MAINE SUPREME JUDICIAL COURT                                           Reporter of Decisions
Decision: 2016 ME 35
Docket:   Kno-14-437
Argued:   June 18, 2015
Decided:  March 1, 2016

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



                             BEVERLY A. GRAVISON et al.

                                              v.

                               CALVERT M. FISHER et al.

JABAR, J.

         [¶1]       This   matter,   like   the    matter   of   Edwards v. Blackman,

2015 ME 165, --- A.3d ---, concerns property rights in certain oceanfront lots

located in the Coopers Beach neighborhood in Owls Head. In this matter, Beverly

and David Gravison appeal from a judgment entered by the Superior Court

(Knox County, Hjelm, J.) denying the Gravisons’ complaint for deed reformation.

Joined by Darlene and Lewis Edwards, the Gravisons also challenge the court’s

declaration that certain neighboring property owners hold easements that permit

recreational use of the beach located in front of the Edwardses’ and the Gravisons’

property.       The Gravisons and the Edwardses additionally appeal, and Sandra

Titcomb, Trustee of the Arthur Titcomb Living Trust (Titcomb) cross-appeals,

from the court’s declaration that certain neighboring property owners hold

easements in a perimeter path located on the properties owned by the Gravisons,
2

Titcomb, and the Edwardses. By cross-appeal, the neighboring property owners

challenge the court’s ruling regarding the beneficiaries and scope of the easements

over the perimeter path.

      [¶2] We affirm the denial of the Gravisons’ complaint for deed reformation,

and affirm the court’s decision on all issues pertaining to the perimeter path. As to

the beach easements, we affirm in part and vacate in part.

                                I. BACKGROUND

      [¶3] Unless otherwise indicated, the following facts are drawn from the trial

court’s judgment and post-judgment order, and are supported by the record.

A.    The Properties at Issue

      [¶4] The Gravisons own an oceanfront lot located in the Coopers Beach

neighborhood in Owls Head. Their lot is next to an oceanfront lot owned by

Titcomb, which is next to an oceanfront lot owned by the Edwardses. The beach in

front of the Gravisons’ lot is the subject of the reformation dispute. The dispute

over the perimeter path concerns a strip of land that is located near, but does not

touch, the high-water mark in front of the properties owned by the Gravisons,

Titcomb, and the Edwardses. The beach easement dispute concerns the intertidal

area in front of the lots owned by the Gravisons, Titcomb, and the Edwardses.

      [¶5] Mary-Lou Moulton owns an oceanfront lot located near the Edwardses’

property. Separated from the shorefront by the oceanfront properties lie inland lots
                                                                             3

owned by Calvert and Wendy Fisher, David and Theresa Massimi, Kenneth Roy

and Barbara Watrous, Nancy Ellen Wolff Bolan, Douglas and Leah Johnson, Anne

Long, Jean Perkins, Nina Paul, and Michele Lawrence. These individuals and

Moulton (collectively, the neighboring property owners) assert the easements at

issue in this case.

       [¶6]    A map admitted as an exhibit at trial labels and depicts the

configuration of most of the parties’ properties. We include a copy of that map

below.
4

B.     The Blackinton Plan

       [¶7] To address the easements in the oceanfront lots, it is necessary to trace

the chains of title back to June of 1882, when A.D. Blackinton drew up a plan for

the subdivision of a tract of land located in the Coopers Beach neighborhood

(the Blackinton Plan). The tract depicted on that plan (the Perry Parcel) was

owned first by Eliza Perry, and then by her daughter, Cora Perry. Eliza and Cora

are the common grantors, in whole or in part, of all of the properties owned by the

parties to this action.

       [¶8] The Blackinton Plan was recorded on November 5, 1924. The plan

was altered in the period between its creation in 1882 and recording in 1924, as

demonstrated by notations on the recorded plan of events that occurred after 1882.

The recorded plan shows several formal ways with boundaries marked by straight,

solid lines of uniform width. It also shows a way (the perimeter path) that runs

along the shoreline perimeter of the land now owned by the Gravisons, Titcomb,

and the Edwardses. The recorded plan does not indicate whether the perimeter

path was a component of the original plan.          The recorded plan marks the

boundaries of the perimeter path by a set of curved, dashed lines of non-uniform

width, in a manner that is qualitatively different from the plan’s portrayal of other

bounded ways. As shown on the recorded plan the perimeter path does not at any

point touch the high-water mark.
                                                                                  5

      [¶9] At some point, the Edwardses’ house was constructed, with a portion

of the house encroaching on the perimeter path. There is no evidence that anyone

objected to that construction based upon an asserted interest in the perimeter path.

Despite the placement of the Edwardses’ house on part of the perimeter path,

individuals who do not own the land covered by the perimeter path have made at

least occasional use of the land that lies in the approximate location of the

perimeter path as it is shown on the plan.

      [¶10] A copy of the Blackinton Plan was admitted as an exhibit at trial.

We reproduce that copy here.
6

C.       The Parties’ Source Deeds1

         [¶11] Before the Blackinton Plan was recorded in 1924, Eliza and Cora

conveyed out of the Perry Parcel the lots that now comprise the properties owned

by the Fishers, the Johnsons, and Moulton (collectively, the pre-record owners).

The properties now owned by the Massimis, Roy and Watrous, Bolan, Long,

Perkins, Paul, and Lawrence (collectively, the post-record owners) were conveyed

out of the Perry Parcel, in whole or in part, after the plan’s recording.2

         [¶12] The following facts regarding the language of the parties’ source

deeds are drawn from the deeds summarized by Exhibit 211, which was entered in

evidence as a demonstrative aid and relied upon by the parties and the court. All of

the neighboring property owners derive title through source deeds that refer to

(1) the “plan of Cooper’s Beach as laid out in June 1882”; (2) the “plan of said

Coopers Beach as laid out in June 1882”; or (3) the “plan of Coopers Beach made

by A.D. Blackin[]ton, Surveyor, dated June, 1882.”

