Leslie S. Fissmer v. David D. Smith

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 130
Docket: Cum-18-447
Argued: May 16, 2019
Decided: August 8, 2019

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

LESLIE S. FISSMER et al.

v.

DAVID D. SMITH et al.

GORMAN, J.

[¶1] David D. Smith, Cunner Lane, LLC, (collectively, Smith) and Cunner

Lane II, LLC, (Cunner Lane II) appeal from a judgment entered by the Superior

Court (Cumberland County, L. Walker, J.) after a jury-waived trial on a variety

of claims and counterclaims concerning the use and ownership of certain

property in Cape Elizabeth. Leslie S. Fissmer,1 Karen A.B. Burke, William A.

Burke, Patricia M. Gramse, Richard R. Gramse (collectively, the Cunner Lane

Owners), and Robert E. Siegel cross-appeal from the same judgment with

regard to the court’s determination declaring Cunner Lane II the owner of

certain property as shown on a 1929 subdivision plan. We affirm the

1 Individually and as trustee of the Leslie S. Fissmer Revocable Trust. Although the Trust owns
the property at issue in this appeal, and although both Fissmer and the Trust are parties to the
appeal, we will refer to these parties collectively as “Fissmer.”
2

judgment in part and vacate in part. In addition, because a judgment declaring

ownership by adverse possession must clearly describe the boundary lines of

the adversely possessed property so as to sufficiently establish those lines on

the face of the earth, we remand for further proceedings.

I. BACKGROUND

[¶2] The parties to this appeal are neighbors in Cape Elizabeth with

land abutting Cunner Lane,2 a paved private road that provides access to the

neighborhood. An earlier dispute between Smith and Fissmer arose in 2015

when Smith attempted to build a house on his property. See generally Fissmer

v. Town of Cape Elizabeth, 2017 ME 195, 170 A.3d 797. That dispute was

resolved in 2017 but, in August of 2016, while it was still pending, Fissmer

initiated an action against Smith in the Superior Court, seeking, inter alia, a

declaratory judgment that Fissmer holds title by adverse possession to

portions of Smith’s property.3 In November of 2016, Fissmer’s neighbors—

the Gramses, the Burkes, and Siegel—joined her complaint as plaintiffs. Smith

2 Siegel’s property does not directly abut Cunner Lane, but it can be accessed only by way of

Cunner Lane. Siegel, in the end, gains nothing from this litigation, see infra ¶ 33, and thus, although
he is a party to the appeal, we do not consider him to be one of the Cunner Lane Owners.

The disputed property concerns parts of two parcels: one owned by Smith and the other by
3

Cunner Lane, LLC. Smith is the managing member of Cunner Lane, LLC, a Maine limited liability
company.
3

counterclaimed, seeking, inter alia, a declaratory judgment as to the location

of Cunner Lane.

[¶3] In September of 2017, Cunner Lane II, a Maine limited liability

company wholly owned by Smith, filed a separate complaint against the

Cunner Lane Owners and Siegel, seeking a declaratory judgment that it owned

private roads in the neighborhood—Cunner Lane, Brook Road, and Sunrise

Drive—as well as certain five-foot-wide strips of land that run alongside

segments of those roads. The Cunner Lane Owners and Siegel then filed a

complaint against Cunner Lane II, seeking a declaratory judgment that they

hold title by adverse possession to certain property allegedly owned by

Cunner Lane II. In November of 2017, the court consolidated the three

actions.

[¶4] After a jury-waived trial, the court considered the parties’ claims,

including their assertions of title acquired through the Paper Streets Act

(PSA), 23 M.R.S. §§ 3027, 3031-3035 (2018); 33 M.R.S. §§ 460, 469-A (2018),

and adverse possession. In its judgment dated October 11, 2018, the trial

court made the factual findings referred to in this opinion, all of which are

supported by competent record evidence. See Dupuis v. Ellingwood, 2017 ME

132, ¶ 3, 166 A.3d 112. As we explain in the discussion section below, the
4

court, however, made some errors in its application of the PSA to these facts,

and because of this, additional litigation may be required. See infra ¶¶ 22-38.

In addition, the judgment contains no legal descriptions of the boundaries it

established.

A. Facts Relevant to the Paper Streets Act

[¶5] Cunner Lane, as it now exists, is located between Smith’s lot and

the Cunner Lane Owners’ lots. A 1929 subdivision plan (the 1929 Plan),

created for and showing the property of the Harry E. Baker Company (HEB),

designated a twenty-foot-wide corridor as “Cunner Lane.” Provided here for

illustrative purposes only, Figure 1 below depicts the relevant features of the

1929 Plan.
5

Figure 1. Brook Road and Sunrise Drive appear but are unnamed on the original 1929 Plan. The names are added here
for ease of reference. Brook Road and Sunrise Drive run generally east to west.
6

The Cunner Lane Owners’ original lots are all located within the boundaries of

the subdivision contemplated by the 1929 Plan.4 Smith’s property, although

shown on the 1929 Plan, is not a part of the contemplated subdivision.

