Jeffrey R. Mabee et al. v. Nordic Aquafarms Inc. et al.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 15
Docket: Wal-22-19
Argued: September 8, 2022
Decided: February 16, 2023

Panel: STANFILL, C.J., and JABAR, HORTON, CONNORS, JJ., and HUMPHREY, A.R.J.

JEFFREY R. MABEE et al.

v.

NORDIC AQUAFARMS INC. et al.

CONNORS, J.

[¶1] This is an appeal from a judgment entered by the Superior Court

(Waldo County, R. Murray, J.) after a bench trial, determining ownership and

land use rights in intertidal land bordering Penobscot Bay. We vacate the

judgment, concluding, inter alia, that under the plain language of the governing

deeds, the disputed land belongs to Jeffrey R. Mabee and Judith B. Grace.

I. BACKGROUND

A. Introduction

[¶2] On one side of this dispute are Nordic Aquafarms Inc. (Nordic),

Richard and Janet Eckrote, and the City of Belfast. In 2018, Nordic announced

a plan to develop a land-based salmon aquaculture facility in Belfast. In

furtherance of the plan, Nordic negotiated an agreement with the Eckrotes to
2

bury industrial pipes in the intertidal land located between the Eckrotes’

upland property and Penobscot Bay. The Eckrotes claimed that they owned the

intertidal land abutting their upland property. In 2021, during the trial, the City

bought the Eckrotes’ property and was granted intervenor status.

[¶3] On the other side of the dispute are Mabee and Grace,

Upstream Watch, and Friends of the Harriet L. Hartley Conservation Area

(Friends). Mabee and Grace jointly own property near the Eckrotes’ property

and claim that they own not only the intertidal land abutting their own upland

property but also the intertidal land abutting the upland properties of the

Eckrotes, Kenneth and Wendy Schweikert, and Lyndon W. Morgan. Mabee and

Grace also seek to enforce a restrictive covenant in the Eckrotes’ chain of title

and a conservation easement that Mabee and Grace granted to Upstream Watch

and that was later assigned to Friends.

[¶4] The Superior Court concluded, inter alia, that Mabee and Grace

failed to establish title to the intertidal land abutting the Eckrotes’ and Morgan’s

upland properties. Mabee and Grace, Upstream Watch, and Friends appeal,

advancing several arguments, but their principal argument is that the trial

court erred in determining the ownership of the disputed intertidal land.
3

[¶5] Set forth in Figure 1 is a depiction of the area that is the subject of

this litigation.

Figure 1

B. Factual Background

[¶6] The following facts are drawn from the parties’ stipulated facts and

exhibits. See Goggin v. State Tax Assessor, 2018 ME 111, ¶ 3, 191 A.3d 341.
4

1. Hartley’s Conveyances

[¶7] In 1935, Harriet L. Hartley became the sole owner of the property

that is the subject of this litigation, including the intertidal land. She

subsequently made three relevant conveyances.1

Figure 2

a. The Hartley-to-Poor Deed

[¶8] In January 1946, Hartley conveyed a portion of her property to

Fred R. Poor. The Hartley-to-Poor deed described the property as follows:

A certain lot or parcel of land situated in Belfast in the County of
Waldo and State of Maine, bounded and described as follows, viz:
Beginning at the head of a gully in the center of a concrete culvert

1 Hartley conveyed the portion of her property located on the landward side of the Atlantic
Highway (also called Northport Avenue) to the Belfast Water District. That property is not relevant
to this appeal.
5

which is on or near the Southerly bound of the Atlantic Highway;
thence Southeasterly following the bottom of the gully 275 ft. more
or less to an iron bolt in the mouth of a brook; thence Easterly and
Northeasterly along high water mark of Penobscot Bay 410 ft. more
or less to a stake at the outlet of a gully; thence Northerly up the
bottom of the said gully 100 ft.; thence West 507 ft. to the center of
a gully on or near the Southerly bound of the Atlantic Highway;
thence Westerly along the Southerly bound of said highway, 206 ft.
to the point of beginning. Said lot contains 2.23 acres, more or less.

Figure 3

The property conveyed in the Hartley-to-Poor deed is outlined in red in

Figure 3.

[¶9] The Hartley-to-Poor deed also contained the following language:

The lot or parcel of land herein described is conveyed to
Fred R. Poor with the understanding it is to be used for residential
6

purposes only, that no business for profit is to be conducted there
unless agreed to by Harriet L. Hartley, her heirs or assigns.

This property was eventually conveyed in part to the Eckrotes and in part to

Morgan.

