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Markley v. Semle
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Decision:	1998 ME 145
Docket:	Yor-97-134
   on Briefs:	December 23, 1997
Decided:	June 10, 1998

Concurring:	ROBERTS,  RUDMAN, and DANA, JJ.

JOHN E. MARKLEY, et al. v. SCOTT B. SEMLE, et al.


	[¶1]  The plaintiffs, John and Mary Markley, appeal from the judgment
entered in the Superior Court (York County, Fritzsche J.) in favor of the
defendants, Scott and Debra Semle.  The Markleys contend, inter alia, that
the court erred in concluding that they had failed to prove by a
preponderance of the evidence the location of the common boundary
between their property and the Semles' property.  Finding no error, we
	[¶2]  The Markleys and the Semles own adjoining parcels of land in
Hollis.  The Markleys initiated this action pursuant to the Declaratory
Judgments Act, 14 M.R.S.A. §§ 5951-5963 (1980), seeking, inter alia,  a
judgment declaring the location of the common boundary between their
property and the Semles' property.  The Semles counterclaimed,
requesting, inter alia, that the court "[d]etermine the true boundary line
between the property of the Defendants and Plaintiffs."  
	[¶3]  During the three-day bench trial, the parties introduced over
120 deeds into evidence.  The Markleys presented the expert testimony of
Walter Dunlap, a professional land surveyor, whose testimony required
almost two days.  Dunlap opined that he had identified the rock wall that is
the common boundary between the Markleys' and the Semles' properties. 
The Semles did not present a competing expert, choosing instead to cross-
examine Dunlap extensively.  At the conclusion of the trial, the court took
the matter under advisement.  The court subsequently concluded that it "is
unable to adequately locate the common boundary between the land of the
plaintiffs and the land of the defendants," and it entered a judgment in favor
of the Semles on the Markleys' complaint.  Noting that the Semles did not
pursue their counterclaim at trial, the court entered a judgment in favor of
the Markleys on that counterclaim.  The Markleys and the Semles both
appealed from the court's judgment.  The Semles, however, have not
pursued their cross appeal.         
	[¶4]  In a boundary dispute, "what the boundaries are is a question of
law, but the location of the boundaries on the face of the earth is a question
of fact."  White v. Zela, 1997 ME 8, ¶ 3, 687 A.2d 645, 646.  The Markleys
and the Semles do not dispute what constitutes their common boundary;
rather, they dispute the location of that boundary on the face of the earth.{1} 
The trial court concluded, without setting forth its factual findings, that the
evidence failed to establish the location of the common boundary.  Pursuant
to M.R. Civ. P. 52(a), "[i]n all actions tried upon the facts without a jury . . .
the Superior Court justice . . . shall, upon the request of a party made as a
motion within 5 days after notice of the decision, . . . find the facts specially
and state separately its conclusions of law thereon."  If a party does not
move for specific findings of fact, we assume "that the trial court found all of
the facts necessary to support its decision."  Mariello v. Giguere, 667 A.2d
588, 591 (Me. 1995).  Generally, we review the trial court's implicit factual
findings for clear error.  See Board of Overseers of the Bar v. Sylvester, 650
A.2d 702, 704 (Me. 1994).  However, when factual findings, albeit implied,
are adverse to the party with the burden of proof, we will reverse them only
when the record compels a contrary conclusion.  See Falvo v. Pejepscot
Indus. Park, Inc., 1997 ME 66, ¶ 10, 691 A.2d 1240, 1243.
	[¶5]  We have stated that "[a]n action for declaratory judgment is an
appropriate vehicle for establishing rights in real property."  Hodgdon v.
Campbell, 411 A.2d 667, 669 (Me. 1980).  In a declaratory judgment action,
"the allocation of the burden of proof . . . must be determined by reference
to the substantive gravamen of the complaint.  The party who asserts the
affirmative of the controlling issues in the case, whether or not he is the
nominal plaintiff in the action, bears the risk of non-persuasion."  Id. at 670-
71.  "In an action to establish a boundary line, the party asserting a specific
location of such a line bears the burden of presenting credible evidence to
establish that location."  Ollison v. Village of Climax Springs, 916 S.W.2d
198, 203 (Mo. 1996) (en banc) (citations and quotations omitted); cf.
