MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2013 ME 112
Docket:   Cum-12-488
Argued:   September 12, 2013
Decided:  December 24, 2013

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


                              GARY SLEEPER et al.

                                         v.

                            DONALD R. LORING et al.

GORMAN, J.

         [¶1] This case involves a dispute over a parcel of land located on the

northwest shore of Sebago Lake, referred to here as lot 40A. The plaintiffs, Gary

Sleeper, Ramona Sleeper, Richard Roy, and Holly Roy, all of whom own property

near but not on Sebago Lake, appeal from a judgment of the Superior Court

(Cumberland County, Cole J.) in favor of the defendants, Donald R. Loring,

Marilyn P. Loring, Harry Greenlaw, and Ann Greenlaw, all of whom own

shorefront property on the lake. The court found that the defendants hold fee

simple title to lot 40A and that an easement held by the plaintiffs over lot 40A does

not grant them a right to maintain a dock. Based on our de novo review of the

summary judgment record, we conclude as a matter of law that a deed in the

defendants’ chains of title unambiguously excepts lot 40A from a prior conveyance
2

and that deeds in the plaintiffs’ chains of title are ambiguous as to whether the

dock is allowed. We vacate the judgment and remand for further proceedings.

                                 I. BACKGROUND

      [¶2] The following facts are established by the summary judgment record.

Pursuant to a declaration of trust dated March 1, 1955, and recorded in the

Cumberland County Registry of Deeds, Delmont R. Hawkes conveyed a piece of

property in the Town of Sebago to D. Wilson Hawkes.             This parcel, which

included waterfront property on Sebago Lake, was to be held in trust by D. Wilson

Hawkes for himself, Delmont R. Hawkes, and two others in order to allow the

property to be subdivided and developed by Clifford L. Swan Co. into “summer

and/or winter residential properties.” In July of 1955, Swan recorded a copy of the

plan for the North Sebago Shores subdivision in the Registry.

      [¶3] Over time, the subdivision lots were sold to various persons, including

the parties’ predecessors in title. In 1970, D. Wilson Hawkes executed a deed to

the Town of Sebago granting it fee simple title to the perimeter road (now known

as the Anderson Road, but then known as the Hawkes Road) and to another road

that connected the subdivision lots with state highway 114. The conveyance was

made subject to the rights of third parties to use the roads.

      [¶4]   The trust remained in existence until 1972, when it conveyed its

remaining property to D. Wilson Hawkes, Beryl Josephson, and F. Arnold
                                                                                   3

Josephson as co-partners of Hawkes Lumber Company. The Josephsons later filed

a partition action against D. Wilson Hawkes relating to several parcels of land that

they   had    held   as   tenants     in   common,    including    the   subdivision.

On December 24, 1976, as a result of a judgment in the partition action, attorneys

Sumner T. Bernstein and Charlton S. Smith acquired title, in a fiduciary capacity,

from Hawkes and the Josephsons to whatever remaining ownership interest the

co-partners had in the subdivision.

       [¶5] Shortly thereafter, in August of 1977, Bernstein and Smith executed a

quitclaim deed to Bradley Benson.          Benson’s deed included a description

of the parent parcel (i.e., the North Sebago Shores subdivision parcel as it had

existed in 1955) immediately followed by two paragraphs excepting certain land

from the conveyance. Those paragraphs state:

       Excepting, however, from the above described premises all the Arabic
       numbered lots shown on Plan of North Sebago Shores . . . but not
       excepting those lots at the Southerly end of the premises . . . marked
       “reserved” on said Plan, and designated as lots numbered I, II, III, IV,
       V and VI thereon, which said six lots are hereby conveyed to the
       Grantee.
       Also excepting that parcel of land shown as a right of way on a plan
       entitled “Map of Right of Way (1) Hawkes Road of North Sebago
       Shores Development and (2) Right of Way from said Development to
       Route #114, Me. Highway” . . . dated May 14, 1970 . . . .
       [¶6] Between 1994 and 1999, the parties to this action acquired fee simple

title to five lots within the North Sebago Shores subdivision through separate
4

chains of title: the Greenlaws own lot 40, a parcel adjoining Sebago Lake; the

Lorings own lot 41, also a lot adjoining the lake; the Sleepers own lot 71, a back

lot fronting the perimeter road; and the Roys own lots 74 and 75, also back lots.

