ZR Management, LLC v. Nawrot

STATE OF MAINE SUPERIOR COURT
WALDO, SS. DOCKETNO. RE-17-11

ZR MANAGEMENT, LLC )
Plaintiff )
) DECISION AND JUDGMENT
v. )
)
ALLAN NA WROT, et al )
Defendants )

A trial on the pending Complaint and Counterclaim was held before the
Couit on December 21, 2018. Subsequent to the trial, the parties filed
written Closing Arguments and Reply memoranda for the Court's fuither
consideration.

FACTUAL BACKGROUND

The plaintiff owns a parcel of real estate on Route 1 in Lincolnville, Maine.
The defendants own an adjacent parcel also with frontage along Route 1 in
Lincolnville. Each of the adjacent parcels owned by the paities in this case
had previously been a single parcel owned by a common grantor (The First,
N.A.) which conveyed the parcels to these parties.

The plaintiff owns and operates a commercial inn on its parcel along Rt. 1.
The defendant's parcel, located to the west of the plaintiffs parcel along
Route 1, includes a right-of-way along a gravel roadway (Ballou Drive) that
continues along the weste1n border of the defendants' parcel and which
benefits one or more parcels to the north of the defendants' parcel which are
owned by various nonparties to this action (the Ballou property owners). The
plaintiff has no deeded right of access to Ballou Drive.

Several hundred feet north of the intersection of Route 1 and Ballou Drive is
the beginning of a pathway leading through the woods from the right-of-way
across the defendants' parcel to the plaintiffs parcel ending in an area
behind the plaintiff's inn. The rights and usage of this back pathway is at the
center of the dispute as to all claims in the pending Complaint and
Counterclaim.

The plaintiff acquired its interest in its parcel through a series of
conveyances by a deed initially dated October 26, 2012 and subsequently by
two additional corrective deeds dated January 24, 2013 and November 7,
2013. In none of these deeds was the plaintiff granted an express easement
to generally utilize the back pathway to gain access to the back of its inn
property. 1

The defendants' parcel was acquired pursuant to a deed issued by the
common grantor (The First, N.A.) on April 5, 2013. The defendants' deed,
in addition to the easement described in Note 1 below, conveyed a right-of­
way interest along Ballou Drive to the Ballou property owners north of the
defendants' parcel, but granted no such rights to the plaintiff. In fact, a

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The Defendant's parcel is burdened by an express easement benefitting the Plaintiffs
parcel which allows Plaintiff "to maintain, repair and replace that portion of [Plaintiff's]
existing septic system, as the same presently exists ... [t]ogether with the right to enter
the premises of the [Defendant] for the purpose of making any needed maintenance,
repairs or replacement of the septic system."

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separate Road Maintenance Agreement and Confirmatory Easement was
also signed on or about April 5, 2013 and recorded at the same time as the
defendants acquired their deed. The plaintiff is not a signator to the Road
Maintenance Agreement and Confirmatory Easement, and acquired no rights
or entitlement to use the right-of-way along Ballou Drive.

At various times subsequent to both parties having acquired their respective
interest in their parcels, the plaintiff, or entities providing services for the
plaintiffs inn, utilized the Ballou Drive right-of-way and the back pathway
across the defendants' parcel to gain access to the rear portion of the
plaintiffs inn. 2 Initially, some of the plaintiffs use of the area near or along
the back pathway was authorized by the defendants. After the relationship
between the parties soured, the defendants unsuccessfully attempted to block
the plaintiffs usage of the back pathway by erecting various obstacles, such
as signage, brush and sawhorses which were removed by the plaintiff.
Ultimately, the defendants placed large boulders at the entrance to the back
pathway along the Ballou Drive right-of-way. Since the placement of the
large boulders, the plaintiff has been unable to utilize the back pathway.

ANALYSIS

Count 1 of the plaintiffs Complaint asks the Court to recognize the existence
of an implied easement for use of the back pathway over the defendants'
parcel. Count 2 of the Complaint alleges that the defendants' interference

2
It is not clear what level of use of the back pathway by the Plaintiff occurred during the
relatively brief 6 month timeframe between the first deed to the Plaintiff and the deed
conveying the Defendant's interest.

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with the plaintiffs use of the back pathway constitutes a nuisance which
entitles the plaintiff to an award of damages and recovery of their atto1ney's
fees. Finally, Count 3 claims the defendants trespassed on the plaintiffs
prope1ty and, accordingly, seeks recovery of damages.

The defendants' Counterclaim seeks, in Count 1, a declaratory judgment
confirming the plaintiff has no easement rights over the back pathway on the
defendants' parcel. Count 2 of the Counterclaim alleges that the plaintiffs
conduct in its use of the back pathway constituted a private nuisance for
which the defendants are entitled to an award of damages. Finally, Count 3
alleges the plaintiffs conduct constituted statutory and common law trespass
for which the defendants are entitled to an award of damages.