         [¶13] Based on the contents of Exhibit 211 and the deeds to which that

exhibit refers, the trial court found that the pre-record source deeds convey the

     1
     In this action, the parties used the phrase “source deeds” to refer to the originating deeds by which
the Perrys first conveyed their lots with metes and bounds descriptions. We adopt that referent herein.
     2
      As explained infra, the temporal relationship between the recording of the Blackinton Plan and the
origination of the neighboring property owners’ source deeds affects our analysis of the neighboring
property owners’ easement claims. We therefore refer to those whose source deeds pre-date the recording
of the plan as the “pre-record owners” and refer to those whose source deeds post-date the recording of
the plan as the “post-record owners.”
                                                                                                          7

“privilege” or “privileges of all streets laid out on said Plan,” while the post-record

source deeds convey “rights of way” shown on the plan.

         [¶14] The trial court also found that a majority of the neighboring property

owners derive title through source deeds that grant “use of the beach for boating

and bathing purposes.” As demonstrated by the deeds in the record, this finding

holds true for all of the neighboring property owners except Bolan and Lawrence.

Instead of “beach” rights, the source deeds for the properties held by these

individuals grant “all riparian rights and shore privileges of every nature.”

         [¶15] Neither the plan nor the parties’ source deeds identify the location of

the “beach” or the area subject to “riparian rights and shore privileges.” When the

Perrys first conveyed “beach” rights, they owned the intertidal area in front of the

properties that are now owned by the Gravisons, Titcomb, and the Edwardses.

D.       Farber’s Will and the Deeds of Distribution

         [¶16]    Resolving the Gravisons’ deed reformation claim necessitates an

examination of the will of their predecessor, Charles Farber, and a deed of

distribution from Farber’s estate. In the 1990s, Farber owned an oceanfront lot

numbered 63 on the property maps for the Town of Owls Head that included an
                     3
intertidal area.          In 1991, Farber executed a will that devised to the


     3
      Both before and after trial, the parties affirmatively and consistently asserted that Farber owned the
intertidal area. His ownership of this area was not contested.
8

Camden-Rockport Land Trust, now known as the Coastal Mountains Land Trust

(CMLT), “that portion of my real property at Coopers Beach, Owls Head, Maine,

that is known as Lot 63.” The devise to CMLT did not exclude the intertidal area

in front of lot 63. Farber’s will devised the remainder of his Owls Head real estate

to his second cousin, Bolan. Farber wanted Bolan to participate significantly in his

legacy, but he did not give her all of his Owls Head real estate because he wanted

to realize the tax benefits of a charitable devise, and he was concerned that Bolan

lacked the means to pay taxes on all of his property.

      [¶17] In 1998, Robert Coon, as personal representative of Farber’s estate,

executed the devise to CMLT by way of a deed of distribution. Coon was an

experienced transactional attorney and executed the deed in consultation with local

counsel. The deed to CMLT conveyed an area that corresponded to lot 63, but

used a description that located the seaward boundary of that lot at the “high water

mark,” excluding the intertidal area from the conveyance.

      [¶18] The Gravisons now own the property that was deeded to CMLT.

By virtue of the remainder clause in Farber’s will, Bolan received title to all of

Farber’s land in Owls Head that was not deeded to CMLT, including the intertidal

area in front of the Gravisons’ property.       For Bolan, that intertidal area is

landlocked because she cannot access it without crossing property owned by others

or navigating there over water.
                                                                                                        9

E.       Procedural History

         [¶19] In December of 2011, the Gravisons filed a complaint against the

neighboring property owners, requesting a declaratory judgment establishing that

the neighbors “have no right to use or go onto any portion of the Gravisons’
                             4
property or beach.”               The neighboring property owners counterclaimed,

demanding, inter alia, a declaratory judgment confirming the existence of deeded

easements over the Gravisons’ property.5 Bolan also demanded a declaratory

judgment confirming her title to the intertidal zone abutting the Gravisons’

property. By “interlineated amended complaint,” the Gravisons then complained

against Bolan, seeking to reform the deed from Farber’s estate to CMLT to include

the intertidal zone, and alleging that the parties to that deed had operated under a

mutual mistake of fact as to the deed’s property description.

         [¶20] The neighboring property owners moved to consolidate the Gravison

case with the Edwards case, which was also pending before the Superior Court,

     4
      The Gravisons’ initial complaint named as defendants the Fishers, the Massimis, Roy and Watrous,
Bolan, Long, Perkins, Moulton, Paul, and Douglas Johnson as Trustee of The Osprey Realty Trust.
While the action was pending, the Osprey Trust conveyed its property to Douglas and Leah Johnson. The
Johnsons then moved to substitute themselves for the Osprey Trust. Lawrence was later joined as a
fourth-party defendant to the Gravisons’ and the Edwardses’ joint complaint for the same declaratory
relief as the Gravisons had requested in their initial complaint.
     5
      Although Lawrence did not affirmatively assert any deeded easement claims, the parties advanced
and defended the neighboring property owners’ deeded easement claims as though Lawrence had
affirmatively advanced them too. In other words, the parties did not attempt to distinguish Lawrence
from the other neighboring property owners based on the formal state of the pleadings. Under these
circumstances, the trial court appropriately considered Lawrence’s procedural posture as equivalent to the
procedural posture of the other neighboring owners. See M.R. Civ. P. 15(b).
10

asserting that the actions presented a common legal issue—namely, the

interpretation of the Blackinton Plan and the deeds that referred to it. Following

the denial of that motion, the neighboring property owners, other than Long,6

amended their counterclaim to join Titcomb and the Edwardses as counterclaim

defendants.      The Edwardses, who shared counsel with the Gravisons, then

counterclaimed against the neighboring property owners, seeking, inter alia, the

same declaratory relief that the Gravisons had sought in their initial complaint.