[¶6] Additionally, the 1929 Plan depicted, but did not name, portions of

two proposed roads—also twenty feet wide—turning off of Cunner Lane. The

proposed road between Lot 1 and Lily Pond Lot on the 1929 Plan

encompasses what is now a private road known as Brook Road. The proposed

road abutting Lot 14 to the south is now brush and a grass foot path, but the

parties refer to it as Sunrise Drive, as do we.

1. The Fissmer Lot

[¶7] Fissmer’s lot is the southernmost of the Cunner Lane Owners’ lots

and is designated as Lot 14 on the 1929 Plan. Fissmer’s source deed granted

title to the lot from HEB to Carroll Chaplin on July 18, 1929. Although the

deed also granted “the right of way as now travelled along the easterly side of

[the] lot . . . and over [the] proposed roads on the easterly and southerly side

[Cunner Lane and Sunrise Drive, respectively] of [the] lot,” this conveyance

4These “original lots” are only those lots depicted on the 1929 Plan and do not include any
additional lots to the southwest that the Cunner Lane Owners may now own.

The 1929 Plan was recorded in the Cumberland County Registry of Deeds on August 31, 1929,
at Book 19, Page 5.
7

occurred before the recording of the 1929 Plan.5 In 1942, Chaplin conveyed

back to HEB a “strip of land five feet in width” at the edge of the property

abutting Cunner Lane and Sunrise Drive as delineated on the 1929 Plan, “[t]he

purpose of this conveyance being that said strip of land may be included in

and made a part of said Cunner Lane and of said proposed road [Sunrise

Drive], thereby increasing the width thereof to twenty-five feet.” Despite this

deed reference, the five-foot-wide strip was not included on the recorded

1929 Plan as part of the proposed ways, and no amended plan was ever

recorded. Chaplin did reserve a right-of-way over the five-foot-wide strip.

[¶8] A 1985 deed conveyed this lot and the rights-of-way to Robert and

Leslie Fissmer. In 2008, Leslie Fissmer deeded the lot and the rights-of-way

as conveyed in the original source deed to herself as trustee of the Leslie S.

Fissmer Revocable Trust.

2. The Burke Lot

[¶9] The Burkes’ lot is located between the Fissmer lot and Brook Road

and is designated as Lot 1 on the 1929 Plan. Their source deed conveyed their

lot from HEB to Thomas Smiley in 1931. This deed also granted rights-of-way

5 Given the date of Fissmer’s source deed, there is an argument to be made that, even without
the five-foot-wide-strip “issue,” see infra ¶¶ 23-24, 29-31, Fissmer’s lot would not benefit from the
PSA. See 33 M.R.S. § 469-A(1) (2018). For purposes of this opinion, however, we will treat
Fissmer’s lot in precisely the same way that we treat the Burkes’ lot.
8

“over said road as now travelled along the easterly side of said lot [Cunner

Lane] . . . and over said proposed road on the northerly side of said lot [Brook

Road].” In 1932, Smiley deeded back to HEB a “strip of land five feet in width”

at the edge of the property abutting “Cunner Lane as delineated” on the 1929

Plan, “the purpose of this conveyance being that said strip of land may be

included in and made a part of said Cunner Lane.” This five-foot-wide strip

was not included as part of Cunner Lane on the recorded 1929 Plan, and no

amended plan depicting Cunner Lane as a twenty-five-foot-wide way was ever

recorded. Smiley did reserve a right-of-way over the five-foot-wide strip. In

2005, the lot and all rights-of-way were deeded to William Burke. On April 11,

2009, William Burke conveyed the lot and the rights-of-way to Karen Burke.

3. The Gramse Lot

[¶10] The Gramses live on what was designated as the “Lily Pond Lot”

on the 1929 Plan, to the north of Brook Road and the Burkes. Their source

deed conveyed the lot from HEB to Marcia Quimby in 1933; the deed excepted

and reserved title to a five-foot-wide strip abutting Cunner Lane as depicted

on the 1929 Plan but did include rights-of-way over Cunner Lane and the

five-foot-wide strip. A 1988 deed conveyed the lot, again excepting the
9

five-foot-wide strip, to the Gramses, along with rights-of-way to the

twenty-foot-wide corridor and the five-foot-wide strip.

4. The Siegel Lot

[¶11] The trial court made limited factual findings as to Siegel’s lot;

Siegel purchased the property in 1972, has lived there full-time ever since,

and has walked along Cunner Lane almost daily while living there.6

5. Smith’s Property

[¶12] With Cunner Lane to the west and the Atlantic Ocean to the east,

Smith’s original lot—as deeded to him in 1998—is now two lots. In February

of 2010, Smith conveyed a portion of his original lot to Cunner Lane, LLC;

Smith retained the remaining portion of his parcel. The original lot’s source

deed conveyed the property from Albert F. Hannaford to “The Venerable

Cunner Association and Propeller Club” in 1920 and granted a right-of-way

“over the private road as now located . . . adjoining said land hereby conveyed

on the westerly and northwesterly lines thereof.” Although the original lot is

not a part of the 1929 subdivision, the lot is marked as “The Venerable Cunner

Asso. and Propeller Club” on the 1929 Plan.

