Flagg Partners, LLC v. Simba, Inc

STATE OF MAINE SUPERIOR COURT

Cumberland, ss.

FLAGG PARTNERS, LLC

Plaintiff

V. Civil Action Docket No. CUMSC-RE-18-0263

SIMBA, INC.,

Defendant

DECISION AND JUDGMENT

This case came before the court for a jury-waived trial August 27-30, 2019,

with Plaintiff Flagg Partners, LLC ["Flagg"] and Defendant Simba, Inc.

["Simba"J presenting evidence in the form of sworn testimony and exhibits. The

trial was electronically recorded. The trial included a view of the property at issue

in the case.

Flagg and Simba own adjacent commercial properties along Fore Street in

Portland. The focus of the trial was on Flagg's claim that Simba has abandoned

Simba's easement rights over a portion of Flagg's property-a claim as to which

each party has requested a declaratory judgment-and Simba's counterclaim for

slander of title. At the outset of trial, the court made oral rulings on various

motions of the parties. Those rulings are summarized in the court's Supplemental

Order on Pretrial Motions and Objections dated August 30, 2019, which is

incorporated by reference in this Decision and Judgment.

REC'D CUMB CLERKS OFC
JAN 6 '20 F'M1:<'IO
Following trial, the parties submitted proposed findings of fact and

conclusions oflaw in the form of briefs, and also submitted replies to each other's

filing. Briefing was complete November 12, 2019, at which time the court took the

case under advisement.

The following claims are addressed in this Decision and Judgment:

• The parties' requests for declaratory judgment, contained in Count I of
Flagg's First Amended Complaint and Count I of Simba's Counterclaim-­
regarding the nature and extent ofSimba's easement rights in the portion of
Flagg's property known as Bradbury Court.

• Flagg's claim in Count II of its First Amended Complaint seeking to quiet
title pursuant to 14 M.R.S. § 6652 on the ground that Simba has abandoned
its easement in Bradbury Court.

• Flagg's boundary by acquiescence claim in Count III of its First Amended
Complaint regarding the common boundary between its property and
Simba's property.

• Simba's claim in Count III of its Counterclaim for slander of title.

• Simba's claim for injunctive relief in Count II of its Counterclaim.

Based on the entire record and the view of the property at issue, the court

hereby makes and adopts the following findings of fact and conclusions oflaw, and

renders judgment as set forth below. All deed references are to deeds recorded at

the stated books and pages at the Cumberland County Registry of Deeds.

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A. The Parties and Their Properties

1. Plaintiff Flagg is a Maine limited liability company owned by Taros

and Marianne Hovivian that holds record title to the property commonly known

as 208 Fore Street in Portland, Maine (the "Flagg Property").

2. Flagg acquired the Flagg Property through a quitclaim deed from

Antigonish Holding Co., dated June 29, 2017 and recorded at Book 34121, Page

143.

3. Simba, Inc. is a Maine corporation whose president and treasurer is

Roger Hale.

4. Simba purchased the property commonly known as 216 Fore Street in

Portland, Maine (the "Simba Property") through a quitclaim deed dated February

27, 1992 from Fleet Bank of Maine, assignee of Federal Deposit Insurance

Company ("FDIC"), Receiver for Maine Savings Bank, recorded in Book 9940, Page

159. Since acquiring its property, Simba has used the property as a commercial

parking lot.

5. The Simba Property consists of multiple contiguous parcels that were

assembled into the present Simba Property by Simba's predecessor, Chase Transfer

Corporation. See Deeds at Book 777, Page 277; Book 77 5, Page 42; Book 884, Page

224; and Book 1737, Page 196. The contiguous parcels constituting the Simba

Property include two parcels benefited by an easement over Bradbury Court,

referred to as "the Benefited Parcels" and described in detail below.

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6. The Simba Property abuts two different areas that have each been

known historically as Bradbury Court. The Bradbury Court at issue in this case

runs in a southerly direction from Fore Street and forms the westerly portion of

the Flagg Property and is abutted to the south and west by the Simba Property.

The other Bradbury Court runs from Franklin Street in a northerly direction before

cutting east down to Commercial Street, where it abuts the Simba Property's south

boundary.

7. Both Bradbury Courts are depicted on Simba's boundary survey in

the record as Trial Exhibit 9. All references to "Bradbury Court" in this Decision

and Judgment refer to the Bradbury Court that runs off Fore Street, not the

Bradbury Court that runs between Commercial and Franklin Streets.

B. Flagg's Ownership Interest in Bradbury Court

8. The common source ofFlagg's ownership interest in Bradbury Court

and Simba's easement in Bradbury Court is Henry Bradbury. Trial Transcript vol.

I ["Tr. I"] at 84:3-12. Henry Bradbury held fee title to what is now designated as

Bradbury Court, and Flagg's title to Bradbury Court and Simba's easement rights

in Bradbury Court both derive from Henry Bradbury's fee ownership of Bradbury

Court.

9. Henry Bradbury's heirs granted Flagg's predecessor-in-title, Lewis

Lerman, "any and all title and rights of the grantors herein in and to said Bradbury

Court." See Deeds at Book 884, Page 239, Book 884, Page 477, Book 888, Page 55

4
and Book 888, Page 57. As an example, the deed recorded at the Cumberland

County Registry of Deeds at Book 888, Page 55, sets out the basis through which

grantors' claim title to Henry Bradbury's residual property as the living heirs to

Francis E. Bradbury. On that basis, genealogical research confirmed Francis E.

Bradbury's familial relationship to Henry Bradbury, vesting Francis Bradbury­

and his heirs-with ownership of Bradbury Court after Henry Bradbury's death.

See Tr. I at 97:4-98:17.