Through their deeds, the plaintiffs, as owners of subdivision back lots, acquired an

easement consisting of a right-of-way over lot 40A, a twenty-foot-wide strip of

land situated between the defendants’ lots.      The plaintiffs’ deeds both state,

“[a]lso a right of way from the road to the shore of the lake over [lot 40A] as

shown on said plan.”




      [¶7] In November of 2007, Benson executed a quitclaim deed to lot 40A to

the defendants. The deed states that the conveyance was “[s]ubject to easements or

rights of way to access Sebago Lake to the lot owners as shown on said Plan,”

referring to the subdivision plan that had been filed by Swan in 1955.
                                                                                                      5

        [¶8] Well before Benson’s 2007 conveyance of lot 40A to the defendants,

the Sleepers had constructed a fifty-four-foot dock extending from lot 40A into

Sebago Lake. The Sleepers secured a retroactive permit for its construction from

the Town of Sebago in 1999. Eleven years later, in April of 2010, in response to a

complaint by the defendants, the Town’s code enforcement officer rescinded the

permit and ordered the Sleepers to remove the dock. The Sleepers appealed to the

Town’s zoning board, which upheld the code enforcement officer’s decision.

        [¶9] In July of 2010, the plaintiffs filed suit, challenging, inter alia, the

decision of the zoning board and the defendants’ fee simple title to lot 40A, and

seeking a declaratory judgment that they are entitled to build and maintain a dock

at the waterfront of lot 40A.1 On cross motions for a partial summary judgment,

the court found that (1) Benson’s deed was ambiguous and a triable issue existed

as to the fee simple title of lot 40A, and (2) the easement over lot 40A

unambiguously did not grant the plaintiffs a right to construct and maintain the

dock.    Accordingly, the court denied summary judgment on Count III of the

plaintiffs’ complaint and granted a summary judgment to the defendants on

Count V of the plaintiffs’ complaint. A bench trial was held in July of 2012 on

   1
      Counts I and II of the complaint, which contained the Rule 80B claims against the Town of Sebago,
were dismissed in May of 2011 because the Town rescinded its enforcement order. The plaintiffs had
also sought an injunction to prohibit the defendants from parking their vehicles on lot 40A, but did not
appeal the court’s summary judgment in favor of the defendants on that claim, found in Count IV of the
complaint.
6

Count III, at which the court heard extrinsic evidence to determine the intent of the

parties involved in the conveyance of property to Benson in 1977. After trial, the

court found that Bernstein and Smith had intended to convey their entire interest in

the parent parcel, including fee simple title to lot 40A, to Benson in 1977.

The court entered a judgment that the defendants held the fee simple title to lot

40A subject to any “rights of passage” of the back lot owners, including the

plaintiffs. The plaintiffs timely appealed.

                                 II. DISCUSSION

      [¶10]     We review the entry of a summary judgment de novo.

Cox v. Commonwealth Land Title Ins. Co., 2013 ME 8, ¶ 8, 59 A.3d 1280.

“The interpretation of a deed and the intent of the parties who created it, including

whether the deed contains an ambiguity, are questions of law,” which we also

review de novo. Lloyd v. Benson, 2006 ME 129, ¶ 8, 910 A.2d 1048.

A.    Fee Simple Title to Lot 40A

      [¶11] We begin by reviewing the trial court’s determination that the deed

from Bernstein and Smith to Benson was ambiguous. The defendants contend that

Benson’s deed is plagued with ambiguity justifying the court’s admission and

consideration of extrinsic evidence to determine the parties’ intent concerning the

conveyance of property to Benson in 1977.         Pointing to the two paragraphs

excepting certain land from the conveyance of the parent parcel, they assert that
                                                                                   7

the deed is ambiguous as to (1) whether lot 40A is an “Arabic numbered lot”

shown on the subdivision plan; and (2) whether lot 40A is part of “that parcel of

land shown as a right of way” in a referenced 1970 plan. The defendants also

argue that certain recitals following the deed description create further ambiguity

as to the grantors’ express intentions. We disagree.