Separately represented, Titcomb denied the neighboring property owners’

counterclaim assertions without affirmatively advancing any claims on its own

behalf.

         [¶21]   Before trial, Bolan moved to exclude any extrinsic evidence of

Farber’s intent, arguing that such evidence was inadmissible on the Gravisons’

deed reformation claim because the deed from Farber’s estate to CMLT was

unambiguous.        In response, the Gravisons argued that extrinsic evidence of

Farber’s intent was admissible because the deed to CMLT did not reflect Farber’s

intent. The court denied Bolan’s motion in limine and agreed with the Gravisons’

contention that extrinsic evidence is admissible in a reformation action.



     6
     Before the neighboring property owners amended their counterclaim, Long shared counsel with the
Fishers, the Massimis, Roy and Watrous, Bolan, the Johnsons, Perkins, Moulton, and Paul. In July of
2012, Long entered an appearance on her own behalf.
                                                                               11

      [¶22] By agreement of the parties, the entire transcript generated in the

Edwards case was entered in evidence in this case.

      [¶23] After a five-day bench trial, the court entered a judgment denying the

Gravisons’ reformation claim. The court concluded that the properties held by the

post-record owners, but not the pre-record owners, benefit from deeded easements

over the perimeter path located on the properties owned by the Gravisons,

Titcomb, and the Edwardses. The court further concluded that the easements over

the perimeter path had been abandoned in the area covered by the Edwardses’

home, and that the easements do not allow access to the beach. As to the beach

easement dispute, the court concluded that all of the neighboring property owners

have deeded easements that permit use of the intertidal areas owned by Bolan,

Titcomb, and the Edwardses “for reasonable recreational purposes that are

conventionally associated with that type of area.”

      [¶24] The Gravisons, the Edwardses, and the neighboring property owners,

other than Long, moved for further findings and amended conclusions. The court

then entered an order concluding that the grantees of the post-record deeds

acquired easements over the perimeter path, as shown on the recorded plan, at the

time of the post-record conveyances “by operation of law and irrespective of who

owned the servient estate at the times of those conveyances.” The court clarified

that the neighboring property owners could access the beach by using the road near
12

Moulton’s property.    It declared that the deeded “riparian rights and shore

privileges” held by Lawrence were coextensive with the deeded rights to “use of

the beach for bathing and boating” held by other neighboring property owners. It

also confirmed that the neighboring property owners’ deeded rights over the

“beach” and “shore” referred to the intertidal area, reasoning that the parties had

used this definition of the “beach” at trial, and that it was the definition of the

“beach” that existed at the time that the Perrys granted the beach and shore rights

at issue.

       [¶25] The Gravisons and the Edwardses appealed, and Titcomb and the

neighboring property owners cross-appealed.

                                II. DISCUSSION

A.     The Gravisons’ Claim for Deed Reformation

       [¶26] The trial court found that, “irrespective of the intention” of CMLT,

the Gravisons had “failed to prove by clear and convincing evidence that the [deed

from Farber’s estate to CMLT] was affected by a mutual mistake.” The Gravisons

challenge this finding, asserting that Farber’s will unambiguously instructed the

personal representatives of his estate to convey all of lot 63 to CMLT, that Coon

intended to effect Farber’s testamentary plan to include the beach in the

conveyance to CMLT, and that the deed to CMLT mistakenly excluded the beach.

The Gravisons argue that the court erred by excluding some portions of Coon’s
                                                                                  13

testimony regarding Farber’s testamentary intent, and by assigning more weight to

Bolan’s testimony that Farber intended to leave her the beach than to Coon’s

testimony that he mistakenly excluded the beach from the conveyance. We discern

no reversible error in the court’s evidentiary decisions pertaining to the Gravisons’

claim for deed reformation and conclude that the court was not compelled by the

evidence to grant that claim.

      1.      Extrinsic Evidence

      [¶27]    Before trial, the Gravisons argued that the court should admit

evidence extrinsic to CMLT’s deed in order to determine Farber’s testamentary

intent. After the court entered an order that agreed with that contention, the

Gravisons submitted significant evidence extrinsic to the deed, including Farber’s

will and Coon’s deposition testimony regarding Farber’s testamentary plan. Bolan

also presented her own testimony that Farber told her that he intended to leave her

the intertidal area. The court considered this testimony in reaching its decision

with regard to the Gravisons’ claim that the deed should be reformed, and the

Gravisons now argue that the trial court erred by admitting any evidence of

Farber’s intent extrinsic to his unambiguous will.

      [¶28] The Gravisons did not object to the admission of Bolan’s testimony at

trial. Because they object to that evidence for the first time on appeal, we apply

the obvious error standard of review, considering whether the admission of Bolan’s
14

testimony constituted “a seriously prejudicial error tending to produce a manifest

injustice.” See Kondaur Capital Corp. v. Hankins, 2011 ME 82, ¶ 15, 25 A.3d 960

(quotation marks omitted).

      [¶29] In determining whether the deed of distribution to CMLT failed to

convey the property intended, the court did not err, let alone obviously err, by

considering evidence extrinsic to Farber’s will. “It has long been the law in Maine

that in an equitable action to reform a deed parol testimony is admissible to prove

mutual mistake.”     Sargent v. Coolidge, 433 A.2d 738, 740 n.3 (Me. 1981)

(emphasis omitted). In this action to reform the deed to CMLT, the court was

neither confined to the language of the deed nor the language of Farber’s will.

