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Anchors v. Manter
(a correctd version of this opinion will be posted soon)
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Decision:		1998 ME 152
Docket:		Ken-97-128
on briefs:		November 24, 1997
Decided :		June 17, 1998





	[¶1]  David Manter and Roberta Manter appeal from a judgment
entered in favor of Mark Anchors following a non-jury trial in the Superior
Court (Kennebec County, Atwood, J.).  The Manters contend that the court
erred:  (1) in concluding that Anchors has a right-of-way in a road known as
the Woods Road as measured by Anchors's surveyor across the Manters's
land, and that the right-of-way includes reasonable motor vehicle use; (2) in
enjoining the Manters from interfering with Anchors's use of the
right-of-way; (3) in awarding compensatory and punitive damages to Anchors
for interference with the use of the right-of-way and in finding against the
Manters on their counterclaim.  Finding no error or abuse of discretion, we
affirm the judgment.
	[¶2]  There are four property interests located in Fayette that relate
to this litigation: (1) lot B, the servient estate, owned by the Manters; (2) lot
A, a small parcel contiguous to lot B; (3) an island in Hales Pond called
Cook's Island, owned by Anchors that is the dominant estate appurtenant to
the easement; and (4) the Woods Road, a road running across lot B from the
Young Road to Hales Pond, that the court found to be the easement to the
	[¶3]  Anchors's claim to a right-of-way over the Manters's land stems
from (1) a conveyance to Robert Ingham, the then-owner of Cook's Island,
from Doris Ingham{1} of a right-of-way across what is now known as lot B to
Hale's Pond;{2} and (2) the reservation of that same right-of-way over lot B in
a conveyance of lot B, by deed from Doris Ingham to the Manters's ultimate
predecessor in title, Clifton L. Merrill.  That deed reserved a right-of-way to
Hale's Pond in favor of the grantor to be used in common by Olive Mooney
and Robert C. Ingham, their heirs and assigns.{3}  The conveyance of the
right-of-way to Robert Ingham and the deed to Merrill containing the
reservation are both dated and were executed on April 30, 1968.
	[¶4]  Several months before Anchors purchased the island, he and the
Manters discussed relocating the right-of-way.  They talked about Anchors
relinquishing his rights in the right-of-way on the Woods Road and
purchasing a strip of land on the edge of the Manters's land for his access to
the island.  The negotiations broke down, however.
	[¶5] In the spring of 1989 Anchors discovered that the Manters had
blocked his access to the right-of-way with boulders.  David Manter
approached him, informed him that he would now be restricted to foot
access, and, brandishing a hammer, threatened to protect the property with
a gun.  After Anchors's attempted use of the right-of-way was again blocked
by David Manter in the spring or summer of 1991, Anchors returned with a
police officer later that summer and cleared the Woods Road, which was
starting to grow in.  The same thing happened again in October of 1992,
with Anchors having to get help from a state trooper, who called a wrecker
to move a trailer the Manters had used to block the right-of-way.  Again on
another occasion, the right-of-way was blocked with boulders.  Anchors
testified that five or six times since 1989 he travelled to Hales Pond from
Rhode Island, but due to the Manters's conduct was unable to get to his
island, and estimated his travel costs at $100 per trip.  David Manter stated
that he believed no one but he was entitled to drive a vehicle on the Woods
Road, and that he had blocked it with boulders, trailers, wood, and other
items "for the purpose of keeping anybody from going on to my property at
that location and causing me further duress (sic)."
	[¶6]  Anchors brought this action in 1994, seeking a declaratory
judgment that he holds a right-of-way over lot B, for access to his island. 
Anchors sought injunctive relief prohibiting the Manters from interfering
with the right-of-way.  He also sought compensatory and punitive damages. 
The Manters filed a counterclaim seeking declaratory and injunctive relief,
as well as damages.  The court concluded that the Woods Road, shown on a
survey commissioned by Anchors, was an easement held in common by
Anchors and the Manters, and awarded Anchors a judgment for
compensatory ($400) and punitive damages ($500) caused by the Manters's
intentional interference with Anchors's use of the right-of-way.  The court
found that access by motor vehicle was a reasonable use of the easement,
and enjoined the Manters from interfering with Anchors's use and
maintenance of the easement for pedestrian or motor vehicle use.  This
appeal by the Manters followed.