[¶10] As discussed below, see infra ¶¶ 25-44, this deed conclusively

establishes that Hartley did not convey any intertidal land to Poor, and,

therefore, that the Eckrotes and Morgan do not own the intertidal land abutting

their respective upland properties.

b. The Hartley-to-Cassida Deed

[¶11] Next, in October 1946, Hartley conveyed a portion of her property

north of Poor’s property to Sam W. Cassida. The Hartley-to-Cassida deed

described the waterside boundary of the parcel as the “high water mark of

Penobscot Bay” but also conveyed “whatever right, title or interest [Hartley]

may have in and to the land between high and low water marks of

Penobscot Bay in front of the above described lot.” There is no dispute that the

Hartley-to-Cassida deed included an express conveyance of the intertidal land
7

“in front” of the property. The Cassida property, including the intertidal land

conveyed, is outlined by the solid and dashed yellow lines in Figure 4.

Figure 4

This property was eventually conveyed, through mesne transfers, in part to the

Eckrotes,2 in part to Morgan,3 and in part to others.

c. The Hartley-to-Butlers Deed

[¶12] Finally, in September 1950, Hartley conveyed property to William

and Pauline Butler in a deed describing the property as follows:

A certain lot or parcel of land with the buildings thereon situated
in Belfast in the County of Waldo and State of Maine on the easterly

2 The portion of the Eckrotes’ upland that traces back to the Hartley-to-Cassida deed is not
waterfront property, and the Eckrotes do not claim any interest in the intertidal land through the
Hartley-to-Cassida deed.

3The waterfront portion of Morgan’s property that can be traced back to the Hartley-to-Cassida
deed, if any, is not a subject of this appeal.
8

side of the Atlantic Highway and bounded and described as follows,
to wit: Northerly by land of Fred R. Poor, Easterly by Penobscot
Bay, southerly by Little River and westerly by the Atlantic Highway,
so-called.

As discussed below, see infra ¶¶ 45-52, this deed is the essential starting point

of the analysis leading to our conclusion that Hartley conveyed to Mabee and

Grace’s predecessors in interest the intertidal land that is in dispute.

2. Subsequent Conveyances of the Butlers’ Parcel

[¶13] Also of import are the post-1950 conveyances of the Butlers’

parcel. After the Butlers acquired their property from Hartley, they sold it to

Ernest and Marjorie Bell. The Bells then sold the property through two

conveyances of what would eventually become the Schweikerts’ property and

Mabee and Grace’s property.

[¶14] In the first conveyance, the Bells sold a portion of their property to

John and Catherine Grady. The Bells-to-Gradys deed described the waterside

boundary as follows:

[T]hence South 48° 20’ East one hundred thirty-eight (138) feet,
more or less, to an iron pin and continuing on the same course
thirty-nine (39) feet, more or less, to the high water mark of
Penobscot Bay; thence turning and running northeasterly along
said high water mark three hundred thirty-three (333) feet, more
or less, to an iron pipe; thence turning and running generally
northwesterly and following the gully that marks the line between
land of Ernest J. Bell and Marjorie N. Bell, and land of Fred R. Poor,
to the point of beginning.
9

Figure 5

After several additional transfers using the same description, the Schweikerts

came to own this property, which is outlined in blue in Figure 5.

[¶15] This deed is relevant because it shows that the Bells did not convey

any intertidal land to the Gradys, and, therefore, that the trial court’s conclusion

that the Schweikerts do not own the intertidal land abutting their upland

property, which conclusion was not appealed, is correct.

[¶16] In the second conveyance, after the death of her husband,

Marjorie Bell conveyed her remaining interest to Willis and Virginia Trainor.

The Bell-to-Trainors deed recited the same description as the one used in the
10

1950 Hartley-to-Butlers deed, excepting the land that the Bells had transferred

to the Gradys in the first conveyance. The Trainors’ property was thereafter

transferred to various owners using the same language, until it was acquired

by Mabee and Grace.

[¶17] This chain, beginning with the Hartley-to-Butlers deed, shows that

Mabee and Grace own the intertidal land abutting their own upland property

and the intertidal land abutting the upland properties of the Schweikerts, the

Eckrotes, and Morgan. Mabee and Grace’s property is outlined in the solid and

dashed green lines in Figure 5.

C. Procedural Background

[¶18] In 2019, Mabee and Grace filed a complaint against Nordic and the

Eckrotes requesting a declaratory judgment and injunctive relief and seeking

to quiet title. Nordic and the Eckrotes answered and counterclaimed. Friends

was later added as a plaintiff; Upstream Watch, the Schweikerts, and Morgan

joined as parties in interest. The active parties4 engaged in a period of

significant motion practice including more than a dozen competing motions to

A year before trial, the Schweikerts filed a motion to substitute Nordic on all claims related to
4

the Schweikerts, which the court granted. At trial, Morgan did not personally appear but was
represented by counsel. Morgan’s counsel did not question any witnesses or offer any evidence.
11

dismiss, motions for summary judgment, and motions for judgment on the

pleadings. The trial court denied all dipositive motions.