10. A June 27, 1956 warranty deed from Quality Home Furnishings Co.

Inc. to Fore Street Corp., and recorded at Registry of Deeds Book 2302, Page 123

includes "any and all title and rights of the Grantor herein in and to said Bradbury

Court," with covenants that Quality Home Furnishings was lawfully seized in the

fee of the premises, and that the premises were free of incumbrances. See Deed at

Book 2302, Page 123; Summ. Ex., Flagg's Chain of Title.

11. Although Simba has challenged Flagg's claim of title to Bradbury

Court, mainly by pointing out discrepancies in various references to Flagg's square

footage, Simba has not identified any other entity or person as the true owner of

Bradbury Court.

12. In any event, the facts in evidence establish that Flagg has a sufficient

ownership interest in Bradbury Court to have standing to seek declaratory relief

regarding the nature, scope and current status of Simba's easement rights in

Bradbury Court. Tr. I at 54:4-57:6, 98:15-17; Deeds at Book 884, Page 239; Book

5
884, Page 477; Book 888, Page 55 and Book 888, Page 57.) See Sargent v. Coolidge,

399 A.2d 1333, 1342 (Me. 1979).

C. The Origins and Scope ofSimba's Bradbury Court Easement

13. The Bradbury Court easement at issue was created by Henry

Bradbury by means of separate conveyances of two adjacent landlocked lots

abutting Bradbury Court. Both conveyances occurred in 1871 and both were by

Henry Bradbury to Portland Steam Packet Co.

14. The first conveyance occurred on June 13, 1871 by virtue of the deed

to Portland Steam Packet Co. recorded at the Cumberland County Registry of

Deeds (the "Registry of Deeds") in Book 386, Page 401.

15. The conveyance granted Portland Steam Packet Co. fee title to a

landlocked parcel located westerly of Bradbury Court, along with an easement

right over land retained by Bradbury as a "right-in-common to said Bradbury's

Court to pass to and from said Fore Street." Id.; Ex. 3. The grantor's retained

land referred to as Bradbury's Court is the Bradbury Court that is the subject of

this case.

16. The second conveyance by Henry Bradbury to Portland Steam Packet

Co. occurred on August 30, 1871, by the deed recorded at the Registry of Deeds in

Book 388, Page 95. See also Ex. 3. The second parcel abuts Bradbury Court on

the north (or Fore Street) side of the parcel conveyed to Portland Steam Packet Co.

in June 1871. Id. The second parcel was not granted an express easement to access

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Fore Street via Bradbury Court, but was landlocked and therefore also benefited by

an easement by necessity over Bradbury Court. Id.

17. The Bradbury Court easement gave the two benefited Portland Steam

Packet Co. parcels access to and from Fore Street via the parcels' common

boundary running along Bradbury Court's westerly sideline. Tr. I at 65: 16-66:21;

Deeds at Book 386, Page 401, Book 388, Page 95.

18. The two parcels Henry Bradbury granted to Portland Steam Packet

Co. that are benefited by the Bradbury Court easement (hereinafter the "Benefited

Parcels") are identified as Parcel Band Parcel Con the Summary Exhibit ofSimba's

Chain ofTitle and are also shown on Exhibit 3 as the June 13, 1871 lot from Henry

Bradbury to Portland Steam Packet Co. and the August 30, 1871 lot from Bradbury

to Portland Steam Packet Co. Tr. I at 103:7-21; Ex. 3.

19. Exhibit 3 is a 1950 survey that accurately delineates the location and

origin of several different parcels that Simba's predecessors-in-title combined after

1871 to form the property now owned by Simba. Tr. I at 14:21-15:1, 15:24-16:1;

Ex. 3; Summ. Ex. Simba's Chain of Title (showing Parcels A,B,C,D, and Emerged

into Chase Transfer Corp. by 1944).

20. Exhibit 3 accurately depicts the bounds of the Benefited Parcels as

they were originally described and conveyed in the 1871 deeds. Tr. I at 20:3-8;

Ex. 3.

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21. Exhibit 3 shows that the two Benefited Parcels have a combined

frontage of about 111 feet on the westerly side of Bradbury Court.

22. Exhibit 3 illustrates the metes and bounds of a third parcel that

Portland Steam Packet acquired from third parties unrelated to Henry Bradbury

by deeds dated in October and November 1871. Ex. 3 ( showing L-shaped parcel

west of the Benefited Parcels).

23. Portland Steam Packet's after-acquired parcel, together with the

Benefited Parcels from Bradbury, combine to match the general depiction of the

Portland Steam Packet Co. property as it existed in 1888 shown on Def.'s Ex.

1. Compare De£'s Ex. 1 with Ex. 3.

24. Portland Steam Packet Co. is the only Simba predecessor-in-title to

have received a conveyance directly from Henry Bradbury. See Summ. Ex. Simba's

Chain of Title (showing only Parcels Band C originating from H. Bradbury).

25. No other rights over Bradbury Court were granted or otherwise

established through Henry Bradbury's conveyances to Portland Steam Packet Co.

Tr. I at 65:16-66:16; Deeds at 386-401; 388-95.

26. Neither Henry Bradbury nor Portland Steam Packet Co. owned the

parcels abutting Bradbury Court's southwesterly boundary at the time the

Bradbury Court easement was created in 1871. Tr. I at 109:24-110:25; Summ. Ex.

Simba Chain of Title (showing parcels D and E owned by Dyers circa 1871 after

entire "portion ofB & C" was conveyed back to Bradbury in 1865).

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27. Bradbury Court was never dedicated as a public way, and the City of

Portland has never acted upon or accepted Bradbury Court as if it had been

dedicated. Tr. I at 58: 17-59:8.

28. Simba owns the fee to the Benefited Parcels, along with several

neighboring parcels that Portland Steam Packet and/or its successors-in-title

acquired after Bradbury's conveyance of the two parcels benefited by the Bradbury

Court easement.

