Mill Pond Condominium Association v. Manalio

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SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-04-361 STATE OF MAINE YORK, ss. MILL POND CONDOMINIUM ASSOCIATIOI\J, Plaintiff ORDER, DEClSION AND JUDGMENT (TITLE TO REAT, ESTATE AFFECTED) RICHARD MANALIO and ANNE MANALIO, Defendants 1. PARTIES -The plaintiff is Mill Pond Condominium Association of 1732 Post Road in Wells, Maine. It was represented by Susan B. Driscoll of Kennebunk, Maine. The defendants are fichard Manalio and Anne Manalio of 1738 Post Road in Wells, Maine. They were represented by Gregory J . Orso of York, Maine. 2. DOCKET NUMBER - The docket number is CV-04-361. 3. SERVICE - All parties received notice of the proceedings in accordance with the applicable provisions of the Maine Rules of Civil Procedure. 4. DESCRIPTIOI'J OF REAL ESTATE - Tl-LC plaiiitilf u\/vns tile led1 esLdLr d l 1732 Post Road in Wells, Maine, described in a deed of August 23, 1985 from Peter Quill11 and others to Kieran Development Corporation, which is recorded at Book 3613, Page 230. The defendants own adjoining real estate, which is described in a deed of October 16, 1979 from Bois Construction Co., Tnc. to them, which is recorded at Book 2580, Page 202. The defendants' property abuts Route 1 while the plaintiff's property is set back from Route 1. The plaintiff's own a narrow strip of land, which connects its property to Route 1. The defendants are benefited by an easement on this strip of land. The primary dispute in this case involves the nature of the easement and the respective rights of the parties to use this strip of land, w h c h is about 42 feet wide and about 175 to 180 feet long. Scc August 19, 1985 revised survey by A.W.I. Engineering Co. of W. Scarborough, Maine. The plaintiff has filed an amended complaint. Count I seeks a declaratory judgment regarding ihe use that i l ~ e ciefendants can make of the easement. Count I1 seeks damages for the conversion of a sign near Route 1. Count I11 is a claim that the defendants have overburdened the easement. Count IV is based on nuisance. Count V is a common law trespass claim regarding a fence and Count VI is a statutory trespass claim regarding survey inarkcrs or monuments. Following a more recent survey Counts V and VI were voluntarily dismissed with prejudice. The defendants have filed a counterclaim. Count I also seeks a declaratory judgment, Count I1 is a claim for interference with an easement. Count I11 is a claim for V prescriptive easement while Count T was a trespass claim regarding a utility line. It is unfortunate that litigation was necessary, as the relationship between the parties has been severely strained. T is hoped that the decision will clarify the rights of t the parties, separate them to the greatest extent possible, reduce the tension that exists ~vithout i~~tei.feiel~ce oi llai-ass~i~elit. The and allow each side to eiijoy their p r ~ p e r t y problems in this case stein from both sides being more assertive then they should have been. in Iune of 2004 the property manager for the Association sent a letter to the defendants suggesting, quite incorrectly as a later survey indicated, that the defendants' increased the animosity new fence tvas on the Association's property. The defei~dants by removing a sign for the condominiums that was within the right of way near Route 1. Further disputes arose over such issues as snow plowing, driving on grassy areas, where vehicles parked, the talui~gof photographs and where a mailbox sl~ouldbe located. Wlule there is ample area within the right of way for peaceful co-existence this has proven to be problematical. Ail examjilation of the precise wording of the grant of the easement is necessary. The plaintiff through a defeasance provision in the deed at Book 2580, Page 202 now owns the land in fee. The defendanls, however, are the beneficiaries of a precisely described roughly rectangular right of way to be used "over and along the full lengtli, breadth and width . .. for the purposes of ingress and egress . .. and the construction and maintenance of a roadway over said right of way." The defendants have argued that, because they have a right of way "over and along the full length, breadth and width" of the strip, the plaintiff cannot install its sign in the front corner of the strip or interfere with how the defendants use the strip. The right of way, however, is for purposes of ingress and egress and it is the plaintiff, not the defendants, who now own the land itself. In Pettee v. Young, 2001 ME 156, 783 A.2d 637 the Law Court carefully examined its precedents concerning when an easement is ambiguous and when easements are or are not limited. Initially the defendants argument is appealing because they are granted rights over and along the "full length, lireadth and tvidtll" of tl12 easement. T1-iese rights have "limiting language" Pettee at Tl2, in that they are restricted to i~lgrcss and egress. While no specific location