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Hennessy v. Fairley
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 76
Docket:	Han-01-585
Argued:	March 5, 2002
Decided:	May 6, 2002




	[¶1]		William Fairley appeals from a judgment entered in the Superior
Court (Hancock County, Marsano, J.) rejecting a referee's report that Francis
Hennessy's version of a disputed boundary line was correct.  For the reasons
stated in the opinion, we vacate the judgment of the Superior Court and
remand to the Superior Court for a remand to the referee for a clarification.  
	[¶2]		This case concerns a disputed boundary line on the southwest
point of Eagle Island in Penobscot Bay.  The Fairley family acquired their
property in 1929{1} and their deed, identical to others back to 1884, describes the
property as follows:
Beginning at stake and stones at the shore; thence running
southwesterly about sixty rods to stake and stones on the opposite
shore; thence by shore and as the shore runs, to the first
mentioned bound and containing two acres more or less with the
buildings described thereon.  The above described land is on the
southwest end of Eagle Island, being the northwest corner on the
southwest end.
Hennessey acquired the abutting property in 1980 from Edith Quinn;  his deed
"except[s]" the Fairley property, and uses the preceding description to delineate
the Fairley land. 
	[¶3]		Hennessy filed a complaint in July of 1998 claiming that a fence
on Fairley's lot is the true boundary between the properties. Fairley
counterclaimed that the deed should control a determination of the boundary,
and locates it east of the fence line running from the northern shore to the
southern shore at a distance of 60 rods.  Alternatively Fairley claimed that the
land between the fence and his proposed line had been acquired through
adverse possession.  
	 [¶4]	At the parties request, the Superior Court (Hjelm, J.) appointed a
referee pursuant to M.R. Civ. P. 53.{2}  The hearing before the referee commenced
in July of 2000; both counsel stipulated as to the dismissal of "adverse
possession claims arising after 1980."  The referee heard the following evidence.
	[¶5]		Neither of the "stake and stones" described in the Fairley deed
could be located.  Raymond Eaton, a surveyor familiar with Eagle Island,
testified that the Fairley deed was "ambiguous."   Eaton first looked for the
"stake and stones monuments" but could not find them.  He then examined
the "distance" but concluded that he could not use the distance of 60 rods
because of "erosion." He went outside the deed to assess original intent,
examining historical texts and concluding that when James Quinn conveyed
the future Fairley lot to his daughter Ada, he intended to convey two acres.  
Eaton also drew a southwesterly line of 60 rods, and used a spot close to a
spring on the northern shore as an "arbitrary" starting point.  This line
produced a Fairley lot of approximately four acres.   Eaton concluded that the
60 rod line (approximately 990 feet) did not comport with the deed because "it's
excessive . . . it does not agree with what I believe the intent to be.  And the
intent was two acres."   Eaton testified that although Fairley claimed
ownership of the high tide path and spring, "we who know Eagle know that we
all use everything anyway . . . we wander the island."
	[¶6]		During cross-examination Eaton testified that the measurement
of the fence was about 611 feet, which did not fulfill the description in the deed
of 60 rods, i.e., 990 feet.   Eaton postulated that the fence line could have been
990 feet at one time, but that erosion could have reduced it to 611 feet: "When
I considered the time period of 108 years and the fact that it involved two
shores and it would have yielded a number something like 1.7 feet of erosion
per year.  But I've seen examples where you can lose 10 feet due to erosion in
one storm. . . ."    Eaton concluded that: "The fence line or what's left of the
fence line delineates on the face of the earth where the property line was meant
to be." 
	[¶7]		Stanley Plisga examined the deeds for Fairley. As a surveyor
Plisga relies on the descending order of priorities and stated that the "call for
area necessarily has to come at the bottom of the list because it's a quantity
that [is] derived based on the measurements associated with the property."   
Because the monuments were missing, Plisga expounded on the call of a
"southwesterly" direction--the presumption "given the date of [the] deed," is
that "southwesterly" was a "magnetic call [and] in its true sense, southwesterly
would mean south 45 degrees west."   Plisga testified that the distance of 60
rods had some uncertainty associated with it, yet the fence line distance of 611
feet did not satisfy the call of the deed--such a difference satisfied Plisga that
"the boundary is not the fence."   Plisga opined that the fence was "probably
built to keep out animals" and that a determination of the acreage in 1880
would have been "a very challenging undertaking . . . [b]ecause the actual
shoreline is very irregular [versus] if a parcel was rectangular or square in
shape, it's a very easy operation to compute the area."   