The will, like the testimony of Bolan and Coon, was admitted for the purpose of

showing the intent of the parties who executed the deed. It was the deed, not the

will, that conveyed property to CMLT without the adjacent beach, and it was the

deed that was the subject of the reformation action.

      2.     Mistake

      [¶30] “Reformation is an equitable remedy by which an instrument may be

corrected when a mistake is discovered so as to reflect the real intention of the

parties.” Jordan v. Shea, 2002 ME 36, ¶ 18, 791 A.2d 116. To secure reformation

based upon mistake, a party must prove by clear and convincing evidence that the

parties to the deed labored under a mutual mistake of fact regarding a term of the
                                                                                  15

written instrument, such as the location or description of the property.

Baillargeon v. Estate of Daigle, 2010 ME 127, ¶ 16, 8 A.3d 709; Gunzinger v.

C & G Estates, Inc., 610 A.2d 735, 737 (Me. 1992).

      [¶31] Whether the parties to a deed were mistaken is a question of fact,

reviewed only for clear error. Jordan, 2002 ME 36, ¶ 20, 791 A.2d 116. “In an

appeal from a trial court’s factual finding when the burden of proof is clear and

convincing evidence, we look to whether the factfinder reasonably could have been

persuaded that the required factual finding was or was not proved to be highly

probable.”   Baillargeon, 2010 ME 127, ¶ 16, 8 A.3d 709 (quotation marks

omitted). When the appellant had the burden of proof at trial, we will overturn a

finding that the appellant failed to prove facts that would support the elements of

his or her claim only if the appellant can “demonstrate that a contrary finding is

compelled by the evidence.”         St. Louis v. Wilkinson Law Offices, P.C.,

2012 ME 116, ¶ 16, 55 A.3d 443.

      [¶32] Here, the court appropriately allowed the parties to present evidence

extrinsic to both the will and the deed in order to have a sufficient basis upon

which to determine whether the deed should be reformed.             The court also

committed no error in determining that some portions of Coon’s deposition

testimony were inadmissible and refusing to consider those portions in its decision.
16

      [¶33] Coon’s testimony could have supported a finding that he mistakenly

omitted the beach from the deed’s property description and consequently failed to

carry out Farber’s intent to include the intertidal area in the conveyance to CMLT.

However, the court determined that Coon’s execution of a deed that clearly omitted

the beach, given his experience and assistance by local counsel, undercut the value

of his testimony that he failed to carry out Farber’s intent. The court also gave

“material weight” to Bolan’s testimony that Farber told her that he would leave

CMLT the upland portion of lot 63 and leave her the beach.

      [¶34] The strength of the Gravisons’ reformation claim depends upon the

credibility of Coon and Bolan as witnesses. “That credibility was for the trial court

to assess,” and “[w]e defer to the court’s assessment of that credibility.” Bartlett v.

Lindahl, 560 A.2d 563, 565 (Me. 1989). On the conflicting evidence in this

record, the trial court was not compelled to find to a high degree of probability that

there was a mutual mistake in the deed from Farber’s estate to CMLT. See Estate

of Fournier, 2009 ME 17, ¶ 14, 966 A.2d 885 (“That there is contrary evidence

that would support a different result is not, without more, a basis for vacating the

trial court’s factual findings.”). Although that deed effectively orphans the beach

in front of the Gravisons’ property, we discern no reversible error in the trial

court’s determination that the Gravisons failed to carry the burden of proof on their

reformation claim.
                                                                                17

B.      Easements in the Perimeter Path

        [¶35] At trial, the neighboring property owners claimed that they held

deeded easements over a path located near the shorefront perimeter of the

properties owned by the Gravisons, Titcomb, and the Edwardses. The bases of

these rights, they claimed, were the references in their source deeds to the

Blackinton Plan.

        [¶36] In adjudicating the neighboring property owners’ easement claims to

the perimeter path, the trial court distinguished between the pre-record owners,

whose pre-1924 source deeds grant use of the “streets laid out” on the Blackinton

Plan “as laid out in June 1882,” and the post-record owners, whose post-1924

source deeds grant “rights of way shown” shown on the Blackinton Plan

“dated June, 1882.” The court concluded that the pre-record source deeds could

not “be construed to create record rights to the use of the perimeter path” because

those deeds incorporated the original plan, and the pre-record owners had failed to

prove that the perimeter path was depicted on the original plan.        The court

determined that the post-record source deeds incorporated the recorded plan, and

construed the dotted lines shown near the shorefront perimeter on the recorded

plan as a “way” within the meaning of the post-record deeds’ grant of “rights of

way.”     It accordingly concluded that the post-record owners benefit from

easements over a perimeter path located on the properties owned by the Gravisons,
18

Titcomb, and the Edwardses. The court further determined that the easements over

the perimeter path had been abandoned in the area covered by the Edwardses’

home, and that the easements do not allow access to the beach.

      [¶37] Before examining the trial court’s conclusions as to the existence and

scope of the easements over the perimeter path, we review the principles that

govern the interpretation of the deeds at issue. When a deed conveys property by

reference to a plan depicting lots, streets, and ways, the deed gives rise to an

implied easement in those streets and ways, appurtenant to the property conveyed

by reference to the plan. See D’Alessandro v. Town of Harpswell, 2012 ME 89,

¶ 6, 48 A.3d 786. Under these circumstances, easement rights are implied to

secure to the grantee and subsequent purchasers of property shown on the plan

“those benefits, the promise of which, it is reasonable to infer, has induced them to

buy portions of a tract laid out on the plan indicated.”         Arnold v. Boulay,

147 Me. 116, 121, 83 A.2d 574 (1951) (quotation marks omitted).

      [¶38] When a deed distinctly refers to a plan, the plan is incorporated into

the deed by that reference. Sleeper v. Loring, 2013 ME 112, ¶ 13, 83 A.3d 769;

Chesley v. Holmes, 40 Me. 536, 546 (1855). The plan is then interpreted pursuant

to the same rules that govern the construction of the deed. Chesley, 40 Me. at 546.