	[¶7]  The Manters first contend that Anchors cannot enforce the
right-of-way over lot B.  The reservation of the right-of-way over lot B in
favor of Robert Ingham in the deed from Doris Ingham to Merrill could not
benefit Robert, the Manters argue, because the right-of-way was conveyed to
Robert after the conveyance of the servient estate to Merrill.  They rely on
the doctrine that a reservation benefitting one not a party to the deed
cannot create any interest not previously existing, and thus Anchors should
not have an easement over lot B.  See Fitanides v. Holman, 310 A.2d 65, 67
(Me. 1973) (reservation in favor of stranger to the title will not be enforced). 
See also Town of Manchester v. Augusta Country Club, 477 A.2d 1124, 1130-
31 (Me. 1984) ("A mere reservation in favor of one not a party to the deed
cannot create any right in interest not previously existing") (emphasis
added); Thompson on Real Property § 60.03(a)(2)(ii) (1994) ("the
conceptual problem underlying the existence of the rule was that the
easement one wished to convey to a third person did not exist before the
property was conveyed away . . . .").{4}
	[¶8]  The conveyance of the easement by Doris Ingham to Robert
Ingham, and the deed from Doris Ingham to Merrill, in which the easement
was reserved were of the same date, April 30, 1968.  Although the grant to
Robert contains some language that could be construed to imply that the
right-of-way was conveyed after the fee simple grant ("said right-of-way
having been reserved in the [deed to] . . . Clifton L. Merrill under even date
herewith,") (emphasis added), given that the two documents were executed
and acknowledged on the same date, before the same Justice of the Peace,
construing the right-of-way grant as coming first gives effect to the grantor's
intention to provide a right-of-way for her son to the pond.  See  Friedlander
v. Hiram Ricker & Sons, 485 A.2d 965, 972 (Me. 1984) ("[T]he cardinal rule
for the interpretation of deeds [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.").  Cf.
Morrell v. Rice, 622 A.2d 1156, 1159 (Me. 1993) (inferring that deeds
signed on different dates were delivered simultaneously, in order to fulfill
parties' reasonable intentions).  We construe the deeds to give effect to the
intent of the grantor to create an easement to benefit her son, and conclude
that the easement created by the deed from Doris to Robert Ingham is
enforceable by Anchors, Robert's successor in title.
	[¶9]  The Manters also contend that the right-of-way fails because
when it was created there was no land adjacent to the easement holder's
land and thus no appurtenant estate.  They contend that Hale's Pond (and
not the island) is the dominant estate, and that Hale's Pond is a Great Pond
belonging to the State of Maine.  Accordingly, the Manters argue that the
easement could not run with or burden the land and is merely a covenant
personal to Robert Ingham and thus is not assignable.  We disagree.
	[¶10]  Easements that are intended to be personal rights and do not
profess to create a benefit in favor of any land are easements "in gross,"
terminable at the death of the individual for whom created, and not
assignable. O'Neill v. Williams, 527 A.2d 322, 323 (Me. 1987); see also 
LeMay v. Anderson, 397 A.2d 984, 987 (Me. 1979)  (finding an easement in
gross because the retained right-of-way in the deed "speaks only in terms of
a personal benefit in favor of 'the grantor and others.'").  Easements
appurtenant, by contrast, are "created to benefit the dominant tenement
and therefore run[] with the land." O'Neill, 527 A.2d at 323 (giving effect to
intention of parties by holding that easement was not in gross merely
because the grant did not convey to grantee and "heirs").  "The traditional
rules of construction for grants or reservations of easements require that
whenever possible an easement be fairly construed to be appurtenant to the
land of the person for whose use the easement is created."  LeMay,
397 A.2d at 987.  The general rule is stated:
[I]f an easement is in its nature an appropriate and useful
adjunct of the land conveyed, having in view the intention of the
parties as to its use, and there is nothing to show that the
parties intended it to be a mere personal right, it should be held
to be an easement appurtenant and not an easement in gross.  If
doubt exists as to its real nature, an easement is presumed to be
appurtenant and not in gross.

