Gary Sleeper v. Donald R. Loring , 2013 Me. LEXIS 115 ( 2013 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 112Docket: Cum-12-488
Argued: September 12, 2013
Decided: December 24, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR,
JJ.
GARY SLEEPER et al.
v.
DONALD R. LORING et al.
GORMAN, J.
[¶1] This case involves a dispute over a parcel of land located on the
northwest shore of Sebago Lake, referred to here as lot 40A. The plaintiffs, Gary
Sleeper, Ramona Sleeper, Richard Roy, and Holly Roy, all of whom own property
near but not on Sebago Lake, appeal from a judgment of the Superior Court
(Cumberland County, Cole J.) in favor of the defendants, Donald R. Loring,
Marilyn P. Loring, Harry Greenlaw, and Ann Greenlaw, all of whom own
shorefront property on the lake. The court found that the defendants hold fee
simple title to lot 40A and that an easement held by the plaintiffs over lot 40A does
not grant them a right to maintain a dock. Based on our de novo review of the
summary judgment record, we conclude as a matter of law that a deed in the
defendants’ chains of title unambiguously excepts lot 40A from a prior conveyance
2
and that deeds in the plaintiffs’ chains of title are ambiguous as to whether the
dock is allowed. We vacate the judgment and remand for further proceedings.
I. BACKGROUND
[¶2] The following facts are established by the summary judgment record.
Pursuant to a declaration of trust dated March 1, 1955, and recorded in the
Cumberland County Registry of Deeds, Delmont R. Hawkes conveyed a piece of
property in the Town of Sebago to D. Wilson Hawkes. This parcel, which
included waterfront property on Sebago Lake, was to be held in trust by D. Wilson
Hawkes for himself, Delmont R. Hawkes, and two others in order to allow the
property to be subdivided and developed by Clifford L. Swan Co. into “summer
and/or winter residential properties.” In July of 1955, Swan recorded a copy of the
plan for the North Sebago Shores subdivision in the Registry.
[¶3] Over time, the subdivision lots were sold to various persons, including
the parties’ predecessors in title. In 1970, D. Wilson Hawkes executed a deed to
the Town of Sebago granting it fee simple title to the perimeter road (now known
as the Anderson Road, but then known as the Hawkes Road) and to another road
that connected the subdivision lots with state highway 114. The conveyance was
made subject to the rights of third parties to use the roads.
[¶4] The trust remained in existence until 1972, when it conveyed its
remaining property to D. Wilson Hawkes, Beryl Josephson, and F. Arnold
3
Josephson as co-partners of Hawkes Lumber Company. The Josephsons later filed
a partition action against D. Wilson Hawkes relating to several parcels of land that
they had held as tenants in common, including the subdivision.
On December 24, 1976, as a result of a judgment in the partition action, attorneys
Sumner T. Bernstein and Charlton S. Smith acquired title, in a fiduciary capacity,
from Hawkes and the Josephsons to whatever remaining ownership interest the
co-partners had in the subdivision.
[¶5] Shortly thereafter, in August of 1977, Bernstein and Smith executed a
quitclaim deed to Bradley Benson. Benson’s deed included a description
of the parent parcel (i.e., the North Sebago Shores subdivision parcel as it had
existed in 1955) immediately followed by two paragraphs excepting certain land
from the conveyance. Those paragraphs state:
Excepting, however, from the above described premises all the Arabic
numbered lots shown on Plan of North Sebago Shores . . . but not
excepting those lots at the Southerly end of the premises . . . marked
“reserved” on said Plan, and designated as lots numbered I, II, III, IV,
V and VI thereon, which said six lots are hereby conveyed to the
Grantee.
Also excepting that parcel of land shown as a right of way on a plan
entitled “Map of Right of Way (1) Hawkes Road of North Sebago
Shores Development and (2) Right of Way from said Development to
Route #114, Me. Highway” . . . dated May 14, 1970 . . . .