      [¶39] “The first step in any analysis of the language in a deed is to give

words their general and ordinary meaning to see if they create any ambiguity.
                                                                                    19

If the words create no doubt, the deed is clear and unambiguous,” and it will guide

the court’s construction of the parties’ intent. Green v. Lawrence, 2005 ME 90,

¶ 7, 877 A.2d 1079 (quotation marks omitted). The court may consider extrinsic

evidence in determining the parties’ intent only if the deed’s language is

ambiguous. Id. The construction of a deed and incorporated plan, including the

determination of whether these documents are ambiguous, is ordinarily a question

of law that we review de novo. See Testa’s, Inc. v. Coopersmith, 2014 ME 137,

¶ 11, 105 A.3d 1037.         However, if a deed and plan are ambiguous, their

interpretation is a question of fact that we review only for clear error. See id.

        1.      Construction of the Pre-Record Owners’ Source Deeds

        [¶40] The source deeds to the properties held by the Johnsons, the Fishers,

and Moulton (the pre-record owners) unambiguously convey rights in the “streets

laid out” on the “plan of Cooper’s Beach as laid out in June 1882,” thus

incorporating by distinct reference the Blackinton Plan as it appeared in June of

1882.        The language of these deeds could have created easements over the

perimeter path only if that path was a street laid out on the original Blackinton

Plan.    Because the original Blackinton Plan was not in evidence at trial, the

meaning of Cora’s pre-record conveyance of rights in the “streets laid out” on the

plan “dated June 1882,” cannot be determined as a matter of law. Notwithstanding

their contentions to the contrary, the pre-record owners bore the burden of proof on
20

all factual issues pertaining to their claim, including proving that the Blackinton

Plan depicted the perimeter path in June of 1882.             See LaBelle v. Blake,

1998 ME 165, ¶ 9 n.3, 714 A.2d 145. The record does not compel a result contrary

to the court’s finding that the pre-record owners failed to carry this burden.

      [¶41] No evidence in the record establishes the contents of the original plan.

Markings on the recorded plan entered in evidence plainly demonstrate that the

plan was altered in the period between its creation in 1882 and its recording in

1924, and the trial court found that the differences between the recorded plan’s

depiction of the perimeter path and its depiction of other ways called the evolution

of the perimeter path into “considerable dispute.” Given the lack of evidence as to

which features of the recorded plan were also features of the original plan, we

affirm the finding that the pre-record owners failed to carry their burden of proof,

and affirm the conclusion that the pre-record owners do not hold easements in the

perimeter path. See Amodeo v. Francis, 681 A.2d 462, 466 (Me. 1996).

      2.     Construction of the Post-Record Owners’ Source Deeds

      [¶42] The record establishes that the Massimis, Roy and Watrous, Bolan,

Long, Perkins, Lawrence, and Paul (the post-record owners) derive title, at least in

part, through a common 1934 source deed from Cora Perry to V.F. Studley

(Studley’s deed) that conveyed “all rights of way shown on plan of Coopers Beach

made by A.D. Blackin[]ton, Surveyor, dated June, 1882.”            Before examining
                                                                                              21

Studley’s deed, we first address the argument, made by Titcomb and the

Edwardses, that Cora lacked the capacity to encumber their properties by way of

Studley’s deed because she conveyed their properties before she executed

Studley’s deed.7 This contention rests upon the fundamental proposition of law

that a grantor can encumber property only while he or she owns it.

See Warchalowski v. Brown, 417 A.2d 425, 428 (Me. 1980).

        [¶43] The record demonstrates that Cora conveyed the property now owned

by Titcomb by way of two deeds, one executed in 1929 and the other in 1930, and

that she conveyed the property now owned by the Edwardses through three deeds,

all executed in 1927. The earliest of the Edwardses’ source deeds (McKusick’s

deed) was granted by Cora to Evelyn McKusick on August 2, 1927, and described

the property conveyed as follows:

        [A] certain lot or parcel of land at Cooper’s Beach, Owls Head,
        Maine, being one of the cottage lots indicated but not numbered on
        plan of Cooper’s Beach dated June 1882 by Blackin[]ton, surveyor
        (Knox Registry, Book 3, Page 81) and being the northern most of a
        tier of lots lying westerly of a 30 feet right of way and opposite lots 19
        to 24 inclusive; this lot being more specifically bounded as follows:
                Beginning at a point in the westerly line of the 30 foot right of
        way above referred to, said point being 253.7 feet northerly from the
        north-east corner of W.R. Lufkin’s cottage lot; thence westerly at a
        right angle to said line of right of way seventy-five (75) feet; thence
        northerly, parallel to the line of right of way, ninety (90) feet more or
        less to the southerly line of right of way along the shore; thence

  7
      The Gravisons, who derive title through Studley’s deed, do not join in this argument.
22

           southeasterly and southerly by said right of way to place of beginning.
           Together with[]all rights of way appurtenant thereto.

           [¶44] Construing the foregoing language de novo, as a matter of law, we

have no difficulty concluding that McKusick’s deed conveyed property by distinct

reference to the recorded Blackinton Plan and therefore incorporated that plan into

the deed. In view of the plan’s depiction of numbered lots, ways of access, and a

way running along the shore, we also have no difficulty concluding that

McKusick’s deed gave rise to an implied easement over the perimeter path,

appurtenant to the property shown on the plan of development.8

           [¶45] Cora thus created an implied easement over the perimeter path, for the

benefit of the property shown on the plan, as early as August 2, 1927, when she

executed McKusick’s deed. This occurred before Cora executed the remaining

source deeds to the properties now owned by Titcomb and the Edwardses.

