Hankin v. Sewall

STATE OF MAINE BUSINESS AND CONSUMER COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. BCD-REA-2023-00007

MONTAGU REID HANKIN and )
BONDIE HANKIN, )
)
Plaintiffs, )
)
) ORDER GRANTING PLAINTIFFS'
V ) MOTION FOR TEMPORARY
) RESTRAINING ORDER AND
) PRELIMINARY INJUNCTION
SARAH B. SEWALL and )
THOMAS P. CONROY, )
)
Defendants, )
)
And )
)
GUN CLUB, INC., et al. )
)
Parties-in-Interest. )

BACKGROUND

Before the court is a Motion for Temporary Restraining Order and Preliminary Injunction

filed by Montagu Reid Hankin and Bondie Hankin (together, the "Plaintiffs") in the above­

captioned matter. Plaintiffs, through their motion, request this court enter a temporary

restraining order against Defendants Sarah B. Sewall and Thomas P. Conroy (together, the

"Defendants") enjoining them from interfering with, impeding, blocking, gating, interrupting, or

threatening, in any way, Plaintiffs' use, passage, and easement rights over and across Navy Road

in the Town of Phippsburg, State of Maine.

FACTUAL ALLEGATIONS
The court recites the factual allegations from Plaintiffs' Verified Complaint for the

purpose of deciding Plaintiffs' Motion for Temporary Restraining Order and Preliminary

Injunction.

I. Location of Navy Road

The parties' properties are within the area of land depicted in and described by a certain

Plan of Lots by Motion & Quimby, dated January 1, I 896. (V. Comp!. ~ 90.) That plan also

shows proposed roads and lots in connection with future development of the depicted land,

which necessarily includes Navy Road. (V. Comp!. ii 91.)

Until the early 1960s, Navy Road existed as a cart path between Seal Cove Road and

Small Point in Phippsburg. (V. Comp!. ilil 91-92.) During the 1960s, the United States

Government developed Navy Road as a means to access the Rake Station located at the south

end of Small Point. (V. Comp!. ~ 93.) To do so, the government acquired easements from

various landowners of properties along Navy Road between the Seal Cove Road junction and

Small Point. (V. Comp. ~ 93.) A governmental survey shows that Navy Road was constructed,

in part, over existing cart paths and other roads, and that it crosses areas shown as roads

proposed for future development in the Morton & Quimby Plan.' (V. Comp!.~ 93.)

According to the Defendants, they are the owners of part of the eastern half of Navy

Road, which is within their lot. (See Defs.' Opp'n Pis.' Mot. forTRO, 1.)

II. Use of Navy Road to Access Plaintiffs' Property

Plaintiffs reside at the property located at 116 Navy Road in Phippsburg, Maine, which

they acquired by deed dated March 25, 2021 (the "Hankin Property"). (V. Comp!.~~ 1, 15.)

Defendants, who reside in Natick, Massachusetts, own the real property located at 44 Navy Road

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The governmental survey is entitled "U.S. Naval Air Station, Brunswick Maine Boundary and Easement Plan
Proposed Rake Sta. No, 2 and Access Road, Phippsburg, Maine," dated December 14, 1969, and recorded with the
Sagadahoc County Registry of Deeds. (V. Comp!.~ 93.)

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as trustees of the Sarah B. Sewall Revocable Trust and the Thomas P. Conroy Revocable Trust,

which they acquired by deed dated December 18, 2021.' (V. Comp!. ,r,r 2, 156.) The owners of

the other properties abutting Navy Road are named parties-in-interest in this lawsuit. (V. Comp!.

,r,r 3-14, 18-30.)
The Hankin Prope1ty was previously owned by Plaintiff Montagu Reid Hankin 's

grandmother, Marcia 1-1. Gallup, during the 1950s, and then passed to his mother, Marcia Gallup

Hankin, during the early 1970s. (V. Comp!. 1133.) During 1976, Marcia Gallup Hankin retained

a builder to construct a home there, which was constructed consistent with municipal approvals

and according to a septic easement from Patty-in-Interest Gun Club, Inc. (V. Compl. ,r,r 35, 38.)