[¶19] After amending their complaint, Mabee and Grace and Friends

eventually pleaded five claims against Nordic and the other landowners:

declaratory judgment (Count 1), quiet title (Count 2), injunctive relief (Counts 3

and 4), and slander of title (Count 5). Nordic asserted two counterclaims:

declaratory judgment (Count 1) and tortious interference with an

advantageous relationship (Count 2). The Eckrotes asserted seven

counterclaims: declaratory judgment (Count 1), title by adverse possession

(Count 2), slander of title (Count 3), trespass (Count 4), boundary by

acquiescence (Count 5), quiet title (Count 6), and tortious interference with an

advantageous relationship (Count 7).

[¶20] By agreement of the parties, the court scheduled a bifurcated trial

in which the first portion of the trial would address the title claims and the

second portion of the trial would address the tort claims. During a three-day

bench trial in June 2021, the court viewed the property and heard testimony

from Mabee and Grace’s surveyor, Nordic’s surveyor, Janet Eckrote, and two

representatives from Nordic. The parties offered numerous exhibits and

stipulations on the title issues.
12

[¶21] On October 28, 2021, the court entered a partial judgment in favor

of Mabee and Grace on Counts 1 and 2 of their complaint, concluding that they

own the intertidal land fronting their upland and the Schweikerts’ upland. The

court entered judgment in favor of the Eckrotes on Counts 1 and 6 of their

counterclaims and determined that Counts 2 and 5 were moot. The court

entered judgment in favor of Nordic on Count 1 of its counterclaims. Finally,

the court denied Mabee and Grace’s and Friends’ request for injunctive relief as

to Counts 3 and 4 of their complaint. The trial court directed that its decision

be entered as a final judgment pursuant to M.R. Civ. P. 54(b)(1).

[¶22] Mabee and Grace, Upstream Watch, and Friends filed timely

motions for amended and additional findings and to amend the judgment,

which the trial court denied. See M.R. Civ. P. 52(b), 59(e). Mabee and Grace,

Upstream Watch, and Friends timely appealed. See 14 M.R.S. § 1851 (2022);

M.R. App. P. 2B(c)(1).

II. DISCUSSION

A. The judgment is reviewable under M.R. Civ. P. 54(b)(1).

[¶23] Because this appeal is taken from a judgment that did not dispose

of all claims against all parties, we must first determine whether the appeal is

proper. See Stiff v. Jones, 2022 ME 9, ¶ 8, 268 A.3d 294.
13

[¶24] Rule 54(b)(1) provides in relevant part that “when more than one

claim for relief is presented in an action, whether as a claim, counterclaim,

cross-claim, or third-party claim, . . . the court may direct the entry of a final

judgment as to one or more but fewer than all of the claims.” To meet the

requirements of the rule, the trial court, in certifying the judgment, must

expressly determine that “there is no just reason for delay.” Id. Here, the court

stated such, and we agree that it was reasonable to certify the judgment as final,

given that the court had decided all issues relating to the ownership and use

rights, with only tort claims remaining. We therefore accept the appeal.

See McClare v. Rocha, 2014 ME 4, ¶ 8, 86 A.3d 22 (“We review a trial court’s

certification of a partial final judgment [pursuant to M.R. Civ. P. 54(b)(1)] for an

abuse of discretion but do not simply accept the trial court’s determination;

there must be a valid justification for the determination.”).

B. The Hartley-to-Poor deed severed the upland from the intertidal
land.

[¶25] As the trial court correctly observed, for Mabee and Grace to be

successful on their claim that they own the intertidal land fronting the Eckrotes’

upland, they had to establish that (1) the Hartley-to-Poor deed severed the

intertidal land from the upland and (2) the intertidal land was conveyed to

Mabee and Grace through their predecessors in interest, beginning with the
14

Hartley-to-Butlers deed. See Hodgdon v. Campbell, 411 A.2d 667, 671

(Me. 1980) (“[T]he plaintiff in a quiet title action has the burden of proving

better title than that of the defendant.”).

1. The rules of construction applicable to the interpretation of
the Hartley-to-Poor deed include those relating to the
construction of deed language conveying intertidal land.

[¶26] “Construction of a deed is a matter of law . . . , and the

Superior Court’s construction of the terms of the deed is a legal determination

open to corrective appellate review.” Sylvan Props. Co. v. State Plan. Off.,

1998 ME 106, ¶ 8, 711 A.2d 138 (citation and quotation marks omitted);

see also Hodgdon, 411 A.2d at 672 (“What are the boundaries is a question of

law, and where the boundaries are is a question of fact.” (quotation marks

omitted)). Thus, “we review de novo the interpretation of a deed and the intent

of the parties who created it, including whether the deed contains an

ambiguity.” Almeder v. Town of Kennebunkport, 2019 ME 151, ¶ 26, 217 A.3d

1111 (alteration and quotation marks omitted). “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.” Sleeper v. Loring, 2013 ME 112, ¶ 16, 83 A.3d 769.