	 [¶8]		Plisga compared an 1873 United States Geological Survey map
with a map reflecting the current shoreline and concluded "that there has not
been 300 feet of erosion on the southwesterly end of that point."   The
southwesterly end as Plisga observed it is "a fairly steep, rugged, rock coastline
in that area of fairly solid granite . . . the major erosion that seems to have
taken place on the island was in areas where there were dirt banks."   When
asked where the boundary should be located on the property, Plisga recited the
deed that it should "run in a southwesterly direction, and it should be 60 rods
in length," regardless of whether it encompasses two acres; thereby the fence
could not be the boundary line.   A boundary line drawn from the spring should
be drawn "south 45 degrees west based on magnetic north in 1880," which
comes "pretty darn close" to 60 rods.   While the line drawn from the spring
complies with the deed, "[t]he only thing we can't do is nail down exactly where
it starts." 
	[¶9]		James Fairley came to the island in 1930 and recalled that his
father erected the fence to keep out sheep.   Fairley testified that his family
used the spring for drinking water and are the only persons who have
maintained it.  Fairley could not remember "anybody coming up [the high tide
path] except in connection with our property" and that he had never observed
anyone using the land on the east side of the fence on a regular basis in
seventy years. 
	[¶10]		William Fairley, the youngest of the three brothers, came to the
island in 1939, and testified that his first memory of the fence dated to 1951,
when the fence was in "disrepair." The family often used the land beyond the
fence toward the Hennessy property to frequent the long spurs of rock on the
southwest coast, so his mother could sit on the grassy knolls to write and to
pick raspberries.    He had never seen the Hennesseys camping in the area and
always understood that the disputed area east of the fence was Fairley land,
"[a]nd to be more specific the spring [and high tide path] were unquestionably
our property."   Fairley acknowledged that he had received tax bills for two
acres and conceded that many people on the island used the clam flat below
the high tide line and picked berries in the disputed area.  Also, there had been
some timber cutting around 1962 in "maybe a fifth" of the area where the
family picnicked and picked raspberries. 
	[¶11]		Hennessy came to the island in 1967 and related that between
1967 and 1980  "we picnicked many, many, many times every year, every
summer with friends, with relatives, with children," in the disputed area. 
Robert Quinn, a caretaker for the Fairleys since the late 1960's, testified that
he had never seen any of the Fairleys camping or hiking in the disputed area,
although he was not in a position to "testify in detail" about the extent to
which the Fairleys used the disputed property.  He observed that the owners
before the Hennessys, the Quinns, used the property up to the fence line;
"Jimmy started cutting wood there to build his house," and there was timber
cutting in the early 1960's.   Quinn acknowledged that the Fairleys had
regularly maintained the spring and routinely asked Quinn to clean it; also, he
was not aware of anyone other than Fairley who maintained the high tide
	[¶12]		The referee issued the report of findings of fact and conclusions
of law in March of 2001.   The referee determined that the deed contained a
"latent ambiguity" because the stake and stones markers had not been located,
so turned to the standard rules of construction to determine the intent of
parties to the deed: (1) Because the stake and stones were not located, the
monument call could not be met; (2) The course call of southwesterly could
mean "southwest, west-southwest or south-southwest," and because there is
no starting point, "there are an infinite numbers of lines that could be drawn
on a due southwest course."  Moreover, Fairley's version of the boundary line
would result in a parcel of "four to five acres" which more than doubles the
acreage called for in the Fairley deed; (3) The distance call of 60 rods,
approximately 990 feet, could not "solely" determine the boundary dispute--the
fence line would have been 709 feet when "measured from its north end at
present."  The referee found that there "does not appear to have been much
erosion . . . at the northern end of the fence";  (4)  The quantity call was also
indeterminable because "there has clearly been erosion in the area of the parcel
in front of the Fairley house[,] thus the quantity of land within the fence area
at this time is clearly somewhat less than what it would have been in 1884."  