Hodgdon, 411 A.2d at 671 (stating that in a quiet title action the party
seeking a declaratory judgment bears the burden of proving "better title
than that of the defendant"); Chappell v. Donnelly, 439 S.E.2d 802, 805
(N.C. Ct. App. 1994) (stating that in a quiet title action the plaintiff bears the
burden of establishing the on-the-ground location of the boundary lines that
he or she asserts). 
	[¶6]  In this case, the Markleys bore the burden of proving the
location of the boundary line that they urged the court to adopt.  The court
concluded that they had failed to satisfy their evidentiary burden because
"there are too many ambiguities and uncertainties in the various deeds to
allow me to have adequate confidence in the correctness of any common
boundary I might find."  The court explained generally that
[t]he difficulty in establishing a precise boundary comes from many
factors.  The land is deep in the woods and there has been no
compelling need for precision in the past.  The deed descriptions
have changed markedly over the years.  Former monuments of trees,
stakes and the like disappear over time.  The Hollis-Waterboro town
line, which formed the earliest westerly boundary of the plaintiffs'
parcel, is not currently known.  Former deeds and surveys may have
contained several errors.
The Markleys did not request findings of fact pursuant to Rule 52(a) before
initiating this appeal.  We therefore must assume that the court found those
facts necessary to support its conclusion that the location of the boundary
line was not determinable from the evidence presented.  See Mariello, 667
A.2d at 591.  We may vacate the court's judgment only if we find that the
evidence compelled a contrary conclusion.  See Falvo, 1997 ME 66, ¶ 10,
691 A.2d at 1243.  
	[¶7]  We conclude that the evidence presented in this case, although
voluminous,{2} did not compel the trial court to conclude that the common
boundary between the Markleys' property and the Semles' property may be
located on the face of the earth.
A. Inconsistent Deed Descriptions
	[¶8]  The Markleys claim title to their property pursuant to a deed
from Richard Hobson.  That deed describes the Markleys' property as a
three-sided parcel:  
[b]eginning at two crotched white oak trees near land formerly owned
by Nahum Thompson, thence running westerly 40 rods to land of
Heirs of Benjamin Day, thence Southerly by said Day land about 70
rods to land of Heirs of Joseph L. Benson, thence by said Benson heirs
land to the place of beginning.
Dunlap testified that the Hobson-Markley deed is "deficient . . . in terms of
its specificity.  It does give us clues as to where to place it . . . and given
ancillary information and background information for placing it, it is possible
to place it, but on its face, it's very difficult to tell the dimensions or the
location . . . of the parcel."    
	[¶9]  The description set forth in the Hobson-Markley deed is
substantially similar to the descriptions set forth in several other deeds in
the property's chain of title:  the 1913 deed from William Hobson to Ralph
Hobson; the 1897 deed from Violet Benson to William Hobson; and the 1893
deed from John Linscott to Violet Benson.  However, the 1827 deed from
James Gillpatrick to Joseph Linscott contains a different description, one
that describes a six-sided parcel:  
begining [sic] at an oak at Daniel Johnsons [sic] corner, thence runing
[sic] South forty five and one half degrees West twenty four rods to a
yellow oak, thence south eight degrees west, fifty two rods to a stake,
thence Northeast forty two roads to an oak, thence southeast five rods
to a white oak, thence Northeast fifteen rods to an oak stake, thence
to the first mentioned bounds . . . .  
In contrast, the 1806 deed to James Gillpatrick from the Town Proprietors,
the original deed in the Markleys' chain of title, describes a four-sided
[b]eginning at the W. corner of lands of Joseph Linscott's land on
Waterborough line running N. 11 1/2 W. 50 rods to lands of James
Johnson's [sic], thence N.E. about 30 rods to lands of Carrol Tarbox,
thence S.E. about 40 rods to the N. corner of said Linscott's land,
thence S.W. 45 rods to Waterborough line . . . .
Dunlap testified that he did not believe that the Proprietors-Gillpatrick deed
described the same tract of land as did the Gillpatrick-Linscott deed.   
	[¶10]  In his "Surveyor's Report," Dunlap described the deeds in the
Markleys' chain of title as containing "substantial and unexplained variation
in the language."  According to Dunlap's report:
[i]t has been said that the early settlers marked off their claims and
received subsequent deeds from the Proprietors, thus lending a great
amount of weight to the position of stone walls which may well have
pre-dated the deed language and by which the settlers actually
expected to claim.  It is helpful in this case to note the pattern of walls
which conform in many respects to the deed from Gilpatrick [sic],
upon which this survey is based.  The deed from the Proprietors
seems to indicate a rectangle of larger acreage and the loss of this
pattern cannot be explained.