[¶6] Between 1994 and 1999, the parties to this action acquired fee simple
title to five lots within the North Sebago Shores subdivision through separate
4
chains of title: the Greenlaws own lot 40, a parcel adjoining Sebago Lake; the
Lorings own lot 41, also a lot adjoining the lake; the Sleepers own lot 71, a back
lot fronting the perimeter road; and the Roys own lots 74 and 75, also back lots.
Through their deeds, the plaintiffs, as owners of subdivision back lots, acquired an
easement consisting of a right-of-way over lot 40A, a twenty-foot-wide strip of
land situated between the defendants’ lots. The plaintiffs’ deeds both state,
“[a]lso a right of way from the road to the shore of the lake over [lot 40A] as
shown on said plan.”
[¶7] In November of 2007, Benson executed a quitclaim deed to lot 40A to
the defendants. The deed states that the conveyance was “[s]ubject to easements or
rights of way to access Sebago Lake to the lot owners as shown on said Plan,”
referring to the subdivision plan that had been filed by Swan in 1955.
5
[¶8] Well before Benson’s 2007 conveyance of lot 40A to the defendants,
the Sleepers had constructed a fifty-four-foot dock extending from lot 40A into
Sebago Lake. The Sleepers secured a retroactive permit for its construction from
the Town of Sebago in 1999. Eleven years later, in April of 2010, in response to a
complaint by the defendants, the Town’s code enforcement officer rescinded the
permit and ordered the Sleepers to remove the dock. The Sleepers appealed to the
Town’s zoning board, which upheld the code enforcement officer’s decision.
[¶9] In July of 2010, the plaintiffs filed suit, challenging, inter alia, the
decision of the zoning board and the defendants’ fee simple title to lot 40A, and
seeking a declaratory judgment that they are entitled to build and maintain a dock
at the waterfront of lot 40A.1 On cross motions for a partial summary judgment,
the court found that (1) Benson’s deed was ambiguous and a triable issue existed
as to the fee simple title of lot 40A, and (2) the easement over lot 40A
unambiguously did not grant the plaintiffs a right to construct and maintain the
dock. Accordingly, the court denied summary judgment on Count III of the
plaintiffs’ complaint and granted a summary judgment to the defendants on
Count V of the plaintiffs’ complaint. A bench trial was held in July of 2012 on
1
Counts I and II of the complaint, which contained the Rule 80B claims against the Town of Sebago,
were dismissed in May of 2011 because the Town rescinded its enforcement order. The plaintiffs had
also sought an injunction to prohibit the defendants from parking their vehicles on lot 40A, but did not
appeal the court’s summary judgment in favor of the defendants on that claim, found in Count IV of the
complaint.
6
Count III, at which the court heard extrinsic evidence to determine the intent of the
parties involved in the conveyance of property to Benson in 1977. After trial, the
court found that Bernstein and Smith had intended to convey their entire interest in
the parent parcel, including fee simple title to lot 40A, to Benson in 1977.
The court entered a judgment that the defendants held the fee simple title to lot
40A subject to any “rights of passage” of the back lot owners, including the
plaintiffs. The plaintiffs timely appealed.
II. DISCUSSION
[¶10] We review the entry of a summary judgment de novo.
Cox v. Commonwealth Land Title Ins. Co., 2013 ME 8, ¶ 8, 59 A.3d 1280.
“The interpretation of a deed and the intent of the parties who created it, including
whether the deed contains an ambiguity, are questions of law,” which we also
review de novo. Lloyd v. Benson, 2006 ME 129, ¶ 8, 910 A.2d 1048.
A. Fee Simple Title to Lot 40A
[¶11] We begin by reviewing the trial court’s determination that the deed
from Bernstein and Smith to Benson was ambiguous. The defendants contend that
Benson’s deed is plagued with ambiguity justifying the court’s admission and
consideration of extrinsic evidence to determine the parties’ intent concerning the
conveyance of property to Benson in 1977. Pointing to the two paragraphs
excepting certain land from the conveyance of the parent parcel, they assert that
7
the deed is ambiguous as to (1) whether lot 40A is an “Arabic numbered lot”
shown on the subdivision plan; and (2) whether lot 40A is part of “that parcel of
land shown as a right of way” in a referenced 1970 plan. The defendants also
argue that certain recitals following the deed description create further ambiguity
as to the grantors’ express intentions. We disagree.
