MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision: 2014 ME 148
Docket:   Aro-14-97
Argued:   November 6, 2014
Decided:  December 23, 2014

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



                            CHRISTOPHER GRONDIN et al.

                                            v.

                                 SUSAN R. HANSCOM

JABAR, J.

         [¶1]    Susan R. Hanscom appeals from the Superior Court’s (Aroostook

County, Hunter, J.) declaratory judgment establishing her property boundaries and

those of Christopher and Diana Grondin. Hanscom contends that the court erred in

(1) declaring that the properties’ boundaries are as indicated on a survey by

Charles Marchese, (2) finding that she had not gained title by acquiescence, and

(3) finding only partially in her favor on her claim of adverse possession. Finding

no error, we affirm the court’s judgment.

                                        I. FACTS

         [¶2] After an evidentiary hearing, the court found the following facts, which

are supported by the record. Hanscom’s and the Grondins’ properties previously

constituted a single parcel owned by Harriet Decker (the “Decker Lot,” depicted in
2

the diagram below as rectangle ADEG). In 1962, Decker conveyed to Quentin and

Ruth Haney a 100-foot-wide parcel (the “Haney Lot”) on the eastern side of the

Decker Lot. The property was described as follows:

        Beginning at an iron pipe driven in the ground at the southeasterly
        corner of [the Decker Lot] . . . thence northerly along grantor’s
        easterly line [309.6 feet] to a point of intersection of the southerly line
        of Bliss Deering and the easterly line of said grantor; thence westerly
        along the said Deering south line [112 feet] to a point marked by an
        iron pipe driven in the ground; thence southerly bearing south 25
        degrees west . . . and parallel to the east line1 [354 feet] to an iron
        pipe driven in the ground near the shore of Deering Lake; thence
        easterly along the north shore of said Lake [101 feet] more or less, to
        the point of beginning.

(Emphasis added.) The deed further stated that it was intended “to convey a strip

of land [100 feet] wide off the easterly side of [the Decker Lot].”

        [¶3] The Haney Lot was conveyed to Susan Hanscom in 1980.2 The deed to

Hanscom used the same property description as the deed to the Haneys. The

remainder of the Decker Lot was ultimately conveyed to Christopher and Diana

Grondin in 2006.3


    1
      The parties agree that there is no line that both bears south twenty-five degrees west and runs
parallel to the Decker Lot’s eastern border.
    2
       The land was originally conveyed to Hanscom and her former husband, but Hanscom later acquired
title to the entire parcel pursuant to a divorce decree.
    3
      The configuration of the Decker Lot’s remainder is dependent upon the boundaries of the Haney
Lot. If the Haney Lot’s boundaries are, as Hanscom contends, as they are indicated on the Swallow
survey, see infra ¶ 5, then the remainder of the Decker Lot includes a triangular parcel situated generally
east of the Haney Lot, with the base of the triangle to the north and the apex to the south (depicted as
triangle CDE on the diagram below). Notably, no transfers of the Decker Lot remainder refer to such a
parcel. If, on the other hand, the Haney Lot’s boundaries are as indicated on the Marchese survey, see
                                                                                                  3

       [¶4] Beginning in 1981, Hanscom began using the camp that sits on the

Haney Lot as a year-round home, and she made various improvements to the

property. In 1983, Hanscom constructed a garage and a gravel driveway on an

area of land that she believes is part of the Haney Lot, but that the Grondins

believe is part of the remainder of the Decker Lot. In 1985, she planted a row of

pine trees within the disputed area. In 2005, she drilled a well behind the garage

and installed a pump to connect the well to her home plumbing. Several trees

within the disputed area are marked with red or orange blaze. The disputed area

remains otherwise undeveloped and consists mostly of overgrown brush.

       [¶5]     In 2010, Kilburn Swallow completed a survey that found that

Hanscom’s property consists of a 100-foot-wide westward-leaning parcel, the

eastern boundary of which begins at the southeastern corner of the Decker Lot and

then proceeds at a northwesterly angle rather than along the Decker Lot’s eastern

border. Swallow found that Hanscom’s western border runs parallel to the angled

eastern border, thus creating a parallelogram-shaped parcel (depicted as

parallelogram BCEF on the diagram below).                      In 2011, Charles Marchese

completed a survey that found that Hanscom’s property consists of a rectangular

parcel with an eastern border that is the same line as the eastern boundary of the

infra ¶ 5, then the remainder of the Decker Lot is a single parcel to the west of the Haney Lot. The
configuration of the Decker Lot’s remainder as found by the Marchese survey and accepted by the
Superior Court is depicted as rectangle ACFG on the diagram below.
4

original Decker Lot and a western border parallel to that eastern border (depicted

as rectangle CDEF on the diagram below). Thus, line BF depicts the common

boundary between Hanscom’s and the Grondins’ properties as found by Swallow,

and line CF depicts the common boundary as found by Marchese. The shaded

triangle BCF represents the disputed area.