The home was built with insulation and heat for year-round usage. (V. Compl. 11 36.) Since that

time, under Plaintiffs' family's ownership the Hankin Property and home were and continue to

be continuously occupied by Plaintiffs' immediate family, during both summer and winter

months. (V. Comp!. 111139-41, 46.)

Between 1976 and 2010, Plaintiffs, their friends and family utilized the Hankin Property

from time to time each year and accessed it from Navy Road. (V. Comp!. 11if 42, 99.) Because

many of these visits occurred during wintertime, Plaintiffs have paid for plowing of Navy Road.

(V. Comp. ,r,r 41, 96.) Plaintiffs, their friends and family accessed the Hankin Property by car

across Navy Road during this period, without objection by or permission from Defendants or any

other party.' (V. Comp!. il11 34, 37, 42, 82.) Likewise, contractors driving construction trucks

and other service providers utilized Navy Road to service, repair or maintain the Hankin

Property. (V. Comp!. ,r 43.)

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Beforehand, Sewall and Conroy owned their Small Point property in their induvial capacities.
JThe Hankin Property was accessed almost exclusively by car, except for occasions when Plaintiff5 hiked in. (V.
Compl. 1[ 96.)

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Marcia Gallup Hankin deceased during 2010. (V. Comp!. ii 42.) Plaintiffs held title to

the Hankin Properly between 2010 and 2020 through their limited liability company owned by

Plaintiff Reid Hankin and his siblings. (V. Comp!. ~ 44.) They continued their use of Navy

Road to access the Hankin Property during this period. (V. Comp!. ii 44.) During 2020 or 2021,

Plaintiffs acquired the siblings' interest in the Hankin Property and became the sole, individual

owners thereof. (V. Comp!. ii 45.) Then, they moved to Maine from New York and began to live

at the Hankin Property full time. (V. Comp!. ~ 46.) Due to their use of Navy Road, Plaintiffs

have made numerous contributions to its maintenance, including plowing and making repairs

after a large storm. (V. Campi. ~~ 96, 98.) Defendants also contributed to such repairs. (V.

Comp!.~ 98.)

On or about January 23, 2021, Plaintiffs received a letter from Defendants that, for the

first time, called into question Plaintiffs' and their predecessors-in-titles' right to use Navy Road.

(V. Comp!. ~~ 57, 109.) Until then, Defendants had affirmed others' use of Navy Road,

including Plaintiffs'. (V. Comp. ii I03 .) Through the letter, Defendants notified Plaintiffs that

they would not have year-round access over Navy Road, and that they should seek alternative

access to the Hankin Property via Gun Club Road. (V. Comp!. ~ 58.) The Hankin Property has

never been accessible from Gun Club Road; the intervening area is thickly vegetated and steep,

and it contains ledge. (V. Comp!.~~ 59-60, 99, 109.)

In response to Defendants' letter, Plaintiffs and other members of the Small Point

community notified Defendants that Plaintiffs have lawful access over Navy Road and that said

access is necessary to reach the Hankin Property. (V. Comp!. ~ 61.) Nonetheless, Defendants

proceeded to install a gate across Navy Road to the south of Defendants' driveway and north of

Plaintiffs'. (V. Comp!.~ 62.) Defendants threatened to lock the gate and to refuse southbound

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vehicular passage on Navy Road below the gate as of October 15, 2022. (V. Compl. ~ 62.) The

gate is installed such that it only blocks vehicular access to the properties located to the south of

Defendants' property, which includes the Hankin Property. (V. Comp!.~~ 63, 75-76.)

When the gate was installed during October of 202 l, Defendants locked it and provided

Plaintiffs with a key. (V. Compl. ii 65.) The gate remained locked throughout the winter of2021

and 2022, which required the Plaintiffs to exit their vehicle, unlock and open the gate, drive

through it, then exit their vehicle again to close and lock the gate before accessing their prope11y.