6 Siegel’s property abuts Brook Road and is located to the west of the Burkes’ lot; Siegel’s lot is
not depicted on the 1929 Plan and, as mentioned above, does not abut Cunner Lane. This
information is discernable from the record and provided for context.
10

[¶13] In May of 2017, HEB conveyed to Cunner Lane II title to Cunner

Lane, Sunrise Drive, and Brook Road, all as depicted on the 1929 Plan, as well

as title to the five-foot-wide strips abutting certain segments of these roads.

B. Facts Relevant to Adverse Possession

[¶14] In 1998, Smith commissioned a survey of his property. That

survey indicated that large sections of the twenty-foot-wide corridor labeled

Cunner Lane on the 1929 Plan were actually located several feet west and

northwest of the present-day Cunner Lane—placing part of the existing road

on Smith’s property and part of the twenty-foot-wide corridor on the Fissmer,

Burke, and Gramse lots. Sometime after that survey was completed, Smith

paved Cunner Lane where it then existed on the earth.7

[¶15] The disputed property, for purposes of the adverse possession

claims, does not include the paved way, but does include portions of the

twenty-foot-wide corridor designated as Cunner Lane on the 1929 Plan, as

well as the five-foot-wide strips of land located between that

twenty-foot-wide corridor and the Fissmer, Burke, and Gramse lots as

Before trial, the parties stipulated that the Cunner Lane Owners and Siegel have a prescriptive
7

easement appurtenant to the portions of Cunner Lane, as it now exists, where it encroaches on
Smith’s property.
11

deeded.8 Provided here for illustrative purposes only, Figure 2 below depicts

the disputed property.

8 Fissmer’s adverse possession claim also includes an apple tree and a small area of or near her
driveway that appear to encroach on portions of Smith’s lot.
12

Figure 2. The background for this illustration comes from a 2016 land survey commissioned by Smith.
13

Referring to the criteria set out in our cases—twenty years of possession and

use of another’s property that was actual, open, visible, notorious, hostile,

under a claim of right, continuous, and exclusive—the trial court made scores

of factual findings concerning the Cunner Lane Owners’ use of their respective

properties as lawns and gardens. Weeks v. Krysa, 2008 ME 120, ¶ 12, 955 A.2d

234. Each finding is supported in the record. See Dupuis, 2017 ME 132, ¶ 3,

166 A.3d 112.

C. The Trial Court’s Conclusions

[¶16] After a thorough review of the evidence presented, the trial court

ruled on each of the claims. The court ultimately concluded that Cunner Lane

II holds title, in fee simple, to the twenty-foot-wide corridor designated as

Cunner Lane on the 1929 Plan, as well as to the five-foot-wide strips of land

directly to the north and west of that corridor, but also concluded that the

Cunner Lane Owners own the disputed property up to the paved edge of

present-day Cunner Lane by adverse possession. As discussed below, we

affirm this portion of the court’s decision.

[¶17] In other parts of its decision, however, the court determined that

Cunner Lane II has no interest in Brook Road or Sunrise Drive. Instead, the

court concluded that Siegel, the Burkes, and the Gramses own, in fee simple, to
14

the centerline of Brook Road where it abuts their properties and that Fissmer

owns the “entire fee under Sunrise Drive.” These portions of the decision

must be vacated, at least in part.

[¶18] No party moved for additional findings of fact after the court

entered the judgment. Smith and Cunner Lane II filed a timely appeal; the

Cunner Lane Owners and Siegel filed a timely cross-appeal. 14 M.R.S. § 1851

(2018); M.R. App. P. 2B(c)(1), 2C(a)(2). We discuss the competing claims

below, starting with those brought under the Paper Streets Act.

II. DISCUSSION

A. Paper Streets Act

[¶19] The PSA was enacted in 1987 “to clarify title to old, proposed,

unaccepted streets shown on subdivision plans, and to eliminate the

possibility of ancient claims.” Tisdale v. Buch, 2013 ME 95, ¶ 9, 81 A.3d 377

(quotation marks omitted); see also 33 M.R.S. § 469-A(8). “In particular, 33

M.R.S. § 469-A was created to resolve ownership disputes regarding roads and

streets laid out on subdivision plans where the original owner did not reserve

title in the roads and where the roads have never been accepted by a town.”

Tisdale, 2013 ME 95, ¶ 9, 81 A.3d 377 (quotation marks omitted).
15

[¶20] Pursuant to section 469-A(1),

[a]ny conveyance made before September 29, 1987 that conveyed
land abutting upon a proposed, unaccepted way laid out on a
subdivision plan recorded in the registry of deeds is deemed to
have conveyed all of the grantor’s interest in the portion of the
way that abuts the land conveyed, unless the grantor expressly
reserved the grantor’s title to the way by a specific reference to
this reservation in the conveyance of the land.

33 M.R.S. § 469-A(1). Generally, “[i]f the grantor or his successors fail to

reserve title as set forth in the statute,” and the proposed, unaccepted way is

bounded on both sides by land included in the subdivision, then an abutting

landowner “is deemed to own to the center line of the portion of the way

abutting his or her property.” Tisdale, 2013 ME 95, ¶ 9, 81 A.3d 377; see also

33 M.R.S. § 469-A(6). If the grantor fails to reserve title, and the proposed,

unaccepted way “is bounded on the opposite side by land that is not included

in the subdivision,” then the abutting landowner owns not just to the

centerline but the entire width of the proposed, unaccepted way abutting his

or her property. 33 M.R.S. § 469-A(6-A).

