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Bray v. Grindle
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MAINE SUPREME JUDICIAL COURT				                                    Reporter of Decisions
Decision:		2002 ME 130 
Docket:		   Han-01-470
 on Briefs:	   April 18, 2002
Decided:	   August 8, 2002

	           LEVY, JJ.

                                                       MILTON E. BRAY


                                                    DAVID M. GRINDLE


	[1]  David Grindle appeals from a judgment entered after a bench trial in
Superior Court (Hancock County, Marsano, J.), declaring the scope of Grindle's
easement across the land of Milton Bray and awarding Bray statutory trespass
damages and attorney fees.  Because the trial court awarded excessive attorney
fees and imposed more limitations on Grindle's easement than the evidence
permitted, we modify the judgment.

                                                      I.  BACKGROUND

	[2]  Bray and Grindle own adjoining parcels of land on Deer Isle.  Bray's
land, which has been in his family since the 1860s, fronts on Route 15.  Bray has
had an interest in the property since 1987, has been sole owner since 1999, and
has lived there since December 2000.  Grindle's land does not abut a public road. 
It was bought by his grandfather in 1927, deeded to his father in 1947, and deeded
to him in 1985.   Since at least the 1930s, the Grindles used an old woods road
across Bray's property (the road) as the sole way to access their land from Route
15.  Several witnesses agreed that the road was about eight to ten feet wide, with
trees right up to its edge.  It had some very swampy stretches, so that it was
passable by truck only during winter or a dry summer, and at other times only by
tractor or jitterbug (a primitive, homemade skidder).

	[3]  No one lived on the Grindle property after the mid-nineteenth century.
The gravestone of one of the last residents is dated 1832.  The Grindles used the
land primarily as a wood lot, commercially until the 1950s and for firewood
thereafter.  They also cut hay, picked berries, and "winter[ed] over a cow or
maybe two."  Grindle's father testified that the family used the land
approximately four or five times per month.  

	[4]  In 1995, the Dunham heirs, owners of a lot abutting Bray's and
Grindle's land, hired Martin Larsen to cut wood on their property.  In three
months he cut a large amount of wood and, using a skidder, dragged it out the
road to Route 15.  The ground was wet and Larsen seriously damaged the road,
leaving it muddy, deeply rutted, and impassable.  The parties disputed whether
Larsen also widened the road at its swampiest point in trying to drive over drier

	[5]  In 1996, without consulting Bray, Grindle hired Franklin Sand &
Gravel to repair the road.  At a cost of $7500, plus $750 that Grindle paid for
culverts, Franklin bulldozed and laid gravel along the length of the road, turning
it into a dry, all-weather driveway.  Some trees were cut and the road was
widened; how many and to what extent were disputed at trial.  Also disputed was
whether the new driveway was moved to higher, drier ground than the old road in
the swampy section.  In 1997 Grindle began building a house on his land.  In late
1997, Bray wrote to Grindle asking by what right he was working on the road, but
not demanding that he stop.  Grindle responded by referring to his deed, which
like his father's and grandfather's deeds made mention of a right-of-way.

	[6]  Bray filed a complaint against Grindle in 1999, seeking statutory
trespass damages and a judgment declaring that Grindle has no right-of-way across
Bray's land.  The court entered a standard-form scheduling order pursuant to
M.R. Civ. P. 16(a), requiring Bray to file within three months an expert witness
designation including "a complete statement of the information and reports
required by M.R. Civ. P. 26(b)(4)(A)(i)."  Bray never filed an expert witness

	[7]  At the one-day trial, Bray called forester David Warren as his third
witness, to provide expert testimony on the damage to Bray's property.  Grindle
objected on the grounds that Bray had never formally designated Warren as an
expert and that he had disclosed Warren's report to Grindle only two business
days before trial.  Bray argued that Grindle had notice "from the beginning" of
the case that Warren would be Bray's expert and would be reviewing the property,
which Grindle's attorney admitted was true.  Grindle argued that the figures
contained in Warren's report were far higher than he had expected and that he had
not had an opportunity to get his own expert forester to refute them.  The trial
court overruled the objection and allowed Warren to testify, although Bray agreed
he would not introduce Warren's report.  Warren testified at length on the extent
of the damage, stating that the average tree-to-tree width of the road was now
forty feet; that he counted 468 stumps with a forfeiture value pursuant to
17 M.R.S.A.  2510 (1983 & Supp. 2001) of $15,925; and that cleaning up and
restoring trees along the length of the road would cost $4252.  Grindle repeatedly
objected to this testimony, contending that all of these facts came from Warren's
report and that he was just reading from it.  The court overruled the objections,
stating that Warren was entitled to testify from his recorded recollection and that
the understanding between counsel that Warren would be Bray's expert was
sufficient to comply with the pretrial order.

