Gloria Carignan v. Paul R. Dumas Jr. , 154 A.3d 629 ( 2017 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 15Docket: Oxf-16-82
Argued: November 9, 2016
Decided: January 19, 2017
Corrected: June 29, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
GLORIA CARIGNAN
v.
PAUL R. DUMAS JR.
JABAR, J.
[¶1] Paul R. Dumas Jr. appeals from a judgment of the Superior Court
(Oxford County, Clifford, J.) granting summary judgment in favor of Gloria
Carignan and denying Dumas’s motion for summary judgment. Dumas
contends that the court erred by interpreting a provision of the Paper Streets
Act, 23 M.R.S. § 3031 (2016), to apply retrospectively. We agree, and therefore
vacate the court’s entry of summary judgment for Carignan and its denial of
summary judgment for Dumas, and remand for further proceedings.
I. BACKGROUND
[¶2] The summary judgment record contains the following facts. Brady v.
Cumberland Cty., 2015 ME 143, ¶ 2, 126 A.3d 1145. Gloria Carignan owns
unencumbered title to real estate located at 3 Holyoke Avenue in Rumford,
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Maine (the “Carignan Parcel”). Her property is described in a deed from John F.
Hargreaves to Gloria F. Hargreaves dated September 15, 2010, and recorded in
the Oxford County Registry of Deeds. The Carignan Parcel is further described
in a deed to John F Hargreaves and Gloria F. Hargreaves by Robert F. Perry and
Rita N. Perry dated January 26, 1979, also recorded in the Oxford County
Registry of Deeds. The Carignan Parcel was originally granted to the Perrys by
deed of Rumford Falls Power Company (RFPC) recorded on February 23, 1973.
It is delineated as lots 2153 through 2159 on RFPC’s subdivision plan titled
Ninth Addition and Revision of Part First Addition Rumford (the “Ninth
Addition Plan”), dated July 8, 1920, and recorded on August 4, 1920.
[¶3] Paul R. Dumas Jr. owns property described in two separate deeds:
one (the “Casco Bank Parcel”) dated January 22, 1976, and recorded in the
Oxford County Registry of Deeds; and another (the “Rumford Paper Company
Parcel”) dated July 18, 2014, also recorded in Oxford County. The Rumford
Paper Company Parcel is delineated on the Ninth Addition Plan, and is
contiguous to the Casco Bank Parcel, which is delineated on a subdivision plan
titled Fourth Addition to Rumford Falls, dated August 10, 1906, and recorded
September 19, 1906. Together, Dumas’s property (collectively the “Dumas
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Parcel”) includes plots 2160 through 2176 and the southern portion of 2177 as
shown on the Ninth Addition Plan.
[¶4] The Carignan Parcel is bordered on the west by Willow Street, a
paper street depicted on the Ninth Addition Plan. Dumas’s lots 2172 through
2177 are bordered by Willow Street on the east, and his lots 2160 through 2164
are bordered by Willow Street on the west. A portion of Willow Street runs
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directly between part of the Carignan Parcel and part of the Dumas Parcel. Two
other paper streets, Vine Street and Salem Street, abut the Dumas Parcel but
are not at issue here.
[¶5] Willow Street was never formally accepted by the Town of Rumford,
and neither party alleges any private or public use of the road until the 1970s,
when Dumas asserts that a portion of Willow Street was maintained for logging
purposes.1
[¶6] Rumford Paper Company is the successor-in-interest to RFPC. In
conveying the Carignan Parcel to the Perrys in 1973, RFPC expressly reserved
[f]orever, to and for itself, its successors and assigns . . . rights to
authorize and consent to the authorization, construction, and
maintenance through any and all the streets, avenues, parks,
reserved and other open places shown on the [Ninth Addition
Plan], of surface railways to be propelled by horses, electricity or
steam; or other power, or sewers, water pipes, gas pipes, electric
1 Carignan denied Dumas’s statement of material fact that the road was used for logging during
the 1970s and 1980s, and asserted that the affidavits of Rachel Meisner and Brian Milligan, submitted
in support of Dumas’s statements of material facts, “failed to set out qualifying foundation.” While a
conclusory and unsupported assertion of personal knowledge in an affidavit is insufficient to
establish the admissibility of business records pursuant to M.R. Civ. P. 56(e), see Beneficial Me. Inc. v.