29. An easement holder cannot acquire an easement greater in scope than

the one existing on the date of the easement's execution and delivery. See Willband

v. Knox Counry Grain Co., 145 A. 405, 408 (Me. 1929).

30. To determine the scope of an easement, "the question is whether a

particular use would have been within the contemplation of the parties to the

original conveyance." Wardwell v. Duggins, 2016 ME 55, ~ 12, 136 A.3d 703, 706.

"In other words, the question is whether a use was 'reasonably foreseeable' at the

time of the grant." Id. (quoting Pettee v. Young, 2001 ME 156, ~ 15, 783 A.2d 637).

31. An easement may accommodate modern developments, such as motor

vehicle use over an easement granted for carriage travel prior to the ubiquitous use

of motor vehicles, but "[a]ny changes in use, however, must be consistent with the

purpose for which the easement was originally granted." Guild v. Hinman, 1997

ME 120, ~ 6, 695 A.2d 1190; see also Stevens v. Anderson, 393 A.2d 158, 159 (Me.

1978).

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32. A dominant estate owner may not use an easement to access property

that the parties to the conveyance did not originally contemplate would be served

by the easement. Flaherty v. Muther, 2011 ME 32, ~ 74, 17 A.3d 640, 659-60.

33. These principles oflaw operate to limit Simba's easement rights over

Bradbury Court to the right to pass over Bradbury Court between Fore Street and

each of the two Benefited Parcels.

34. Simba makes several arguments that portions of its property beyond

the two Benefited Parcels have easement rights over Bradbury Court, or that its

easement rights are broader than the rights created in the deeds by which Henry

Bradbury conveyed the Benefited Parcels to Portland Steam Packet Co., but the

record evidence does not substantiate any of those arguments.

35. Simba claims that a 1984 deed from Jordan's Meats, one of Simba's

predecessors in interest, grants an easement over Bradbury Court that benefits

portions of the Simba Property, beyond the two Benefited Parcels. The record

does include a 1984 deed from Jordan's Meats that purports to convey easement

rights in Bradbury Court substantially broader than the rights conveyed or created

by Henry Bradbury, both in terms ofthe property benefited and the uses permitted.

Compare Deed at Book 3992, Page 18 with Deed at Book 6644, Page 144.

36. However, the record evidence does not establish that Jordan's Meats

had any easement rights in Bradbury Court beyond the rights held by virtue of

Henry Bradbury's grants of easements benefiting the two Benefited Parcels.

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37. Jordan's Meats never owned any fee interest or held title to Bradbury

Court as of the date of the 1984 deed, such as would enable Jordan's Meats to

convey easement rights in Bradbury Court greater than those conveyed to the two

Benefited Parcels.

38. Moreover, although the principal of Jordan's Meats, Joseph Jordan,

may also have been the principal ofNorthland Leasing, Inc., which briefly held title

to Bradbury Court, Northland Leasing acquired title in 1985, well after Jordan's

Meats had issued the 1984 deed. Northland Leasing's after-acquired title cannot

have related back to the Jordan Meats deed.

39. Even if Jordan's Meats had owned the Simba Property at the same

time Northland Leasing owned Bradbury Court, the fact that the two different

corporate entities had the same individual principal is not sufficient as a matter of

law to support the conclusion that Bradbury Court and the Simba Property were

in common ownership, and does not otherwise validate Jordan Meats's grant of

easement rights that it did not have the right to convey.

40. Beyond its argument based on the 1984 Jordan Meats deed, Simba

argues that other portions of its property were benefited by an implied easement,

but the record evidence does not support a finding or conclusion that these other

parcels were ever benefited by an easement by necessity or other form of implied

easement over Bradbury Court.

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41. Accordingly, Simba's easement rights in Bradbury Court are limited

to the deeded right to access Fore Street granted to the two Benefited Parcels by

the 1871 deeds from Henry Bradbury to Portland Steam Packet Co. See Deed at

386-401; Deed at 388-95; Ex. 3. The portions of Simba's property other than the

two Benefited Parcels do not have any easement rights over Bradbury Court.

Moreover, Simba's easement over Bradbury Court is limited to pedestrian and

vehicular access between Fore Street and the two Benefited Parcels.

D. History ofUse efthe Bradbury Court Easement

42. In 1906, Portland Steam Packet's successor-in-title, Chase Transfer

Co., acquired an abutting parcel that included frontage along Fore Street, providing

the entire Chase Transfer Co. property, including the two Benefited Parcels, with

direct access to Fore Street. See Deed at Book 777, Page 277. As a result, neither

Simba nor its predecessors in title since 1906 has needed to use the Bradbury Court

easement for vehicular or pedestrian travel between Fore Street and the two

Benefited Parcels.

43. In 1912, Simba's predecessor Chase Transfer Co. acquired the first of

two parcels abutting Bradbury Court's southwesterly boundary line. Deed at Book

884, Page 224; Summ. Ex., Simba's Chain of Title (Parcel A). In 1944, Simba's

subsequent predecessor-in-title Chase Transfer Corp. acquired the second of two

parcels abutting Bradbury Court's southwesterly boundary. Deed at 1737-196;

Summ. Ex., Simba's Chain of Title (Parcel E).

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44. Historical maps and plans establish that, by 1923, buildings stood on

what is now the Simba Property along the two Benefited Parcels' frontage on

Bradbury Court. Tr. I at 35: 1-19.

45. In 1950, Simba's predecessor-in-title demolished the building that

abutted the Bradbury Court easement area along Bradbury Court's westerly

sideline. Ex. 24 at unnumbered p. 52 (Demolition Permit dated Aug. 10, 1950).

46. The record does not reveal whether Simba's predecessors did or did

not make use of the Bradbury Court easement while the buildings were in place

between 1923 and 1950.