      1.     Meaning of “Arabic Numbered Lot”

      [¶12] It is well settled law that, in construing a deed, we first give words

their general and ordinary meaning to determine if they create any ambiguity.

Wentworth v. Sebra, 2003 ME 97, ¶ 10, 829 A.2d 520. Benson’s deed refers to

two distinct categories of subdivision lots—those designated by Arabic numbers

and those designated by Roman numerals. The plain language of the deed reflects

that those categories were to be treated differently: the grantors expressly conveyed

the lots designated by Roman numerals to Benson, but excepted from the

conveyance “all the Arabic numbered lots.” Lot 40A is an Arabic numbered lot;

that it also includes a letter from the Latin alphabet does not, as the defendants

have asserted, transform its designation. No third category of lots is included in

the language of the deed and there is nothing in the deed that indicates that the

parties intended to create a third category. See Perry v. Buswell, 113 Me. 399, 401,

94 A. 483, 484 (1915) (stating that the “cardinal rule” for interpreting a deed is

“the expressed intention of the parties”).
8

          2.       Meaning of “That Parcel of Land Shown As a Right of Way”

          [¶13] The defendants next contend that Benson’s deed is susceptible to

more than one construction because it uses the singular form of the terms “parcel”

and “right-of-way,” while the referenced plan depicts multiple rights-of-way.

The referenced plan indeed depicts many rights-of-way, but its title unambiguously

identifies only two access roads shown on the plan and does so using the singular

form of the term “right-of-way.”2 It is firmly established that we must “look at the

instrument as a whole” to construe the language of a deed. Windham Land Trust

v. Jeffords, 2009 ME 29, ¶ 24, 967 A.2d 690. When a deed description references

a plan, the entirety of the plan becomes a part of the deed. See Lincoln v. Wilder,

29 Me. 169, 169 (1848).

          [¶14] Further, by using the singular form of the term “parcel,” Benson’s

deed unambiguously refers to a single continuous parcel of land that is not

separated by intervening land.3 The combination of the plan’s title and the explicit

quotation of that title in Benson’s deed using the singular form of the term “parcel”

    2
        The exact title of the 1970 plan reads:

        Map of Right of Way
        1. Hawkes Rd of N. Sebago Shores Development.
        And 2. Right of Way Development To Route #114 Me. Hwy.
    3
      A “parcel” is defined as “a continuous tract or plot of land in one possession no part of which is
separated from the rest by intervening land in other possession.” Webster’s Third New International
Dictionary 1640 (2002); see also Silsby v. Belch, 2008 ME 104, ¶ 12, 952 A.2d 218 (stating that a court
may resort to a dictionary to help discern the common and ordinary meaning of language in a deed).
                                                                                  9

therefore unambiguously excludes from the conveyance one continuous parcel

comprising the two roads specifically named in the title of the 1970 plan and a

small lot that connects the two roads at their intersection—and nothing more.

See Browne v. Gorman, 208 S.W. 385, 387 (Tex. Civ. App. 1918) (“nothing passes

by a deed except what is described in it”); Walter G. Robillard & Lane J. Bouman,

CLARK ON SURVEYING AND BOUNDARIES § 18.03 (LEXIS Law

Publishing, 7th ed. 1997) (same).

      3.    Meaning of the Additional Recitals

      [¶15] Finally, the defendants contend that certain recitals, which follow the

deed description and the two “excepting” paragraphs, create additional ambiguity

because they appear to convey to Benson the entirety of the title that Bernstein and

Smith acquired in 1976 as a result of the partition judgment. Those paragraphs

state, in pertinent part, (1) “Meaning and intending to convey and hereby

conveying solely those premises conveyed to the Grantors herein by

Beryl H. Josephson, F. Arnold Josephson and D. Wilson Hawkes by deed dated

December 24, 1976,” and (2) “[b]eing the same premises conveyed to the within

Grantors by deed . . . dated December 24, 1976.” However, a reference in a deed

to another deed will neither enlarge nor limit a grant when the property description

is unambiguous. See Matteson v. Batchelder, 2011 ME 134, ¶ 12, 32 A.3d 1059;

Smith v. Sweat, 90 Me. 528, 533, 38 A. 554, 556 (1897) (a “definite and certain”
10

deed description “will control a general reference to another deed as the source of

title”); Abbott v. Pike, 33 Me. 204, 207 (1851) (“Particular recitals, when used

merely as descriptive of the grant, do not limit or restrict it, when the general

language of the conveyance is intelligible and effective, without the recitals.”).