Carter, 2011 ME 77, ¶¶ 15-16, 25 A.3d 96, firsthand personal knowledge of the fact asserted satisfies
the requirements of the rule, Cote v. Cote, 2016 ME 94, ¶ 20, 143 A.3d 117. Because both Meisner and
Milligan asserted firsthand knowledge of the use of Willow Street during the 1970s and 1980s based
on personal experience and observation, and Carignan disputes only the evidentiary foundation for
their affidavits, their affidavits and the facts contained therein are properly considered as part of the
summary judgment record here.
Dumas, by contrast, admitted Carignan’s statement of material fact that “[a]t no time was there
use or construction of the easterly side of Willow Street at any time meaningful to this cause of
action.”
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wires, both overhead and underground, and all other matters and
things for which streets are customarily used . . . .
When Rumford Paper Company conveyed the Rumford Paper Company Parcel
to Dumas, it expressly included in its conveyance “all of the fee interest, and any
other interest or rights of the Grantor previously reserved or otherwise held by
Rumford Falls Power Company in Willow Street . . . as shown upon [the Ninth
Addition Plan].”
[¶7] On May 15, 1997, the Town voted pursuant to 23 M.R.S.A. § 3032
(1997) to exempt from the time limitations of the Paper Streets Act certain
paper streets in Rumford, but did not include Willow Street. Less than twenty
years before this action was brought, Carignan constructed a garage that
encroaches upon a section of Willow Street adjacent to the Carignan Parcel. She
has never recorded in the Oxford County Registry of Deeds, and never given to
any record owner, any notice of claim to Willow Street.
[¶8] On November 8, 2013, Carignan filed a complaint against Dumas
and Robert Richard, an alleged contractor for Dumas, asserting six causes of
action related to Richard’s use of Willow Street to access the Dumas Parcel. In
response, Dumas asserted affirmative defenses and counterclaimed, pursuant
to the Paper Streets Act, P.L. 1987, ch. 385 (effective September 29, 1987)
(codified at 23 M.R.S. §§ 3027, 3031-3035 (2016); 33 M.R.S. §§ 460,
6
469-A (2016)) seeking a declaratory judgment that Carignan has no legal rights
to any portion of Willow Street, that Dumas has an easement to use Willow
Street to access his property, and that a public easement exists over Willow
Street.
[¶9] Carignan stipulated to a partial dismissal of her claim, and amended
her complaint to seek declaratory judgment, naming Dumas, RFPC, and New
Page Corporation as defendants. RFPC and New Page Corporation were later
dismissed from the action, leaving only Carignan and Dumas as parties. In
January 2015, Carignan and Dumas filed cross-motions for summary judgment
as to Carignan’s claim and Dumas’s counterclaim for declaratory judgment.
[¶10] On May 4, 2015, following a hearing on the cross-motions, the
Superior Court (Oxford County, Clifford, J.) entered an order granting summary
judgment for Carignan and denying summary judgment for Dumas. The court
concluded that pursuant to 33 M.R.S. § 469-A (2016), addressing reservation of
title to proposed, unaccepted ways, Carignan, through her
predecessors-in-title, acquired title to the centerline of that portion of Willow
Street abutting her property. Next, addressing the issue of public and private
easements in Willow Street, the court relied upon our holding in Tisdale v. Buch,
2013 ME 95, 81 A.3d 377, to conclude that 23 M.R.S. §§ 3031(1) and (2) (2016),
7
which address public and private rights in proposed, unaccepted ways
recorded in subdivision plans, apply to subdivision plans recorded before
September 29, 1987. The court found that because the Town never accepted
Willow Street, any public or private rights to its use expired no later than 1940
pursuant to those provisions. Additionally, the court concluded that Carignan
was not required to file notice of her rights to Willow Street pursuant to
23 M.R.S. § 3033 (2016) because public rights to the street had already
terminated. Finally, the court denied Dumas’s nuisance counterclaims because
he had failed to allege properly supported material facts that he has rights in
Willow Street that are burdened by Carignan’s encroaching garage.
[¶11] Dumas filed a motion for reconsideration on May 18, 2015, which
the court denied on July 29, 2015, and was entered on the docket on
February 12, 2016. On February 24, 2016, Dumas timely filed notice of appeal.
M.R. App. P. 2(b)(3).
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II. DISCUSSION
A. Issue on Appeal
[¶12] Dumas argues on appeal that when read together with 23 M.R.S.