Dunlap noted that he had relied upon stone walls in his analysis as
"corroborative evidence of where the boundaries lie."  He testified, however,
that stone walls had purposes other than demarcating property boundaries;
for instance, they sometimes were used by a single owner to delimit his or
her holdings for certain uses.  None of the deeds in the Markleys' chain of
title contain any references to stone walls.
	[¶11]  Dunlap testified that he was unable to locate physically any of
the monuments referenced by the Gillpatrick-Linscott deed.  Each
reference in that deed is to a monument that no longer exists; the deed
makes no reference to abutters.  He nevertheless believed that he had
discerned the location of the former oak at Daniel Johnston's corner. 
During cross-examination, however, Dunlap acknowledged that as of June
30, 1827, the date of the transfer from Gillpatrick to Linscott, Daniel
Johnston did not own the property at which Dunlap had pinpointed the
location of the former oak at Daniel Johnston's corner.  That property was
transferred to Daniel Johnston by James Johnston pursuant to a December
25, 1827, deed.  Dunlap admitted that he had not researched whether
Daniel Johnston had owned any other property in Hollis as of June 30, 1827. 
The Semles then introduced into evidence a May 9, 1816, deed from
Nathaniel Smith to Samuel Hodsdon and to Daniel Johnston, demonstrating
that as of June 30, 1827, Daniel Johnston did own other property in Hollis. 
In response to this testimony, the court observed that "it seems that we
need to know where the Nathaniel Smith to Hodsdon and Johnston piece is,
whether that's in this general area or whether it's in a-in a whole different
part of town, to see whether it creates an ambiguity or not."  
	[¶12]  On redirect, Dunlap opined that the Smith-Hodsdon/Johnston
deed did not appear to describe any land in the area of the Markleys' and
the Semles' properties because it mentioned a mill privilege and he was not
aware of any mills in that area.  He also explained that "[i]t may very well be
that Dan Johnson [sic] was a tenant of that land, and since the last two
names are both Johnson [sic], there may be in a [sic] familial relationship. 
Dan Johnson [sic] may have occupied that land and everyone in the
neighborhood may have known that that was where his corner was."  
Dunlap indicated that he had seen similar phenomena in his experience as a
surveyor, "often not, but it happens . . . ."   
	[¶13]  The Markleys contend that these inconsistencies in the deed
descriptions are not fatal to Dunlap's analysis.  They note, for example, that
Dunlap attempted to reconcile the Hobson-Markley deed's description of a
three-sided parcel with the Gillpatrick-Linscott deed's description of a six-
sided parcel.  Dunlap testified that the call, "thence Southerly by said Day
land about 70 rods to land of Heirs of Joseph L. Benson," in the Hobson-
Markley deed equates to the calls, "thence runing [sic] South forty five and
one half degrees West twenty four rods to a yellow oak, thence south eight
degrees west, fifty two rods to a stake" [for a total of 76 rods], in the
Gillpatrick-Linscott deed.  Dunlap's hypotheses may have been sufficiently
credible to permit a finding by the trial court that despite the deeds'
inconsistencies, Dunlap's analysis successfully identified the location of the
common boundary.  In the absence of a request for findings of fact, however,
we must assume that the court made the findings necessary to support the
conclusion that Dunlap's analysis was not persuasive.  We cannot conclude
that the court was compelled to accept Dunlap's explanations of the
B. The Unknown Location of the Town Line
	[¶14]  Dunlap testified that he did not locate the town line between
Hollis and Waterboro.  He acknowledged that the 1806 Town Proprietors'
plan contained "one predominant feature" from a surveying standpoint:  the
properties shared a common westerly boundary, the town line between
Waterboro and what was then Phillipsburg.  Dunlap stated that the town line
is thus an important monument.  Dunlap further testified that the
Proprietors' 1806 plan was "very helpful" in determining the locations of
the various land transfers in the Markleys' and in the Semles' chains of title
because it provided "some sort of a geometric pattern, to try to match the
deeds that were granted to the various landowners."  The original deed in
the Markleys' chain of title, the 1806 deed from the Proprietors to
Gillpatrick, uses the Hollis-Waterboro town line, denoted "N. 11 1/2 W.," as
a controlling monument.  Dunlap agreed with the Semles' assertions that
"the limits of the Markley holdings are determined based on that original
deed" from the Proprietors, and that "[i]n order to determine where the
original parcel was, you needed to know where the town line is."     