1. Meaning of “Arabic Numbered Lot”
[¶12] It is well settled law that, in construing a deed, we first give words
their general and ordinary meaning to determine if they create any ambiguity.
Wentworth v. Sebra, 2003 ME 97, ¶ 10, 829 A.2d 520. Benson’s deed refers to
two distinct categories of subdivision lots—those designated by Arabic numbers
and those designated by Roman numerals. The plain language of the deed reflects
that those categories were to be treated differently: the grantors expressly conveyed
the lots designated by Roman numerals to Benson, but excepted from the
conveyance “all the Arabic numbered lots.” Lot 40A is an Arabic numbered lot;
that it also includes a letter from the Latin alphabet does not, as the defendants
have asserted, transform its designation. No third category of lots is included in
the language of the deed and there is nothing in the deed that indicates that the
parties intended to create a third category. See Perry v. Buswell, 113 Me. 399, 401,
94 A. 483, 484 (1915) (stating that the “cardinal rule” for interpreting a deed is
“the expressed intention of the parties”).
8
2. Meaning of “That Parcel of Land Shown As a Right of Way”
[¶13] The defendants next contend that Benson’s deed is susceptible to
more than one construction because it uses the singular form of the terms “parcel”
and “right-of-way,” while the referenced plan depicts multiple rights-of-way.
The referenced plan indeed depicts many rights-of-way, but its title unambiguously
identifies only two access roads shown on the plan and does so using the singular
form of the term “right-of-way.”2 It is firmly established that we must “look at the
instrument as a whole” to construe the language of a deed. Windham Land Trust
v. Jeffords, 2009 ME 29, ¶ 24, 967 A.2d 690. When a deed description references
a plan, the entirety of the plan becomes a part of the deed. See Lincoln v. Wilder,
29 Me. 169, 169 (1848).
[¶14] Further, by using the singular form of the term “parcel,” Benson’s
deed unambiguously refers to a single continuous parcel of land that is not
separated by intervening land.3 The combination of the plan’s title and the explicit
quotation of that title in Benson’s deed using the singular form of the term “parcel”
2
The exact title of the 1970 plan reads:
Map of Right of Way
1. Hawkes Rd of N. Sebago Shores Development.
And 2. Right of Way Development To Route #114 Me. Hwy.
3
A “parcel” is defined as “a continuous tract or plot of land in one possession no part of which is
separated from the rest by intervening land in other possession.” Webster’s Third New International
Dictionary 1640 (2002); see also Silsby v. Belch, 2008 ME 104, ¶ 12, 952 A.2d 218 (stating that a court
may resort to a dictionary to help discern the common and ordinary meaning of language in a deed).
9
therefore unambiguously excludes from the conveyance one continuous parcel
comprising the two roads specifically named in the title of the 1970 plan and a
small lot that connects the two roads at their intersection—and nothing more.
See Browne v. Gorman, 208 S.W. 385, 387 (Tex. Civ. App. 1918) (“nothing passes
by a deed except what is described in it”); Walter G. Robillard & Lane J. Bouman,
CLARK ON SURVEYING AND BOUNDARIES § 18.03 (LEXIS Law
Publishing, 7th ed. 1997) (same).
3. Meaning of the Additional Recitals
[¶15] Finally, the defendants contend that certain recitals, which follow the
deed description and the two “excepting” paragraphs, create additional ambiguity
because they appear to convey to Benson the entirety of the title that Bernstein and
Smith acquired in 1976 as a result of the partition judgment. Those paragraphs
state, in pertinent part, (1) “Meaning and intending to convey and hereby
conveying solely those premises conveyed to the Grantors herein by
Beryl H. Josephson, F. Arnold Josephson and D. Wilson Hawkes by deed dated
December 24, 1976,” and (2) “[b]eing the same premises conveyed to the within
Grantors by deed . . . dated December 24, 1976.” However, a reference in a deed
to another deed will neither enlarge nor limit a grant when the property description
is unambiguous. See Matteson v. Batchelder, 2011 ME 134, ¶ 12, 32 A.3d 1059;
Smith v. Sweat, 90 Me. 528, 533, 38 A. 554, 556 (1897) (a “definite and certain”
10
deed description “will control a general reference to another deed as the source of
title”); Abbott v. Pike, 33 Me. 204, 207 (1851) (“Particular recitals, when used
merely as descriptive of the grant, do not limit or restrict it, when the general
language of the conveyance is intelligible and effective, without the recitals.”).
