MAINE	SUPREME	JUDICIAL	COURT	                                           Reporter	of	Decisions	
Decision:	    	 2017	ME	132	
Docket:	      	 Ken-16-326	
Submitted	
  On	Briefs:	 	 May	25,	2017	
Decided:	     	 June	27,	2017	
	
Panel:	       	 SAUFLEY,	C.J.,	and	ALEXANDER,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                  JEAN	DUPUIS	
                                         	
                                        v.	
                                         	
                           STANLEY	G.	ELLINGWOOD	et	al.	
	
	
GORMAN,	J.	

	      [¶1]	 	 Jean	 Dupuis	 appeals	 from	 a	 judgment	 of	 the	 Superior	 Court	

(Kennebec	County,	Murphy,	J.)	declaring	the	ownership	of	and	easement	rights	

to	 certain	 property	 on	 Dupuis’s	 complaint	 against	 Stanley	G.	Ellingwood	 and	

Sylvia	C.	Ellingwood.		Dupuis	contends	that	the	court	erred	by	concluding	that,	

except	 for	 a	 limited	 area	 where	 a	 structure	 had	 been	 built,	 the	 Ellingwoods’	

express	 easement	 to	 lakefront	 property	 in	 Readfield	 has	 not	 been	

extinguished	 either	 by	 the	 Ellingwoods’	 abandonment	 of	 the	 easement	 or	 by	

Dupuis’s	adverse	possession	of	the	easement.		We	affirm	the	judgment.	

                                    I.		BACKGROUND	

       [¶2]		On	November	28,	2012,	Dupuis	initiated	an	action	in	the	Superior	

Court	against	the	Ellingwoods	in	which	he	sought	a	declaratory	judgment	that	
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he	 owns	 title	 to	 certain	 lakefront	 property	 and	 that	 any	 easement	 rights	 the	

Ellingwoods	 once	 may	 have	 had	 to	 that	 same	 property	 have	 been	

extinguished.1	

         [¶3]	 	 After	 a	 jury-waived	 trial,	 by	 judgment	 dated	 March	 30,	 2016,	 the	

court	made	the	following	factual	findings,	which	are	supported	by	competent	

record	 evidence.	 	 Dupuis	 and	 the	 Ellingwoods	 own	 property	 on	 Lake	

Maranacook	 in	 Readfield,	 in	 “what	 the	 parties	 sometimes	 refer	 to	 as	 the	

Touisset	 Point	 Development.”	 	 Dupuis	 is	 the	 title	 owner	 of	 two	 unnumbered	

lots	 in	 the	 development.	 	 He	 purchased	 an	 unnumbered	 lot	 to	 the	 west	 of	

Lot	13	 in	 1996	 and	 a	 second	 unnumbered	 lot	 to	 the	 east	 of	 Lot	 14	 in	 2000;	

together,	 the	 two	 lots	 constitute	 what	 was	 identified	 on	 the	 original	 plan	 as	

the	“Beach	Area.”		Each	lot	has	one	hundred	feet	of	shore	frontage.		The	2000	

conveyance	 was	 subject	 to	 the	 following	 language	 in	 Dupuis’s	 deed:	 “This	

conveyance	 is	 subject	 to	 rights,	 if	 any,	 others	 may	 have	 to	 use	 the	 beach	

area	.	.	.	.”	

         [¶4]	 	 In	 1969,	 the	 Ellingwoods	 acquired	 Lots	 33-38	 in	 the	 same	

development	with	the	following	language	in	their	deed:	“Also	conveying	to	the	

     1		Barbara	Dupuis	was	also	a	plaintiff	when	the	initial	complaint	was	filed,	but	she	conveyed	her	

interest	in	the	property	to	Jean	Dupuis	while	these	proceedings	were	pending.		Dupuis	also	named	
Karen	L.	Libby,	Linda	J.	Libby,	and	Ellen	M.	Libby	as	defendants.		None	of	these	persons	is	a	party	to	
the	current	appeal.	
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grantees	 and	 those	 claiming	 under	 them	 the	 right	 of	 joint	 use	 with	 the	 said	

grantor	 and	 those	 claiming	 under	 him	 of	 the	 private	 beach	 area	 to	 be	

constructed.	 	 Such	 area	 to	 contain	 100	 feet	 of	 lake	 frontage.”	 	 The	 court	

concluded	 that	 the	 Ellingwoods	 enjoy	 an	 express	 easement	 to	 use	 the	 Beach	

Area	based	on	this	language	in	their	deed	to	Lots	33-38,	in	combination	with	

the	language	of	Dupuis’s	2000	deed.	