	[¶13]		Because the referee concluded that the descending priority rule
would produce an "absurd result" he examined the adverse possession claims. 
The referee stated, "[d]uring the course of the hearing, counsel for the parties
stipulated to the dismissal of any claims of adverse possession during the
period from 1980 to the date of the hearing";  the pre-1980 evidence illustrated
that the Fairley use of the spring and high tide path met all the elements of
adverse possession, while the use of the land south and east of the fence line
did not.  The referee concluded that the boundary line began 
at the northwesterly side of a tiled spring located on the easterly
end of the Cove at the southern end of Eagle Island, thence
bearing southwesterly to a point on the opposite shore at the
southern end on an existing fence line and then returning to the
point of origin along the southerly end of said Eagle Island.
	[¶14]		Shortly thereafter Fairley moved to reject the report of the referee.  
A hearing on the motion was held in June of 2001 and the Superior Court
issued an order on the motion to reject the report two months later. 
	[¶15]		First, the court decided not to adopt the referee's factual findings
because "the Referee acceded to the stipulation of the parties respecting
adverse possession after 1980, [thus] this Court finds the report is clearly
erroneous."  The court declared pursuant to Rule 53(e) it would "modify" the
report and then found that Fairley had not established a claim of right to the
land east of the fence or the spring and high tide path area.{3}   The court
concluded that judgment must be for Hennessy and that the boundary
followed the fence line.   Fairley appealed the decision to this Court.  
A.  The Rejection of the Report
	[¶16]		Fairley contends that the Superior Court should have accepted
the stipulation (that the parties would not present evidence to support a claim
of adverse possession from 1980 to the present) so that it was clear error for
the court to reject the report based on its finding that Fairley presented "no
evidence of activity within the last 20 years on the disputed parcel."
	 [¶17]	The use of referees is provided for because "reference relieves
justices of the Superior Court from the necessity of conducting the trial and
requires only that they consider the acceptance or rejection of the referee's
report and the entry of judgment."  Bruk v. Town of Georgetown,{4} 436 A.2d 894,
896 (Me. 1981).   A referee's report that finds facts and makes legal conclusions
without error has a consummating effect once it is accepted and a judgment is
entered by the court: "Rule 53 has not changed the well-established principle
that the referee's finding is final if supported by credible evidence and not
otherwise erroneous as a matter of law."  Wendward Corp. v. Group Design,
Inc., 428 A.2d 57, 61 (Me. 1981).  The scope of review of a report is "limited,"
see Field, McKusick & Wroth, Maine Civil Practice § 53.4 at 701 (2d ed. 1970),
that is, "[t]he Superior Court is required to accept the referee's factual findings
on these issues unless they are clearly erroneous." Walker v. Provost, 566 A.2d
749, 750 (Me. 1989) (emphasis added).
	[¶18]		If the Superior Court "modifies" the referee's report, we review the
evidence to see whether it supports the referee's finding, or the court's
modification.  See, e.g., Wendward Corp., 428 A.2d at 61 (because the evidence
supported the referee's finding that the "disputed expenses were caused by
defendants' negligence," rather than the court's modification that the costs
would have occurred irrespective of defendants' negligence, the Superior Court's
modification was "in error").  When the Superior Court accepts the findings of
fact of the referee but modifies the report by ordering a different remedy, we
have stated, "[b]ecause the court's judgment is based on the referee's report, we
review directly the decisions of the referee."  Phillips v. Gregg, 628 A.2d 151, 152
(Me. 1993).    In the present case, the court rejected the report and decided the
case de novo by making factual findings and reaching legal conclusions.   The
Superior Court "rejected" the referee's report as "clearly erroneous" because the
referee accepted the stipulation about adverse possession past 1980.   However,
the court may find the report, or parts thereof, "clearly erroneous" only when
the factual findings are unsupported by the record; accepting a stipulation is
not an erroneous factual finding.   
	[¶19]		Clearly, "a stipulation should be adhered to unless it becomes
apparent that it may inflict a manifest injustice upon one of the contracting
parties," or the agreement was made by apparent mistake.  MP Associates v.
