MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2015 ME 49
Docket:   Han-14-321
Argued:   April 8, 2015
Decided:  May 5, 2015

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



                              ROBERT L. RICE et al.

                                         v.

                               JAMES C. COOK et al.

GORMAN, J.

         [¶1] Robert L. Rice and Carol P. Rice appeal from a judgment entered by

the Superior Court (Hancock County, Anderson, J.) granting James C. Cook and

Carol Greenleaf-Cook injunctive relief and monetary damages. The Rices contend

that (1) the court erred in finding that the parties did not reach an agreement

regarding their common boundary line, (2) the court erred in finding that the Rices’

fences were “unnecessarily high” pursuant to 17 M.R.S. § 2801 (2014) or

“unreasonably interfered” with the Cooks’ use and enjoyment of their property

pursuant to a common law theory of nuisance, and (3) the court abused its

discretion in enjoining the Rices from building a fence of any height along a

portion of their boundary with the Cooks. We affirm the judgment.
2

                                I. BACKGROUND

        [¶2] On February 24, 2012, Robert L. Rice and Carol P. Rice filed a

complaint in the Superior Court against their neighbors, James C. Cook and

Carol Greenleaf-Cook, alleging breach of a contract among the parties regarding

their shared boundary line, trespass, nuisance, and timber trespass, and seeking a

declaratory judgment, injunctive relief, and punitive damages. On June 5, 2012,

the Cooks counterclaimed, alleging nuisance, trespass, and breach of contract

based on a previous settlement agreement between the parties, and seeking

declaratory judgment. On December 30, 2012, the court held a jury-waived trial.

        [¶3]   In its judgment, the court found the following facts, which are

supported by competent record evidence. The Rices and Cooks are neighbors on

Green Lake in Dedham. In 2001, the Rices built a garage on their property, and

the Cooks tore down an old camp and built a house where the camp previously

stood. Both parties indicated on their respective building permit applications that

their proposed structures met the ten-foot setback requirement.        Nevertheless,

neither party knew the location of the boundary nor commissioned a survey until

2008.

        [¶4] Although the Rices asserted that they and the Cooks had reached an

agreement on the location of the common boundary, the Cooks denied any such

agreement, and the parties never altered the property descriptions in their deeds. In
                                                                                    3

addition, the Rices did not present at trial any metes and bounds description, or any

other writing, demonstrating their version of the line.

      [¶5] Even after constructing their garage, the Rices stored full trash bags,

trash barrels, ladders, and construction materials outside of the northern side of the

garage, making these unsightly items highly visible from the Cooks’ porch. In

2008, the Cooks commissioned a survey of their land and subsequently built a

six-foot high fence on their property, along the length of the Rices’ garage, to

shield the trash from their view. This fence, which is two feet from the boundary

shown on the Cooks’ survey, is approximately four feet from the Rices’ garage.

      [¶6] Apparently displeased by the fence, the Rices built a fence on their side

of a shared right-of-way behind the parties’ properties. This fence consists of

segments that, although individually are no more than six feet in height, are placed

in a manner that causes a significant portion of the fence to be more than six feet

above the ground. The Rices then placed ladders, trash containers, and other

materials on the narrow portion of their property that is outside this fence, in plain

view of the Cooks’ property. Although Robert Rice testified that he built this

fence because the Cooks had cut down some trees between the properties that had

provided a visual screen, the court found this testimony was “grossly exaggerated.”

This fence is pictured below.
4




      [¶7] Robert Rice then constructed a second fence, from the side of his

garage towards the lake. This fence, which partially obstructs the Cooks’ lake

view, is also erected so that some portions are over six, and up to twelve, feet tall.

This fence is pictured below.
                                                                                     5

      [¶8] In addition, the Rices play loud music from their garage at all hours

that can be heard outside. The Rices also have installed security cameras on their

property, at least two of which are pointed directly over the Cooks’ fence toward

the Cooks’ house and yard.

      [¶9] Based on these facts, the court concluded, inter alia, that the Cooks and

Rices never “actually reached an agreement” regarding the location of the common

boundary and, therefore, the Cooks did not breach a contract concerning the

location of the boundary. In addition, the court concluded that the Rices created a

common law nuisance by their acts of pointing surveillance cameras directly at the

Cooks’ home from a close distance; playing loud music at all hours; building both

fences; and placing trash, ladders, and other items on the Cooks’ side of the Rices’

fence. The court also concluded that the Rices’ fences were “spite fences” as

defined by 17 M.R.S. § 2801 (2014) and, as such, were a nuisance.