“Examination of extrinsic circumstances surrounding execution of a deed is
15

only proper when the language of the deed is ambiguous and the intention of

the parties is in doubt.” Sylvan Props. Co., 1998 ME 106, ¶ 8, 711 A.2d 138.

[¶27] Two rules of construction applicable to the interpretation of deed

language relating to intertidal land are of importance here. First, the owner of

upland oceanfront property presumptively owns to the low-water mark by

operation of the Massachusetts Colonial Ordinance of 1641-47. Almeder,

2019 ME 151, ¶ 37, 217 A.3d 1111; Ogunquit Beach Dist. v. Perkins, 138 Me. 54,

60, 21 A.2d 660 (1941). Because intertidal land may be conveyed separately

from the upland, however, an owner benefits from this presumption only when

the grant of property expressly includes a call to the water. Almeder, 2019 ME

151, ¶ 37, 217 A.3d 1111. “Terms such as ‘Atlantic Ocean,’ ‘ocean,’ ‘cove,’ ‘sea,’

or ‘river’ are calls to the water that trigger the presumption.” Id. (citations

omitted). “However, language limiting a grant ‘to’ or ‘by’ the shore, beach, bank,

or sea shore may defeat the presumption.” Id.

[¶28] Second, “where the two ends of a line by the shore are at [the] high

water mark, in the absence of other calls or circumstances showing a contrary

intention, the boundary will be construed as excluding the shore.”

Whitmore v. Brown, 100 Me. 410, 416, 61 A. 985 (1905).
16

2. Under the relevant law, the Hartley-to-Poor deed did not
convey to Poor the intertidal land in front of the Eckrotes’
upland.

[¶29] We recap the relevant calls in the Hartley-to-Poor deed:

A certain lot or parcel of land situated in Belfast in the County of
Waldo and State of Maine, bounded and described as follows, viz:
Beginning at the head of a gully in the center of a concrete culvert
which is on or near the Southerly bound of the Atlantic Highway;
thence Southeasterly following the bottom of the gully 275 ft. more
or less to an iron bolt in the mouth of a brook; thence Easterly and
Northeasterly along high water mark of Penobscot Bay 410 ft. more
or less to a stake at the outlet of a gully; thence Northerly up the
bottom of the said gully 100 ft.; thence West 507 ft. to the center of
a gully on or near the Southerly bound of the Atlantic Highway;
thence Westerly along the Southerly bound of said highway, 206 ft.
to the point of beginning. Said lot contains 2.23 acres, more or less.

The calls that lead us to conclude that Hartley did not convey any intertidal land

to Poor are as follows: (a) “275 ft. more or less” southeasterly from the culvert,

(b) “to an iron bolt,” (c) “in the mouth of a brook,” (d) “along high water mark,”

(e) “410 ft. more or less,” and (f) “to a stake at the outlet of a gully.”

a. “275 ft. more or less”

[¶30] The parties do not dispute the location of the point of beginning—

namely, the center of a concrete culvert at the head of a gully on the southerly

bound of the Atlantic Highway. From there, the call unambiguously describes

a monument, a course, and a distance—the bottom of the gully; southeasterly;
17

and 275 feet, more or less. This description is sufficiently clear to locate the

boundary without the aid of extrinsic evidence.5

b. “to an iron bolt”

[¶31] There is no disagreement that the iron bolt referenced in the deed

is missing. Its disappearance is not critical, however, given that the deed

contains other calls by which the boundary can be located. See Baptist Youth

Camp v. Robinson, 1998 ME 175, ¶ 10, 714 A.2d 809 (recognizing that “artificial

monuments are easily removed”). The parties also stipulated that the “iron

bolt” referenced in the Hartley-to-Poor deed had been in the same general

location as the “iron pipe” referenced in the Bells-to-Gradys deed—and that this

location was at the high-water mark. Relying in part on this stipulation, the trial

court concluded, in a ruling that has not been appealed, that the Schweikerts do

not own the intertidal land abutting their property because the Bells-to-Gradys

deed severed the intertidal land from the upland. See Whitmore, 100 Me. at 415,

61 A. 985 (concluding that a deed did not convey the intertidal land in part

5 Mabee and Grace’s surveyor testified that he measured the distance from the undisputed point
of beginning to the high-water mark as being 290 feet. Nordic’s surveyor did not testify that he
measured this distance, but his survey, which was admitted in evidence, marks this distance as
275 feet, plus or minus. Both surveyors determined that the distance from the high-water mark to
the low-water mark was at least 500 feet, meaning the total distance from the undisputed point of
beginning to the low-water mark would be at least 775 feet, significantly longer than the 275-foot
call in the deed.
18

because the description began at the corner of a neighboring parcel that was

located at or above the high-water mark).