Liberty, 2001 ME 22, ¶ 29, 771 A.2d 1040, 1049.   Neither party argues that the
stipulation should be examined for injustice or mistake.  We have  recognized
the legality and binding effect of an agreement to foreclose adjudication of an
issue before a referee.  See Thornton v. Estate of Cressey, 413 A.2d 540, 543 (Me.
	[¶20]		In the present case, because the court rejected the entire report
as "clearly erroneous" at the outset, it did not explicitly assess the referee's
interpretation of the law.  Although the Superior Court initially had the option
of rejecting or accepting the report, the court's rejection was improper because
it was based on an erroneous reason--the court did not point to any clearly
erroneous factual findings.  Nor do the parties argue on appeal that the referee
found facts in clear error.

B.  The Referee's Assessment of the Deed

	[¶21]		We next examine the referee's report for errors of law.  A
determination of a boundary between properties "as ascertained from a deed is
a question of law[;] [w]here [a boundary] is on the face of the earth is a
question of fact," which will not be disturbed unless clearly erroneous. 
Wallingford v. Kennedy, 2000 ME 112, ¶ 15, 753 A.2d 493, 497 (quoting Lawton
v. Richmond, 1997 ME 34, ¶ 9, 690 A.2d 953, 955).    Typically the face of the
deed is examined to reveal the intent of parties, unless facts outside the deed
reveal a latent ambiguity--then the "standard rules of construction and
circumstances surrounding the drafting of the deed" are used to resolve the
issue of intent.  Wallingford, 2000 ME 112, ¶ 15, 753 A.2d at 497.   "Unless
application of the standard rules of construction would yield absurd results or
results manifestly inconsistent with the intention of the parties to the deed,
the rules require that boundaries be controlled in descending order or priority
by monuments, courses, distances and quantity."  Id.  ¶ 18.
	[¶22]		We have recognized that "the physical disappearance of a
monument terminates its status as a boundary marker unless its former
location can be ascertained through extrinsic evidence."  Milligan v. Milligan,
624 A.2d 474, 478 (Me. 1993).   In the case before us, it is undisputed the
stakes and stones identified in the Fairley deed are missing, and that no
extrinsic evidence was presented to establish their location.   Although it is
possible to locate "an ambiguous or unknown starting monument by
measuring a known course backward from the terminus of the first call," 
Taylor v. Hanson, 541 A.2d 155, 158 (Me. 1988),  the missing "stake and stones"
described in the Fairley deed were both the beginning and the terminus of the
first call, so there is nothing to measure back from to locate the starting point.  
	[¶23]		The referee correctly found that the course and distance could
not define the boundary line.  While the course and distance are specific on the
face of the Fairley deed, the only thing that can give these calls any context or
application are the missing monuments.   Fairley's proposed boundary line
from the spring, which happens to be about 60 rods and runs in a
southwesterly direction, would be legitimate only if the spring were identified
as a monument.  Because the spring is not so identified, it cannot be used as a
starting point.  The quantity measurement of two acres also cannot be
controlling because of erosion over the last hundred years.  Thus, the referee's
report did not err in its understanding of the legal principles guiding deed
interpretation.   Because a boundary line could not be located from the deed,
the referee turned to the adverse possession claims to assess whether a
boundary could be established by assessing what land the parties used.  In
doing so, the referee did not err as a matter of law.

C.	The Referee's Assessment of Adverse Possession

	[¶24]		Fairley contends that he adversely possessed the land east of the
fence, as well as the spring and high tide path, while Hennessy argues the
Fairleys were on the island only a couple of weeks of the summer so did not
establish the kind of use necessary to establish adverse possession.
	[¶25]		We will uphold a determination of adverse possession if
"supported by credible evidence in the record."  Striefel v. Charles-Keyt-Leaman
Partnership, 1999 ME 111, ¶ 7, 733 A.2d 984, 989.  A party claiming title by
common law adverse possession{6} must "prove by a preponderance of the
evidence that [his] 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) of a duration exceeding the twenty-year
limitations period." Id. ¶ 6 (internal quotation marks omitted).  