25 Am. Jur. 2d Easements §12 (1996) (emphasis added).

	[¶11]  Although the right-of-way is described as running over
Merrill's land (lot B) to Hale's Pond, generally where "access to a body of
water is sought for particular purposes beyond merely reaching the water,
and where such purposes are not plainly indicated, a court may resort to
extrinsic evidence . . . ."  Badger v. Hill, 404 A.2d 222, 226 (Me. 1979).  In
this case the extrinsic evidence showing the extensive use of the right-of-
way by the parties as access to Cook's Island supports the conclusion that
the right-of-way across the Manter land is necessary or advantageous to the
enjoyment of the island by the dominant tenement holder.  Such a
conclusion is consistent with Maine law.
	[¶12]  We have treated certain kinds of easements as appurtenant to
the dominant estate even though not contiguous. See Day v. McEwen,
385 A.2d 790, 791 (Me. 1978) (enforcing reserved "right of an
unobstructed view" over servient tenement where dominant tenement was
on the other side of a public road).  The majority rule is that "a right-of-way
may be appurtenant to land even though the servient tenement is not
adjacent to the dominant . . . ." M.C.D., Annotation, May right-of-way be
appurtenant where the servient tenement is not adjacent to the dominant,
76 A.L.R. 597 (1932); see, e.g., Verzeano v. Carpenter, 815 P.2d 1275
(Or.App. 1991) ("[W]e agree with the majority view that an easement may be
appurtenant to noncontiguous property if both tenements are clearly defined
and it was the parties' intent that it be appurtenant.") (citing 7 Thompson
on Real Property § 60.02(f)(4)).  See also Private Road's Case, 1 Ashm. 417
(Pa. 1826) (The circumstance that a navigable river intervenes between a
meadow and an island is no legal reason why a way across the former should
not be appurtenant to the latter).
	[¶13]  Moreover, the factors relevant to a determination of whether
an easement is in gross or appurtenant support the court's conclusion that
Anchor's easement is appurtenant.  These factors are:  (1) whether the
existence of an easement appurtenant adds to the continuing value of the
dominant tenement, (2) whether successors to the servient estate have
recognized the right of the dominant estate owners to use the easement,
and (3) use of the language "appurtenant to my other land."  See 7
Thompson on Real Property § 60.02(f)(5).  The evidence clearly shows that
the easement adds to the value of the island and recent actions of the
Manters notwithstanding, that the right to use the easement to reach the
island has been well recognized.  The court did not err in concluding that
the easement is appurtenant.
	[¶14] The court found that evidence "showed that the right-of-way is
a clearly marked woods road that is readily observable and has been used as
the means of access to the pond from the Young Road for decades as
acknowledged by owners of the servient estate, David Manter and Clifton
Merrill, and the dominant estate, Robert Ingham and Robert Cook."  The
court further concluded based on the length of the right-of-way, the
desirability of its use to bring boats and supplies to the water's edge, and the
way it actually has been used for a considerable period of time, that the
reasonable use of motor vehicles along its entire length is permitted.
	[¶15]  These findings are disputed by the Manters, who contend that
the Woods Road has been used predominantly as a footpath, and that only
between 1984 and 1989 was the Woods Road used regularly as a right-of-way
by motor vehicles.  They argue that the court erred by disregarding the
circumstances of the original grant itself, and gave undue weight to
subsequent usage by successive grantees.
	[¶16]  The construction of language creating an easement is a
question of law.  Fine Line, Inc. v. Blake, 677 A.2d 1061, 1063 (Me. 1996). 