Here, because the references simply serve as a source of the grantor’s title, see id.;

see also Brown v. Heard, 85 Me. 294, 297, 27 A. 182, 183 (1893) (a “meaning and

intending” clause “is merely a help to trace the title, but cannot enlarge the grant”),

they do not cause ambiguity.

       [¶16] When interpreting a deed whose terms are not ambiguous, we do not

speculate about the grantors’ actual or probable objectives; rather, we focus on

what is expressed within the four corners of the deed. See N. Sebago Shores, LLC,

v. Mazzaglia, 2007 ME 81, ¶ 13, 926 A.2d 728; see also Perry, 113 Me. at 401,

94 A. at 484 (“The cardinal rule for the interpretation of deeds and other written

instruments is the expressed intention of the parties, gathered from all parts of the

instrument, giving each word its due force, and read in the light of existing

conditions and circumstances. It is the intention effectually expressed, not merely

surmised. This rule controls all others.”). Although Benson’s deed is complex, it

is not ambiguous, as all of its parts can coexist without raising questions about its

meaning. Viewing the instrument as a whole, the expressed intention of the parties

was to (1) convey to Benson the parent parcel, (2) except from that conveyance all
                                                                                                       11

the Arabic numbered lots and the rights-of-way held in fee by the Town, and

(3) further convey to Benson all access rights that the grantors possessed over the

rights-of-way and roadways associated with the subdivision.4 When we give each

word in Benson’s deed its due force, as we must, see Perry, 113 Me. at 401,

94 A. at 484, the plain language of the deed unambiguously excludes lot 40A from

the conveyance to Benson. Fee simple title to lot 40A thus remained in the

grantors, Bernstein and Smith, at the time of their property transfer to Benson

in 1976.

B.         The Right-of-Way

           [¶17] In 2012, during the pendency of this action, other deeds purporting to

transfer lot 40A were issued. The defendants obtained a fee simple title over

lot 40A from Smith, and the plaintiffs obtained a fee simple title over lot 40A from

Roberta J. Niehaus, the apparent sole heir of Bernstein’s clients, Beryl H.

Josephson and F. Arnold Josephson. Because the Josephsons had relinquished and

     4
         The final paragraph in Benson’s deed description reads:

         Also hereby conveying to the Grantee, his heirs and assigns, any rights which the Grantor
         may have, in common with others entitled to the use of them, for the purpose of access,
         ingress and egress between the numbered lots shown on said Plan and the Lake, the Public
         Highway, Hawkes Road and any other streets, ways or rights of way shown on said plan of
         North Sebago Shores . . . or appurtenant to the premises hereby conveyed.

The plaintiffs correctly state that there would have been no reason for the grantors to convey to Benson a
right of access over lot 40A if they had intended to grant him a fee simple interest to the lot.
See Dority v. Dunning, 78 Me. 381, 387, 6 A. 6, 9 (1886) (an easement is “extinguished by unity of title
and possession of the dominant and servient estates in the same person by the same right”).
Any contention that this paragraph is the result of overly cautious drafting is not persuasive.
12

conveyed all rights in the parent parcel in 1976 to Bernstein and Smith pursuant to

the partition judgment, and because the defendants’ conveyance came from only

one of the holders of title, the effect of these transfers is not entirely clear. There is

no dispute, however, that the plaintiffs have a right-of-way over lot 40A “from the

[peninsula] road to the shore of [Sebago] Lake.” The sole issue concerning this

grant is whether it includes the right to construct and maintain a dock.