§ 3032 (2016),2 23 M.R.S § 3031 (2016)3 cannot reasonably be applied to
subdivision plans recorded prior to September 29, 1987, because section 3031
2 Title 23 M.R.S. § 3032 provides, in part:
1-A. Deemed vacation. A proposed, unaccepted way or portion of a proposed,
unaccepted way laid out on a subdivision plan recorded in the registry of deeds prior
to September 29, 1987 is deemed to have been subject to an order of vacation under
section 3027 if, by the later of 15 years after the date of the recording of the
subdivision plan laying out the way or portion of the way or September 29, 1997, both
of the following conditions have been met:
A. The way or portion of the way has not been constructed or used as a way; and
B. The way or portion of the way has not been accepted as a town, county or state
way or highway or as a public, utility or recreational easement.
3 Title 23 M.R.S. § 3031 provides, in part:
1. Public rights. From the date of recording of a subdivision plan in the registry of
deeds, the public acquires rights of incipient dedication to public use of the ways laid
out on the plan. If a proposed way laid out in the plan is not accepted by the
municipality within 20 years from the date of recording of the plan, the public rights
in that way terminate.
2. Private rights. A person acquiring title to land shown on a subdivision plan
recorded in the registry of deeds acquires a private right-of-way over the ways laid
out in the plan. If a proposed, unaccepted way is not constructed within 20 years from
the date of recording of the plan, and if the private rights created by the recording of
the plan are not constructed and utilized as private rights within that 20-year period,
the private rights-of way in that way terminate.
Unless title has been reserved pursuant to Title 33, section 469-A, when the private
rights established by this subsection are terminated as provided in this subsection or
by order of vacation by the municipality, the title of the fee interest in the proposed,
unaccepted way for which the private rights-of-way have terminated passes to the
abutting property owners to the centerline of the way.
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cannot be applied to the same paper streets to which section 3032 expressly
applies.4 According to Dumas, applying section 3031 to pre-1987 subdivision
plans causes the nonsensical result that in certain instances public and private
rights in proposed, unaccepted ways will be simultaneously preserved
pursuant to sections 3032 and 3033 and terminated pursuant to section 3031.5
Carignan counter-argues that section 3031 can be reconciled with sections
3032 and 3033 because section 3031 governs public and private rights of use,
while sections 3032 and 3033 govern presumptions, procedures, and remedies.
B. Standard of Review
[¶13] Cross-motions for summary judgment are reviewed de novo
pursuant to M.R. Civ. P. 56. F.R. Carroll, Inc. v. TD Bank, N.A., 2010 ME 115, ¶ 8,
8 A.3d 646. We will “consider both the evidence and any reasonable inferences
that the evidence produces in the light most favorable to the party against
whom the summary judgment has been granted in order to determine if there
Dumas concedes that pursuant to 33 M.R.S. § 469-A (2016) Carignan is the owner in fee to the
4
centerline of the portion of Willow Street that abuts her lot. He argues only that the court erred in its
application of section 3031 to plans recorded prior to September 29, 1987, and that his right of way
over Willow Street should therefore not have terminated.
Although Dumas raises other issues on appeal, because we determine that the court’s analysis
5
and application of sections 3031 and 3032 of the Paper Streets Act was reversible error, as was the
court’s conclusion that Dumas had abandoned any easement to which he might be entitled, we do not
address Dumas’s other contentions here.
10
is a genuine issue of material fact.” Grant v. Foster Wheeler, LLC, 2016 ME 85,
¶ 12, 140 A.3d 1242 (quotation marks omitted). Summary judgment is
properly granted if there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. Doe v. Williams, 2013 ME 24,
¶ 10, 61 A.3d 718; M.R. Civ. P. 56(c).
[¶14] We review de novo “the trial court’s interpretation and application
of the relevant statutes and legal concepts.” Remmes v. Mark Travel Corp.,
2015 ME 63, ¶ 19, 116 A.3d 466. We will analyze a statute’s plain language to
effect the Legislature’s intent, and will “consider the provision at issue in the
context of the entire relevant statutory scheme.” Brooks v. Carson, 2012 ME 97,
¶ 19, 48 A.3d 224.
C. Operation of the Paper Streets Act
[¶15] The Paper Streets Act was enacted in 1987 to “clarify title to old,
proposed, unaccepted streets shown on subdivision plans, and to eliminate the
possibility of ancient claims.” Id. ¶ 24 (citation and quotation marks omitted).
The various sections of the Act must be read as complementary, Fournier v.