[¶21] Although the term “proposed, unaccepted way” is not defined in

the PSA, we have construed the term to include “roads, constructed or

unconstructed, that are depicted on a subdivision plan recorded in the

registry of deeds and that are proposed to a municipality for acceptance but
16

not yet accepted by the municipality.”9 Fournier v. Elliott, 2009 ME 25, ¶ 20,

966 A.2d 410 (quotation marks omitted); see also Tisdale, 2013 ME 95,

¶¶ 10-11, 81 A.3d 377.

1. Cunner Lane

[¶22] The Cunner Lane Owners argue that section 469-A of the PSA

conveys ownership of the twenty-foot-wide corridor and the five-foot-wide

strips to them and that the court erred in concluding otherwise. We review

the trial court’s factual findings for clear error, Zablotny v. State Bd. of Nursing,

2017 ME 29, ¶ 18, 156 A.3d 126, and its interpretation of section 469-A of the

PSA and its application of that section to the facts de novo, Brooks v. Carson,

2012 ME 97, ¶ 19, 48 A.3d 224. Through this de novo review, we analyze “the

statute’s plain language to effect the Legislature’s intent.” Id.

a. The Fissmer and Burke Lots

[¶23] With respect to the Fissmer and Burke lots, the original source

deeds did convey land that abutted the twenty-foot-wide corridor identified

as Cunner Lane on the 1929 Plan. See supra n.5. Both original grantees,

however, conveyed back to HEB the five-foot-wide strips of land at the edge of

As a preliminary matter, the parties agree, and the trial court implicitly found, that Cunner
9

Lane, Brook Road, and Sunrise Drive each qualifies as a “proposed, unaccepted way” for the
purposes of 33 M.R.S. § 469-A (2018). See Fournier v. Elliott, 2009 ME 25, ¶ 20, 966 A.2d 410
(quotation marks omitted).
17

their respective properties that abutted the twenty-foot-wide corridor.

Although these deeds of reconveyance explicitly stated that the five-foot strips

were meant to widen the proposed Cunner Lane to twenty-five feet, the trial

court found no evidence that Cunner Lane was ever widened, and more

importantly, it determined that HEB never submitted a new subdivision plan

depicting Cunner Lane as a twenty-five-foot-wide proposed way. See 33

M.R.S. § 469-A(1).

[¶24] The trial court explicitly found that the five-foot-wide strips are

not part of a “proposed, unaccepted way laid out on a subdivision plan

recorded in the registry of deeds.”10 See 33 M.R.S. § 469-A(1). Because

neither Fissmer nor the Burkes hold title to land abutting the

twenty-foot-wide corridor identified as Cunner Lane on the 1929 Plan—which

is “a proposed, unaccepted way laid out on a subdivision plan recorded in the

registry of deeds”—the court correctly determined that section 469-A does

not apply to them. 33 M.R.S. § 469-A(1).

10 The trial court’s factual finding that the five-foot-wide strips are not a part of Cunner Lane as

depicted on the 1929 Plan is supported by competent record evidence and is dispositive on the
issue. Had the 1929 Plan been amended and then recorded in the registry of deeds—depicting
Cunner Lane as a twenty-five-foot-wide way—the determination of fee ownership could be
different in this case. See 33 M.R.S. § 469-A(1).
18

b. The Gramse Lot

[¶25] With respect to the Gramse lot, the source deed—conveyed in

1933—expressly reserved title in HEB to,

a strip of land five (5) feet in width extending from the southerly
line of the lot . . . along each of the courses of the . . . lot on said
road known as Cunner Lane . . . , said five-foot strip of land
extending in its full width around the curve at the intersection of
said Cunner Lane and said proposed street [Brook Road] and
being measured at right angles to each of the courses of said lot
along the line of said Cunner Lane as shown on said plan.

Because the Gramse lot was always separated from Cunner Lane by the

five-foot-wide strip held in fee simple by HEB, it never “abut[ted]” Cunner

Lane. 33 M.R.S. § 469-A(1). The trial court determined—correctly—that the

Gramses could not rely on section 469-A to claim ownership of the

twenty-foot-wide corridor because their lot never abutted Cunner Lane as it

was depicted on the 1929 Plan.11 See 33 M.R.S. § 469-A(1).

[¶26] The Cunner Lane Owners argue that the court erred in these

determinations and ask us to make findings as to the original grantor’s—

HEB’s—intent. As a preliminary matter, we do not make factual findings.