      [¶5]		The	court	next	considered	whether	the	Ellingwoods’	easement	had	

been	 extinguished—either	 by	 their	 abandonment	 of	 the	 easement	 or	 by	

Dupuis’s	adverse	possession	of	the	easement.		First,	the	court	determined	that	

the	Ellingwoods,	by	their	own	concession,	had	abandoned	that	portion	of	the	

easement	 on	 which	 structures	 are	 located.	 	 The	 court	 determined,	 however,	

that	 Dupuis	 failed	 to	 prove	 the	 Ellingwoods’	 abandonment	 of	 the	 shorefront	

portion	of	the	Beach	Area.	

      [¶6]	 	 As	 to	 Dupuis’s	 claim	 that	 he	 extinguished	 the	 Ellingwoods’	

easement	to	the	shorefront	portion	of	the	Beach	Area	by	adverse	possession,	

the	 court	 found	 that	 Dupuis	 was	 on	 notice	 from	 his	 2000	 deed	 that	 others	

claimed	the	right	to	use	the	Beach	Area,	and	that	Dupuis’s	recognition	of	those	

rights	 was	 further	 demonstrated	 by	 his	 attempts	 to	 obtain	 deeds	 from	

neighbors	releasing	their	interests	in	the	Beach	Area.		Based	on	these	findings,	
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the	 court	 concluded	 that	 Dupuis	 failed	 to	 establish	 that	 he	 possessed	 the	

easement	“under	a	claim	of	right.”		The	court	therefore	entered	a	judgment	in	

favor	 of	 the	 Ellingwoods	 declaring	 that	 they	 have	 the	 right	 to	 “access	 the	

beach	area	so	long	as	their	use	of	this	express	easement	remains	reasonable	

as	required	by	law.”2	

          [¶7]		The	court	denied	Dupuis’s	motions	for	further	findings	of	fact	and	

conclusions	 of	 law,	 see	 M.R.	 Civ.	 P.	 52(b),	 and	 to	 reconsider,	 see	 M.R	 Civ.	 P.	

59(e).		Dupuis	appeals.	

                                                 II.		DISCUSSION	

          [¶8]	 	 There	 is	 no	 dispute	 that	 Dupuis	 owns	 title	 to	 the	 Beach	 Area.		

Dupuis	also	does	not	challenge	the	court’s	determination	that	the	Ellingwoods	

obtained	an	express	easement	to	the	Beach	Area	by	virtue	of	their	1969	deed	

to	 Lots	 33-38.	 	 This	 appeal	 thus	 entirely	 regards	 whether	 the	 Ellingwoods’	

express	easement	to	the	Beach	Area	has	been	extinguished.	

          [¶9]		Extinguishment	of	an	easement	may	be	established	with	proof	of	

“(1)	 a	 history	 of	 nonuse	 coupled	 with	 an	 act	 or	 omission	 evincing	 a	 clear	




     2	 	 The	 parties	 did	 not	 raise,	 and	 therefore	 the	 court	 did	 not	 consider,	 the	 issue	 of	 the	 scope	 or	

extent	of	the	Ellingwoods’	easement.	
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intent	to	abandon,	or	(2)	adverse	possession	by	the	servient	estate.”3		Laux	v.	

Harrington,	 2012	ME	 18,	 ¶	 21,	 38	 A.3d	 318.	 	 Dupuis	 challenges	 the	 court’s	

decision	 in	 the	 Ellingwoods’	 favor	 as	 to	 both	 means	 of	 extinguishment	 of	 an	

easement.	 	 Because	 Dupuis	 was	 the	 party	 with	 the	 burden	 of	 proof	 of	 trial4	

and	the	court	concluded	that	he	did	not	meet	that	burden	as	to	either	means	

of	extinguishment,	we	may	disturb	the	trial	court’s	findings	of	fact	only	if	we	

determine	 that	 the	 court	 was	 compelled	 to	 find	 in	 Dupuis’s	 favor.	 	 See	