         [¶18]   As with any other portion of a deed, “[t]he scope of a party’s

easement rights must be determined from the unambiguous language on the face of

the deed.” Matteson, 2011 ME 134, ¶ 16, 32 A.3d 1059 (quotation marks omitted).

The defendants assert that the easement over lot 40A should be interpreted to

unambiguously disallow the right to construct and maintain a dock for two reasons.

First, they claim that, because the right-of-way extends “to the shore” rather than

“to the water,” it cannot as a matter of law include the right to install a dock.

Second, the defendants note that the plaintiffs’ deeds do not explicitly mention

docking privileges.        Relying on the legal definition of “right-of-way,”5 the

defendants suggest that the plain language of the easement should be read to limit




     5
     A right-of-way is legally defined as a legal right to pass through property owned by another.
See BLACK’S LAW DICTIONARY 1326 (7th ed. 1999).
                                                                                                      13

its purpose to passing and re-passing over lot 40A.6                        These arguments are

unavailing. In examining the plaintiffs’ deeds, we conclude as a matter of law that,

although there is no uncertainty as to where the right-of-way ends, there is

uncertainty about what the right-of-way grants.

        [¶19] The trial court correctly concluded that the phrase “to the shore,”

when used as it was here, unambiguously means that the right-of-way ends at the

ordinary high-water mark of Sebago Lake.7 See generally, Knud E. Hermansen &

Donald R. Richards, Maine Principles of Ownership Along Water Bodies,

47 Me. L. Rev. 35, 54 (1995) (“[I]f the ‘shore’ or ‘bank’ is called for in a

description without mention of the water or water’s edge, it is presumed that the

high water edge . . . is what is meant.”). However, based on this finding, the court

then determined that the language unambiguously allows access only to the shore

and not to the water and, for that reason, concluded that the easement does not

“extend as far as a dock [because] the dock would reach past the shore.” Contrary

   6
       In their cross motion for summary judgment, the defendants also asserted that, pursuant to our
decision in Rancourt v. Town of Glenburn, 635 A.2d 964 (Me. 1993), the language of the plaintiffs’ deeds
unambiguously precluded a dock because the deed language granting the plaintiffs their right-of-way is
precisely the same language found in the deeds concerning all of the other back lots. DSMF ¶ 47. The
right-of-way at issue here is one shared by many back lot owners. Contrary to the defendants’ contention,
however, Rancourt does not stand for the proposition that, as a matter of law, an individual who shares a
right-of-way providing access to a body of water with others may not install a dock. Rather, we
determined in Rancourt that the plaintiff had failed to meet her burden of establishing sufficient legal
interest in the right-of-way to entitle her to apply for a permit to place a dock there. See id. at 966.
   7
      Strictly speaking, a lake does not have a “shore,” i.e., a region between high tide and low tide,
although the use of this term in a deed description does not automatically render the deed ambiguous.
See Matteson v. Batchelder, 2011 ME 134, ¶ 18, 32 A.3d 1059.
14

to the court’s conclusion, although the phrase “to the shore” is not ambiguous

when considering the geographic scope of the right-of-way here, the phrase is not

necessarily unambiguous with regard to the purpose of the right-of-way.

In Badger v. Hill, 404 A.2d 222 (Me. 1979), we discussed the “full enjoyment” of

a right-of-way to the York River:

      The achieving of access to a river, however, is generally not the entire
      purpose for which a right of way providing such access is created.
      Also involved is why it was necessary, or desirable, to be able to
      reach the river. As to this aspect of purpose, the language of the deeds
      provides no answer. Thus, the language of the deeds may be
      unambiguous so far as it goes, but it does not go far enough in
      respects that are critical to the evaluation of the full scope,
      contemplated by the parties, of the use to be made of the right of way.

Id. at 225. As was the case in Badger, the plain meaning of the words in the

plaintiffs’ deeds does not make clear the purpose of the easement.