Stickney v. City of Saco, 2001 ME 69, ¶ 13, 770 A.2d 592. Moreover, to the

extent that the Cunner Lane Owners ask us to examine their source deeds or

The court also correctly construed section 469-A when it declined to declare the Gramses
11

owners of the five-foot-wide strip.
19

reconveyances in order to determine HEB’s overall intent with respect to each

lot, we decline to do so. See N. Sebago Shores, LLC v. Mazzaglia, 2007 ME 81,

¶ 15, 926 A.2d 728 (stating the general rule that we will not look beyond the

four corners of a deed to discern intent unless the intent of the grantor is

ambiguous). Through reconveyance or reservation, HEB explicitly and

unambiguously held title to the five-foot-wide strips that sit between the

twenty-foot-wide corridor and the Fissmer, Burke, and Gramse lots.

c. Cunner Lane II is the Record Owner of the
Twenty-Foot-Wide Corridor Identified as Cunner Lane on
the 1929 Plan

[¶27] Although the Cunner Lane Owners’ general assertion that the PSA

was intended to eliminate “ancient claims” concerning land underlying

“proposed, unaccepted ways” is correct, 33 M.R.S. § 469-A(8); Tisdale, 2013

ME 95, ¶ 9, 81 A.3d 377, their request that the PSA be “liberally construed” is

better understood as a request for us to apply a series of exceptions to section

469-A that would effectively rewrite the current statute; granting such a

request would be inappropriate. See Cape Elizabeth Sch. Bd. v. Cape Elizabeth

Teachers Assoc., 459 A.2d 166, 171 (Me. 1983) (“[I]t is not our role to rewrite

the statute where its meaning is plain.”).
20

[¶28] By reserving a five-foot-wide strip in a deed or reacquiring title

to a strip through a conveyance, HEB held title in fee simple to the entire

length of the five-foot-wide strips in dispute in this case. By virtue of its

ownership of the five-foot-wide strips, which abutted the proposed,

unaccepted way—the twenty-foot-wide corridor designated as Cunner Lane

on the 1929 Plan—HEB became the owner of the twenty-foot-wide corridor

pursuant to the PSA. See 33 M.R.S. § 469-A(6-A). In 2017, HEB conveyed title

to the twenty-foot-wide corridor and the five-foot-wide strips to Cunner Lane

II, and the trial court correctly determined that, through this conveyance,

Cunner Lane II holds record title—in fee simple—to this property. Portions of

this property, however, are owned by the Cunner Lane Owners through

adverse possession. See infra ¶¶ 39-49.

2. Sunrise Drive

[¶29] Smith and Cunner Lane II argue that the trial court erred in its

determination that “Fissmer owns the entire fee under Sunrise Drive.” We

agree. Fissmer’s predecessor conveyed to HEB a five-foot-wide strip, not only

along Cunner Lane, but also extending “around the circle at the southwesterly

corner of said Cunner Lane and said proposed street [Sunrise Drive] . . . ,

maintaining a width of five feet measured at right angles to the northerly line
21

of said proposed road [Sunrise Drive], adjoining said road and extending to

the westerly line of said land.” In other words, the five-foot-wide strip

extends the entire length of Sunrise Drive as it abuts Lot 14 on the 1929 Plan.

The predecessor’s reconveyance of the five-foot-wide strip along Sunrise

Drive means that Fissmer does not own land “abutting” a proposed,

unaccepted way, and therefore the court erred in declaring that, pursuant to

the PSA, Fissmer owns any portion of Sunrise Drive.12 See 33 M.R.S.

§§ 469-A(1), (6-A); Brooks, 2012 ME 97, ¶ 19, 48 A.3d 224. To the contrary,

due to its acquisition of land from HEB in May of 2017, Cunner Lane II is the

record owner of Sunrise Drive as depicted on the 1929 Plan, and of the

five-foot-wide strip that abuts it. See 33 M.R.S. § 469-A(6-A). Therefore, we

must vacate that portion of the court’s judgment declaring Fissmer the owner

of the entire fee under Sunrise Drive.

[¶30] This opinion does not address ownership of any portion of

Sunrise Drive not shown on the 1929 Plan. See 33 M.R.S. § 469-A(1).

[¶31] Furthermore, portions of the five-foot-wide strip abutting Sunrise

Drive, as well as Sunrise Drive itself, may overlap with property that Fissmer

claims and uses as part of her yard, especially with respect to the

12 At oral argument, counsel for the Cunner Lane Owners conceded that there was no difference
between Cunner Lane and Sunrise Drive with respect to the five-foot-wide strips.
22

southernmost edge of her property. We do not address whether Fissmer has

acquired by adverse possession any portion of Sunrise Drive or the

five-foot-wide strip running along that proposed road; no factual findings

were made concerning Fissmer’s use of this area. Finally, although Cunner

Lane II is the title owner of the portion of Sunrise Drive that is depicted on the

1929 Plan and of the five-foot-wide strip abutting that road, Fissmer still

maintains a right-of-way in common over Sunrise Drive and the five-foot-wide

strip through certain deeds and conveyances.