           [¶46] Having concluded that Cora effectively burdened the perimeter path

located on the properties owned by Titcomb and the Edwardses, we now consider

whether she effectively granted benefits in that path as appurtenances of the


     8
         In 1878, we explained that

           [w]hen the owner of land . . . divides it into streets and building lots, and makes a plan of
           the land thus divided, and then sells one or more of the lots, by reference to the plan, he
           thereby annexes to each lot sold a right of way in the streets, which neither he nor his
           successors in title can afterwards interrupt or destroy.

Bartlett v. Bangor, 67 Me. 460, 464-65 (1878) (emphasis added).
                                                                                 23

properties held by the post-record owners. For this purpose, we consider the

following provision of Studley’s deed: “Conveying also all rights of way shown on

plan of Coopers Beach made by A.D. Blackin[]ton, Surveyor, dated June, 1882[.]”

Our analysis, informed by the parties’ contentions, concerns three issues: First,

whether Studley’s deed incorporated the recorded plan; second, whether Cora

effectively annexed to Studley’s land appurtenant benefits over the perimeter path;

and third, whether the perimeter path allows access to the beach.

      [¶47] In construing Studley’s deed, the first issue is whether that deed

incorporated the recorded plan. The trial court found that Cora’s post-record

conveyances, which include Studley’s deed, incorporated “the plan as it was

recorded rather than as it appeared on some earlier date,” based upon the inference

that Cora was involved in, or had actual or constructive notice of, the plan’s

recording.    The record evidence supports this finding.            The language of

McKusick’s deed establishes that Cora knew where the Blackinton Plan was

located in the registry in 1927.     From this it follows that she had this same

knowledge and referred to the recorded plan when she executed Studley’s deed in

1934. We therefore affirm the trial court’s determination that the post-record

owners derive title through a deed that refers to the recorded plan.

      [¶48] The second issue in the interpretation of Studley’s deed concerns the

meaning of that deed’s grant of “rights of way.” Considering that grant de novo, in
24

light of the dotted lines of the perimeter path and the solid lines of the other access

ways shown on the recorded Blackinton Plan, we conclude that the meaning of the

grant of “all rights of way” in Studley’s deed is ambiguous. To resolve this

ambiguity, the trial court considered the difference between the pre-record deeds’

conveyance of an easement over the “streets laid out on [the] plan” and the

post-record deeds’ conveyance of an easement over the “rights of way shown on

[the] plan.” Comparing the dotted lines of the perimeter path with the plan’s more

formal depiction of other access ways, the court found that the perimeter path was

a “right of way” granted “for purposes that appear to be recreational and that are

tied to the appeal of the land, which is its proximity to the water.”             This

interpretation of the perimeter path as a “right of way” within the meaning of

Studley’s deed is consistent with Cora’s reference to a “right of way along the

shore” in McKusick’s deed. We therefore affirm the trial court’s conclusion that

when Cora executed Studley’s deed and referred to the recorded plan therein, she

effectively annexed to Studley’s property “all rights of way” shown on the

recorded plan, including rights in the perimeter path.

      [¶49] Having concluded that Cora created easements over the perimeter

path benefiting the properties held by the post-record owners, we now consider the

third issue in the interpretation of Studley’s deed—whether the trial court erred in

determining the easements’ scope. In adjudicating the scope of the easements over
                                                                                 25

the perimeter path, the trial court ruled that the dominant owners could not cross

over the servient owners’ land located between the path’s seaward boundary and

the high-water mark in order to access the beach.       The neighboring property

owners argue that the recreational nature of the perimeter path easements and the

path’s close proximity to the high-water mark both indicate that the easements

include the incidental right to access the beach. Construing the Blackinton Plan’s

depiction of the perimeter path as a matter of law, we affirm the trial court’s

declaration regarding the easements’ geographic scope. Because the conveyances

of the perimeter path easements are explicitly delimited by the path’s boundaries as

shown on the plan, and the path’s seaward boundary at no point abuts the

high-water mark, the dominant owners are entitled to use only the land within

those boundaries, and may not use their path easements to access the beach.

See Rotch v. Livingston, 91 Me. 461, 472, 40 A. 426 (1898) (“[T]he grantees of a

right of way of a specified width have an easement in the way to the . . . extent of

its dimensions.”); cf. Arnold, 147 Me. at 117-19, 83 A.2d 574 (concluding that a

road allowed access to the lake shore when a development plan established the

shorefront line of numbered lots eighty feet from the shore and designated the area

in between that shorefront line and the high-water mark of the lake as “Lake Shore

Road”).
26

         3.      Whether the Perimeter Path Easements have been Terminated

         [¶50]     An easement can be terminated in multiple ways, including

(1) through acquisition of the servient estate by a bona fide purchaser who lacks

notice of the encumbrance, and (2) by an act or omission of the dominant owner

evidencing a clear intent to abandon the easement.                     Stickney v. City of Saco,

2001 ME 69, ¶ 42, 770 A.2d 592. On appeal, the parties who own the land

covered by the perimeter path assert that the easements over that path were

terminated by acquisition of the servient property for value and without notice, and

by abandonment. Titcomb and the Edwardses advance the lack of notice issue;9

the Gravisons and the Edwardses advance the abandonment issue.

         [¶51] Neither Titcomb nor the Edwardses made any arguments regarding

termination of the easements for lack of notice in their pre- or post-trial pleadings.

The parties failed to present the notice issue to the trial court for decision and

consequently failed to preserve the issue for appeal. See Davis v. Picciandra,

662 A.2d 898, 899 (Me. 1995).                We therefore confine our discussion to the

argument advanced by the Gravisons and the Edwardses—both at trial and on

appeal—that the easements over the perimeter path have been terminated in their

entirety by abandonment.