Androkites	 v.	 White,	 2010	 ME	 133,	 ¶	12,	 10	 A.3d	 677;	 cf.	 Bolduc	 v.	 Watson,	

   3		Although	we	have	traditionally	referred	to	an	easement	as	“abandoned”	by	either	of	these	two	

means,	 that	 nomenclature	 is	 inapt	 and	 confusing,	 especially	 as	 applied	 to	 adverse	 possession;	
“abandonment”	 connotes	 an	 inquiry	 into	 the	 acts	 or	 omission	 of	 the	 easement	 holder,	 see	
Gravison	v.	 Fisher,	 2016	 ME	 35,	 ¶	 52,	 134	 A.3d	 857,	 whereas	 adverse	 possession	 is	 primarily	
focused	 on	 the	 acts	 of	 the	 servient	 estate	 owner,	 see	 Levis	 v.	 Konitzky,	 2016	 ME	 167,	 ¶	 21,	
151	A.3d	20.		Thus,	we	discuss	abandonment	and	adverse	possession	as	the	two	means	by	which	to	
“extinguish”	 an	 easement	 because	 this	 is	 the	 language	 that	 more	 accurately	 reflects	 both	 possible	
circumstances.	
   4		 Our	 notation	 in	 Gravison,	 2016	 ME	 35,	 ¶	 52,	 134	 A.3d	 857,	 that	 extinguishment	 by	
abandonment	 and	 by	 adverse	 possession	 are	 both	 subject	 to	 a	 clear	 and	 convincing	 standard	 of	
proof	 is	 a	 misstatement	 of	 our	 prior	 decisions.	 	 Whereas	 the	 extinguishment	 of	 an	 easement	 by	
abandonment	 must	 be	 established	 by	 clear	 and	 convincing	 evidence,	 Stickney	 v.	 City	 of	 Saco,	
2001	ME	 69,	 ¶	 51,	 770	 A.2d	 592,	 we	 have	 always	 held	 that	 adverse	 possession,	 including	 the	
extinguishment	 of	 an	 easement	 by	 adverse	 possession,	 may	 be	 proved	 by	 the	 less	 stringent	
preponderance	of	the	evidence	standard,	Levis,	2016	ME	167,	¶	21,	151	A.3d	20;	D’Angelo	v.	McNutt,	
2005	 ME	 31,	 ¶	 5,	 868	 A.2d	 239;	 Striefel	 v.	 Charles-Keyt-Leaman	 P’ship,	 1999	 ME	 111,	 ¶	 6,	
733	A.2d	984.		Notwithstanding	our	language	in	Gravison,	we	continue	to	adhere	to	the	established	
standard	that	the	extinguishment	of	an	easement	by	adverse	possession	must	be	proved	only	by	a	
preponderance	of	the	evidence.		

   Further,	 although	 the	 court’s	 express	 application	 of	 the	 preponderance	 standard	 here—rather	
than	the	proper	clear	and	convincing	standard—in	considering	the	extinguishment	of	the	easement	
by	abandonment	was	error,	that	error	was	harmless;	if	Dupuis	did	not	meet	his	burden	pursuant	to	
a	preponderance	standard,	he	necessarily	did	not	meet	his	burden	pursuant	to	the	higher	clear	and	
convincing	 standard.	 	 See	 M.R.	 Civ.	 P.	 61;	 Mitchell	 v.	 Kieliszek,	 2006	ME	 70,	 ¶	 20,	 900	 A.2d	 719	
(stating	that	an	error	is	harmless	when	it	is	“highly	probable	that	[it]	did	not	affect	the	outcome	of	
the	trial”).	
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639	A.2d	 629,	 630	 (Me.	 1994)	 (reviewing	 for	 clear	 error	 the	 court’s	 finding	

that	the	plaintiff	did	meet	his	burden	of	establishing	the	extinguishment	of	an	

easement).	

A.	       Extinguishment	by	Abandonment	

          [¶10]	 	 A	 party	 asserting	 the	 extinguishment	 of	 an	 easement	 by	

abandonment	must	establish,	by	clear	and	convincing	evidence,5	a	“history	of	

nonuse	 coupled	 with	 an	 act	 or	 omission	 evincing	 a	 clear	 intent	 to	 abandon.”		