(V. Compl. ~ 66.) Each Plaintiff fell on at least one occasion when they were working the gate.

(V. Comp!. ii 67.) Plaintiffs were required to leave their home to open and close the gate each

time their guests or service providers arrived and departed, and each time their snow contractor

anived to plow Navy Road. (V. Compl. ~~ 69-71, 80.)

When Plaintiffs left the gate unlocked to ensure that it would not freeze, Defendants

complained and, through counsel, told Plaintiffs that they must lock the gate at all times or else

Defendants would pcnnancntly lock it. (V. Compl. ilil 72-73.) Plaintiffs, hopeful to keep the

neighborhood peace, complied. (V. Compl. ~ 74.) However, Plaintiffs complain that Defendants

located the gate where it is intentionally to hassle and inconvenience Plaintiffs. (V. Compl. ii

76.)

Defendants also blocked Navy Road during the summer months by closing the gate,

drawing a rope from the gate across the ungated portion of Navy Road, and by parking their ear

in front of the gate. (V. Comp!. ~ 78.) This prevented or delayed certain of Plaintiffs'

contractors from accessing the Hankin Property, perfom1ing work there, and from departing from

the Hankin Property. (V. Compl. ~~ 78, 80.) During the summer of 2022, Defendants asked to

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meet with Plaintiffs and then informed them that Plaintiffs must relocate their driveway because

they planned to lock the gate on October 15 that year. (V. Comp!. ,iii 81, 83.)

If Defendants maintain the locked gate across Navy Road, it will render the Hankin

Property and Plaintiffs' home there inaccessible by vehicle. (V. Comp!. i1,i 84, 99.) Emergency

personnel and Plaintiffs' service providers will not be able to access the Hankin Property. (V.

Comp!. ilil 84-85.) Plaintiffs and other owners of the properties along Navy Road have declared

their rights to use Navy Road to access their properties. (V. Comp!. ,i 86.)

TEMPORARY RESTRAINING ORDER STANDARD

The party seeking a temporary restraining order ("TRO") must demonstrate that the

following elements are satisfied: (I) the movant will suffer irreparable injury if the TRO is not

granted; (2) such injury outweighs any harm which granting the TRO would inflict on the

adverse party; (3) the movant has a likelihood ofsuecess on the merits; and (4) the public interest

will not be adversely affected by granting the TRO. Bangor Historic Track, Inc. v. Dep 't of

Agric., Food & Rural Res., 2003 ME 140, ,i 9, 837 A.2d 129 (citation omitted); see also M.R.

Civ. P. 65(a).

Each of these four elements must be established by a preponderance of the evidence. See

Cumberland Farms, Inc. v. Everett, 600 A.2d 398, 399 (Me. 1991). "A court does not consider

these elements in isolation, but weighs all the criteria together in dete1111ining whether injunctive

relief is proper in the specific circumstances of the case." Windham Land Tl'. v. Jeffords, 2009

ME 29, ,i 41, 967 A.2d 690 (discussing injunctive relief generally) (citation omitted).
Nonetheless, a moving party's failure to demonstrate any of the four elements or criteria requires

denial of the requested TRO. Bangor Historic Track, Inc., 2003 ME 140, ,i 10, 837 A.2d 129

(citation omitted).

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DISCUSSION

Plaintiffs' Verified Complaint includes counts for declaratory, equitable, and injunctive

relief primarily relating to their claimed right to access the Hankin Property by and over Navy

Road.' (V. Compl. ilil 115-130, l 63-172.) Plaintiffs base this claim on an alleged express

easement (Count III), easement by prescription (Count IV), easement by estoppel (Count V), or

easement by necessity (Count VI). (V. Compl. ,r,r l 31-146.) Because the court finds the present

record is sufficient to grant Plaintiffs' motion insofar as it seeks temporary injunctive relief

related to the claimed easement by prescription, the coU1t's discussion is limited to Plaintiffs'

Count IV.

