Jean Dupuis v. Stanley G. Ellingwood et al. — 2017 ME 132

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2017 ME 132
Docket: 	Ken-16-326
Submitted
On Briefs: 	May 25, 2017
Decided: 	June 27, 2017
Panel: 	SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
JEAN DUPUIS
v.
STANLEY G. ELLINGWOOD et al.
GORMAN, J.
[¶1] 	Jean Dupuis appeals from a judgment of the Superior Court
(Kennebec County, Murphy, J.) declaring the ownership of and easement rights
to certain property on Dupuis’s complaint against Stanley G. Ellingwood and
Sylvia C. Ellingwood. Dupuis contends that the court erred by concluding that,
except for a limited area where a structure had been built, the Ellingwoods’
express 	easement 	to 	lakefront 	property 	in 	Readfield 	has 	not 	been
extinguished either by the Ellingwoods’ abandonment of the easement or by
Dupuis’s adverse possession of the easement. We affirm the judgment.
I. BACKGROUND
[¶2] 	On November 28, 2012, Dupuis initiated an action in the Superior
Court against the Ellingwoods in which he sought a declaratory judgment that

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he owns title to certain lakefront property and that any easement rights the
Ellingwoods 	once 	may 	have 	had 	to 	that 	same 	property 	have 	been
extinguished.1
[¶3] 	After a jury-waived trial, by judgment dated March 30, 2016, the
court made the following factual findings, which are supported by competent
record 	evidence. 	Dupuis 	and 	the 	Ellingwoods 	own 	property 	on 	Lake
Maranacook in Readfield, in “what the parties sometimes refer to as the
Touisset Point Development.” 	Dupuis is the title owner of two unnumbered
lots in the development. 	He purchased an unnumbered lot to the west of
Lot 13 in 1996 and a second unnumbered lot to the east of Lot 14 in 2000;
together, the two lots constitute what was identified on the original plan as
the “Beach Area.” 	Each lot has one hundred feet of shore frontage. The 2000
conveyance was subject to the following language in Dupuis’s deed: “This
conveyance is subject to rights, if any, others may have to use the beach
area . . . .”
[¶4] 	In 1969, the Ellingwoods acquired Lots 33-38 	in the same
development with the following language in their deed: “Also conveying to the
1 Barbara Dupuis was also a plaintiff when the initial complaint was filed, but she conveyed her
interest in the property to Jean Dupuis while these proceedings were pending. Dupuis also named
Karen L. Libby, Linda J. Libby, and Ellen M. Libby as defendants. None of these persons is a party to
the current appeal.

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grantees and those claiming under them the right of joint use with the said
grantor and those claiming under him of the private beach area to be
constructed. 	Such area to contain 100 feet of lake frontage.” 	The court
concluded that the Ellingwoods enjoy an express easement to use the Beach
Area based on this language in their deed to Lots 33-38, in combination with
the language of Dupuis’s 2000 deed.
[¶5] The court next considered whether the Ellingwoods’ easement had
been extinguished—either by 	their abandonment 	of the easement 	or by
Dupuis’s adverse possession of the easement. First, the court determined that
the Ellingwoods, by their own concession, had abandoned that portion of the
easement on which structures are located. 	The court determined, however,
that Dupuis failed to prove the Ellingwoods’ abandonment of the shorefront
portion of the Beach Area.
[¶6] 	As 	to 	Dupuis’s 	claim 	that 	he 	extinguished 	the 	Ellingwoods’
easement to the shorefront portion of the Beach Area by adverse possession,
the court found that Dupuis was on notice from his 2000 deed that others
claimed the right to use the Beach Area, and that Dupuis’s recognition of those
rights 	was further demonstrated 	by 	his attempts 	to obtain deeds from
neighbors releasing their interests in the Beach Area. Based on these findings,

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the court concluded that Dupuis failed to establish that he possessed the
easement “under a claim of right.” The court therefore entered a judgment in
favor of the Ellingwoods declaring that they have the right to “access the
beach area so long as their use of this express easement remains reasonable
as required by law.”2
[¶7] 	The court denied Dupuis’s motions for further findings of fact and
conclusions of law, see M.R. Civ. P. 52(b), and to reconsider, see M.R Civ. P.
59(e). Dupuis appeals.
II. DISCUSSION
[¶8] 	There is no dispute that Dupuis owns title to the Beach Area.
Dupuis also does not challenge the court’s determination that the Ellingwoods
obtained an express easement to the Beach Area by virtue of their 1969 deed
to Lots 33-38. 	This appeal thus entirely regards whether the Ellingwoods’
express easement to the Beach Area has been extinguished.
[¶9] 	Extinguishment of an easement may be established with proof of
“(1) a history of nonuse coupled with an act or omission evincing a clear
2 The parties did not raise, and therefore the court did not consider, the issue of the scope or
extent of the Ellingwoods’ easement.