     9
     The Edwardses’ extend their lack of notice contentions to the easements over the perimeter path and
the beach. Our conclusion with respect to this issue applies equally to both encumbrances.
                                                                                  27

      [¶52] The party asserting abandonment of an easement has the burden of

proving either “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.”

Canadian Nat’l Ry. v. Sprague, 609 A.2d 1175, 1179 (Me. 1992). The proponent

of abandonment must prove these elements by clear and convincing evidence,

establishing each fact to a high degree of probability. Stickney, 2001 ME 69, ¶ 51,

770 A.2d 592. For the purposes of the act or omission variant of abandonment at

issue here, the necessary 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.”

Canadian Nat’l Ry., 609 A.2d at 1179 (quotation marks omitted). An easement

holder’s intent to abandon may be inferred from a “failure to object to the erection

of a permanent structure that prevents the enjoyment of the rights granted by the

easement.” Chase v. Eastman, 563 A.2d 1099, 1102 (Me. 1989). However, if 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. See id. at 1102-03.

      [¶53]   Here, the court found no evidence that anyone objected to the

construction of the Edwardses’ home on part of the perimeter path, and concluded
28

that this failure to object constituted abandonment as to that part of the perimeter

path. The court also found that “there has been at least occasional use of the land

that is located approximately where the path is shown on the Blackinton Plan,” and

concluded that the easements over the perimeter path consequently “remain in

effect except for the portion of the path where the Edwardses’ house is located.”

      [¶54] Contrary to the contentions of the Gravisons and the Edwardses, the

court’s finding regarding use of the perimeter path is amply supported by the

evidence that the neighboring property owners presented at trial.         The record

establishes that the Edwardses’ predecessors constructed a cottage that obstructs

part of the perimeter path approximately seventy years ago, and later, in the late

1970s, attached an addition to that cottage that also obstructed part of the perimeter

path located on the Edwardses’ property. Despite this construction, use of the

perimeter path has continued in the areas of the path that remain unobstructed.

On these facts, the trial court was not compelled to find that the easement holders’

failure to object to the Edwardses’ construction resulted in a complete

abandonment of the easements over the perimeter path. See Chase, 563 A.2d at

1102-03. We therefore affirm the trial court’s determination that the easements

over the perimeter path have been abandoned to the extent that the path is covered

by the Edwardses’ home, and the easements otherwise remain in effect.
                                                                                                           29

C.        Easements in the Beach

          [¶55]    In reviewing the trial court’s ruling regarding the neighboring

property owners’ easements in the beach, we consider (1) whether the neighboring

property owners’ source deeds gave rise to easements in the beach, and if so,

whether the encumbered beach area includes the intertidal area owned by the

Edwardses;10 and (2) whether the trial court erred in declaring that the dominant

estate holders have the right to use the beach “for reasonable recreational purposes

that are conventionally associated with that type of area.”

          1.      Creation and Location of the Beach Easements

          [¶56] With the exception of Bolan and Lawrence, each of the neighboring

property owners derives title through source deeds that expressly grant “use of the

beach for boating and bathing purposes.” Bolan and Lawrence derive title through

a common source deed that instead expressly grants “all riparian rights and shore

privileges of every nature.” All of the neighboring property owners’ source deeds




     10
      Because the Gravisons do not own the beach in front of their property, they have no standing to
contest the trial court’s conclusion that the neighboring property owners hold easements over that beach.
See Chase v. Eastman, 563 A.2d 1099, 1103 n.6 (Me. 1989) (“In order to have standing to [contest] a
claim . . . a party must assert a personal stake in the outcome of the litigation and present a real and
substantial controversy touching on the legal relations of parties with adverse legal interests.”) (alteration
omitted) (quotation marks omitted). Though Titcomb could have contested the court’s determination
regarding the beach easements, it focused solely on defending against the easements over the perimeter
path. We consequently address only the beach easement issues raised by the Edwardses, and confine our
analysis of rights in the beach to the intertidal area that the Edwardses own.
30

that convey beach rights or shore privileges refer, in some fashion, to the

Blackinton Plan.

      [¶57] In Edwards, we discussed the effect of Cora’s express annexation of

appurtenant benefits to an inland lot owned by the Scotts—who are not parties

here—by way of a 1924 deed that referred to the Blackinton Plan and conveyed

rights to “use of the beach for bathing and boating purposes.” 2015 ME 165,

¶¶ 39-41, --- A.3d ---. In interpreting that deed, we determined that Cora had

incorporated the plan for the purpose of designating the location of the beach.

Id. ¶ 40. “When construed in conjunction with the plan’s unrestricted depiction of

an intertidal area,” we concluded that the meaning of the deed’s reference to “the

beach” was obviously “to grant rights in the intertidal area depicted on the plan.”

Id. ¶ 41. Because the record demonstrated that the Edwardses’ beach was shown

on the plan, and that Cora owned the Edwardses’ beach in 1924, we affirmed the

court’s conclusion that the beach rights granted by the 1924 deed encumbered the

Edwardses’ intertidal area. Id. ¶¶ 40-41.

      [¶58] Pursuant to the same analysis as that employed in Edwards, we

conclude that the Edwardses’ intertidal area is encumbered by easements that

benefit all of the neighboring property owners other than Bolan and Lawrence.

The record demonstrates that all of the neighboring property owners derive title

through source deeds that refer to the Blackinton Plan and expressly grant beach
                                                                                31

rights or shore privileges. All of the neighboring property owners other than Bolan

and Lawrence also derive title through source deeds that contain the foregoing plan

reference and express grant and were executed before 1927, when Cora conveyed

title to the intertidal area that is now owned by the Edwardses.