	[¶15]  In his Surveyor's Report, Dunlap addressed the location of the
town line as follows:
[t]he location of the town line between Hollis and Waterborough
continues to be a source of conflict.  Clearly the Proprietors intended
all the grantees by the Knight plan of 1806 to run along the town line,
where it was specifically granted, on a bearing of N 11 1/2 W.
Pursuant to an act of the Legislature in 1865, the line common to
Hollis and Waterborough was run and marked by stones at crossings of
roads.  The bearing at that time was specified as being 'South about
seven degrees East'.  There is no way to relate the new and old
locations without an on ground survey of large proportions . . . .
At trial, Dunlap examined a Hollis tax map and noted that although it
depicted the town line, it did not depict Day's Lane, an existing road in the
area of the Markleys' property.  Dunlap attributed the absence of any
reference to Day's Lane on the tax map to "a misapprehension on someone's
part" as to whether Day's Lane constituted the town line.  Dunlap then
examined Plaintiffs' Exhibit 3, a map of Hollis, and testified that on that map
Day's Lane was depicted distinctly from the town line.  
	[¶16]  The court engaged in its own questioning of Dunlap regarding
the location of the town line.  Through this questioning, the court clarified
that Dunlap thought that it lay somewhere to the west of Day's Lane
(although he did not know where), and that moving the hypothetical
location of the town line could have the effect of shifting Dunlap's
approximations of the parcels' locations. 
	[¶17]  The Markleys contend that Dunlap did not have to locate the
town line definitively "because the town line was not a common boundary
between land of Plaintiffs and land of Defendants."  Our inquiry, however, is
not whether the trial court could have accepted Dunlap's analysis
notwithstanding his failure to locate the town line.  Rather, we must
determine whether the court was compelled to accept Dunlap's testimony
about the location of the common boundary.  Again, we conclude that it was
	[¶18]  Lastly, we reject the Markleys' contention that the court was
obligated to declare a location of the common boundary.  The Markleys posit
that "[i]f the court did not agree with the Plaintiffs' and Defendants'
assertions as to the location of the boundaries, it had more than ample
evidence before it with which to determine the boundaries."  We disagree. 
In Boynton v. Adams, 331 A.2d 370 (Me. 1975), the plaintiff sought to
establish title to, and to recover possession of, certain real property.  The
defendant was an abutting property owner.  See id. at 372.  The parties
disputed the location of their common boundary on the face of the earth. 
See id. at 374.  The trial court entered a judgment for the defendant,
finding "without extended opinion" that the plaintiff had failed to satisfy his
burden of proof.  Id. at 372.  We denied the plaintiff's appeal, concluding
that our review of the evidence did not demonstrate that "the presiding
Justice was clearly wrong in concluding that the plaintiff 'failed to sustain
his burden of proof . . . .'"  Id. at 375.  
	[¶19]  The Supreme Court of Connecticut reached a similar result in
Steinman v. Maier, 427 A.2d 828 (Conn. 1980) (per curiam).  In Steinman,
the plaintiff brought an action to establish the location of the common
boundary between his property and that of an adjoining landowner.  See id.
at 829.  The trial court entered a judgment for the defendants, finding that
deficiencies in the plaintiff's evidence prevented the plaintiff from satisfying
his burden of proof.  See id. at 829-30.  The Supreme Court affirmed,
reasoning that "[a]lthough the plaintiff's evidence was not directly
contradicted by other evidence, the trial court was not bound to accept it at
face value.  The sifting and weighing of evidence is peculiarly the function of
the trier."  Id. at 830 (citation omitted).{3}
	[¶20]  In this case, the trial court listened attentively to the parties'
presentation of evidence.  The court sought clarification from Dunlap at
several different points during his testimony by actively questioning him. 
During the parties' closing arguments, the court asked each party to
respond to specific theories and interpretations of the evidence that had
been advanced.  After taking the matter under advisement, the court
concluded that the Markleys had failed to present sufficient evidence to
support their assertion that a rock wall identified by Dunlap constituted the
common boundary line.  This ruling does not reflect a failure on the part of
the court.  It only reflects a failure of the plaintiffs' proof.{4}
	The entry is:
				Judgment affirmed.

Go to the concurring opinion and footnotes.