Elliott, 2009 ME 25, ¶ 21, 966 A.2d 410, and sections 3031 through 3034 “shall
be liberally construed to affect the legislative purpose of” the Act. 23 M.R.S.
§ 3035 (2016).
11
[¶16] Section 3031 of the Act grants the public rights of incipient
dedication to ways laid out in a recorded subdivision plan, but terminates those
rights if the proposed way is not accepted by the municipality within twenty
years from the date of recording. 23 M.R.S. § 3031(1). It also grants a private
right of way over those ways to parties who acquire title to land shown on the
same subdivision plan as the proposed way, and terminates those private rights
if the way is not constructed within twenty years after recording and the
private rights “are not constructed and utilized” within the same time. Id.
§ 3031(2).
[¶17] Section 3032 provides that if, within the later of fifteen years after
recording or September 29, 1997, a municipality has not voted to accept a
proposed way laid out in a subdivision plan recorded prior to September 29,
1987, and it has been neither constructed nor used as a way, then the way is
deemed vacated as though by order of the municipality pursuant to 23 M.R.S.
§ 3027 (2016). 23 M.R.S. § 3032(1-A). A municipality may extend the deadline
by filing notice. Id. § 3032(2). Any person “claiming to own a proposed,
unaccepted way . . . deemed vacated under section 3032” must record notice
and bring a claim pursuant to section 3033. 23 M.R.S. § 3033 (2016).
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D. Retroactive Application of Section 3031
[¶18] At issue here is whether section 3031 applies to pre-1987
subdivision plans. Our common law presumption is that “absent language to
the contrary, legislation affecting procedural or remedial rights should be
applied retroactively, whereas legislation affecting substantive rights should be
applied prospectively.” In re Guardianship of Jeremiah T., 2009 ME 74, ¶ 18,
976 A.2d 955 (quotation marks omitted); see also Greenvall v. Me. Mut. Fire Ins.
Co., 2001 ME 180, ¶ 7, 788 A.2d 165. Similarly, we have said that “all statutes
will be considered to have a prospective operation only, unless the legislative
intent to the contrary is clearly expressed or necessarily implied from the
language used.” Coates v. Me. Emp’t Sec. Com., 406 A.2d 94, 97 (Me. 1979)
(quotation marks omitted); see also 1 M.R.S. § 302 (2016) (“Actions and
proceedings pending at the time of the passage, amendment or repeal of an Act
or ordinance are not affected thereby.”). Therefore, unless the plain language
of the statute, or some other reason, requires it, we will not interpret section
3031 to apply retroactively.
[¶19] We have noted, discussing the Act as a whole, that it was “intended
to apply retroactively.” Glidden v. Belden, 684 A.2d 1306, 1314 (Me. 1996)
(noting that “the law was intended as a ‘comprehensive attempt to deal with a
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variety of title and title marketability problems presented by old, proposed,
unaccepted streets shown on subdivision plans’” (citing L.D. 1776, Statement of
Fact (113th Legis. 1987))). By its plain language, section 3032 applies
retroactively to proposed, unaccepted ways “laid out on a subdivision plan
recorded in the registry of deeds prior to September 29, 1987.” 23 M.R.S.
§ 3032(1-A). Similarly, the second paragraph of subsection 3031(2) applies
retroactively, because that paragraph references section 469-A, which
“pertains to conveyances prior to 1987.” Fournier, 2009 ME 25, ¶ 24, 966 A.2d
410; 23 M.R.S. § 469-A(1).
[¶20] There are, however, certain provisions of the Paper Streets Act that
we have held do not apply retroactively. For example, we have stated that
subsection 3031(4) applies only to subdivisions recorded after 1987, and have
never explicitly applied subsection 3031(1) or the first paragraph of subsection
3031(2) to pre-1987 subdivisions. Id. ¶¶ 2, 25-26.
[¶21] The court below relied upon our decision in Tisdale to conclude
that section 3031 as a whole applies to pre-1987 subdivision plans. In Tisdale,
we decided that plaintiffs who sought a declaratory judgment as to their rights
to use a right of way could not have acquired rights pursuant to subsection
3031(2) because their lots were not shown on a 1969 subdivision plan that
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depicted the right of way, and their deeds did not reference the 1969 plan.