[¶32] The call also states “to an iron bolt.” (Emphasis added.) “‘To’ is a

word of exclusion.” Snyder v. Haagen, 679 A.2d 510, 514 (Me. 1996). “[A] line

running ‘to’ an object excludes that object.” Id. at 514-15 (concluding that “to a

point on the northerly shore” called for a terminus at the high-water mark and

that the flats were excluded where it was followed by “thence easterly on and

by said northerly shore”).6

[¶33] The call “to an iron bolt” that is located at the high-water mark,

consistent with the parties’ agreement and the trial court’s conclusion that was

not appealed, indicates that a severance was intended.

c. “mouth of a brook”

[¶34] The area in dispute is subject to large tidal fluctuation, and the

parties disagree whether the location of the “mouth of a brook” can shift with

the tide. Although the location of the mouth of a brook is a question of fact,

what constitutes a “mouth of a brook” is a question of law. See Almeder,

2019 ME 151, ¶¶ 31-32, 217 A.3d 1111.

6 Notably, if the iron bolt were located anywhere significantly below the high-water mark, then it

would not only be concealed below the water most of the time but also would be subject to the strong
tidal currents of the Penobscot Bay. It seems highly improbable that the iron bolt would have been
placed in such a location.
19

[¶35] We have had occasion to define geographical features in actions

involving real property, especially those involving waterfront properties,

see id., but we have never defined the phrase “mouth of a brook.” We need not

look far for a definition of the term “brook” because it is defined by statute.

A “brook” is “a channel between defined banks.” 38 M.R.S. § 480-B(9) (2022).7

Thus, when the banks cease to exist, so too does the brook. In this context, the

term “mouth” simply identifies the “exit or point of discharge” of the brook,

U.S. Dep’t of the Interior, Glossary of BLM Surveying and Mapping Terms 106

(2003), and, given the definition of “brook,” cannot be located below the upland

banks. Thus, the “mouth of a brook” is a fixed point defined by the upland

boundary, and the call does not shift with the tide.

[¶36] Based on these definitions, there is no ambiguity on the face of the

deed regarding what constitutes the “mouth of a brook.”8

7 Title 38 M.R.S. § 480-B(9) (2022) is contained within the Natural Resources Protection Act,

under which the Department of Environmental Protection regulates water bodies. See 38 M.R.S.
§ 480-A (2022).

8 Nordic’s surveyor asserted at trial that the “mouth of a brook” is “basically where the flowing

water body . . . enters the receiving water body,” and, therefore, the mouth of a brook moves with the
ebb and flow of the tide. Applying this construction of the term to deed language is impractical in at
least two respects. First, it is dependent on the presence of flowing water in the brook, which may
not, in fact, be present. See 38 M.R.S. § 480-B(9) (listing the characteristics of a “channel” within the
definition of “brook”). Second, regardless of where the bodies of water meet, the iron bolt referenced
in the deed would not have moved with each ebb and flow of the tide. Although immaterial to our
analysis because we find the deed language clear, Mabee and Grace’s surveyor’s definition of “mouth
of a brook” was similar to the statutory definition discussed above. He testified that there is a clear
20

d. “along high water mark”

[¶37] The parties dispute whether “along high water mark” is a call to

the water. This again is a question of law.

[¶38] In Hodgdon, 411 A.2d at 672, we stated that, as a matter of law, a

deed reference “by the shore” called for a measurement “along the contour of

the high-water mark.” It stands to reason, then, that a deed reference “along

high water mark” is equivalent to “by the shore.” See id.; Lapish v. President of

Bangor Bank, 8 Me. 85, 90 (1831) (“Now, as high-water mark is one side of the

sea-shore or flats, and low-water mark is the other, and as a deed bounding land

on one side by the shore, does not convey the flats, it is perfectly clear that a

deed bounding a piece of land by high-water mark, which is one side of the shore,

cannot be construed as conveying the flats.” (emphasis added)); see also

Whitmore, 100 Me. at 414, 61 A. 985. Terms often used as evidence of intent to

sever the intertidal land from the upland include “along high water mark” and

“by the shore.” Donald R. Richards & Knud E. Hermansen, Maine Principles of

Ownership Along Water Bodies, 47 Me. L. Rev. 35, 52 (1995).

[¶39] Further, when a description begins at a known monument on the

upland and runs by the shore based on given courses and distances, the shore

distinction between the mouth of the brook and the bay, and he located the mouth of the brook at the
high-water mark.
21

is excluded, and the boundary runs only to the high-water mark.

Sinford v. Watts, 123 Me. 230, 232-33, 122 A. 573 (1923); see also

Montgomery v. Reed, 69 Me. 510, 513-14 (1879).