      [¶10] The court issued an injunction requiring that (1) “[t]he fences are

either to be removed or reconstructed in a manner such that no part of the fence is

more than 6’ from the ground;” (2) “[i]f the fence closest to the lake is

reconstructed, it shall be no closer to the lake than the present location of the third

support post from the lake;” (3) “[n]o surveillance camera may be pointed in a

manner such that defendant’s property east of the right of way is within range of

the camera;” (4) “[n]o personal property or trash may be placed on the north
6

(defendant’s) side of the fence to the west of the right of way if it is reconstructed;”

and (5) “[t]he plaintiffs are not to play music outside at an unnecessarily high

volume and it can be played only while a plaintiff, family member and/or guest is

outside to listen to the music.” Additionally, the court awarded the Cooks $5,000

in damages. The Rices timely appealed those portions of the judgment concerning

the location of the boundary, the finding that the fences constituted nuisances, and

the limitations on the Rices’ ability to fence their property.

                                  II. DISCUSSION

A.    Breach of Contract

      [¶11] The Rices first argue that the court erred in finding that the Rices and

Cooks never reached an agreement regarding their shared boundary line. “A

contract exists when the parties mutually assent to be bound by all its material

terms, the assent is either expressly or impliedly manifested in the contract, and the

contract is sufficiently definite.” McClare v. Rocha, 2014 ME 4, ¶ 16, 86 A.3d 22

(quotation marks omitted). We review for clear error a trial court’s determination

of whether a contract exists.          Forrest Assocs. v. Passamaquoddy Tribe,

2000 ME 195, ¶ 9, 760 A.2d 1041. Clear errors exists when

      (1) there is no competent evidence in the record to support [the trial
      court’s determination], or (2) it is based on a clear misapprehension
      by the trial court of the meaning of the evidence, or (3) the force and
      effect of the evidence, taken as a total entity, rationally persuades to a
      certainty that the finding is so against the great preponderance of the
                                                                                                            7

        believable evidence that it does not represent the truth and right of the
        case.

Remick v. Martin, 2014 ME 120, ¶ 7, 103 A.3d 552 (quotation marks omitted).

        [¶12] Here, the court found that the parties did not agree to a common

boundary line, or memorialize any sort of metes and bounds description or any

other writing of their agreement. This finding is supported by the testimony of

James Cook, who stated that he and Robert Rice never had any specific

conversations about the boundary line, and that he did not know where the

boundary line was until he had a survey completed in 2008. Although Robert Rice

testified that he and James Cook did come to an agreement in 2001 regarding their

common boundary line, the court was free to credit either witness’s testimony.

See State v. Ahmed, 2006 ME 133, ¶ 21, 909 A.2d 1011 (“[T]he court is free to

determine which witnesses to believe and which evidence to accept or reject as

trustworthy or untrustworthy.”). Because the finding is based on evidence that the

court did not “misapprehend,” and because the evidence presented does not

convince us that the finding “does not represent the truth and right of the case,” we

affirm the court’s finding that the parties never reached an agreement as to the

common boundary line.1



   1
      The Rices also argue in this appeal, for the first time, that they are entitled to recover pursuant to a
theory of promissory estoppel. Because the Rices are raising the issue of promissory estoppel for the first
time in their brief to us, we decline to consider it in this appeal. Bayview Loan Servicing, LLC v. Bartlett,
8

B.     Spite Fence Statute

       [¶13] The Rices next argue that the court erred in its factual findings that

the Rices’ fences were “unnecessarily high” as that term is used in 17 M.R.S.

§ 2801 (2014) and “unreasonably interfered” with the Cooks’ use and enjoyment

of their property pursuant to a common law theory of nuisance. “We review a trial

court’s factual findings for clear error and its application of the law to those facts

de novo.” Peters v. O’Leary, 2011 ME 106, ¶ 15, 30 A.3d 825.

       [¶14] Spite fence jurisprudence is sparse but long-standing. “[I]t is plain

that the right to use one’s property for the sole purpose of injuring others is not one

of the immediate rights of ownership.”               Rideout v. Knox, 19 N.E. 390, 391

(Mass. 1889) (Holmes, J.) (discussing Massachusetts’s spite fence statute). Title

17 M.R.S. § 2801, the spite fence statute, deems “[a]ny fence or other structure in

the nature of a fence, unnecessarily exceeding 6 feet in height, maliciously kept

and maintained for the purpose of annoying the owners or occupants of adjoining

property” a nuisance.         By its plain meaning, “unnecessarily” means “not by

necessity” or “to an unnecessary degree.” Webster’s New International Dictionary

(3rd ed. Merriam Webster 2002).