Here, because the references simply serve as a source of the grantor’s title, see id.;
see also Brown v. Heard, 85 Me. 294, 297, 27 A. 182, 183 (1893) (a “meaning and
intending” clause “is merely a help to trace the title, but cannot enlarge the grant”),
they do not cause ambiguity.
[¶16] When interpreting a deed whose terms are not ambiguous, we do not
speculate about the grantors’ actual or probable objectives; rather, we focus on
what is expressed within the four corners of the deed. See N. Sebago Shores, LLC,
v. Mazzaglia, 2007 ME 81, ¶ 13, 926 A.2d 728; see also Perry, 113 Me. at 401,
94 A. at 484 (“The cardinal rule for the interpretation of deeds and other written
instruments is the expressed intention of the parties, gathered from all parts of the
instrument, giving each word its due force, and read in the light of existing
conditions and circumstances. It is the intention effectually expressed, not merely
surmised. This rule controls all others.”). Although Benson’s deed is complex, it
is not ambiguous, as all of its parts can coexist without raising questions about its
meaning. Viewing the instrument as a whole, the expressed intention of the parties
was to (1) convey to Benson the parent parcel, (2) except from that conveyance all
11
the Arabic numbered lots and the rights-of-way held in fee by the Town, and
(3) further convey to Benson all access rights that the grantors possessed over the
rights-of-way and roadways associated with the subdivision.4 When we give each
word in Benson’s deed its due force, as we must, see Perry, 113 Me. at 401,
94 A. at 484, the plain language of the deed unambiguously excludes lot 40A from
the conveyance to Benson. Fee simple title to lot 40A thus remained in the
grantors, Bernstein and Smith, at the time of their property transfer to Benson
in 1976.
B. The Right-of-Way
[¶17] In 2012, during the pendency of this action, other deeds purporting to
transfer lot 40A were issued. The defendants obtained a fee simple title over
lot 40A from Smith, and the plaintiffs obtained a fee simple title over lot 40A from
Roberta J. Niehaus, the apparent sole heir of Bernstein’s clients, Beryl H.
Josephson and F. Arnold Josephson. Because the Josephsons had relinquished and
4
The final paragraph in Benson’s deed description reads:
Also hereby conveying to the Grantee, his heirs and assigns, any rights which the Grantor
may have, in common with others entitled to the use of them, for the purpose of access,
ingress and egress between the numbered lots shown on said Plan and the Lake, the Public
Highway, Hawkes Road and any other streets, ways or rights of way shown on said plan of
North Sebago Shores . . . or appurtenant to the premises hereby conveyed.
The plaintiffs correctly state that there would have been no reason for the grantors to convey to Benson a
right of access over lot 40A if they had intended to grant him a fee simple interest to the lot.
See Dority v. Dunning, 78 Me. 381, 387, 6 A. 6, 9 (1886) (an easement is “extinguished by unity of title
and possession of the dominant and servient estates in the same person by the same right”).
Any contention that this paragraph is the result of overly cautious drafting is not persuasive.
12
conveyed all rights in the parent parcel in 1976 to Bernstein and Smith pursuant to
the partition judgment, and because the defendants’ conveyance came from only
one of the holders of title, the effect of these transfers is not entirely clear. There is
no dispute, however, that the plaintiffs have a right-of-way over lot 40A “from the
[peninsula] road to the shore of [Sebago] Lake.” The sole issue concerning this
grant is whether it includes the right to construct and maintain a dock.