[¶40] In sum, this language does not reflect a call to the water but rather

severance of the upland.

e. “410 ft. more or less”

[¶41] Here, the call of “410 ft. more or less” is a distance described in

definite, unambiguous terms.

[¶42] As with the call of “275 ft. more or less” noted above, the

uncontradicted calculation of the distance between the mouth of the brook

starting at the high-water mark and the stake at the outlet of a gully is within

two or three feet of the 410 feet called for in the deed. If the mouth of the brook

were located at the low-water mark, then the distance would be significantly

longer than 410 feet.

f. “to a stake at the outlet of a gully”

[¶43] The waterside boundary ends with a call “to a stake at the outlet of

a gully.” This term, like the ones before it, is clear on its face, and the parties do

not appear to have a genuine dispute that the outlet of the gully is, in fact,

located at or above the high-water mark. See Whitmore, 100 Me. at 415,
22

61 A. 985 (stating that the shore is excluded when the termini of a line by the

shore are located at the high-water mark).

[¶44] To summarize, each call in the Harley-to-Poor deed consistently

points to the high-water mark. We need go no further than the unambiguous

deed language to conclude, as a matter of law, that the Hartley-to-Poor deed did

not convey the intertidal land abutting the Eckrotes’ property.9

C. The Hartley-to-Butlers deed conveyed the intertidal land in front of
the Eckrotes’ upland to the predecessors in interest of Mabee and
Grace.

[¶45] Because we conclude, based on the unambiguous language in the

Hartley-to Poor deed, that Hartley severed the intertidal land from the upland

when she conveyed a portion of her property to Poor, the Eckrotes’ claim of title

to the intertidal land fronting their property fails. This does not end the inquiry,

however, because we must determine whether Mabee and Grace established

title to that intertidal land.

9Again, although the extrinsic evidence in the record is immaterial, we observe that all the
surveyors—including the Eckrotes’ surveyor in 2012 and Nordic’s surveyor before he changed his
position to one that was favorable to Nordic—read the Hartley-to-Poor deed as excluding the
intertidal land. Also, the Hartley-to-Cassida deed, conveying a portion of Hartley’s property only
months after the Hartley-to-Poor conveyance, used strikingly different language to make clear that
the intertidal land was included in that conveyance. See supra ¶¶ 8, 11.
23

1. The rules of construction applicable to the interpretation of
the Hartley-to-Butlers deed include those relating to the
interpretation of adjoiners’ or abutters’ deeds.

[¶46] The Hartley-to-Butlers deed provides in relevant part:

A certain lot or parcel of land with the buildings thereon situated
in Belfast in the County of Waldo and State of Maine on the easterly
side of the Atlantic Highway and described as follows, to wit:
Northerly by land of Fred R. Poor; easterly by Penobscot Bay;
southerly by Little River and westerly by the Atlantic Highway,
so-called.

[¶47] In Maine, it is common practice “to describe land ‘by adjoiners’—

that is, by reference to the boundaries of adjoining owners.” Paul G. Creteau,

Maine Real Estate Law 206 n.60 (1969). Adjoiners’ deeds are also known as

abutters’ deeds. See Markley v. Semle, 1998 ME 145, ¶ 7 n.2, 713 A.2d 945

(noting that “abutter[s’] deeds” are “deeds that do not set forth precise

distances or bearings but rather describe the limits of property in terms of the

adjoining parcels of land”).

[¶48] “The rule is well settled that the land of an adjacent owner is a

monument, and boundaries are controlled, in descending priority, by

monuments, courses, distances, and quantity, unless this priority produces

absurd results.” Harborview Condo. Ass’n v. Pinard, 603 A.2d 872, 873

(Me. 1992) (citation and quotation marks omitted); see also Snyder, 679 A.2d

at 514. Other calls in a deed must give way to the line of an adjacent tract if the
24

line is “established and known” because such a boundary is “usually considered

more certain, being at a fixed and definite place.” Howe v. Natale, 451 A.2d

1198, 1206 (Me. 1982) (Carter, J., concurring in part and dissenting in part)

(quotation marks omitted); see also Rusha v. Little, 309 A.2d 867, 870

(Me. 1973) (“One who accepts a deed describing his land in terms of an

adjoining tract is bound by the prior tract as a boundary and a monument . . . .”).

[¶49] “The rule of deed construction that monuments control over [other

calls] is not an arcane relic of medieval conveyancing, but a rule conforming

with common sense and the likely intent of the grantor.” Edmonds v. Becker,

434 A.2d 1012, 1013 (Me. 1981). “The intent of the parties is the principal

guide to deed construction, and the law reasonably assumes that where a call

in a deed runs to the land of an abutter, the grantor intended to convey the

entire parcel to that point, and not to retain title in a narrow slice of land.” Id.

(citation omitted).