47. By 1954, Simba's predecessor-in-title had constructed a new building

on the two Benefited Parcels abutting Bradbury Court. The reconstructed building

also extended along Bradbury Court's southerly boundary. Ex. 14 at 3 (depicting

building as constructed along Bradbury Court); Ex. 5 (1983 survey mappmg

building location along Bradbury Court); Tr. I at 21:20-23: 17.

48. Geologist John Marchewka, in uncontroverted expert testimony,

established that historic topographic data indicates that the level ofBradbury Court

prior to 1983 was up to 3 feet below the foundation wall built along Bradbury

Court's westerly sideline. Ex. 6 (showing topographic lines gradually dropping

from elevation above 20 feet along Bradbury Court's easterly line to 19, 18 and 17

feet along Court's westerly line); Tr. I at 135: 17-136:23, 155:20-25. Because of the

difference in elevation between Bradbury Court and the top of the foundation along

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both of the two Benefited Parcels, it would not be possible for a vehicle to travel

between either of the Benefited Parcels and Fore Street.

49. On the other hand, the difference in elevation would not have

prevented pedestrian access between the Benefited Parcels and Fore Street, nor

would it have prevented Simba's predecessors from using Bradbury Court to move

goods or inventory between Fore Street and loading docks at the back of their

buildings. There were no structures located on Bradbury Court that would have

prevented such use of Bradbury Court. The record does not reveal whether either

pedestrian access or loading dock access along Bradbury Court occurred while

there were buildings on the Simba Property abutting Bradbury Court during the

1950's into the 1980's.

50. However, the fact that Jordan's Meats issued a deed in 1984

incorporating (and ineffectually purporting to expand) the Bradbury Court

easement plainly shows Simba's predecessor's intent not to abandon the easement.

51. Simba's predecessor-in-title maintained the buildings along the west

and south sides of Bradbury Court until they were fully demolished in or around

November 1986. Ex. 5 ( 1983 survey showing location of buildings along Bradbury

Court); Def.'s Ex. 7 at 19-20 (Tax Card, "Building Permit Record" section showing

partial demolition dated November 1985, and remainder of demolition dated

November 1986).

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52. Although Simba's predecessor demolished the buildings that abutted

Bradbury Court in or about 1986, the building foundation walls running parallel

and adjacent to Bradbury Court remained in place after the demolition. Whitaker

Dep. 24:5-18; Tr. I at 22:16-25, 27:24-28:3.

53. Simba's predecessor developed the parking lot now existing on the

Simba Property at 216 Fore Street using a site plan originally dated August 20,

1985, Ex. 6, and subsequently approved for construction by the City of Portland

on November 19, 1986 De£'s Ex. 7 at 15 (showing version of Exhibit 6 city­

stamped as "Approved Site Plan").

54. Simba's predecessor-in-title intended to leave the foundation walls

behind: Both versions of the Simba Property's site plan, Ex. 6 and De£' s Ex. 7 at

15, feature note the developer's intention to leave the foundation walls behind,

stating: "Existing Building Foundation Wall Along Property Line To Remain."

Ex. 6; De£'s Ex. 7 at 15.

55. One effect of leaving the building foundation walls in place was to

optimize the number of available parking spaces for its parking lot by allowing

more cars to park closer to the boundary line than would be possible if the wall

were removed. Tr. I at 45:23-46: 12, 151: 12-25. Another effect was to leave open

the possibility of another set of buildings being built atop the foundation walls.

56. By December 1987, clean fill had been placed against the Simba

predecessor's remaining foundation wall to raise the level of Bradbury Court to the

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top of the foundation walls abutting its westerly and southerly boundaries. Tr. I

at 146:6-147:2, 152:1-10; Ex. 7 (showing as-built parking lot abutting Bradbury

Court). The fill to raise and expand Bradbury Court was added to enable Bradbury

Court to be included in a private parking area benefiting what is now the Flagg

Property, as depicted in the as-built Sebago Technics plan shown in Exhibit 7.

57. Around the same time-the 1980's--a stockade fence was constructed

across Bradbury Court's westerly and southerly sidelines. Tr. I at 31:4-18; Ex. 7

( 1985 boundary survey showing stockade fence 1 ); Ex. 22 (photograph depicting

stockade fence across westerly and southerly Bradbury Court sidelines).

58. In February 1992, Simba acquired the Simba Property at 216 Fore

Street. Deed at Book 9940, Page 159.

59. Before purchasing the Simba Property, Simba had received and

reviewed the marketing materials shown in Exhibit 21, which includes a

photograph, shown in larger scale in Exhibit 22, depicting the Simba Property's

separation from Bradbury Court by both the concrete foundation wall and the

granite block foundation, and also a stockade fence constructed across Bradbury

Court's westerly and southerly sidelines. Tr. II at 97:23-101:12.

1 Ex. 7 indicates that it was completed in 1985 and revised in 1987 "to show as built conditions"
so the stockade fence was in place at least as of 1987, perhaps earlier.
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60. The elevations of the remammg foundation walls that currently

separate the Simba Property from Bradbury Court have remained fundamentally

unchanged since Simba acquired the property in 1992. Tr. II at 104:7-18.

61. Sometime between 1992 and 2001, Flagg's predecessor-in-title

removed the stockade fence and installed a split-rail guardrail across Bradbury

Court's westerly sideline, continuing to block access over Bradbury Court between

the Benefited Parcels and Fore Street. Tr. I at 34:20-25; Tr. II at 108:6-109:3,

142:21-143:18.

62. Simba never objected to the construction or maintenance of the

guardrail, which blocks passage over Bradbury Court's westerly sideline, at least

in part because the guardrail prevented and still prevents cars on Flagg parking

area from rolling onto the Simba Property. Tr. II at 109:2-6.