I. Whether Plaintiffs will suffer irreparable iujury if the TRO is not granted.

A TRO may be granted only if specific facts alleged by affidavit or in a verified

complaint clearly show that "immediate and irreparable injury, loss, or damage will result" to the

moving party without such an order. Bangor Historic Track, Inc., 2003 ME 140, ,r 10, 837 A.2d

129 (citing M.R. Civ. P. 56(a)). "Irreparable injury" is defined as "injury for which there is no

adequate remedy at law." Id. (citations omitted). Wrongful and persistent interference with

another's legitimate and material right to access their property constitutes an irreparable injury.

See Stanton v. Strong, 20l2 ME 48, ii 11, 40 A.3d 1013. This is because "the owner ofan estate

that is servient to an easement may not make a use of the servient land which impairs effective

use of the easement within the bounds of the easement." Id. ii 10 (quoting Badger v. Hill, 404

A.2d 222, 227 (Mc. l 979)).

Plaintiffs satisfied their burden of proof concerning their itTeparable mJury. Unless

Defendants are enjoined from maintaining the locked gate across Navy Road, Plaintiffs, their

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Plaintiffs also assert claims under theories of boundary by acquiescence (Count VII) and nuisance (Count VIII).
(V. Campi. 1111147-162.)

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guests and service providers will not be able to freely access the Hankin Property and Plaintiffs'

home. Plaintiffs cannot access the Hankin Propetty via any other route, such as Gun Club Road.

Construction of a way from the Hankin Property to Gun Club Road is not feasible. Thus,

Plaintiffs' injury, Defendants' alleged persistent interference with Plaintiffs' right to access their

property, is not readily reduced to damages. This factor favors granting Plaintiffs' requested

TRO.

II. Whether Plaintiffs' claimed injury outweighs any harm that granting the TRO
would inflict upon Defendants.

Plaintiffs alleged injury is described above. In opposition to Plaintiffs' motion,

Defendants claim that maintenance of the locked gate across Navy Road is necessary to protect

their privacy and to prevent damage to Navy Road. The cutTent record does not make clear

whether these are actual issues, or merely speculative concerns. Accordingly, Plaintiffs' claimed

inability to freely access their property that would result without a TRO outweighs these harms.

This factor also favors Plaintiffs.

III. Whether Plaintiffs' prescriptive easement claim is likely to succeed on the
merits.

The patty claiming a prescriptive easement must prove the following clements by a

preponderance of the evidence: (I) continuous use for at least twenty years, (2) under a claim of

right adverse to the owner, (3) with the owner's knowledge and acquiescence, or with a use so

open, notorious, visible, and uninterrupted that knowledge and acquiescence will be presumed.

Andra/cites v. White, 2010 ME 133, if 14, 10 A.3d 677; see also 14 M.R.S. § 812. The court finds

that, on the record evidence, Plaintiffs are likely to succeed on the merits on each element of

their prescriptive easement claim.

a. Plaintiffs' continuous use of Navy Road to access the Hankin Property
throughout the statutory period.

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The present record suggests it is more likely than not that the Plaintiffs' use of Navy

Road to access the Hankin Property and their home there was sufficiently continuous throughout

the statutory period to entitle them to a prescriptive easement. First, Plaintiffs and their

predecessors-in-title used Navy Road to access the Hankin Prope1iy since 1976, more than the

twenty-year statutory period. Next, the nature of Plaintiffs' use of Navy Road was consistent,

even if intennittent, during the many years when they maintained their primary residence outside

of Maine.

Defendants argue that intermittent, seasonal use is not sufficiently continuous or of a

nature to support a prescriptive easement. (Def's Opp'n to Pis.' Mot. for TRO, 14-15.) It is true

that "[t]he extent of an easement created by prescription is fixed by the use through which it was

created." Bray v. Grindle, 2022 ME 130, 'ii 14,802 A.2d 1004 (quoting Restatement of Propcrty

§ 477 (Am. Law Inst. 1944)). However, "some variation between the use by which a

prescriptive easement was created and the uses made under it after its creation is inevitable. The

problem is to ascertain the limits of permissible variation." Id. 'ii 15 (quoting Restatement of

Property§ 478, emt. a). To determine whether a given variation between the use under which a

prescriptive easement was generated and a particular use, court's compare (I) the physical

character of each use, (2) their purpose, and (3) the relative burden caused by them upon the

servient estate. Id. 'ii 15 (citation omitted).