                      II. PROCEDURAL BACKGROUND

      [¶6] Following receipt of the competing surveys, the Grondins filed suit

seeking a declaratory judgment establishing the common boundary between their

property and Hanscom’s. Hanscom filed a counterclaim also seeking a declaratory

judgment as to the common boundary and alternatively seeking title to the disputed

area through the doctrines of acquiescence and adverse possession.
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         [¶7] The court conducted a view of the property before hearing testimony

from both surveyors. It then entered judgment finding that (1) Hanscom’s property

is, as the Grondins contend, controlled by the Decker Lot’s eastern border as found

by the Marchese survey; (2) Hanscom did not establish title by acquiescence

because she failed to prove by clear and convincing evidence “possession of the

disputed property up to a visible line marked by monuments, fences or the like”;

and (3) Hanscom established title by adverse possession only as to the land

occupied by the garage and driveway leading thereto.4 Hanscom appealed.5

                                          III. DISCUSSION

A.       Boundary Declaration

         [¶8] Hanscom contends that the court erred in accepting Marchese’s survey

and its conclusions as to her property’s boundaries. The court’s determination of

the location of property boundaries on the face of the earth is a question of fact,

which we review for clear error. Matteson v. Batchelder, 2011 ME 134, ¶¶ 12, 16,

32 A.3d 1059.           A factual finding is clearly erroneous only if no competent
     4
      The court’s initial February 6, 2014, decision retained jurisdiction over the matter for twenty days to
allow counsel the opportunity to suggest revisions that would provide clearer descriptions of the
boundaries of the properties involved. On April 7, 2014, the court issued an amended decision, which
retained the same findings but noted that the Marchese survey had been recorded in the Southern
Aroostook Registry of Deeds.
     5
      Per the court’s February 6 decision, appellate time periods were not to commence until after
expiration of the twenty-day period on February 26, 2014. Hanscom filed her notice of appeal on
February 27, 2014. On April 7, 2014, following a conference with the parties, the Superior Court issued
an amended decision as its final judgment. Hanscom thus appeals from the court’s amended decision.
See M.R. App. P. 2(b)(1).
6

evidence supports it. Tremblay v. DiCicco, 628 A.2d 141, 143 (Me. 1993). In

making a boundary determination, the weight to be given to a surveyor’s opinion is

the prerogative of the court as fact-finder. Dupuis v. Soucy, 2011 ME 2, ¶ 20, 11

A.3d 318; McGrath v. Hills, 662 A.2d 215, 218 (Me. 1995). Boundaries are

controlled, in descending priority, by monuments, courses, distances, and quantity,

unless this priority produces results that are absurd or wholly inconsistent with the

grantor’s intent. See Wells v. Powers, 2005 ME 62, ¶ 3, 873 A.2d 361; McGrath,

662 A.2d at 218. An adjoining boundary line is a controlling monument, and thus

has “priority over courses and distances or quantity descriptions in a deed.” Howe

v. Natale, 451 A.2d 1198, 1202 (Me. 1982). In fixing property boundaries where a

deed description contains a latent ambiguity—that is, an ambiguity that becomes

apparent when the deed’s otherwise unambiguous description is applied to the

ground—the court must determine the grantor’s intent in light of the above rules of

construction. Tremblay, 628 A.2d at 143.

      [¶9]    In McGrath, for example, we held that the court’s boundary

determination that was based on a surveyor’s testimony was not clearly erroneous,

even though the survey “disregarded the starting point of the description in the . . .

deed” and raised questions about the dimensions of adjoining properties.

662 A.2d at 218. We reasoned that there was competent evidence for the court to

find that the surveyor’s explanation was “the most complete and reasonable” where
                                                                                   7

it reconciled ambiguities and prioritized a call to abut an adjoining property over a

call to a specific distance. Id.

      [¶10] Here, the court accepted Marchese’s survey as the more complete and

reasonable explanation of the disputed properties’ boundaries, and there was

competent evidence to support the court’s determination. The Marchese survey

reconciled ambiguities in the deed to Hanscom, which called for an eastern border

along the eastern line of the Decker Lot and a western border that was both parallel

to the eastern line and “bearing south 25 degrees west.” The Marchese survey also

properly regarded the calls to borders as superior to those of distance or degree.