Tisdale, 2013 ME 95, ¶¶ 7, 12, 81 A.3d 377. Thus, rather than affirmatively
holding that section 3031 applies in its entirety to such subdivision plans, we
determined that the plan at issue in that case did not meet the requirements of
subsection 3031(2). Id.[¶22] If we now were to apply subsection 3031(1) and the entirety of
subsection 3031(2) to pre-1987 subdivision plans, as Carignan urges, sections
3031 and 3032 would be in conflict. Section 3032 terminates public rights in
proposed, unaccepted ways if those rights are not utilized and the ways are not
accepted by the town within fifteen years after the date of recording or by
September 29, 1997, whichever comes later. 23 M.R.S. § 3032(1-A)(B); see
Glidden, 684 A.2d at 1315 (stating that “unless the affected municipality accepts
and constructs the way or files a notice under section 3032(2) . . . any incipient
rights in the way terminate”); see also Lamson v. Cote, 2001 ME 109, ¶ 19 n.10,
775 A.2d 1134 (citing Glidden, 684 A.2d at 1315)). Subsection 3031(1), on the
other hand, creates a public right of incipient dedication, and terminates that
public right if the way is not accepted within twenty years after recording.
23 M.R.S. § 3031(1).
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[¶23] Concurrent application of these two provisions would lead to an
absurd result. For any proposed, unaccepted way laid out on a subdivision plan
recorded prior to September 29, 1987, one of three public rights termination
dates would apply: the later of September 29, 1987, or fifteen years from
recording; or twenty years from recording. If, for example, a subdivision plan
recorded in 1960 contained a proposed way, then section 3031 would
terminate incipient public rights in 1980, but section 3032 would not terminate
public rights until September 29, 1997.
[¶24] We therefore hold that subsection 3031(1) of the Paper Streets Act
does not retroactively apply to proposed, unaccepted ways laid out on
subdivision plans recorded prior to September 29, 1987. This holding
comports with our jurisprudence concerning statutory interpretation as well
as the overall purpose of the Paper Streets Act. The Act is intended to be read
broadly to clarify title to old, proposed, unaccepted streets, and prospective
application of subsection 3031(1) serves that purpose. Public rights to
proposed, unaccepted ways recorded prior to September 29, 1987, are clarified
by operation of section 3032 within the limitations period established by that
section. Public rights to proposed, unaccepted ways recorded on or after
September 29, 1987, are clarified by operation of subsection 3031. Private
16
rights to proposed, unaccepted ways are clarified by operation of subsection
3031(2), as well as the procedure established in section 3033.
[¶25] By reading subsection 3031(1) to apply only prospectively, the
various provisions of the Paper Streets Act are brought into harmony. Any
interpretation that would apply subsection 3031(1) to apply retroactively
would yield absurd results.
E. Public Rights to Willow Street
[¶26] Because the lower court erred in its application of subsection
3031(1) to pre-1987 subdivision plans, its conclusion that the incipient public
rights to Willow Street expired by 1940 was error. Willow Street was recorded
prior to September 29, 1987, and therefore the public rights to the way were
subject to section 3032. It is undisputed that Willow Street has never been
accepted as a way by the town of Rumford. Pursuant to section 3032 it is
therefore considered vacated as of September 29, 1997, if it was not
“constructed or used as a way.” 23 M.R.S. § 3032(1-A)(A). The issue therefore
becomes a factual one that hinges on whether Willow Street was “constructed
or used as a way” so as to prevent its automatic vacation and therefore
termination of the public’s rights to it pursuant to section 3032.
17
[¶27] Willow Street was depicted on the Ninth Addition Plan, which was
recorded on August 4, 1920. Dumas alleges that by the 1970s there existed a
gravel road over Willow Street which was used for foot and vehicle traffic to
access the Dumas Parcel for logging purposes. Specifically, Dumas submitted
two affidavits with his statement of material facts alleging use of Willow Street
during the 1970s and 1980s. The first, an affidavit sworn by Rachel Meisner,
alleges that during the 1970s and 1980s, Meisner visited her husband while he
worked for Boise Cascade in an area to the south of the Dumas Parcel.
According to Meisner, Willow Street was passable by car and on foot, and was
“already a constructed way” prior to her husband’s work there. A second
affidavit, sworn by Brian Milligan, a former forester for Boise Cascade who
supervised wood harvesting at the site, states that Willow Street was an
existing gravel road at the time he harvested there in the 1970s and 1980s, and
that some work was done to repair the gravel and add a culvert in the 1970s.
Neither affidavit specifies the years of use, nor alleges any use after the 1980s.