3. Brook Road

[¶32] Smith and Cunner Lane II also argue that the trial court erred by

declaring that Siegel, the Gramses, and the Burkes own to the centerline of

Brook Road where it abuts their properties. Specifically, Smith asserts that

(1) section 469-A of the PSA does not apply to Siegel’s lot nor does it apply to

portions of Brook Road not depicted on the 1929 Plan, and (2) a small portion

of Brook Road where it intersects with Cunner Lane is owned by Cunner Lane

II—not the Gramses and Burkes—pursuant to the deed it acquired from HEB

in 2017. Again, we agree.
23

a. The Siegel Lot

[¶33] Although the trial court made no findings about the location of

Siegel’s property nor did it find that Siegel’s property was depicted on the

1929 Plan, it declared Siegel owner to the centerline of Brook Road where it

abuts his property. As counsel for the Cunner Lane Owners conceded at oral

argument, however, there is no competent evidence in the record to support

the court’s determination that, pursuant to section 469-A, Siegel holds title to

a portion of Brook Road. See Stickney, 2001 ME 69, ¶ 13, 770 A.2d 592

(explaining that we will vacate a trial court’s conclusions if no competent

evidence exists in the record to support them). We therefore vacate this

portion of the judgment.

b. Burke and Gramse Lots

[¶34] As a preliminary matter, Smith and Cunner Lane II do not dispute

that “section 469-A vests [the] Burke[s] and Gramse[s] with title to those

portions of Brook Road delineated on the 1929 Plan that do not abut the

five-foot strips.” They assert, however, that over the years, the Burkes have

acquired additional land abutting Brook Road that was not included in the

1929 Plan, and that, because of this, the court erred in declaring the Burkes

owners of portions of Brook Road not depicted on the 1929 Plan.
24

Additionally, Smith and Cunner Lane II contend that the court erred in

declaring the Burkes and Gramses owners of a small section of Brook Road

where it meets Cunner Lane because the five-foot-wide strips “curve into

Brook Road.” We agree.

[¶35] Again, section 469-A applies only to land depicted on a

subdivision plan. See 33 M.R.S. § 469-A(1). Brook Road, as it now exists, is

longer and proportioned differently than the proposed road on the 1929 Plan.

The trial court’s determination that the Burkes and Gramses own to the

centerline of Brook Road “where it abuts their properties” is thus overbroad;

by virtue of the PSA, the Burkes and Gramses own to the centerline of Brook

Road—as depicted on the 1929 Plan—only where the road abuts their

properties as they are depicted on the 1929 Plan as “Lot 1” and “Lily Pond

Lot,” respectively. See 33 M.R.S. § 469-A(6).

[¶36] Furthermore, the trial court’s judgment did not address how the

five-foot-wide strips affect the ownership of Brook Road where the road

meets Cunner Lane. As discussed above, the Gramse source deed reserved a

five-foot-wide strip for HEB, and the Burkes’ predecessor re-conveyed a

five-foot-wide strip to HEB. Thus, to the extent that these five-foot-wide strips
25

curve off of Cunner Lane and run down either side of Brook Road,13 the

Burkes and the Gramses do not own property “abutting” that portion of Brook

Road; counsel for the Cunner Lane Owners conceded as much at oral

argument. See 33 M.R.S. § 469-A(1).

[¶37] Because HEB conveyed ownership of the five-foot-wide strips to

Cunner Lane II in 2017, it necessarily follows that Cunner Lane II holds title to

any segment of Brook Road, no matter how small, that is lined on either side

by the five-foot-wide strips, pursuant to the PSA. See 33 M.R.S. § 469-A(6). To

the extent, however, that the Burkes and Gramses have used portions of these

five-foot-wide strips, or portions of Brook Road abutting these strips, as their

lawns, then the five-foot-wide strips and those respective segments of Brook

Road may be owned by the Burkes and Gramses through their adverse

possession of this land. See infra ¶¶ 39-49.

[¶38] On remand, if the Burkes and Gramses wish to rely on the PSA to

be declared owners of any portion of Brook Road as depicted on the 1929

Plan, they will have to establish (1) the extent of Brook Road as depicted on

the 1929 Plan and (2) where the five-foot-wide strips end on Brook Road as

depicted on the 1929 Plan. The location of their lawns in relation to Brook

13The trial court made no factual findings as to how far these five-foot-wide strips curve down
Brook Road with regard to either lot.
26

Road and the five-foot-wide strips will be relevant to any claims of ownership

based on adverse possession.

B. Adverse Possession

[¶39] As mentioned above, the trial court concluded that although

Cunner Lane II has title ownership of the twenty-foot corridor and the

five-foot-wide strips, the Cunner Lane Owners “obtained fee simple title by

adverse possession to the property abutting the western and northwestern

edge of the paved road known as Cunner Lane.” Smith and Cunner Lane II

argue that the Cunner Lane Owners did not satisfy their burden of proving, by

a preponderance of the evidence, adverse possession to the disputed land.

Specifically, Smith and Cunner Lane II assert that the court erred in its

determination because several of the Cunner Lane Owners’ uses were

permitted and not continuous for the twenty-year limitations period.

[¶40] Adverse possession presents a mixed question of fact and law.

See, e.g., Striefel v. Charles-Keyt-Leaman P’ship, 1999 ME 111, ¶ 7, 733 A.2d

984. “Whether the necessary facts exist is for the trier of fact, but whether

those facts constitute adverse possession is an issue of law.” Grondin v.

Hanscom, 2014 ME 148, ¶ 13, 106 A.3d 1150 (alterations omitted) (quotation

marks omitted). We review a trial court’s factual findings regarding adverse
27

possession for clear error and will affirm those facts if they are supported by

competent record evidence. Id. We review questions of law de novo. See, e.g.,

D’Angelo v. McNutt, 2005 ME 31, ¶ 6, 868 A.2d 239.