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intent to abandon, or (2) adverse possession by the servient estate.”3 Laux v.
Harrington, 2012 ME 18, ¶ 21, 38 A.3d 318. 	Dupuis challenges the court’s
decision in the Ellingwoods’ favor as to both means of extinguishment of an
easement. 	Because Dupuis was the party with the burden of proof of trial4
and the court concluded that he did not meet that burden as to either means
of extinguishment, we may disturb the trial court’s findings of fact only if we
determine that 	the court was compelled to find in Dupuis’s favor. 	See
Androkites v. White, 2010 ME 133, ¶ 12, 10 A.3d 677; cf. Bolduc v. Watson,
3 Although we have traditionally referred to an easement as “abandoned” by either of these two
means, that nomenclature is inapt and confusing, especially as applied to adverse possession;
“abandonment” connotes an inquiry into the acts or omission of the easement holder, see
Gravison v. Fisher, 2016 ME 35, ¶ 52, 134 A.3d 857, whereas adverse possession is primarily
focused on the acts of the servient estate owner, see Levis v. Konitzky, 2016 ME 167, ¶ 21,
151 A.3d 20. Thus, we discuss abandonment and adverse possession as the two means by which to
“extinguish” an easement because this is the language that more accurately reflects both possible
circumstances.
4 	Our notation in Gravison, 2016 ME 35, ¶ 52, 134 A.3d 857, that extinguishment by
abandonment and by adverse possession are both subject to a clear and convincing standard of
proof is a misstatement of our prior decisions. 	Whereas the extinguishment of an easement by
abandonment must be established by clear and convincing evidence, Stickney v. City of Saco,
2001 ME 69, ¶ 51, 770 A.2d 592, we have always held that adverse possession, including the
extinguishment of an easement by adverse possession, may be proved by the less stringent
preponderance of the evidence standard, Levis, 2016 ME 167, ¶ 21, 151 A.3d 20; D’Angelo v. McNutt,
2005 ME 31, ¶ 5, 868 A.2d 239; Striefel v. Charles-Keyt-Leaman P’ship, 1999 ME 111, ¶ 6,
733 A.2d 984. Notwithstanding our language in Gravison, we continue to adhere to the established
standard that the extinguishment of an easement by adverse possession must be proved only by a
preponderance of the evidence.
Further, although the court’s express application of the preponderance standard here—rather
than the proper clear and convincing standard—in considering the extinguishment of the easement
by abandonment was error, that error was harmless; if Dupuis did not meet his burden pursuant to
a preponderance standard, he necessarily did not meet his burden pursuant to the higher clear and
convincing standard. 	See M.R. Civ. P. 61; Mitchell v. Kieliszek, 2006 ME 70, ¶ 20, 900 A.2d 719
(stating that an error is harmless when it is “highly probable that [it] did not affect the outcome of
the trial”).

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639 A.2d 629, 630 (Me. 1994) (reviewing for clear error the court’s finding
that the plaintiff did meet his burden of establishing the extinguishment of an
easement).
A. 	Extinguishment by Abandonment
[¶10] 	A 	party 	asserting 	the 	extinguishment 	of 	an 	easement 	by
abandonment must establish, by clear and convincing evidence,5 a “history of
nonuse coupled with an act or omission evincing a clear intent to abandon.”
Gravison v. Fisher, 2016 ME 35, ¶ 52, 134 A.3d 857; Stickney v. City of Saco,
2001 ME 69, ¶ 51, 770 A.2d 592. 	An act or omission indicating the intent to
abandon “may be demonstrated only by an unequivocal act or failure to act
that is decisive and conclusive and inconsistent with the further assertion of
rights associated with the existence of the easement.” 	Gravison, 2016 ME 35,
¶ 52, 134 A.3d 857 (quotation marks omitted). By way of example, the intent
to abandon may be inferred from the easement holder’s failure to object to the
building of a permanent structure on the property if that structure “prevents
the enjoyment of the rights granted by the easement.” 	Id. (quotation marks
omitted); see Bolduc, 639 A.2d at 630; Chase v. Eastman, 563 A.2d 1099, 1102
(Me. 1989).
5 See supra n.4.