Here, the prescriptive easement was generated by Plaintiffs' family's, guests', and service

providers' intermittent use of Navy Road to access the Hankin Property and Plaintiffs' home

there. Plaintiffs' present use is for the same general purpose. There is no material difference in

the physical character or purpose across these uses; each goes to vehicular and pedestrian

passage across Navy Road to access the Hankin Property. Finally, there is no significant

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variation in the relative burden on Defendants or on Navy Road. Mere increase in the volume or

frequency of traffic is insufficient to establish per se a greater independent burden on the servient

estate. See Great Northern Paper Co., Inc. v. Eldredge, 686 A.2d 1075, 1079 (Me. 1996).

Otherwise, there is little, if any, record evidence available to corroborate Defendants' allegation

that Plaintiffs' present use of Navy Road is overly burdensome. See generally Wake/in v.

Marietta, No. CV-21-019, 2021 Me. Super. LEXIS 126, at *4 (Me. Super. Ct. June 1, 2021).

b, Plaintiffs' use of Navy Road under a claim of right adverse to Defendants,

"To use a property under a claim of right, a claimant must be in possession as the owner,

intending to claim the land as his own, and may not be in recognition of or subordination to the

record title owner." Jordan v. Shea, 2002 ME 36, ,i 23, 791 A.2d 116. Additionally, the

claimant's use of the property at issue is "adverse" when they "disregard the owner's rights

entirely and use[] the land as though he were the true owner. Relevant to these determinations is

the claimant's state of mind." Id. (citations and internal quotation marks omitted). Hence, it is

fatal to a prescriptive easement claim that the claimant seeks the owner's permission to use the

subject property, or that the owner affirmatively permits the claimant's use thereof. Id. ,i 24.

Otherwise, courts may presume a claimant's use is adverse to the owner's rights when it is

continuous for the statutory period and the owner acquiesces to that use. Lincoln v. Burbank,

2016 ME 138, ii 31,147 A.36 1165.

Here, Plaintiffs believe that they are entitled to rightful use of Navy Road. They allege

that neither of the Defendants ever objected to or permitted Plaintiffs' or their predecessors-in­

tities' use of Navy Road until 2021. Defendants refute this claim and assert that (I) Plaintiffs

had permission to use Navy Road through a mutual understanding observed by the

neighborhood; (2) the "blood relative exception," see Lincoln, 2016 ME 138, ii 31, 147 A.36

1165, should apply to defeat any presumption that Plaintiffs' use of Navy Road was adverse to

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Defendants; (3) Plaintiffs' use of Navy Road was not adverse to Defendants until 2009, when

Plaintiffs began to use Navy Road independent of the United States government; and (4)

Defendants had their land posted pursuant to 14 M.R.S. § 812 (2018), during 2018. (Def. 's

Opp'n to Pls.' Mot. for TRO, 15-16.)

First, apmt from Defendants' allegations, there is no record evidence of mutual

understanding among Plaintiffs and the other members of the Small Point neighborhood that

Plaintiffs use Navy Road with Defendants' permission. Plaintiffs, on the other hand, submitted

affidavits by parties-in-interest evincing how their and others' Small Point prope1ties were

always necessarily accessed over Navy Road, and that they accessed them accordingly as a

matter of right. (See Pis.' Mot. for TRO, Exs. D, E.)

Next, the patties are related by blood merely in that they share a great, great, great

grandfather. (Defs.' Opp'n to Pls.' Mot. for TRO, 15 n.37.) In Maine, evidence of a familial

relationship between the dominant and servient estates may preclude application of any

presumption of adverse use. Lincoln, 2016 ME 138, ,i 31, 147 A.36 1165. However, the

exception may apply only to cases wherein those estates "were owned within the same family

during the period in which the prescriptive right of access is alleged to have accrued."