      [¶20] When the purpose of an express easement is not clear, a court must

“ascertain the objectively manifested intention of the parties to the original

conveyance in light of circumstances in existence recently prior to the execution of

the conveyance, as well as use of the easement and acts acquiesced to during the

years shortly after the original grant.” Flaherty v. Muther, 2011 ME 32, ¶ 55,

17 A.3d 640 (internal citations and quotation marks omitted). It may do so by

considering extrinsic evidence. Id. Here, the plaintiffs presented a number of

“undisputed” facts to demonstrate that the subdivision creator intended to permit
                                                                                    15

the construction and maintenance of a dock. In their responsive statement of

material facts, the plaintiffs asserted that a dock had been constructed at the site in

1958 “for the use of the back lot owners,” that the dock was still present in the

early 1970s, that the shoreline in front of Lot 40A is rocky, and that the defendants

typically access the water on either side of Lot 40A with their own docks.

The defendants denied these assertions, and argued that, even if true, the asserted

facts did not demonstrate that the original parties intended that the right-of-way

included the right to build and maintain a dock. Because these assertions would

require a court to choose between two competing versions of the facts, a summary

judgment is precluded.       See Saltonstall v. Cumming, 538 A.2d 289, 290

(Me. 1988).

      [¶21] Additionally, if a party contends that a use is inconsistent with an

easement’s original purpose, as the defendants here assert, the trial court must

evaluate whether, in the context of the uses contemplated by the original parties,

the challenged use would overburden the servient estate.               See Flaherty,

2011 ME 32, ¶ 74, 17 A.3d 640; see also Perkins v. Perkins, 158 Me. 345, 350,

184 A.2d 678, 681 (1962) (stating that, in the absence of a specific limit on the

scope of an express easement, the grantees are entitled to a use which would

reasonably serve the purpose of the grant); Laux v. Harrington, 2012 ME 18,

¶¶ 28-30, 38 A.3d 318 (discussing our overburdening analysis).
16

C.       Conclusion

         [¶22] Because we conclude that (1) fee title to lot 40A unambiguously

remained in the grantors at the time of the property transfer to Benson and (2) the

language of the plaintiffs’ deeds is ambiguous as to the purpose of the

right-of-way, we must set aside the judgment and remand the case to the Superior

Court for trial so that it may determine whether the plaintiffs have any right to

build and maintain a dock. Finally, because there are other back lot owners within

the North Sebago Shores subdivision with an easement over lot 40A and there may

be other fee owners of lot 40A who are not parties to these proceedings and whose

interests may be prejudiced by the court’s findings on remand, the court should

determine whether additional necessary parties exist who must be joined to this

action pursuant to M.R. Civ. P. 19(a),8 and should so order.

         The entry is:

                         Judgment vacated. Remanded for further
                         proceedings consistent with this opinion.




     8
      M.R. Civ. P. 19(a) requires “joinder of all available persons who have an interest in the litigation so
that any judgment will effectively and completely adjudicate the dispute.” Ocwen Fed. Bank, FSB
v. Gile, 2001 ME 120, ¶ 14, 777 A.2d 275 (quotation marks omitted); see also Muther v. Broad Cove
Shore Ass’n, 2009 ME 37, ¶ 9, 968 A.2d 539 (“Joinder is required in circumstances where the absence of
unnamed parties would prevent a judgment from fully adjudicating the underlying dispute, expose those
who are already parties to multiple or inconsistent obligations, or prejudice the interests of absent
parties.”).
                                                                                    17

On the briefs:

        Robert S. Hark, Esq., Portland, for appellants Gary Sleeper, Ramona
        Sleeper, Richard Roy, and Holly Roy

        William H. Dale, Esq., and Mark A. Bower, Esq., Jensen Baird Gardner &
        Henry, Portland, for appellees Donald R. Loring, Marilyn P. Loring, Harry
        Greenlaw, and Anne Greenlaw


At oral argument:

        Robert S. Hark, Esq., for appellants Gary Sleeper, Ramona Sleeper, Richard
        Roy, and Holly Roy

        William H. Dale, Esq., for appellees Donald R. Loring, Marilyn P. Loring,
        Harry Greenlaw, and Anne Greenlaw


Cumberland County Superior Court docket number AP-2010-20
FOR CLERK REFERENCE ONLY