In none of the three deeds conveying the plaintiffs interest did the plaintiff
acquire any general right to the usage of the back pathway for access to its
property. The conveyance to the defendants from the original grantor also
did not convey any express easement interest for the benefit of plaintiff
except for the specific easement described in Note 1 above.

Given the access the plaintiff has to its parcel along Route 1, no claim of an
implied easement by necessity can be successfully asse1ted. Plaintiff claims,
nonetheless, that it is entitled to an implied easement by a prior quasi­
easement. The Law Court in Northland Realty, LLC v. Crawford, 2008 ME
92 addressed the issue of an implied easement by a prior quasi-easement.
Specifically, that Court held,
the creation of an implied easement by a prior quasi-easement
depends on both a pre-existing use of the land and the intent of the

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grantor at the time of conveyance. [Internal citation omitted]. An
implied easement by a prior quasi-easement arises when:
(1) the prope1iy when in a single ownership [was] openly
used in a manner constituting a "quasi-easement," as
existing conditions on the retained land that are apparent and
observable and the retention of which would clearly benefit
land conveyed; (2) the common grantor, who severed unity
of title, ... manifested an intent that the quasi-easement
should continue as a true easement, to burden the retained
land and to benefit the conveyed land; and (3) the owners of
the conveyed land ... continued to use what had been a
quasi-easement as a true easement. Id. at ~13.

The plaintiff in this case has failed to present sufficient evidence to
demonstrate that the common grantor, The First, N. A., manifested an intent
to continue a quasi-easement over the back pathway for the benefit of this
plaintiff. There were ample opp01iunities over the course of the crafting of
the initial deed and the two corrective deeds to the plaintiff for the original
grantor to have manifested any such intent. Moreover, the lack of any
inclusion of the plaintiff in the development of and execution of the Road
Maintenance Agreement along Ballou Drive, which provides the only access
to the back pathway, also demonstrates a lack of intent in conveying any
quasi-easement interests to or for the benefit of the plaintiff. Accordingly,
the Court finds that no such quasi-easement interest has been established
with respect to the back pathway over the defendants' parcel.

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Having concluded that no implied easement for the benefit of the plaintiff
exists, the plaintiffs claims for nuisance and/or trespass as set forth in
Counts 2 and 3 cannot prevail. 3 The defendants were clearly within their
rights to block access to the back pathway to prevent the plaintiffs intrusion
onto their land.

With respect to the defendant's Counterclaim, as noted above, this Court
concludes that the plaintiff has failed to establish the existence of any
implied easement by prior quasi-easement with respect to the defendants'
parcel. Accordingly, as to Count 1 of the Counterclaim seeking a declaratory
judgment, the Court awards judgment in favor of the
defendants/counterclaim plaintiffs.

In Count 3 of the Counterclaim, the defendants/counterclaim plaintiffs assert
a claim for trespass under Title 14 MRSA §7551-B. This provision
addresses the conduct of the person who intentionally enters the land of
another and causes damage to prope1iy. The evidence in this case suggests
that the plaintiffs use of the back pathway was, to some degree, authorized
by the defendants initially. Once the defendants placed the large boulders
along the back pathway, the plaintiff ceased its effo1is to utilize that same
pathway. The defendants failed to present any evidence of actual damages.
The limited actual intrusions upon the pathway after the defendants refused
access to the plaintiff and before the boulders were placed constitute a

3
To the extent Plaintiffs trespass claim is based upon some theory that one or the other
of the defendants trespassed on the plaintiffs own parcel, the evidence presented was
insufficient to support such a claim.

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nominal int1usion which this Court concludes does not warrant an award of
damages under section 7 551-B.

For similar reasons, the Court concludes that the defendants/counterclaim
plaintiffs have failed to establish their claim for private nuisance as set forth
in Count 2 of the Counterclaim.

The Clerk is directed to incorporate this Decision and Judgment, by
reference, in accordance with MRCivP 79(a) as follows:

1. as to Count 1 of the Complaint, Judgment for the defendants;
2. as to Count 2 of the Complaint, Judgment for the defendants;
3. as to Count 3 of the Complaint, Judgment for the defendants;
4. as to Count 1 of the Counterclaim, Judgment for the
defendants/counterclaim plaintiffs;
5. as to Count 2 of the Counterclaim, Judgment for the
plaintiff/counterclaim defendant; and
6. as to Count 3 of the Counterclaim, Judgment for the
plaintiff/counterclaim defendant.

Costs are to be awarded to the defendants as the prevailing party upon the
submission of a Bill of Costs filed in accordance with the Maine Rules of
Civil Procedure.

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