2. Under the relevant law, the Hartley-to-Butlers deed conveyed
the intertidal land in front of the Eckrotes’ upland to the
predecessors in interest of Mabee and Grace.

[¶50] Unlike the Hartley-to-Poor deed, the Hartley-to-Butlers deed does

contain a call to the water—“easterly by Penobscot Bay”—thus triggering the

presumption of the Colonial Ordinance. See Almeder, 2019 ME 151, ¶ 37,
25

217 A.3d 1111. After the property was sold to the Butlers, it was then conveyed

to the Bells, the Trainors, and so on, until it was acquired by Mabee and Grace.

Each of these subsequent conveyances iterated the same call to the water.10

[¶51] Nordic contends that if Hartley severed the intertidal land from the

upland when she conveyed a portion of her property to Poor, then the intertidal

land in front of the Poor property was never conveyed, and Hartley’s heirs

inherited it. But the plain language of the Hartley-to-Butlers abutters’ deed

indicates that Hartley conveyed all the disputed intertidal land to Mabee and

Grace’s predecessors in interest. The law related to abutters’ deeds has two

important consequences when applied here. First, the location of the boundary

between Hartley’s property and Poor’s property would have been “established

and known” to Hartley as the common grantor, and, therefore, the

Hartley-to-Butlers deed must give way to the Poor boundary as the adjacent

tract. See Howe, 451 A.2d at 1206 (Carter, J., concurring in part and dissenting

in part). The “Northerly by land of Fred R. Poor” reference in the

Hartley-to-Butlers deed signifies that the boundary runs along the length of the

Poor property and not merely along the portion between the Atlantic Highway

10The trial court correctly applied this rule of construction when it determined that Mabee and
Grace established title to the intertidal land fronting their property and the Schweikerts’ property,
which ruling was not appealed.
26

and the high-water mark. Second, the law presumes that, by using an abutters’

deed, Hartley intended to convey her entire parcel and not retain title in a

narrow strip of land to which she would have no access. See Edmonds, 434 A.2d

at 1013.

[¶52] In sum, once it is understood that the Hartley-to-Poor deed did not

convey the disputed intertidal land, under the relevant legal principles, the

language in the Hartley-to-Butlers abutters’ deed unambiguously conveyed the

disputed land to Mabee and Grace’s predecessors in interest.11

D. The restrictive covenant imposed on the Eckrote upland by the
Hartley-to-Poor deed runs with the land.

[¶53] As noted above, see supra ¶ 9, the Hartley-to-Poor deed restricts

the use of the conveyed property to “residential purposes only.” Mabee and

Grace argue that this restriction runs with the land, i.e., binds the successor

owners of the land. Adhering to the modern view of restrictive covenants as

expressed in the Restatement (Third) of Prop.: Servitudes ch. 4 (Am. L. Inst.

2000), we agree.

[¶54] Referring generally to “servitudes,” which are legal devices that

create a right or an obligation that runs with land, the Restatement properly

Again, although we need not look to extrinsic evidence, we observe that Hartley’s probate file
11

contains a note indicating that she conveyed all her real property during her life.
27

orients the focus of the inquiry on the parties’ intent. Id. §§ 1.1, 4.1. That intent

should be ascertained from the language used in the instrument or the

circumstances surrounding the creation of the servitude, and the servitude

should be construed in a manner that carries out the purpose for which it was

created. Id. § 4.1(1).

[¶55] This rule “departs from the often expressed view that servitudes

should be narrowly construed to favor the free use of land.” Id. § 4.1 cmt. a.

Instead, “[u]se restrictions on property are valid . . . so long as there is some

rational justification for the restriction.” Id. § 3.5 cmt. d; see also

Green v. Lawrence, 2005 ME 90, ¶ 11, 877 A.2d 1079 (holding that a restrictive

covenant limiting the development of property was not unreasonable).

[¶56] Here, the restrictive covenant in the Hartley-to-Poor deed reads:

The lot or parcel of land herein described is conveyed to
Fred R. Poor with the understanding it is to be used for residential
purposes only, that no business for profit is to be conducted there
unless agreed to by Harriet L. Hartley, her heirs or assigns.

[¶57] This servitude is not unreasonable, either on its face or in the

context of the specific land on which the limitation is imposed. Also, when in
28

doubt, servitudes are to be construed to be appurtenant rather than in gross.12

See French v. Est. of Gutzan, 2015 ME 152, ¶ 10, 128 A.3d 657. More specifically,

the burden to remain residential imposed on Poor’s parcel was more beneficial

to Hartley’s successors in interest than to Hartley personally, supporting the

conclusion that this benefit is appurtenant. Restatement (Third) of Prop.:

Servitudes § 4.5(1)-(2). Finally, the servitude references “heirs” and “assigns,”

reflecting an intent to bind successors. See 9 Michael A. Wolf, Powell on Real

Property § 60.04[3][b], Lexis (database updated December 2022) (stating that

such language “constitutes strong evidence of the devolutive intent”).13

[¶58] In sum, the restriction to “residential purposes only,” benefiting

the holder of the land now owned by Mabee and Grace, runs with the land

conveyed to Poor, binding Poor’s successors.