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[¶11] 	Dupuis argues that he did establish the extinguishment of the
Ellingwoods’ 	easement 	by 	abandonment 	through 	the 	evidence 	that 	the
Ellingwoods 	never 	objected 	to 	the 	building 	of 	structures 	or 	other
improvements to the Beach Area, they never undertook any of their own
improvements, no Ellingwoods had used the Beach Area since the 1970s, and
the only users of any portion of the Beach Area were Dupuis and his family
members.
[¶12] As we held in Gravison, however, the court may find that a failure
to object to the building of a structure results in the extinguishment of only a
portion of the easement: “[I]f a structure obstructs only part of an easement
and the easement holder continues using other unobstructed parts of the
easement, failure to object to the structure may support a finding that the
easement holder only abandoned the part of the easement that the structure
obstructs.” 2016 ME 35, ¶ 52, 134 A.3d 857. In Chase, too, we upheld the trial
court’s determination that the failure to object to the erection of a structure
resulted 	in 	an 	extinguishment 	of 	only 	a 	portion 	of 	the 	easement.
563 A.2d at 1102-03. 	Consistent with Gravison and Chase, the court here
concluded, by supported findings, that the Ellingwoods’ express easement

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concerning the Beach Area was extinguished by abandonment only where the
structures were located.
[¶13] 	Although Dupuis further argues that the Ellingwoods presented
no evidence of their use of the shorefront portion of the Beach Area, the
court’s findings were supported by evidence that the Ellingwoods’ son had
used the Beach Area at least until 2006. 	We therefore conclude that the trial
court was 	not 	compelled 	to find that the Ellingwoods’ easement to the
shorefront portion of the Beach Area was extinguished by abandonment. 	See
Androkites, 2010 ME 133, ¶ 12, 10 A.3d 677.
B. 	Extinguishment by Adverse Possession
[¶14] 	When a title owner is attempting to show the extinguishment of
an easement by virtue of the title owner’s adverse possession of the easement,
the elements the title owner must prove are identical to those an adverse
possessor must prove to deprive the title owner of a fee interest. 	Laux,
2012 ME 18, ¶ 21, 38 A.3d 318. Thus, it was Dupuis’s burden to establish, by a
preponderance of the evidence,6 that his use and possession of the shorefront
portion 	of 	the 	easement 	to 	the 	Beach 	Area 	was 	“(1) 	actual, 	(2) 	open,
(3) visible, (4) notorious, (5) hostile, (6) under claim of right, (7) continuous,
6 See supra n.4.

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(8) exclusive, and (9) of a duration of at least twenty years.” Levis v. Konitzky,
2016 ME 167, ¶ 21, 151 A.3d 20.
[¶15] 	The court determined that Dupuis failed to establish that he
possessed the easement under a claim of right. 	To demonstrate that he
possesses property under a claim of right, a party must prove that he “is in
possession as owner, with intent to claim the land as [his] own, and not in
recognition of or subordination to the record title owner.” 	Dombkowski v.
Ferland, 2006 ME 24, ¶ 12, 893 A.2d 599 (alteration omitted) (quotation
marks omitted).
[¶16] Dupuis argues that he proved that he treated the property wholly
as his own through the evidence presented at trial detailing his use of and
improvements to the property. 	The court, however, found that Dupuis knew
that his property was subject to the easement rights of others based on his
knowledge of the language in his 2000 deed. 	The court also noted that
Dupuis’s acts in obtaining release deeds from other neighbors, including his
unsuccessful 	attempt 	to 	obtain 	a 	release 	deed 	from 	the 	Ellingwoods,
manifested Dupuis’s recognition of others’ easement claims to the property.
Although Dupuis represents that he “requested confirmatory release deeds
from neighboring property owners in order to clear the record title so that he

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could obtain a mortgage loan and avoid bringing this action to quiet title,” the
court was free to disregard Dupuis’s explanation and to infer that Dupuis was
aware that his use of the easement was subject to and subordinate to the
Ellingwoods’ interest, and therefore was not used or possessed under a claim
of right. 	See Dionne v. LeClerc, 2006 ME 34, ¶ 15, 896 A.2d 923; Dombkowski,
2006 ME 24, ¶ 12, 893 A.2d 599. 	The court was not compelled to find in
Dupuis’s favor.
The entry is:
Judgment affirmed.
Jon P. Plourde, Esq., and Norman J. Rattey, Esq., Skelton, Taintor &
Abbott, Auburn, for appellant Jean Dupuis
Matthew W. Evans, Esq., Palermo, for appellees Sylvia C. and
Stanley G. Ellingwood
Kennebec County Superior Court docket number RE-2012-94
FOR CLERK REFERENCE ONLY