[¶18] As with any other portion of a deed, “[t]he scope of a party’s
easement rights must be determined from the unambiguous language on the face of
the deed.” Matteson, 2011 ME 134, ¶ 16, 32 A.3d 1059 (quotation marks omitted).
The defendants assert that the easement over lot 40A should be interpreted to
unambiguously disallow the right to construct and maintain a dock for two reasons.
First, they claim that, because the right-of-way extends “to the shore” rather than
“to the water,” it cannot as a matter of law include the right to install a dock.
Second, the defendants note that the plaintiffs’ deeds do not explicitly mention
docking privileges. Relying on the legal definition of “right-of-way,”5 the
defendants suggest that the plain language of the easement should be read to limit
5
A right-of-way is legally defined as a legal right to pass through property owned by another.
See BLACK’S LAW DICTIONARY 1326 (7th ed. 1999).
13
its purpose to passing and re-passing over lot 40A.6 These arguments are
unavailing. In examining the plaintiffs’ deeds, we conclude as a matter of law that,
although there is no uncertainty as to where the right-of-way ends, there is
uncertainty about what the right-of-way grants.
[¶19] The trial court correctly concluded that the phrase “to the shore,”
when used as it was here, unambiguously means that the right-of-way ends at the
ordinary high-water mark of Sebago Lake.7 See generally, Knud E. Hermansen &
Donald R. Richards, Maine Principles of Ownership Along Water Bodies,
47 Me. L. Rev. 35, 54 (1995) (“[I]f the ‘shore’ or ‘bank’ is called for in a
description without mention of the water or water’s edge, it is presumed that the
high water edge . . . is what is meant.”). However, based on this finding, the court
then determined that the language unambiguously allows access only to the shore
and not to the water and, for that reason, concluded that the easement does not
“extend as far as a dock [because] the dock would reach past the shore.” Contrary
6
In their cross motion for summary judgment, the defendants also asserted that, pursuant to our
decision in Rancourt v. Town of Glenburn, 635 A.2d 964 (Me. 1993), the language of the plaintiffs’ deeds
unambiguously precluded a dock because the deed language granting the plaintiffs their right-of-way is
precisely the same language found in the deeds concerning all of the other back lots. DSMF ¶ 47. The
right-of-way at issue here is one shared by many back lot owners. Contrary to the defendants’ contention,
however, Rancourt does not stand for the proposition that, as a matter of law, an individual who shares a
right-of-way providing access to a body of water with others may not install a dock. Rather, we
determined in Rancourt that the plaintiff had failed to meet her burden of establishing sufficient legal
interest in the right-of-way to entitle her to apply for a permit to place a dock there. See id. at 966.
7
Strictly speaking, a lake does not have a “shore,” i.e., a region between high tide and low tide,
although the use of this term in a deed description does not automatically render the deed ambiguous.
See Matteson v. Batchelder, 2011 ME 134, ¶ 18, 32 A.3d 1059.
14
to the court’s conclusion, although the phrase “to the shore” is not ambiguous
when considering the geographic scope of the right-of-way here, the phrase is not
necessarily unambiguous with regard to the purpose of the right-of-way.
In Badger v. Hill, 404 A.2d 222 (Me. 1979), we discussed the “full enjoyment” of
a right-of-way to the York River:
The achieving of access to a river, however, is generally not the entire
purpose for which a right of way providing such access is created.
Also involved is why it was necessary, or desirable, to be able to
reach the river. As to this aspect of purpose, the language of the deeds
provides no answer. Thus, the language of the deeds may be
unambiguous so far as it goes, but it does not go far enough in
respects that are critical to the evaluation of the full scope,
contemplated by the parties, of the use to be made of the right of way.
Id. at 225. As was the case in Badger, the plain meaning of the words in the
plaintiffs’ deeds does not make clear the purpose of the easement.