Gravison	 v.	 Fisher,	 2016	 ME	 35,	 ¶	 52,	 134	 A.3d	 857;	 Stickney	 v.	 City	 of	 Saco,	

2001	ME	69,	¶	51,	770	A.2d	592.		An	act	or	omission	indicating	the	intent	to	

abandon	 “may	 be	 demonstrated	 only	 by	 an	 unequivocal	 act	 or	 failure	 to	 act	

that	is	decisive	and	conclusive	and	inconsistent	with	the	further	assertion	of	

rights	associated	with	the	existence	of	the	easement.”		Gravison,	2016	ME	35,	

¶	52,	134	A.3d	857	(quotation	marks	omitted).		By	way	of	example,	the	intent	

to	abandon	may	be	inferred	from	the	easement	holder’s	failure	to	object	to	the	

building	of	a	permanent	structure	on	the	property	if	that	structure	“prevents	

the	 enjoyment	 of	 the	 rights	 granted	 by	 the	 easement.”	 	 Id.	 (quotation	 marks	

omitted);	see	Bolduc,	639	A.2d	at	630;	Chase	v.	Eastman,	563	A.2d	1099,	1102	

(Me.	1989).	


     5		See	supra	n.4.	
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       [¶11]	 	 Dupuis	 argues	 that	 he	 did	 establish	 the	 extinguishment	 of	 the	

Ellingwoods’	 easement	 by	 abandonment	 through	 the	 evidence	 that	 the	

Ellingwoods	 never	 objected	 to	 the	 building	 of	 structures	 or	 other	

improvements	 to	 the	 Beach	 Area,	 they	 never	 undertook	 any	 of	 their	 own	

improvements,	no	Ellingwoods	had	used	the	Beach	Area	since	the	1970s,	and	

the	 only	 users	 of	 any	 portion	 of	 the	 Beach	 Area	 were	 Dupuis	 and	 his	 family	

members.	

       [¶12]		As	we	held	in	Gravison,	however,	the	court	may	find	that	a	failure	

to	object	to	the	building	of	a	structure	results	in	the	extinguishment	of	only	a	

portion	of	the	easement:	“[I]f	a	structure	obstructs	only	part	of	an	easement	

and	 the	 easement	 holder	 continues	 using	 other	 unobstructed	 parts	 of	 the	

easement,	 failure	 to	 object	 to	 the	 structure	 may	 support	 a	 finding	 that	 the	

easement	holder	only	abandoned	the	part	of	the	easement	that	the	structure	

obstructs.”		2016	ME	35,	¶	52,	134	A.3d	857.		In	Chase,	too,	we	upheld	the	trial	

court’s	 determination	 that	 the	 failure	 to	 object	 to	 the	 erection	 of	 a	 structure	

resulted	 in	 an	 extinguishment	 of	 only	 a	 portion	 of	 the	 easement.		

563	A.2d	at	1102-03.	 	 Consistent	 with	 Gravison	 and	 Chase,	 the	 court	 here	

concluded,	 by	 supported	 findings,	 that	 the	 Ellingwoods’	 express	 easement	
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concerning	the	Beach	Area	was	extinguished	by	abandonment	only	where	the	

structures	were	located.	

          [¶13]	 	 Although	 Dupuis	 further	 argues	 that	 the	 Ellingwoods	 presented	

no	 evidence	 of	 their	 use	 of	 the	 shorefront	 portion	 of	 the	 Beach	 Area,	 the	

court’s	 findings	 were	 supported	 by	 evidence	 that	 the	 Ellingwoods’	 son	 had	

used	the	Beach	Area	at	least	until	2006.		We	therefore	conclude	that	the	trial	

court	 was	 not	 compelled	 to	 find	 that	 the	 Ellingwoods’	 easement	 to	 the	

shorefront	portion	of	the	Beach	Area	was	extinguished	by	abandonment.		See	

Androkites,	2010	ME	133,	¶	12,	10	A.3d	677.	