2014 ME 37, ¶ 16, 87 A.3d 741 (holding that an issue brought up for the first time on appeal was not
properly preserved); see also Estate of Hoch v. Stifel, 2011 ME 24, ¶ 30, 16 A.3d 137.
                                                                                  9

      [¶15] Recently, in Peters v. O’Leary, we evaluated whether a boundary

made of many large trees created a nuisance pursuant to section 2801.

2011 ME 106, ¶¶ 17-18, 30 A.3d 825. Although our focus in Peters was whether

trees could be used to create a spite fence, Peters does provide insight into the

word “unnecessarily.” Id. In Peters, formerly cordial neighbors developed a

contentious relationship after one family built a new home. Id. ¶ 3. In the midst of

their disagreements, the other neighbor learned that, once vegetation was planted

on his property, a town ordinance would preclude its removal. Id. Armed with

this information, and without notifying his neighbors, he planted sixty-one

arborvitae and thirteen pear trees on his property in a manner that was “designed to

provide a continuous barrier between the properties.” Id. ¶ 4. The trial court found

that the dominant reason for this massive planting “was to punish the [Peterses] by

significantly reducing their prized view of the Atlantic.” Id. ¶ 7 (quotation marks

omitted). We affirmed this finding and the court’s determination that, without that

malicious motive, the neighbor would not have created the fence. Id. ¶¶ 15-18.

We explicitly determined both that the number and size of plantings supported the

court’s finding of a dominantly malicious motive, and those same facts, coupled

with the dominantly malicious motive, provided the basis for the court’s

“unnecessarily” finding. Id. ¶¶ 13-18; see also Healey v. Spaulding, 104 Me. 122,
10

124-25, 71 A. 472 (1908) (categorizing a fence as “extraordinary and unnecessary”

based on its twelve-foot height).

         [¶16] Here, the Rices argue that the height and nature of their fences were

necessary due to the “sloped and rocky” nature of the land, and that the court heard

“uncontroverted evidence that the height and structure of the fences were

necessary.” Although the court did hear testimony from Robert Rice explaining

where, when, and how he built the fences, the court also had numerous

photographs depicting the fences and was in the best position to determine whether

Robert Rice’s explanations were credible.                     See Handrahan v. Malenko,

2011 ME 15, ¶ 14, 12 A.3d 79 (“A court is not required to believe the testimony of

any particular witness, expert or otherwise, even when the witness’s testimony is

uncontradicted.”) (citation omitted) (quotation marks omitted). Despite the Rices’

assertions, the court found that, in building the fences, the Rices intended to annoy

the Cooks and interfere with their use of their property. This supports the court’s

finding that the fences “unnecessarily” exceeded six feet in height.2

C.       Remedy

         [¶17]   Finally, the Rices argue that the court abused its discretion by

ordering that “[i]f the fence closest to the lake is reconstructed, it shall be no closer

     2
     Because we conclude that the court correctly determined that the Rices’ fences were spite fences
pursuant to 17 M.R.S. § 2801 (2014), we do not reach the issue of whether the fences constituted a
common law nuisance.
                                                                                   11

to the lake than the present location of the third support post from the lake.” “We

review the issuance of an injunction for an abuse of discretion.” Eaton v. Cormier,

2000 ME 65, ¶ 4, 748 A.2d 1006; see also Peters, 2011 ME 106, ¶¶ 8, 19,

30 A.3d 825 (finding that the court crafted a “fair and limited injunction” when it

ordered a party to remove “the first three pear trees at one end of the row and the

last six pear trees at the other end of the row within sixty days” and enjoined the

party from installing any similar structure that could impair the other party’s view

of the ocean in the future).

      [¶18] Here, the court’s remedy was fair, limited, and based directly on its

factual findings. Based on its determination that the Rices built both fences with

the intent to annoy the Cooks and to interfere with the Cooks’ use of their property,

the court limited the Rices’ actions only to the extent necessary. In so doing, it did

not abuse its discretion.

      The entry is:

                      Judgment affirmed.
12


On the briefs:

        Edmond J. Bearor, Esq., and Jonathan P. Hunter, Esq., Rudman
        Winchell, Bangor, for appellants Robert L. and Carol P. Rice

        Daniel A. Pileggi, Esq., Roy, Beardsley, Williams & Granger,
        LLC, Ellsworth, for appellees James C. Cook and Carol
        Greenleaf-Cook


At oral argument:

        Jonathan P. Hunter, Esq., for appellants Robert L. Rice and
        Carol P. Rice

        Daniel A. Pileggi, Esq., for appellees James C. Cook and Carol
        Greenleaf-Cook



Hancock County Superior Court docket number CV-2012-11
FOR CLERK REFERENCE ONLY