Finally, and significantly, the Marchese survey gives effect to the likely intent of

the Haney Lot conveyance, which is stated in the deed itself. As the court opined,

“[i]t seems highly unlikely . . . that the grantor would have intended to convey a

parallelogram shaped piece of land while retaining a remaining triangular piece

with shore frontage so limited that one would be hard pressed to enter the lake for

a swim without trespassing.” See also Proctor v. Hinkley, 462 A.2d 465, 472

(Me. 1983) (concluding that a boundary line leaving little or no lake frontage was

absurd and inconsistent with other provisions in a deed description).            The

Marchese survey was thus sound in both law and fact, and the court was free to

accept its findings.
8

B.    Title by Acquiescence

      [¶11] Hanscom next contends that the court erred in determining that she

had not obtained title to the disputed area by acquiescence. We review the court’s

findings of fact regarding title by acquiescence for clear error, and will affirm such

findings if they are supported by competent evidence. Taylor v. Hanson, 541 A.2d

155, 159 (Me. 1988). To establish title by acquiescence, a party must prove the

following by clear and convincing evidence:

      (1) possession up to a visible line marked clearly by monuments,
          fences, or the like;
      (2) actual or constructive notice to the adjoining landowner of the
          possession;
      (3) conduct by the adjoining landowner from which recognition and
          acquiescence . . . may be fairly inferred; [and]
      (4) acquiescence for a long period of years such that the policy behind
          the doctrine of acquiescence is well served by recognizing the
          boundary.

Dowley v. Morency, 1999 ME 137, ¶ 16, 737 A.2d 1061. Clear and convincing

evidence is evidence that provides the fact-finder with an abiding conviction that

the truth of the proponent’s contentions is highly probable. Hamlin v. Niedner,

2008 ME 130, ¶ 8, 955 A.2d 251.

      [¶12] Here, the court conducted a view of the property and found that,

although there were blaze markings on several trees in the area, the markings were

ambiguous and did not persuade it to a high probability that they represented a line

of occupation. Further, evidence was presented and the court observed for itself
                                                                                   9

that the majority of the contested area outside of the garage and driveway consisted

of overgrown brush. We therefore cannot say that the court erred in finding that

there was no “possession of the disputed property up to a visible line” sufficient to

support Hanscom’s claim of title by acquiescence. In view of the failure of proof

on this element, we need not address the remaining elements of the doctrine.

C.    Adverse Possession

      [¶13] Finally, Hanscom contends that the court erred in finding that she had

sustained her adverse possession claim only as to the footprint of her garage and

driveway, rather than to the entire disputed area. Adverse possession presents a

mixed question of fact and law. Weinsten v. Hurlbert, 2012 ME 84, ¶ 8, 45 A.3d

743. “[W]hether the necessary facts exist is for the trier of fact, but whether those

facts constitute adverse possession is an issue of law . . . .” Id. (quotation marks

omitted). We review findings of fact regarding adverse possession for clear error,

and affirm them if they are supported by competent record evidence. Id. ¶ 9. To

succeed on an adverse possession claim, a party must prove by a preponderance of

the evidence that “possession and use of the property was (1) actual; (2) open;

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

(8) exclusive; and (9) for a duration exceeding the twenty-year limitations period.”

Id. ¶ 8. (quotation marks omitted). “[A]dverse possessors typically only acquire
10

that property which they actually possessed.” D’Angelo v. McNutt, 2005 ME 31,

¶ 9, 868 A.2d 239.

      [¶14] In Dowley, we held that the claimant failed to adversely possess the

entirety of the disputed area when the claimant’s actual use of the land was limited

to a driveway and a parking area that constituted “only a fraction of the disputed

area.” 1999 ME 137, ¶ 20, 737 A.2d 1061. We have likewise held that there is

insufficient proof of adverse possession where the claimant’s use of only a portion

of the land did not put the landowner on notice of the adverse possession, and

much of the disputed area was “overgrown with bushes and weeds.” Harkins v.

Fuller, 652 A.2d 90, 92 (Me. 1995).

      [¶15] Since 1983, Hanscom openly and notoriously possessed the land on

which her garage and driveway sit. As to the remainder of the disputed area,

however, the court did not err in finding no such open, notorious, and continuous

possession. The majority of the disputed parcel consists of overgrown brush and,

although Hanscom planted a row of pine trees as a privacy border in 1985, the

court could have reasonably determined that this did not amount to open and

notorious possession sufficient to impart notice upon landowners to the west.

Likewise, the “ambiguous” blaze marks on trees within the disputed area are not

sufficiently open or notorious. Finally, the well and related plumbing Hanscom
                                                                           11

installed within the disputed territory in 2005 have not been in place for the

requisite twenty-year statutory period.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Richard L. Currier, Esq., and Jon P. Plourde, Esq., Currier &
        Trask, P.A., Presque Isle, for appellant Susan R. Hanscom

        Edmond J. Bearor, Esq., and Brent A. Singer, Esq., Rudman
        Winchell, Bangor, for appellees Christopher Grondin and Diana
        Grondin


At oral argument:

        Jon P. Plourde, Esq., for appellant Susan R. Hanscom

        Edmond J. Bearor, Esq., for appellees Christopher Grondin and
        Diana Grondin



Aroostook County Superior Court (Houlton) docket number RE-2011-20
FOR CLERK REFERENCE ONLY
