based on possession for as little as 6 or 7 years.
Therefore, although acquiescence must be proven by “clear and convincing evidence,”[2] possessory rights based on this doctrine can be acquired in a relatively short period of time.
C. Estoppel. Another theory of possession that does not require a particular period of years or “hostility” is estoppel, sometimes called “equitable estoppel” or “estoppel in pais.” It can be used to acquire either a fee interest or an easement, and, if recognized by a court, is a defense to a claim of trespass.
1. Elements of Estoppel. The essence of estoppel is that a record owner or person in possession is prevented from asserting title or possession when, by his or her conduct, another person is induced to act to their detriment. Intent to deceive or harm the other person is not required. Conduct may be affirmative or passive. Silence or failure to act may be sufficient when the duty to speak to protect one’s legal rights is evident from the circumstances. Estoppel, like acquiescence, must be proved by clear and convincing evidence. Littlefield v. Adler, 676 A. 2d 940 (Me. 1996); Stickney v. City of Saco
, 2001 ME 69, 770 A. 2d 592. The elements of estoppel are:
(1) Action or inaction by the party against whom the estoppel is asserted;
(2) Reasonably relied upon by the party asserting estoppel;
(3) To the detriment of the party asserting the estoppel.
See Young v. Brennan, 105 Me. 494 (1909);
2. A True Story. In 1992 the Posts, from Pennsylvania, purchased a lakefront lot with an old cottage at Little Sebago Lake. Their neighbors were the Gales, from Arizona, who purchased the abutting lot in 1975. For twelve years the parties were friends, meeting often during the summer months, keeping in touch during the winter. In 2004, the Posts decided to tear down the old cottage and build a new year round house, oriented to the southwest to take maximum advantage of passive solar features, with lots of glass in front. This placed their unobstructed view of the lake across a corner of the Gale’s property. Before starting to build, the Posts developed detailed architectural plans showing the orientation of the house, which they shared with the Gales, seeking their suggestions for improvement. The Gales commented on the solar features and recommended that the Posts add more glass in front to improve the view and solar gain, suggestions which the Posts incorporated into the final plans and orientation. The Posts had another view of the lake more to the northwest, but chose to sight the house using the view across the Gale’s property.
Construction began in 2004, with the laying of the foundation in October. and the house was finished in early 2006. Just before Fourth of July weekend in 2006, the Posts arrived with a rental truck full of furniture for the new house. As they came up the lane and turned into their driveway toward the lake, they were in for a surprise. (See Photos attached.)
Litigation ensued and in 2008, the Cumberland County Superior Court issued its decision.
What theories did the Posts utilize in their suit against the Gales?
How did the Court rule?
What relief was granted?
What theories did the Court rely on?
© Piampiano Law Offices 2010. Individual copies may be re-printed by members of the Maine Society of Land Surveyors for personal use. Further duplication by permission only.
[1] ). In Trembley, the court stated that “willful” conduct for purposes of the former version of § 7552 meant conduct that “displays an utter and complete indifference to and disregard for the rights of others.” In Trembley, the defendant knew that the location of a boundary was in dispute, but nevertheless tore up some plants and shrubs planted by the Trembleys without obtaining a survey or getting a court determination. The Maine Supreme Court found that this action was “willful” under § 7552. In Glidden v. Belden, 684 A. 2d 1306 (Me. 1996) the court reached a similar result when the defendants, knowing that there was a dispute as to ownership of a road, bulldozed it believing that they had prescriptive rights to do so before any survey or court determination.
[2] “Clear and convincing evidence” is a higher standard of proof requiring the party asserting acquiescence to offer proof sufficient to “place in the ultimate fact finder an abiding conviction that their factual contentions are highly probable.” Randall v. Conley, 2010 ME 68.