B.	       Extinguishment	by	Adverse	Possession	
	
          [¶14]		When	a	title	owner	is	attempting	to	show	the	extinguishment	of	

an	easement	by	virtue	of	the	title	owner’s	adverse	possession	of	the	easement,	

the	 elements	 the	 title	 owner	 must	 prove	 are	 identical	 to	 those	 an	 adverse	

possessor	 must	 prove	 to	 deprive	 the	 title	 owner	 of	 a	 fee	 interest.	 	 Laux,	

2012	ME	18,	¶	21,	38	A.3d	318.		Thus,	it	was	Dupuis’s	burden	to	establish,	by	a	

preponderance	of	the	evidence,6	that	his	use	and	possession	of	the	shorefront	

portion	 of	 the	 easement	 to	 the	 Beach	 Area	 was	 “(1)	 actual,	 (2)	 open,	

(3)	visible,	(4)	notorious,	(5)	hostile,	(6)	under	claim	of	right,	(7)	continuous,	


     6		See	supra	n.4.	
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(8)	exclusive,	and	(9)	of	a	duration	of	at	least	twenty	years.”		Levis	v.	Konitzky,	

2016	ME	167,	¶	21,	151	A.3d	20.	

      [¶15]	 	 The	 court	 determined	 that	 Dupuis	 failed	 to	 establish	 that	 he	

possessed	 the	 easement	 under	 a	 claim	 of	 right.	 	 To	 demonstrate	 that	 he	

possesses	 property	 under	 a	 claim	 of	 right,	 a	 party	 must	 prove	 that	 he	 “is	 in	

possession	 as	 owner,	 with	 intent	 to	 claim	 the	 land	 as	 [his]	 own,	 and	 not	 in	

recognition	 of	 or	 subordination	 to	 the	 record	 title	 owner.”	 	 Dombkowski	 v.	

Ferland,	 2006	 ME	 24,	 ¶	 12,	 893	 A.2d	 599	 (alteration	 omitted)	 (quotation	

marks	omitted).	

      [¶16]		Dupuis	argues	that	he	proved	that	he	treated	the	property	wholly	

as	 his	 own	 through	 the	 evidence	 presented	 at	 trial	 detailing	 his	 use	 of	 and	

improvements	to	the	property.		The	court,	however,	found	that	Dupuis	knew	

that	 his	 property	 was	 subject	 to	 the	 easement	 rights	 of	 others	 based	 on	 his	

knowledge	 of	 the	 language	 in	 his	 2000	 deed.	 	 The	 court	 also	 noted	 that	

Dupuis’s	 acts	 in	 obtaining	 release	 deeds	 from	 other	 neighbors,	 including	 his	

unsuccessful	 attempt	 to	 obtain	 a	 release	 deed	 from	 the	 Ellingwoods,	

manifested	 Dupuis’s	 recognition	 of	 others’	 easement	 claims	 to	 the	 property.		

Although	 Dupuis	 represents	 that	 he	 “requested	 confirmatory	 release	 deeds	

from	neighboring	property	owners	in	order	to	clear	the	record	title	so	that	he	
10	

could	obtain	a	mortgage	loan	and	avoid	bringing	this	action	to	quiet	title,”	the	

court	was	free	to	disregard	Dupuis’s	explanation	and	to	infer	that	Dupuis	was	

aware	 that	 his	 use	 of	 the	 easement	 was	 subject	 to	 and	 subordinate	 to	 the	

Ellingwoods’	interest,	and	therefore	was	not	used	or	possessed	under	a	claim	

of	right.		See	Dionne	v.	LeClerc,	2006	ME	34,	¶	15,	896	A.2d	923;	Dombkowski,	

2006	ME	 24,	 ¶	 12,	 893	 A.2d	 599.	 	 The	 court	 was	 not	 compelled	 to	 find	 in	

Dupuis’s	favor.	

         The	entry	is:	

	      	     	    Judgment	affirmed.	
	
	      	     	    	      	    	
	
Jon	P.	Plourde,	Esq.,	and	Norman	J.	Rattey,	Esq.,	Skelton,	Taintor	&	
Abbott,	Auburn,	for	appellant	Jean	Dupuis	
	
Matthew	 W.	 Evans,	 Esq.,	 Palermo,	 for	 appellees	 Sylvia	 C.	 and	
Stanley	G.	Ellingwood	
	
	
Kennebec	County	Superior	Court	docket	number	RE-2012-94	
FOR	CLERK	REFERENCE	ONLY	
	