	[¶26]		Upon giving due regard to the referee's ability to assess the
credibility of witnesses and weigh the evidence, we conclude that the referee's
finding that Fairley owns the spring and high tide path is supported by the
evidence.  The systematic maintenance of the spring and use of the high tide
path, in addition to the other evidence, fulfills the criteria for adverse
possession for that land.   For the rest of the land east of the fence, the referee
did not err in concluding the elements of adverse possession were not met.  
	[¶27]		Although the referee determined that Fairley owns the spring, the
spring cannot then be substituted for a "stake and stones" as a monument.  
Once it is determined that the deed cannot locate the boundary line according
to requisite legal standards, the deed loses its efficacy in the determination of
the boundary dispute.  While the words of the Fairley deed are comprehensible,
its instructions cannot be manifested in the world without the monuments.
The referee thereby determined the boundary line by figuring out what Fairley
owns--instead of using the deed to define the line, the only option was to use
Fairley's ownership by adverse possession to locate the boundary.  Although
the referee did so in broad terms, those terms are insufficient to establish the
line on the face of the earth.
	[¶28]		Therefore, we remand for the referee to clarify the boundary line.  
The line should be drawn according to what the referee determined Fairley
owns, i.e., the spring and high tide path area, as well as the land up to the
fence.  As currently written, the line starts at the "northwesterly side of tiled
spring . . . ."  However, this excludes the spring from Fairley's possession and
is inconsistent with the referee's finding that Fairley owns the spring by
adverse possession.  Further, the boundary line drawn by the referee does not
extend to the shore.
	The entry is:
Judgment vacated and remanded to the Superior
Court to remand to the referee for clarification.

Attorneys for plaintiff: Timothy J. Bryant, Esq. Roy T. Pierce, Esq. (orally) Preti, Flaherty, Beliveau, Pachios & Haley, LLC P O Box 9546 Portland, ME 04112-9546 Attorney for defendant: George C. Schelling, Esq. (orally) Kristin D. St. Peter, Esq. Gross, Minsky, & Mogul, P.A. P O Box 917 Bangor, ME 04402-0917
FOOTNOTES******************************** {1} . Ada Raynes conveyed a parcel to Lincoln Fairley; Margaret Fairley conveyed the land to William Fairley as trustee of the "Fairley Point Trust" in 1975. {2} . The reference by agreement does not indicate any waiver of the parties right to object to the acceptance of the referee's report. See M.R. Civ. P. 53(e)(2). In pertinent part Rule 53(e) provides: In an action where there has been a reference by agreement, the referee's conclusions of law and findings of fact shall be subject to the right of the parties to object to acceptance of the referee's report. On waiver by all parties of the right to object to acceptance of the referee's report, the court shall forthwith enter judgment on the referee's report. M.R. Civ. P. 53(e) (1999). {3} . The court acknowledged that the scope of use of the spring and high tide path could mean Fairley has a right to walk to and from his property on the high tide path and use the water from the spring; however, Fairley needed to request a hearing on the matter. {4} . Fairley, in his brief, relies on Bruk, 436 A.2d at 894, to contend that the Superior Court should have conducted an "identical review" of the same materials as the referee, arguing, "[when] called upon to accept, reject, or rule upon objections to the referee's report, the presiding Justice must conduct an identical review." However, Fairley takes the foregoing quote out of context and misunderstands its meaning. In Bruk, we did not endorse an "identical review" but rather pointed out that the use of a referee in an appeal from a zoning board decision was inappropriate. Id. at 896. We stated: The use of a referee in such cases contributes neither to the efficiency nor expedition, and the Superior Court justice is not relieved of any function. The referee conducts a record review. When called upon to accept, reject, or rule upon objections to the referees report, the presiding justice must conduct an identical review. Id. {5} . In Thornton, the pretrial order deferred the issue of adverse possession and we recognized that the agreement removed the issue from the referee's cognizance. Thus, in Thornton, the Superior Court should have rejected the part of the referee's decision that decided, in error, the issue of adverse possession (the mistake, though, was harmless). Thornton, 413 A.2d at 543, 546. {6} . If the parties do not claim adverse possession pursuant to statute, the common law applies. Striefel, 1999 ME 111, ¶ 5, 733 A.2d at 989. Here, neither party claimed adverse possession pursuant to statute.