63. Based on the court's view of the property, a poured concrete

foundation and a granite block foundation, each several feet high, physically

separate the Simba Property from Bradbury Court. Trial exhibit 23 indicates that

the Simba Property is three or four feet lower in elevation than Bradbury Court

along the portion of Bradbury Court abutting the two Benefited Parcels. Thus,

vehicular access between Bradbury Court and the two Benefited Parcels continues

to be impossible, and pedestrian access would be possible only by either climbing

onto or jumping off the foundation wall.

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64. The only physical sign of pedestrian access between the Simba

Property and Bradbury Court is a worn dirt path within a few feet of the Fore

Street sidewalk, at a point where Bradbury Court is only two feet higher than the

Simba Property. The worn area is shown on Trial Exhibit 23. See Tr. Ex. 23 at

point BlO. This path is nearer Fore Street than either of the two Benefited Parcels

so it does not reflect any historical pedestrian access within the scope of Simba's

easement.

65. Since Simba acquired the Simba Property, Simba personnel have used

Bradbury Court to load heavy machinery onto a truck from Bradbury Court's

southerly sideline and to remove snow from the Simba parking lot. Tr. II at 13: 8­

11, 14:17-20, 17:1-12; 20:25-21:8, 44:17-19. How many times Simba personnel

accessed Bradbury Court and exactly what they did is not entirely clear from the

record. See Tr. II 17:1-5 ("My brother-in-law, John Hothersall, hundreds oftimes");

id. 9-10 ("I used Bradbury Court to load equipment two or three times"). The

testimony demonstrated that equipment was loaded at Bradbury Court's southerly

end, not along westerly sideline that abuts the Benefited Parcels. Tr. II at 20:25­

21:8.

66. Additionally, Simba personnel have counted cars in the Simba lot

while standing on Bradbury Court, and Simba has maintained some of the grass

and shrubs growing along Bradbury Court. Tr. II at 44:25-45: 1, 46: 15-23, 63:21­

64:5.

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67. Flagg contends, correctly in the court's view, that none ofSimba's uses

of Bradbury Court is within the scope of Simba's easement, but Simba responds,

also correctly in the court's view, that its periodic use of Bradbury Court since 1992

is relevant to whether Simba intended to retain the easement or abandon it.

68. Flagg's predecessor-in-title, James MacAdam, never witnessed Simba

accessing or using Bradbury Court 2001 and 2017, when MacAdam owned the

Flagg Property and worked at the 208 Fore Street building. Tr. II at 143:23­

147:12. This suggests that Simba's use may be less-perhaps much less-than

the "hundreds of times" suggested in Roger Hale's testimony. On the other hand,

the fact that Mr. MacAdam did not see Simba using Bradbury Court does not mean

the use never happened.

69. Around 2016, prior to Flagg's acquisition of Bradbury Court, Simba

developed and submitted plans to construct a multi-level parking garage structure

on the Simba Property. Tr. II at 64:21-65:13; Ex. 32.

70. The access ramp shown on Simba's proposed design for the multi-level

garage runs the entire length of Bradbury Court to provide a secondary garage

entrance over Bradbury Court's southerly sideline. Tr. II at 65:14-66:22; Ex. 32.

However, Simba's easement confers a right of access over Bradbury Court only into

the two Benefited Parcels on Bradbury Court's westerly sideline, and does not

confer any right to access the Simba Property over Bradbury Court's southerly

sideline.

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71. In addition, Simba's parking garage design would allow access over

Bradbury Court between Fore Street and portions of the Simba Property not

benefited by the easement, thereby possibly overburdening the easement. 2

72. Simba's proposed garage design would add about 102 additional

parking spaces to Simba's garage capacity, a 27 percent increase above the number

of spaces available without the secondary access ramp over Bradbury Court. Tr. II

at 65:14-66:22; Ex. 32 (showing an estimated 474 total spaces for design

incorporating Bradbury Court).

73. Simba's proposed garage design was not approved by the City of

Portland Planning Board, and has not been re-designed or resubmitted for

additional consideration for Planning Board approval. Tr. II at 117:21-118:10,

124:25-125: 18.

74. Simba's application for approval of its proposed garage design

occurred prior to Flagg's acquisition of Bradbury Court. Tr. II at 125:13-18.

75. In June 2017, Flagg acquired Bradbury Court and the remainder of

the 208 Fore Street property. Deed at Book 34121, Page 142.

76. Northeast Civil Solutions prepared a survey for Flagg depicting a

location of Bradbury Court's westerly sideline that differed from prior, unrecorded

2 This Decision and Judgment does not venture any view of whether Simba's easement would
permit it to construct a multi-level parking garage even if the access ramp were to enter one of
the two Benefited Parcels and even if all parking spaces accessible from Bradbury Court lay
within the footprint of the two Benefited Parcels. There is no indication Simba has considered
such a plan and thus no need to address it.
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surveys. Compare Joint Ex. 10 with Exs. 6, 8. Simba raised a question regarding

the accuracy of the Northeast Civil Solutions survey in terms of its depiction of the

westerly boundary of Bradbury Court.

77. Relying on the expertise of its surveyors and on the advice of counsel,

Flagg submitted the Northeast Civil Solutions survey and its proposed project

design plans to the City of Portland Planning Board in April 2018 to solicit

comments on the project design, while the parties worked on resolving their

disagreement about Bradbury Court's westerly boundary. Tr. I at 170:4-20,

171: 13-17, 184: 10-15; Ex. 26. The evidence does not support a finding that Flagg

acted with malice in its use of the survey, or acted in reckless disregard of whether

the survey accurately depicted Bradbury Court's westerly boundary.