[¶20] When the purpose of an express easement is not clear, a court must
“ascertain the objectively manifested intention of the parties to the original
conveyance in light of circumstances in existence recently prior to the execution of
the conveyance, as well as use of the easement and acts acquiesced to during the
years shortly after the original grant.” Flaherty v. Muther, 2011 ME 32, ¶ 55,
17 A.3d 640 (internal citations and quotation marks omitted). It may do so by
considering extrinsic evidence. Id. Here, the plaintiffs presented a number of
“undisputed” facts to demonstrate that the subdivision creator intended to permit
15
the construction and maintenance of a dock. In their responsive statement of
material facts, the plaintiffs asserted that a dock had been constructed at the site in
1958 “for the use of the back lot owners,” that the dock was still present in the
early 1970s, that the shoreline in front of Lot 40A is rocky, and that the defendants
typically access the water on either side of Lot 40A with their own docks.
The defendants denied these assertions, and argued that, even if true, the asserted
facts did not demonstrate that the original parties intended that the right-of-way
included the right to build and maintain a dock. Because these assertions would
require a court to choose between two competing versions of the facts, a summary
judgment is precluded. See Saltonstall v. Cumming, 538 A.2d 289, 290
(Me. 1988).
[¶21] Additionally, if a party contends that a use is inconsistent with an
easement’s original purpose, as the defendants here assert, the trial court must
evaluate whether, in the context of the uses contemplated by the original parties,
the challenged use would overburden the servient estate. See Flaherty,
2011 ME 32, ¶ 74, 17 A.3d 640; see also Perkins v. Perkins, 158 Me. 345, 350,
184 A.2d 678, 681 (1962) (stating that, in the absence of a specific limit on the
scope of an express easement, the grantees are entitled to a use which would
reasonably serve the purpose of the grant); Laux v. Harrington, 2012 ME 18,
¶¶ 28-30, 38 A.3d 318 (discussing our overburdening analysis).
16
C. Conclusion
[¶22] Because we conclude that (1) fee title to lot 40A unambiguously
remained in the grantors at the time of the property transfer to Benson and (2) the
language of the plaintiffs’ deeds is ambiguous as to the purpose of the
right-of-way, we must set aside the judgment and remand the case to the Superior
Court for trial so that it may determine whether the plaintiffs have any right to
build and maintain a dock. Finally, because there are other back lot owners within
the North Sebago Shores subdivision with an easement over lot 40A and there may
be other fee owners of lot 40A who are not parties to these proceedings and whose
interests may be prejudiced by the court’s findings on remand, the court should
determine whether additional necessary parties exist who must be joined to this
action pursuant to M.R. Civ. P. 19(a),8 and should so order.
The entry is:
Judgment vacated. Remanded for further
proceedings consistent with this opinion.
8
M.R. Civ. P. 19(a) requires “joinder of all available persons who have an interest in the litigation so
that any judgment will effectively and completely adjudicate the dispute.” Ocwen Fed. Bank, FSB
v. Gile, 2001 ME 120, ¶ 14, 777 A.2d 275 (quotation marks omitted); see also Muther v. Broad Cove
Shore Ass’n, 2009 ME 37, ¶ 9, 968 A.2d 539 (“Joinder is required in circumstances where the absence of
unnamed parties would prevent a judgment from fully adjudicating the underlying dispute, expose those
who are already parties to multiple or inconsistent obligations, or prejudice the interests of absent
parties.”).
17
On the briefs:
Robert S. Hark, Esq., Portland, for appellants Gary Sleeper, Ramona
Sleeper, Richard Roy, and Holly Roy
William H. Dale, Esq., and Mark A. Bower, Esq., Jensen Baird Gardner &
Henry, Portland, for appellees Donald R. Loring, Marilyn P. Loring, Harry
Greenlaw, and Anne Greenlaw
At oral argument:
Robert S. Hark, Esq., for appellants Gary Sleeper, Ramona Sleeper, Richard
Roy, and Holly Roy
William H. Dale, Esq., for appellees Donald R. Loring, Marilyn P. Loring,
Harry Greenlaw, and Anne Greenlaw
Cumberland County Superior Court docket number AP-2010-20
FOR CLERK REFERENCE ONLY