Androldtes, 2010 ME 133, ,i l8, 10 A.3d 677. That is not the case here. Thus, Plaintiffs, absent

record evidence of any pem1ission from or other affirmative non-acquiescence by Defendants,

are entitled to a presumption that their use of Navy Road during the statutory period was

"adverse" to Defendants.

Finally, neither the nature and timing of the Navy's use of Navy Road nor the fact that

Defendants posted their land during 2018 defeat Plaintiffs' claim of adversity at this stage. The

Navy used and developed Navy Road under its own express easements. The Navy's use of Navy

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Road does not dictate whether Plaintiffs' use was adverse to Defendants. An existing easement

to use of real property in a third party is not an obstacle to generation of a new easement by

prescription. Further, Plaintiffs' claimed easement by prescription ripened after twenty years.

On the TRO record, the court measures twenty years from 1976 or shortly thereafter, which

elapsed before 2018. Thus, Defendants did not defeat Plaintiffs' claim when they posted their

property during 2018.

c. Defendants' knowledge of Plaintiffs' use of Navy Road.

The record evidence is sufficient to establish that Defendants knew about Plaintiffs' and

others' use of Navy Road. The individual Plaintiffs and their family members began to use the

Hankin Property as early as 1976. Beginning that year, Defendants reasonably should have

observed Plaintiffs and Plaintiffs', their guests, contractors and service providers intermittently

accessing the Hankin Property from Navy Road. Also, Plaintiffs, like Defendants, contributed to

and coordinated the maintenance of Navy Road. Even if Defendants were truly unaware of

Plaintiffs' use of Navy Road (which is unlikely, in consideration of the shared maintenance and

Defendants' posted notice), Plaintiffs above-described use of Navy Road was sufficiently "open,

notorious, visible, and uninterrupted" to entitle them to a presumption regarding Defendants'

knowledge of and acquiescence to it.

Thus, under the current record, Plaintiffs are substantially likely to succeed on the merits

of their prescriptive easement claim.

IV. Whether public policy would be adversely affected by granting the injunction.

Other than a fundamental policy interest in ensuring landowners access to their real

property, the court concludes that public policy is not meaningfully implicated under the

circumstances. This factor favors Plaintiffs, but in this case it is less significant and less weighty

than the other factors.

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V. Plaintiffs' entitlement to a TRO; duration and scope.

In conclusion, the court grants Plaintiffs the requested TRO. Consistent herewith:

1. Defendants must unlock and open the gate installed immediately to the south of their
property along Navy Road, and immediately to the north of the Hankin Property;

2. Defendants must keep the gate unlocked and open for the duration of this court's order;

3. Defendants are otherwise enjoined from taking any action that results in obstructing or
blocking, for any amount of time, free passage across Navy Road between the Seal Cove
Road junction and Small Point in Phippsburg, Maine;

4. This court's Order Granting Plaintiffs' Motion for Temporary Restraining Order and
Preliminary Injunction will expire when this case is resolved by final judgment.

Because the issue of security was not addressed by either party in the papers or during the

parties' status conference with the court on May 16, 2023, the court has no basis to determine a

proper sum for the payment of "such costs and damages as may be incurred or suffered by any

party who is found to have been wrongfully enjoined." M.R. Civ. P. 65(c).

CONCLUSION

Based on the foregoing, the entry will be: Plaintiffs' Motion for Temporary Restraining

Order and Preliminary Injunction is GRANTED.

So ordered.

The Clerk is requested to enter this Order on the Docket, incorporating it by reference

pursuant to Maine Rule of Civil Procedure 79(a).
/

b/~~//
Date:- - ~ ~--~-­ 1J
Thomas R. McKean
Justice, Business & Consumer Cou1t

Entered on the docket: 06/05/2023

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