[¶41] “A party claiming title by adverse possession has the burden of

proving, by a preponderance of the evidence, that possession and use of the

property was (1) actual; (2) open; (3) visible; (4) notorious; (5) hostile;

(6) under a claim of right; (7) continuous; (8) exclusive; and (9) for a duration

exceeding the twenty-year limitations period.” Weeks, 2008 ME 120, ¶ 12,

955 A.2d 234. As a general rule, Maine law “disfavors the transfer of land by

adverse possession.” Striefel, 1999 ME 111, ¶ 4, 733 A.2d 984.

[¶42] “Actual possession means physical occupancy or control over

property” and “is established when the evidence shows an actual use and

enjoyment of the property that is in kind and degree the same as the use and

enjoyment to be expected of the average owner of such property.” Harvey v.

Furrow, 2014 ME 149, ¶ 12, 107 A.3d 604 (quotation marks omitted). “Hostile

simply means that the possessor does not have the true owner’s permission to

be on the land and has nothing to do with demonstrating a heated controversy

or a manifestation of ill will, or that the claimant was in any sense an enemy of
28

the owner of the servient estate.” Striefel, 1999 ME 111, ¶ 13, 733 A.2d 984

(citations omitted) (quotation marks omitted).

[¶43] “Continuous means occurring without interruption, and, like

actual possession and use, continuous possession and use requires only the

kind and degree of occupancy (i.e., use and enjoyment) that an average owner

would make of the property.” Harvey, 2014 ME 149, ¶ 16, 107 A.3d 604

(alteration omitted) (emphasis omitted) (quotation marks omitted). “Finally,

a claimant must prove that its possession and use satisfied each of the

aforementioned elements simultaneously for a period of at least twenty

years.” Id. ¶ 17 (alteration omitted) (quotation marks omitted).

[¶44] As the trial court found, the Cunner Lane Owners and their

predecessors have used the disputed property as owners of front lawns would

typically use such property: they mowed and watered their lawns; cared for

plants, trees, and shrubs in the area; erected and kept mailboxes in the area;

maintained flower beds; installed wooden posts; maintained driveways;

erected and then removed a picket fence; installed an irrigation system;

installed electric dog fences; placed four large rocks along the boundary of the

paved area of Cunner Lane; recreated on the grass with their families; and

generally used the land as if it were their own. See id. ¶ 12. None of the
29

Cunner Lane Owners attempted to hide any of these uses and the community

considered the disputed land as belonging to the Owners. We agree with the

trial court that the Cunner Lane Owners’ use of the disputed area was thus

actual, open, visible, and notorious. See Striefel, 1999 ME 111, ¶¶ 9-11, 733

A.2d 984.

[¶45] Smith and Cunner Lane II argue, however, that the Cunner Lane

Owners’ uses of the disputed property were not hostile because the Owners’

uses were consistent with their easement rights.14 This argument is not

persuasive. The term “right-of-way” generally refers to “the right of a person

to pass over the land of another person.” 33 M.R.S. § 458(2)(A) (2018); see

also Easement, Black’s Law Dictionary (10th ed. 2014) (“An interest in land

owned by another person, consisting in the right to use or control the land, or

an area above or below it, for a specific limited purpose (such as to cross it for

access to a public road).” (emphasis added)). We have held that the scope of a

right-of-way is not limitless, see generally Guild v. Hinman, 1997 ME 120, ¶ 6,

695 A.2d 1190 (collecting cases), and that determining this scope “requires

evaluation of the purpose it [the right-of-way] was to serve,” Badger v. Hill,

404 A.2d 222, 225 (Me. 1979).

14 The trial court found that the Cunner Lane Owners “have always had deeded rights-of-way
over Cunner Lane and the five-foot strip.”
30

[¶46] Here, the trial court found that the Cunner Lane Owners’

rights-of-way over the twenty-foot-wide corridor and the five-foot-wide strips

were “meant for passage.” The Cunner Lane Owners’ use of the disputed

property, however, was not limited to mere passage. Maintaining a lawn,

caring for flowers, trees, and shrubs, installing irrigation systems and electric

dog fences, and keeping driveways and mailboxes are all uses that are

consistent with complete ownership; these uses are inconsistent with the

Cunner Lane Owners’ mere right to pass over the land conferred to them by

their respective rights-of-way. See id; cf. White v. Lambert, 332 S.E.2d 266,

267-68 (W. Va. 1985) (affirming a trial court’s determination that where a

party planted shrubs and trees, buried a water line, and built a fence on an

unused portion of an easement designated for “for ingress and egress,” and

generally used that portion of the easement as his “lawn,” the party had

successfully extinguished the original easement over the unused portion of

the land by adverse possession).

[¶47] Smith’s own actions demonstrate that he believed that the

Cunner Lane Owners had, at the very least, a hostile claim of possession over

the disputed area. In 1998, Smith became aware that Cunner Lane, as it then

existed as a dirt road, was not in the correct location. Despite that knowledge,
31

he decided to pave the existing roadway up to the edges of the Cunner Lane

Owners’ lawns. In so doing, he reinforced the Cunner Lane Owners’ argument

that they have used the disputed properties as their lawns—and not as

rights-of-way. As the trial court correctly concluded, the Cunner Lane

Owners’ uses of the disputed area “exceeded the rights granted by the

rights-of-way and therefore established hostility.” See Guild, 1997 ME 120,

¶ 6, 695 A.2d 1190; Badger, 404 A.2d at 225.