78. The Planning Board was notified of the parties' disagreement about

the location of Bradbury Court's westerly boundary line on or before August 2018.

Tr. II at 132:1-10.

79. Flagg submitted a revised survey and revised project design plans to

the Planning Board conforming to the boundary line asserted by Simba in June

2019, the earliest date the complete submission could be revised. Tr. I at 172: 12­

17; Ex. 11; Ex. 33.

80. Simba paid an estimated $10,000 in survey fees to secure Sebago

Technics as a potential expert witness to call at trial, although a lesser sum was

quoted to locate the Bradbury Court line. Tr. II at 128: 11-130: 10; 131:2-12.

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E. The Parties' Declaratory Judgment Claims

81. Flagg in Count I of its First Amended Complaint and Simba is Count

I of its Counterclaim have both requested declaratory relief regarding the scope

and status ofSimba's easement over Bradbury Court. Declaratory relief pursuant

to 14 M.R.S.A. § 5953 is appropriate here because the issue involves the parties'

respective rights under deeds and there is an actual dispute in controversy, both as

to the scope and extent of Simba's easement and as to whether the easement has

been abandoned. Accordingly, the judgment adopted below for entry includes a

declaration as to the scope and extent of the easement and as to its present status.

82. As to the scope and extent of Simba's easement, Simba bears the

burden ofproof to show that its rights are as extensive as Simba claims. See Amodeo

v. Francis, 681 A.2d 462, 466 (Me. 1996).

83. The Bradbury Court grantor intended to grant Portland Steam Packet

Co. a limited easement over Bradbury Court exclusively for the purpose of access

to and from Fore Street, via foot or vehicle, benefiting only the two parcels

conveyed to Simba's predecessor-in-title the June 13, 1871 deed recorded at the

Registry of Deeds in Book 386, Page 401, and the August 30, 1871 deed recorded

in Book 388, Page 95 (the Benefited Parcels).

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84. The Benefited Parcels share a 110-foot common boundary with

Bradbury Court's westerly sideline as depicted in Exhibit 3. The Benefited Parcels

share no common boundary with, and have no connection to Bradbury Court's

southerly sideline.

85. No parcel abutting Bradbury Court's southerly boundary line was

benefited by Henry Bradbury's grant of limited easement rights to Simba's

predecessor-in-title, and no parcel was benefited by easement rights through a

separate grant.

86. Accordingly, the declaratory judgment below establishes that Simba's

easement benefits only the two Benefited Parcels and permits passage between only

the Benefited Parcels and Fore Street.

87. The parties' request for a declaratory judgment as to the current status

ofSimba's easement depends on the resolution ofFlagg's quiet title claim based on

alleged abandonment of the easement. For the reasons set forth below, the court

concludes that Flagg has failed to prove abandonment and therefore grants Simba

declaratory judgment that Simba continues to have the easement rights defined

herein.

F. Flagg's Quiet Title Claim for Abandonment efEasement

88. Flagg's claim in Count II of its First Amended Complaint seeks to

quiet title pursuant to 14 M.R.S. § 6652 on the ground that Simba has abandoned

its easement in Bradbury Court.

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89. The Maine Law Court has summarized as follows the pnmary

principles oflaw that apply to a claim of abandonment of an easement:

Although mere non-use is not enough, an easement created by deed or
grant may be extinguished by abandonment. An easement may be
abandoned by unequivocal acts inconsistent with the further assertion
of rights associated with the existence of the easement. The acts
asserted as evidence of abandonment must be decisive and conclusive
and thereby indicate a clear intent to abandon the easement. We have
previously held that an easement holder's intention to abandon an
easement may be shown from his failure to object to the erection of a
permanent structure that prevents the enjoyment ofthe rights granted
by the easement. [T]he party claiming an abandonment ha[s] the
burden of proof

Chase v. Eastman, 563 A.2d 1099, 1102 (Me. 1989) (internal citations omitted). See
also Gravison v. Fisher, 2016 ME 35, ,I 52, 134 A.3d 857; Stickney v. City cif Saco,
2001 ME 69, ,I 51, 770 A.2d 592.

90. In its most recent discussion of the law of abandonment of easement,

the Law Court noted the difference between a claim of abandonment of an easement

and a claim of adverse possession of an easement. See Dupuis v. Ellingwood, 2017

ME 132, ,J,19-16, 166 A.3d 112. Adverse possession is not an issue in this case. 3

91. Several of the Law Court's decisions in this area have noted that

abandonment of an easement can be established when the holder of the easement

fails to object to the construction and maintenance of a structure upon the easement

s Just before trial, Flagg attempted to assert an alternative claim of adverse possession, but
Simba objected on the ground that Flagg had not pleaded adverse possession as a theory of
liability in its amended complaint. The court gave Flagg the choice of proceeding on both
theories but ruled that, if Flagg elected to do so, Simba would be granted a continuance of trial
to prepare a defense of the adverse possession claim. Flagg elected to proceed only on its
abandonment claim rather than have the trial continued. See Supplemental Order on Pretrial
Motions and Objections at 2 (Aug. 30, 2019).
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that permanently prevents use of the easement. Such was the situation in Dupuis,

Chase and Gravison-in each instance, the portion of the easement occupied by

structures had been abandoned, but the remaining portions ofthe easement had not

been abandoned. See also Fitzpatrick v. Boston & Maine Rail Road, 84 Me. 33, 37­

38, 24 A. 431 (1891) (easement holder's failure to object to permanent structures

obstructing easement supported finding that easement was abandoned); Ballard v.

Butler, 30 Me.94, 98-99 (1849) (failure of easement holders to construction of

permanent structure over well supported finding of abandonment of easement to

use well).