	[8]  The court heard testimony from several other witnesses including
woodcutter Martin Larsen, Bray, Grindle, and Grindle's father, Milton Grindle. 
After receiving written closing arguments the court entered judgment, concluding
that Grindle had not intentionally damaged the road and had not intentionally cut
Bray's trees, because he was acting under an erroneous belief that he had a deeded
right-of-way; that pursuant to 14 M.R.S.A.  7552 (Supp. 2001) Bray was
entitled to $5000 damages for the cut trees plus costs and $3296.61 in attorney
fees; that Grindle does not have a deeded easement across Bray's land; that
Grindle has a prescriptive easement across Bray's land for purposes of intermittent
logging and berrying, limited to thirty times per year; that Bray can enforce those
limits with a locked gate, with access for Grindle only on written notice to Bray
unless the parties agree otherwise; and that Grindle does not have an easement for
utilities.  Grindle then brought this appeal.

                                               II.  EXPERT WITNESS

	[9]  Grindle argues that the trial court should have excluded Warren's
testimony as a sanction for Bray's failure to file an expert witness designation and
to disclose the substance of Warren's opinion until the eve of trial.  We have twice
found an abuse of discretion when a trial court allowed expert testimony despite
the failure to designate the expert.  Chrysler Credit Corp. v. Bert Cote's L/A Auto
Sales, Inc., 1998 ME 53,  23, 707 A.2d 1311, 1317-18; Spickler v. York, 566
A.2d 1385, 1388 (Me. 1989) (per curiam).  These cases are distinguishable,
however, because the opposing parties there were completely surprised by the
expert testimony in a way that Grindle was not.  See Chrysler Credit, 1998
ME 53,  23, 707 A.2d at 1317 (plaintiff did not know until defendant's witness
testified that he would be an expert, not just a fact witness); Spickler, 566 A.2d at
1388 (plaintiff did not designate expert until fourth day of trial).  Although Bray
did not file a formal expert designation, Grindle's attorney knew long before trial
that Bray had hired Warren as his expert.  Although the court would have been
acting within its discretion had it excluded Warren's testimony, given the fact that
Grindle was not unfairly surprised, the court was not required to exclude Warren's
expert testimony.

	[10]  Grindle argues that the court should at least have granted a
continuance, but he never asked for one.  See Pettitt v. Lizotte, 454 A.2d 329,
332-33 (Me. 1982) (finding no abuse of discretion in allowing defendant's
surprise fact witness to testify when plaintiff did not request continuance); see also
Spickler, 566 A.2d at 1388 n.1 (noting that continuance is usual remedy for unfair
surprise).  The court did not abuse its discretion in allowing Warren to testify and
to read from his report and in considering his testimony in determining the
amount of damages.

                                III.  DAMAGES AND ATTORNEY FEES

	[11]  Pursuant to the timber trespass statute, 14 M.R.S.A.  7552, the trial
court awarded Bray $5000 in damages and $3296.61 in attorney fees, plus costs.  
Contrary to Grindle's contention, the damage award is amply supported by the
record and is not clearly erroneous.{1}

	[12]  Grindle also challenges the attorney fee award, noting that under
section 7552(5), "[t]he amount awarded for professional services may not exceed
50% percent of the damages recovered pursuant to subsection 4 plus interest on
the damages."  The court exceeded the limitation in this provision by awarding
$5000 in damages, with no prejudgment interest, and $3296.61 in attorney fees. 
The attorney fee award must therefore be reduced to $2500.{2}

                                   IV.  PRESCRIPTIVE EASEMENT

	[13]  The trial court found that the Grindles' use of the road during the
prescriptive period was limited to intermittent logging and berrying.  Although
Grindle attempts an argument to the contrary, that finding is supported by the
record.  The testimony of Grindle's father as to other uses in the years before
World War II, including use as a cow pasture and hayfields, does not compel a
finding of such uses throughout the prescriptive period.  

	[14]  The court also concluded that Grindle's easement is limited to the
same use, intermittent logging and berrying.  The court relied on the general rule
that "an easement acquired by prescription is limited by the character of the
prescriptive use."  MacKenna v. Inhabitants of the Town of Searsmont, 349 A.2d
760, 762 (Me. 1976); see also Restatement of Property  477 (1944) ("The
extent of an easement created by prescription is fixed by the use through which it
was created.").

	[15]  The rule is more complicated than that simple statement suggests,
however.  "Since no use can ever be exactly duplicated, some variation between
the use by which a prescriptive easement was created and the uses made under it
after its creation is inevitable.  The problem is to ascertain the limits of
permissible variation."  Restatement  478 cmt. a.  The Restatement, which is
consistent with our caselaw, adopts a multi-factor test:

In ascertaining whether a particular use is permissible under an
easement created by prescription a comparison must be made between
such use and the use by which the easement was created with respect

(a) their physical character,

(b) their purpose, [and]

(c) the relative burden caused by them upon the
servient tenement.

Restatement  478, cited in Pace v. Carter, 390 A.2d 505, 508 (Me. 1978).
The general principle underlying these factors is that "a use made under a
prescriptive easement must be consistent with the general pattern formed by the
use by which the easement was created."  Restatement  478 cmt. a.
	[16]  An additional factor is relevant in cases like this one:

In ascertaining whether a particular use is permissible under an
easement appurtenant created by prescription there must be
considered, in addition to the factors enumerated in 478, the needs
which result from a normal evolution in the use of the dominant
tenement and the extent to which the satisfaction of those needs
increases the burden on the servient tenement.