[¶48] Furthermore, the Cunner Lane Owners’ and their predecessors’

use of the disputed land was under a claim of right, continuous, and exclusive;

since purchasing their homes, the owners considered their respective

properties to be their own and did not share them with others. See Harvey,

2014 ME 149, ¶¶ 15-16, 107 A.3d 604. Smith and Cunner Lane II ask us to

look at each use by the owners in isolation, arguing that no single use satisfies

the twenty-year requirement. This request is antithetical to our adverse

possession precedents; we consider a claimant’s activities “in the aggregate,

i.e., in the context of a claimant’s overall use of the property.” Id. ¶ 19.

[¶49] When considering the Cunner Lane Owners’ multiple uses of the

disputed area “in the aggregate” and in the context of their “overall use of the

property,” the trial court’s findings that the owners had satisfied the
32

twenty-year requirement are supported by competent record evidence. Id.;

see also Grondin, 2014 ME 148, ¶ 13, 106 A.3d 1150; D’Angelo, 2005 ME 31,

¶ 6, 868 A.2d 239. Given this support, we do not disturb the trial court’s

conclusion that “for well over twenty years, the use of the disputed property

by [the Cunner Lane Owners] has been comprehensive and complete” and

“each [owner has] adequately supported the elements necessary to establish

title by adverse possession to the disputed property up to the western and

northwestern edge of the pavement.”15 (Quotation marks omitted); see

D’Angelo, 2005 ME 31, ¶ 6, 868 A.2d 239; Striefel, 1999 ME 111, ¶ 7, 733 A.2d

984.

III. CONCLUSIONS

[¶50] In summary,

• The court correctly determined that Fissmer, the Burkes, and the
Gramses failed to establish that they owned the twenty-foot-wide
corridor designated as Cunner Lane on the 1929 Plan pursuant to the
Paper Streets Act.

• The court correctly granted Cunner Lane II a declaratory judgment that
it holds record title to the twenty-foot-wide corridor designated as

15 Although we do not disturb the trial court’s adverse possession determination, we must

remand the case on this issue for the court to clarify the parties’ new boundary lines. See Hennessy
v. Fairley, 2002 ME 76, ¶¶ 27-28, 796 A.2d 41. Given the complexities of this case, including the
need for a new assigned justice—because the justice who entered the judgment is no longer a
Superior Court justice—a Rule 53 referee may be in order. See M.R. Civ. P. 53.
33

Cunner Lane on the 1929 Plan and to the five-foot-wide strips abutting
Cunner Lane.

• The court erred in making any determinations concerning Siegel’s
ownership of Brook Road.

• The court erred in determining that, pursuant to the Paper Streets Act,
Fissmer owns Sunrise Drive as depicted on the 1929 Plan.

• The court erred in declaring the Burkes and the Gramses owners to the
centerline of Brook Road in its entirety because such a determination is
overbroad.

• The court correctly concluded that Fissmer, the Burkes, and the
Gramses had acquired title, by adverse possession, to the disputed
property that they have used as their lawns, gardens, and driveways up
to the paved edge of present-day Cunner Lane.

• Any adverse possession claim by Fissmer concerning the southernmost
portion of the twenty-foot-wide corridor designated as Cunner Lane—
the portion of that corridor to the south of her driveway—will require
additional litigation.

• Any adverse possession claim by Fissmer concerning Sunrise Drive will
require additional litigation.

• Any adverse possession claims by the Burkes or the Gramses regarding
portions of Brook Road or portions of the five-foot-wide strips lining the
road—to the extent that such strips do in fact curve off of Cunner Lane
and down Brook Road—will require additional litigation.

The entry is:

The portion of the judgment declaring Fissmer
owner of the entire fee under Sunrise Drive is
vacated and remanded to the Superior Court for
entry of a judgment declaring Cunner Lane II
owner of Sunrise Drive, as depicted on the 1929
34

Plan, and of the five-foot-wide strip alongside
Sunrise Drive. The portion of the judgment
declaring the Burkes, Gramses, and Siegel
owners of the land to the centerline of Brook
Road is vacated in part and remanded to the
Superior Court for proceedings consistent with
this opinion. The judgment is affirmed in all
other respects. With regard to the adverse
possession issue, however, the judgment is
remanded for the purpose of legally
establishing the parties’ new boundary lines.

Kurt E. Olafsen, Esq. (orally), Olafsen & Butterfield LLC, Portland, for appellants
David D. Smith, Cunner Lane, LLC, and Cunner Lane II, LLC

Kelly W. McDonald, Esq. (orally), and John B. Shumadine, Esq., Murray, Plumb
& Murray, Portland, for cross-appellants Leslie S. Fissmer, Karen A.B. Burke,
William A. Burke, Patricia M. Gramse, Richard R. Gramse, and Robert E. Siegel

Cumberland County Superior Court docket numbers RE-2016-292, RE-2017-243, and RE-2017-255
FOR CLERK REFERENCE ONLY