92. However, "neither the building of a fence across an easement and using

it for pasturage, nor a right-of-way overgrown with trees, blocked by rocks, and

inaccessible by car for many years, is sufficiently adverse to constitute

abandonment." Rutland v. Mullen, 2002 ME 98, ~ 10, 798 A.2d 1104, citing Phillips

v. Gregg, 628 A.2d 151, 152 (Me. 1993); Bartlett v. City if Bangor, 67 Me. 460, 466

(1878).

93. There has never been any building or structure located on Bradbury

Court as far as the record evidence indicates.

94. However, Flagg's proposed findings of fact and conclusions of law

identify four acts or omissions by Simba or its predecessors that Flagg contends

are sufficient to sustain its burden of persuasion:

"a. Between at least 1954 and 1986, Simba's predecessor-in-title
constructed and maintained a building that fully blocked the
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Benefited Parcels' entire 110-foot-long point of access to Bradbury
Court. As of 1906, Simba's predecessor had established a more
direct access to Fore Street over its own after-acquired property.
Bradbury Court's natural topography in the area abutting the
Simba predecessor's building further demonstrates that Bradbury
Court was not utilized as a point of access for the building.

"b. Simba's predecessor-in-title, while planning for the demolition
of the building along Bradbury Court and the development of the
surface parking lot now located on the Simba Property, made the
affirmative choice to leave behind the building's foundation walls
along Bradbury Court, which is expressly stated in the site plan
shown in Exhibit 6 and in Defendant's Exhibit 7 at 15. Leaving
the foundation wall standing benefited Simba's predecessor by
allowing it to better utilize more of the Simba Property for parking.
But, Simba's predecessor's intentional acts also cut its own
Benefited Parcels off from the benefit ofBradbury Court because of
the wall left separating the properties.

"c. Bradbury Court's westerly sideline was additionally obstructed
by a stockade fence and a split-rail guardrail. The split-rail
guardrail, which still remains today, was installed by Flagg's
predecessor-in-title between 1992, after Simba acquired the
Benefited Parcels, and 2001. Simba never objected that the
guardrail blocked the Benefited Parcels' access via Bradbury Court.
Simba's failure to object to the permanent structure installed over
and above the elevated foundation wall constituted a conclusive
omission 'inconsistent with the further assertion of rights
associated with the existence of the easement,' Dupuis, 2017 ME
132, ~ 10.

"d. Bradbury Court was filled and elevated approximately 3.5 feet
further above the Benefited Parcels in 1987 without objection by
Simba's predecessors. This failure to object to the permanent
redesign of the Bradbury Court easement area similarly constituted
a conclusive omission 'inconsistent with the further assertion of
rights associated with the existence of the easement' id."

Plaintiffs Proposed Findings ofFact and Conclusions ofLaw at 16-17.

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95. For the reasons that follow, none of these four points-whether they

are considered together or separately-suffices to prove to a high probability that

Simba or its predecessors abandoned the easement.

96. As Flagg points out, there were buildings on the Simba Property

abutting the west and south sides of Bradbury Court, including along the 111 feet

across which the two Benefited Parcels abut Bradbury Court, at various times

between 1923 and 1950 and between 1954 and 1986. However, the record does

not show whether Simba's predecessors did-or did not--use Bradbury Court to

travel between Fore Street and any of those buildings. Because no structure was

ever built on Bradbury Court, there appears no reason why Simba's predecessors

could not have used Bradbury Court for access to the rear of the buildings. The

difference in elevation between the buildings and the surface of Bradbury Court

would not have prevented access to loading docks, for example.

97. Flagg's argument emphasizes that Simba has not shown that its

predecessors actually used the Bradbury Court easement during the 1923-86

period, but this argument fails to recognize that it is Flagg that has the burden of

persuasion to show that it is "highly probable" that no use of the Bradbury Court

easement was made during that period. Mere non-use is not enough to prove

abandonment, see Chase v. Eastman, 563 A.2d at 1102, but affirmative proof ofnon­

use is a necessary, albeit not sufficient, ingredient ofFlagg's burden of persuasion.

See Phillips v. Gregg, 628 A.2d at 152 ("The party [claiming abandonment] may

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meet that burden by showing a history of non use coupled with an act or omission

evincing a clear intent to abandon").

98. Flagg contends that it has met its burden of proving non-use and that

Simba was required to present some evidence that it or its predecessors had used

the easement, see Plaintiffs Proposed Findings of Fact and Conclusions of Law at

17, citing Dupuis v. Ellingwood, 2017 ME 132, ~~ 12-13. However, proof of mere

non-use is not sufficient. Flagg was required to show "an act or omission evincing

a clear intent to abandon."

99. As to the periods between 1923 and 1950 and between 1954 and 1986,

during which buildings stood on Simba's property next to Bradbury Court, Simba's

predecessors' construction and maintenance of buildings that could have been

accessed from Bradbury Court does not demonstrate the required clear intent to

abandon.

100. Moreover, the record contains evidence affirmatively indicating that

Simba and its predecessor, Jordan Meats, intended to retain their easement rights.

The fact that Simba's predecessor, Jordan's Meats, purported to convey an

easement benefiting its entire property in 1984 plainly evinces an intent on its part

to retain and convey the easement. Flagg is correct that the 1984 Jordan Meat's

deed did not and could not operate to expand Simba's easement rights, but the

ineffectual conveyance is still relevant to the easement holder's intent. Moreover,

the conveyance can be interpreted to indicate that Jordan's Meats had in fact made

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use of Bradbury Court to access its property and was attempting to convey the

right to do so to its successor in interest.

101. With regard to the period smce 1986, Flagg's argument for

abandonment hinges on the facts that Simba and its predecessors have failed to

object to the stockade fence and more recently the guardrail along Bradbury

Court's westerly and southerly sides, that the elevation of Bradbury Court was

increased to match the remainder of the Flagg Property sometime around 1987,

and that Simba's predecessor left foundation walls in place.