      [¶59] As demonstrated by the deeds in their respective chains of title, Bolan

and Lawrence both claim deeded “riparian rights and shore privileges” solely

through Cora’s 1934 source deed to Studley, discussed supra. Studley’s deed was

executed after Cora conveyed title to the Edwardses’ intertidal area in 1927 and

thereby divested herself of the ability to create new easements over that area.

See Dorman v. Bates Mfg. Co., 82 Me. 438, 448, 19 A. 915 (1890) (“One can not

convey land, nor create an easement in it, unless he owns it.”). Because Cora

lacked the ability to create a new express easement over the Edwardses’ beach

after she sold it in 1927, Studley did not acquire any rights in that beach through

his deed in 1934. Bolan and Lawrence, who derive deeded shore rights through

the Perrys solely by way of Studley, do not hold any rights in the Edwardses’

beach.

      [¶60] All of the other neighboring property owners derive title through

source deeds that grant beach rights and were executed before Cora conveyed the

beach that is now owned by the Edwardses. Like the deed at issue in Edwards, the

deeds at issue here refer to the Blackinton Plan for the purpose of locating
32

easements in the beach. 2015 ME 165, ¶ 40, --- A.3d ---. The Edwardses’ beach is

included in the intertidal area shown on the Blackinton Plan.          We therefore

conclude that the neighboring property owners, other than Bolan and Lawrence,

benefit from easements over the Edwardses’ beach.

2.    Activities Permitted by the Beach Easements

      [¶61] The trial court construed the neighboring property owners’ rights to

“use of the beach for boating and bathing” “to convey an intention to use the beach

for reasonable recreational purposes that are conventionally associated with that

type of area.” The court made this determination as a matter of law, and was not

called upon to consider the factual question of what specific activities would be

incidental to the rights expressly granted.       See N. Sebago Shores, LLC v.

Mazzaglia, 2007 ME 81, ¶ 17, 926 A.2d 728. The court instead considered, as a

matter of law, the evident recreational purposes of the development shown by the

plan, and construed the beach rights granted by reference to that plan to include the

rights to engage in reasonable recreational activities that are typically engaged in

on a beach.

      [¶62] The Blackinton Plan indicates that the Perry Parcel was divided into

“cottage lots,” and shows numbered lots located near the Rockland Harbor.

The deeds granting “use of the beach for bathing and boating purposes” refer to the

plan. Construing de novo the language of the deed clauses granting rights in the
                                                                                                            33

beach, in light of the plan to which the deeds refer, we conclude that Cora intended

to convey to her grantees the right to use the beach for recreational activities

reasonably related to bathing and boating. See Mill Pond Condo. Ass’n v. Manalio,

2006 ME 135, ¶ 6, 910 A.2d 392 (indicating that “the holder of an easement may

only exercise the rights granted in a reasonable manner”). To the extent that

limitation was not clear from the trial court’s judgment, we clarify the judgment to

reflect that the neighbors’ beach rights are limited to recreational activities that are

reasonably related to bathing and boating.11

        The entry is:

                         Judgment vacated to the extent that it declares
                         Bolan and Lawrence the holders of deeded
                         easements over the Edwardses’ intertidal area.
                         Judgment clarified to reflect that the neighbors’
                         beach rights are limited to recreational activities
                         reasonably related to bathing and boating. In all
                         other respects, judgment affirmed.



On the briefs:

        David A. Soley, Esq., and Glenn Israel, Esq., Bernstein Shur, Portland, for
        appellants Beverly A. Gravison, David B. Gravison, Darlene F. Edwards,
        and Lewis M. Edwards III


   11
      The issue of the specific recreational activities that are reasonably related to bathing and boating is a
question of fact that the parties did not raise until after trial. See N. Sebago Shores, LLC v. Mazzaglia,
2007 ME 81, ¶ 17, 926 A.2d 728. Any factual dispute regarding what recreational activities are
reasonably related to bathing and boating may, in future, require further adjudication. See id.
34

        Andrew W. Sparks, Esq., and Michael T. Devine, Esq., Drummond &
        Drummond, LLP, Portland, for cross-appellant Ellwood Arthur Titcomb
        Living Trust

        Paul F. Driscoll, Esq., and David A. Goldman, Esq., Norman Hanson &
        DeTroy, LLC, Portland, for cross-appellants Calvert M. Fisher, Wendy B.
        Fisher, David A. Massimi, Theresa M. Massimi, Kenneth C. Roy, Barbara J.
        Watrous, Douglas E. Johnson, Leah Johnson, Nina Paul, Jean Perkins,
        Mary-Lou M. Moulton, and Michele E. Lawrence

        Judy A.S. Metcalf, Esq., and Ryan P. Dumais, Esq., Eaton Peabody,
        Brunswick, for cross-appellant Nancy Ellen Wolff Bolan

        Anne Long, appellee pro se


At oral argument:

        David A. Soley, Esq., for appellants Beverly A. Gravison, David B.
        Gravison, Darlene F. Edwards, and Lewis M. Edwards III

        Andrew W. Sparks, Esq., for appellee Ellwood Arthur Titcomb Living Trust

        David A. Goldman, Esq., for appellees Calvert M. Fisher, Wendy B. Fisher,
        David A. Massimi, Theresa M. Massimi, Kenneth C. Roy, Barbara J.
        Watrous, Douglas E. Johnson, Leah Johnson, Nina Paul, Jean Perkins,
        Mary-Lou M. Moulton, and Michele E. Lawrence

        Judy A.S. Metcalf, Esq., for appellee Nancy Ellen Wolff Bolan



Knox County Superior Court docket number RE-2011-51
FOR CLERK REFERENCE ONLY