[¶28] Rather than disputing Dumas’s allegations of the use of Willow
Street in the 1970s and 1980s, Carignan objects only to the admissibility of
affidavits alleging its use in the 1970s and 1980s. The trial court noted, and we
18
agree, that the affidavits upon which Dumas relies are admissible. See supra,
n.1.
[¶29] By contrast, Carignan asserts in her statement of material facts that
Willow Street was never developed or improved, which Dumas admits to the
extent that Willow Street was not developed or improved by the Town prior to
1940. As we previously noted, Dumas also admitted to Carignan’s asserted fact
that “[a]t no time was there use or construction of the easterly side of Willow
Street at any time meaningful to this cause of action.” According to the Ninth
Addition Plan, Carignan’s parcel abuts the easterly side of Willow Street. While
it seems implausible that only one half of Willow Street was ever “constructed
or used as a way,” because a fact-finder would need to decide between these
competing versions of the truth—whether, at what times, and to what extent
Willow Street has been used or constructed within the meaning of section
3032—and accepting either Carignan’s or Dumas’s version of events would
yield different results pursuant to the relevant law, there is a genuine issue of
material fact, and summary judgment as to the deemed vacation of public rights
in Willow Street was improper. See Angell v. Hallee, 2014 ME 72, ¶ 17,
92 A.3d 1154.
19
F. Private Rights to Willow Street
[¶30] In addition to its conclusion that the public retained no rights in
Willow Street, the trial court concluded that Dumas retained no private rights
in Willow Street and had acquiesced to the encroachment of Carignan’s garage
on any easement he might hold over the way, thereby abandoning any
hypothetical easement. This conclusion, however, is supported by neither the
parties’ statements of material facts nor an application of the law to those facts,
for several reasons.
[¶31] First, subsection 3031(2) terminates private rights only if the
“private rights created by the recording of the plan are not constructed and
utilized as private rights” within 20 years of recording. 23 M.R.S. § 3031(2).
While we have held that the second paragraph of subsection 3031(2) applies to
pre-1987 subdivision plans by reference to title 33 M.R.S. § 469-A, see Fournier,
2009 ME 25, ¶ 24, 966 A.2d 410, we have never held that the first paragraph
applies to retroactively vest abutting landowners with a right of way over ways
laid out in such plans. Even if subsection 3031(2) did apply retroactively, which
we decline to hold at this time, there is a genuine dispute of material fact as to
any historical use or construction of Willow Street.
20
[¶32] Because Carignan alleges that Willow Street was not developed or
improved within the required time, which Dumas disputes, there remains a
question of fact as to when Willow Street might have been privately used.
Dumas does not dispute Carignan’s assertion that the easterly side of Willow
Street—the side abutting Carignan’s property—has never been used, but
asserts in his own statement of facts that Willow Street was used by loggers for
access in the 1970s and 1980s. Neither party alleges any private use of Willow
Street until the 1970s, and neither party alleges any use at all after the 1980s,
with the exception of Carignan’s encroaching garage. There is therefore a
genuine dispute of material fact as to whether private use was made of Willow
Street to preserve Dumas’s rights, whether by operation of the Paper Streets
Act or by a common law easement.
[¶33] Further, the trial court erred to the extent that it found that Dumas
had abandoned any easement to which he might be entitled. In order to find
abandonment of an easement, the court would need to find “(1) a history of
nonuse coupled with an act or omission evincing a clear intent to abandon, or
(2) adverse possession by the servient estate,” neither of which is clear from
the record. Laux v. Harrington, 2012 ME 18, ¶ 21, 38 A.3d 318.
21
III. CONCLUSION
[¶34] Because we agree with Dumas that the court erred in its
application of sections 3031 and 3032 of the Paper Streets Act and its finding
that Dumas had abandoned any easement to which he might be entitled, we
vacate the court’s summary judgment in favor of Carignan and remand for
further proceedings consistent with this opinion.
The entry is:
Judgment vacated. Remanded for proceedings
consistent with this opinion.
James B. Haddow, Esq. (orally), Petruccelli, Martin & Haddow, LLP, Portland, for
appellant Paul R. Dumas, Jr.
Stephean C. Chute, Esq. (orally), South Casco, and Thomas S. Carey, Esq., Carey
& Associates, P.A., Rumford, for appellee Gloria Carignan
Oxford County Superior Court docket number RE-2013-66
FOR CLERK REFERENCE ONLY