within the right of way is designated as the location of a paved road and while no area is automatically precluded from potential use, the whatever arca is necessary for reasonable ingress purpose of the easement is to allo~~v and egress to be utilized. There are a number of specific disputes that can be resolved by applying this general principle. PLAINTIFF'S SIGN -The plaintiff has a tasteful not overly large sign, which is now placed near Route 1 at the edge of the easement area. The sign is near curbing, a highway sign and a granite post. The sign is in a location, which cannot be reasonably used for purposes of ingress and egress. The sign may remain where it is, may be maintained anci replaced by the plaintiff when eventually necessary. CONVERSION CLAIM - The defendants were not justified in removing the plaintiff's sign. The sign was removed in anger to make a point. The plaintiff is entitled to judgment on its conversion claim in the amount of $250.00 based on the September 26, 2005 invoice from Coastal Contractors, Inc. The remaining conversion damage claims are denied. DEFENDANIS' SIGNS -The defendants drafted, had fabricated and installed two signs, which incorrectly described and, after modification, describe the nature of the right of way. Those signs are to be removed and not reinstalled. SNOWPLOWTNG -- It was agreed that the defendants will not, and as they say that they have not, plow the snow on their land to the land owned by the plaintiff. PARKING - Neither side is entitled to use the right of way for parlung for their Lusil-tesa I-larLmlown use, lhe rrse of Llieir- guests oruuse Ly cuslorllers ol llle delr1-tddllLs1 Flags. The plaintiff inay paint or stencil appropriate no parlung signs on the paved portion of the easement. It is strongly suggested that the signs not be painted until counsel have conferred. Further disagreements are to be avoided. AREA NEAR FENCE-The plaintiff complained to the Town of Wells that the defendants were not in full compliance with a previously approved site plan. The Town apparently agreed, at least in part, and apparently sent the defendants a violation notice. The defendants as part of their response to the Town dug up a small portion of lawn in the easement and placed crushed stone there. Currently that action is not consistent with the language of the easement as the construction was not for actual ingress and egress. By May 31, 2006 the defendants will restore the area to grass. DRIVING ON THE GRASS - The defendants do not need to drive 01 x the grass just to prove that they can or to prevent, in their judgment, some loss of rights. If a larger deli\/ery vel~icle needs to utili~e urlpaved grdss portion (if tlle easement, the Llle vehicle may do so. The defendants, if absolutely necessary, may pass over any minimally necessary part of the unpaved portion of the easement for purposes of ingress and egress. This should be rare and only done if no other reasonable options exist. It should never be done to aggravate the neighbors. Likewise members of the plaintiff associati011 should not complain about brief inconveniences caused by a rare delivery truck. Members need not take photos of every perceived slight. With modest efforts both sides can vastly improve their relationship with the other. MAILBOX - There will be no order requiring the defendants' mailbox to be moved. It appears that it is in a location chosen by the post office. The harm to the plaintiff in keeping it where it is is minimal. SEA1,ING AND OTHER REPAIRS - It is requested that the defendants and the any plaintiff each give reasonable notice to the other b ~ f o r e maintenance is done on the easement. The entries are: On Count 1 of the amended cornplairit the rights of the parties are declared consistent with this order and decision. On Count I1 of the amended complaint judgment for the plaintiff against the defendants in the amount of $250.00 with pre-judgment interest of 7.365%and post-judgment interest of 10.36%,plus costs. As damages were awarded on Cotint I1 and no other damages are warranted, judgment for the defendants on Count 111 of the amended complaint. Judgment for the defendants on Count IV of the amended complaint. Counts V and VI of the amended complaint are dismissed with prejudice and without costs. Count I of the counterclaim is dismissed as moot. Judgment for the plaintiff on Counts 11, I11 and IV of the counterclaim. The plaintiff shall record an attested copy of this order, decision and judgment and pay the appropriate recording fees. Dated: January 23,2006 Paul A. Fritzsche Justice, Superior Court v 'The applicable appeal period has expired without action or the final judgment has been entered after remand following appeal. Dated: Clerk PLAINTIFF: S u s a n D r i s c o l l , Esq. 62 P o r t l a n d R d K e n n e b u n k M e 04043 DEFENDANT : Gregory Orso, Esq. P O B o x 545 Y o r k M e 03909-0545 BERGEN & PARKINSON ERWIN OTT CLARK ORSO & CAMPBELL

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