Restatement  479.  This factor accords with our holding in Gutcheon v.
Becton, 585 A.2d 818, 822 (Me. 1991), that "[i]n order to remain useful to the
dominant estate it serves, a prescriptive right of way must encompass some
flexibility of use, and adapt to natural and foreseeable developments in the use of
the surrounding land."

	[17]  In Gutcheon, the plaintiffs accessed their six respective lots on Deer
Isle, and nonparties accessed three adjoining lots, by a road over the defendant's
land.  During the prescriptive period there was a residence on one of the six lots
and a summer cottage on one of the nonparty lots; the rest of the dominant parcels
remained undeveloped woodlots and pasture.  We affirmed a finding that the
plaintiffs' prescriptive easements included the right to access all of their lots for
residential purposes, holding that 

not all changes in the uses made of the dominant estate, such as the
conversion of formerly undeveloped property to residential use, will
result in a per se overburdening of a prescriptive right of way when
the change does not manifest itself in some greater independent
burden on the servient estate.

Id. at 822.  Since the defendant could not see the road from his house and there
was no evidence that increased traffic would cause significant noise or other
problems, the use of the road for residential purposes was a "natural and
foreseeable development[ ]" that did not "unreasonably or unforeseeably interfere
with the enjoyment of the servient estate."  Id.

	[18]  Here, the trial court made no explicit findings on whether any uses
by Grindle in addition to intermittent logging and berrying would be permissible
under Gutcheon and sections 478 and 479 of the Restatement.  In limiting
Grindle's easement to intermittent logging and berrying, the court presumably
made an implicit finding that no additional uses would be permissible.  The
evidence presented at trial, however, was insufficient for the court to find for
either party on this issue.  That evidence focused on the use of the road during the
prescriptive period and the damage caused by Grindle's 1996 improvement of the
road, rather than on the future use proposed by Grindle and the effect of such use
on Bray.  From Grindle's testimony that he was building a house on his property,
did not presently intend to run utilities to it, and owned and resided in another
house on Deer Isle, it is impossible to determine whether he sought to use the road
to access the new house on a year-round, daily basis or only seasonally or
intermittently.  It follows that there was insufficient evidence to decide whether
increased use by Grindle would be a natural and foreseeable development and
whether it would unreasonably burden the enjoyment of the servient tenement by
Bray, who testified that he could not see the road from his house but could hear
vehicles on it.

	[19]  Based on its finding of the use during the prescriptive period, the
trial court correctly declared that Grindle has an easement across Bray's land for
intermittent logging and berrying.  On this record, however, the court should have
declined to go beyond that basic declaration.  Cf. Markley v. Semle, 1998 ME 145,
 20, 713 A.2d 945, 950 (affirming trial court's refusal to declare boundary
because of insufficient evidence).  We therefore modify the judgment to remove
the declaration that Grindle's prescriptive easement is limited to intermittent
logging and berrying.  We also remove the declaration that Grindle has no
easement for utilities; although Grindle testified that his land had never had
electric power and he could not afford to install it, the issue of utilities is so bound
up with the question of whether Grindle has an easement for residential use that it
should not be decided separately.

	[20]  Finally, because Grindle may have an easement of greater scope than
just intermittent logging and berrying, we modify the judgment to remove the
provisions that limit his use to thirty visits per year, allow Bray to erect a locked
gate, and require Grindle to give written notice before using the road.  We need
not decide whether such provisions might be warranted if a court in a future
action finds limits on the scope of Grindle's easement.  But cf. Gutcheon, 585
A.2d at 822 ("It is well settled that a mere increase in the volume of traffic across
the access road will not constitute a per se overburdening.").  Nothing prevents
either party from bringing such a new action because a declaratory judgment has
preclusive effect in a subsequent action only as to the matters actually declared. 
Markley, 1998 ME 145,  22-23, 713 A.2d at 951 (Dana, J., concurring);
Restatement (Second) of Judgments  33 (1982).

	The entry is:

Judgment modified to reduce attorney fee award to
$2500 and to declare that defendant Grindle has a
prescriptive easement across the land of plaintiff Bray
for purposes of intermittent logging and berrying and, as
so modified, affirmed.


Attorney for the plaintiff:

Ellen S. Best, Esq. 
P.O. Box 386 
Blue Hill, Maine 04614

Attorney for the defendant:

Christopher J. Whalley, Esq.
P.O. Box 516
Ellsworth, Maine   04605 

FOOTNOTES******************************** {1} . Indeed, if the court had accepted Warren's testimony in its entirety, the statute would likely have permitted it to award substantially greater damages, see 14 M.R.S.A. 7552(3)(B), (4)(A) (damages may include forfeiture for cut trees pursuant to 17 M.R.S.A. 2510 plus costs of regeneration, doubled if violation is negligent or without fault), but we need not decide this because Bray has not cross-appealed. {2} . Grindle's other arguments concerning the award of damages, fees, and costs do not merit discussion.