12 As the Restatement (Third) of Prop.: Servitudes § 1.5 (Am. L. Inst. 2000) explains:

(1) “Appurtenant” means that the rights or obligations of a servitude are tied to
ownership or occupancy of a particular unit or parcel of land. The right to enjoyment
of an easement or profit, or to receive the performance of a covenant that can be held
only by the owner or occupier of a particular unit or parcel, is an appurtenant benefit.
A burden that obligates the owner or occupier of a particular unit or parcel in that
person’s capacity as owner or occupier is an appurtenant burden.

(2) “In gross” means that the benefit or burden of a servitude is not tied to
ownership or occupancy of a particular unit or parcel of land.

“Only appurtenant benefits and burdens run with land . . . .” Id. § 1.5 cmt. a.

As successors in interest to Hartley’s benefitted property, Mabee and Grace have standing to
13

enforce the covenant. See Restatement (Third) of Prop.: Servitudes § 1.3 cmt. d (“[I]f the benefit runs
with land, a successor to the land may enforce without assignment . . . .”).
29

E. Injunctive relief to enforce the conservation easement is not
mandated.

[¶59] In 2019, Mabee and Grace created a conservation easement over

their intertidal land. They granted the easement to Upstream Watch, which

later assigned the easement to Friends. Simplifying the trial court’s ruling for

the purposes of our analysis, the court denied injunctive relief to enforce the

conservation easement on the grounds that Mabee and Grace (1) failed to

establish title to the intertidal land fronting the Eckrotes’ and Morgan’s upland

properties and therefore did not have a valid conservation easement on that

property and (2) failed to offer sufficient evidence that the parties on the

Eckrotes’ side were engaging in any activity on Mabee and Grace’s intertidal

land in violation of the conservation easement. We review the denial of a

request for injunctive relief for abuse of discretion. See Rice v. Cook, 2015 ME

49, ¶ 17, 115 A.3d 86.

[¶60] Because we conclude that Mabee and Grace own the intertidal land

in dispute, the parties on the Eckrotes’ side of the dispute have only the same

rights as any members of the public to enter onto this land. Given that

injunctions are forward looking, however, and the record contains no evidence

to suggest an unwillingness on the part of any party to accept the judicial

determination of the ownership rights in the disputed property, there is no
30

need for us to revisit the issue whether injunctive relief should have been

granted. Cf. Flaherty v. Muther, 2011 ME 32, ¶ 70 n.12, 17 A.3d 640 (concluding

that the plaintiffs’ claim of interference with the use of an easement was not

ripe for adjudication but that, if the defendants unreasonably interfered with

the use of the easement in the future, the remedy of injunctive relief might then

be available); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 210-11 (1995)

(“[T]he fact of past injury, while presumably affording the plaintiff standing to

claim damages, does nothing to establish a real and immediate threat that he

would again suffer similar injury in the future.” (alterations and quotation

marks omitted)).

III. CONCLUSION

[¶61] For the reasons given above, we hold that the deed conveying land

to Poor did not include the intertidal land and that this intertidal land was

eventually conveyed to Mabee and Grace. Mabee and Grace additionally hold

an enforceable servitude over the Eckrotes’ upland. Finally, although Friends

holds an enforceable conservation easement over the intertidal land, injunctive

relief to enforce the easement is not mandated under the circumstances

presented.
31

The entry is:

Judgment vacated. Remanded to the trial court
for proceedings consistent with this opinion.

Kimberly J. Ervin Tucker, Esq. (orally), Lincolnville, for appellants Jeffrey R.
Mabee, Judith B. Grace, and Friends of the Harriet L. Hartley Conservation Area

David J. Perkins, Esq. (orally), Curtis Thaxter LLC, Portland, for appellant
Upstream Watch

Kristin M. Collins, Esq., Stephen E.F. Langsdorf, Esq., Sigmund D. Schutz, Esq.,
and Cameron Ferrante, Esq., Preti Flaherty Beliveau & Pachios LLP, Portland,
for appellee City of Belfast

Andre G. Duchette, Esq., and Gregg R. Frame, Esq., Taylor, McCormick & Frame,
LLC, Portland, for appellees Richard and Janet Eckrote

David M. Kallin, Esq. (orally), and Melissa A. Hewey, Esq., Drummond
Woodsum, Portland, for appellee Nordic Aquafarms Inc.

Waldo County Superior Court docket number RE-2019-18
FOR CLERK REFERENCE ONLY