102. But Simba's and its predecessors' failure to object to these changes

does not equate to the clear and decisive evidence of intent to abandon that the law

requires Flagg to present. The elevation change arguably would make it easier to

use Bradbury Court to access the rear of any future buildings erected on the

existing foundation walls. The stockade fence and guardrail have served Simba's

purposes by preventing vehicles on either property from accidentally rolling onto

the other property.

103. Moreover, the weight of Flagg's evidence regarding the period since

1986 is undercut by the evidence that since 1992 Simba has, albeit sporadically,

used Bradbury Court for snow removal and loading vehicles. Flagg contends,

correctly, that none of these uses is within the scope of Simba's easement rights,

but Simba responds, also correctly, that the issue at hand is not whether Simba's

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uses of Bradbury Court were within the scope of the easement but whether Simba

actually intended to abandon its easement rights.

104. Still more evidence of Simba's intent to maintain the easement is the

fact that Simba proposed to use Bradbury Court as a means of access to Simba's

parking garage. Simba developed its proposal before Flagg had acquired the Flagg

Property and therefore well before Simba could have anticipated Flagg's

abandonment claim. Flagg objects on the ground that Simba's parking garage

proposal was inconsistent with Simba's easement rights, but the objection is beside

the point, because the question is one of Simba's intent to exercise its easement

rights.

105. Weighing all of the evidence, the court concludes that Flagg has failed

to meet its burden to show by clear and convincing evidence that Simba's easement

has been abandoned, either by Simba or by Simba's predecessors. Accordingly,

Simba will be granted judgment on Count II of Flagg's amended complaint, for

quiet title.

G. Flagg's Boundary by Acquiescence Claim

106. Count III of Flagg's amended complaint asserts a boundary by

acquiescence claim, but, as Simba notes in its reply brief, Flagg's proposed findings

of fact and conclusions oflaw do not address the claim. Flagg's proposed findings

and conclusions state that Flagg is not seeking a declaration as to the location of

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the boundary, indicating that the claim is not being pursued, although it has not

formally been withdrawn or dismissed voluntarily.

107. Even if it had been maintained, the court would have found and

concluded that Flagg had failed to establish that either Simba or Simba's

predecessors had acquiesced to a boundary other than that the parties now agree is

the correct one. See Dawley v. Morency, 1999 ME 137, "if 16, 737 A.2d 1061.

108. Simba will be granted judgment on Count III of Flagg's amended

complaint.

H. Simba's Slander ofTitle Claim

109. Count III of Simba's Counterclaim asserts a claim for slander of title.

Specifically, Simba alleges that Flagg committed slander of title by filing the

Northeast Civil Solutions survey, with its inaccurate depiction of the parties'

common boundary, with the City of Portland.

110. The tort ofslander oftitle "protects a person's property interest against

words or conduct which bring or tend to bring the validity of that interest into

question." Colquhoun v. J:Vebber, 684 A.2d 405, 410 (Me. 1996).

111. Simba's burden of persuasion on its slander of title requires proof of the

following elements: "(l) publication of a slanderous statement disparaging a

claimant's title to an interest in land, (2) the statement was false, (3) the statement

was made with malice or with reckless disregard of its falsity, and (4) the statement

caused actual damage." Pettee v. Young, 2001 ME 156, ~ 20, 783 A.2d 637.

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112. Simba failed to establish that Flagg submitted the survey to the

Portland Planning Board with malice or with reckless disregard for its falsity.

Flagg initially relied on its surveyor's expertise and then on the advice of its

counsel in its submission of the survey to the City.

113. Flagg will be granted judgment on Count III ofSimba's Counterclaim

I. Simba's Requestfor Injunctive Relief

114. Count II ofSimba's counterclaim seeks injunctive relief, to enjoin Flagg

from constructing a building on Bradbury Court. It is true that Flagg has

proposed to construct a building that would permanently block Simba from using

Bradbury Court. On the other hand, Flagg has delayed its proposal and initiated

this action, which plainly indicates that Flagg does not intend to proceed with

construction until clarifying its legal right to proceed. The court is not persuaded

that the present record justifies the discretionary grant ofinjunctive relief to either

party.

IT IS HEREBY ORDERED AND ADJUDGED AS FOLLOWS:

1. Judgment is granted to Plaintiff Flagg Partners, LLC on Count I of its

First Amended Complaint.

2. Judgment is granted to Defendant Simba, Inc. on Counts II and III of

Plaintiffs First Amended Complaint.

3. Judgment is granted to Defendant Simba, Inc. on Count I of its

Counterclaim.

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4. Judgment is granted to Plaintiff Flagg Partners, LLC on Counts II and

III of Defendant's Counterclaim.

5. The court's declaratory judgment on Count I of the First Amended

Complaint and Count I of the Counterclaim is as follows:

By virtue of its ownership of the two lots conveyed in the deeds from Henry

Bradbury to Portland Steam Packet Co, recorded at Book 386, Page 401 and

Book 388, Page 95 of the Cumberland County, Maine Registry of Deeds,

Simba, Inc. is the holder ofan easement appurtenant over the premises known

as Bradbury Court owned by Flagg Partners, LLC, for the sole benefit of the

two lots described in the aforementioned deeds. Said easement permits

vehicular or pedestrian travel originating within either of the said two lots

over the portion ofBradbury Court abutting either ofsaid lots and continuing

to Fore Street and vehicular or pedestrian travel from Fore Street over

Bradbury Court and terminating within either of the said two lots. The

easement described in this paragraph has not been abandoned.

6. Neither party can be said to have substantially prevailed, so each party

shall bear its own attorney fees and costs.

Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate

this Decision and Judgment in the docket.

Dated January 3, 2020

A. M. Horton, Justice

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