If the language of the deed is ambiguous, however, extrinsic evidence may be
considered to determine the intent of the parties.  Id.  In this case, neither
the specific scope of the right-of-way nor its precise location are evident on
the face of the deeds.  In such a case, the intention of the parties creating
the easement "is a question of fact."  Id. at 1064.  We will uphold "the trial
court's determination regarding the objective manifestation of the parties'
intent unless it is clearly erroneous." Guild v. Hinman, 1997 ME 120, ¶ 8,
695 A.2d 1190, 1193.
	[¶17]  There was substantial evidence before the court as to the use of
the right-of-way.  David Manter testified that Doris Ingham told him that she
intended the right-of-way she reserved for Robert Ingham and Olive Mooney
to be limited to use on foot.  Other evidence, however, including evidence
from the Manters, revealed that the Woods Road showed signs of being
travelled by vehicles and that the Manters were annoyed by people using
vehicles on the Woods Road.  Robert Cook testified that he was told the road
was available for access to the island and that it could be driven on in dry
weather.  Testimony from other owners of the island, including Anchors,
and from a real estate broker involved in a sale of the island, testified that
the Woods Road was well depicted, could be and was used by four-wheel
vehicles and was the means of accessing the island.
	[¶18]  The parties' intent may be gleaned not only from the use of the
land before the grant, but also "the practical construction which the parties
placed upon [the deed] by their conduct, by acts done by one party and
acquiesced in by the other, especially when such conduct is proven to have
continued for a long time . . . ."  Guild, 1997 ME 120 at ¶9, 695 A.2d at
1193 (quoting Drummond v. Foster, 107 Me. 401, 404 (1910)); accord
Restatement (First) of Property § 483 (1944) (considering use made of
servient tenement after conveyance); 28A C.J.S. Easements § 146 (1996). 
The court did not err in concluding that the Woods Road right-of-way
carried with it the right to access by foot or motor vehicle.
	[¶19]  The Manters also assert that the grant of the right-of-way is so
vague that its location cannot be determined on the face of the earth and is
thus void.{5}  We disagree. 
	[¶20]  In the face of imprecision in a grant, the same types of
extrinsic evidence that can be considered for the use of an easement are
applicable to determine its location.  See Perkins, 158 Me. at 350.  See also
LaVoie v. Marshall, 109 A.2d 508, 510 (Me. 1954) (parol evidence that did
not vary or alter deed was admissible to establish location of right-of-way). 
There was ample evidence that the Woods Road, that ran from Young Road
to Hales Pond, was precisely the road referred to in the original deeds, and
it was not error to find it to be the right-of-way.
	[¶21]  The Manters also contend that the court erred in its award of
compensatory damages ($400) and punitive damages ($500).  We disagree. 
There was evidence that Anchors incurred expenses for motel costs, meals
and gas, because his access to Cook's Island was prevented when the right-
of-way was blocked by the Manters.  See Currier v. Cyr, 570 A.2d 1205, 1210
(Me. 1990) (monetary award based on judgmental approximation is proper,
provided the evidence establishes facts from which the amount of damages
may be determined to a probability).
	[¶22]  Moreover, the court neither erred nor acted beyond its
discretion in awarding punitive damages.  The conduct of the Manters was
outrageous and led the court to conclude that David Manter acted with
malice toward Anchors in interfering with his property rights.  Grover v.
Minette Mills, Inc. 638 A.2d 712, 718 (Me. 1994).
	[¶23]  Nor did the court err in entering a judgment against the
Manters on their counterclaim.
	[¶24]  Other contentions of the Manters are without merit.
	The entry is:
			Judgment affirmed.
Attorney for plaintiff:
Elliott L. Epstein, Esq.
Isaacson & Raymond
P O Box 891
Lewiston, ME 04243-0891

For Defendants:

David L. & Roberta T. Manter
P O Box 191
Wayne, ME 04284
FOOTNOTES******************************** {1} Robert Ingham owned Cook's Island by virtue of a deed from Doris Ingham, his mother, dated May 5, 1966. {2} That right-of-way is described as follows: a right-of-way running in a general westerly direction from the so-called Young Road over and across the land of Clinton L. Merrill to Hale's Pond; said right-of- way having been reserved in the Quit-Claim Deed with Covenant executed by the Grantor in favor of said Clifton L. Merrill under even date herewith; and the right-of-way hereby conveyed shall be in common with Olive Mooney, her heirs and assigns forever and with others who may in the future be granted a like right. {3} The deed from Doris Ingham to Clifton Merrill conveying lot B states: There is also reserved unto this Grantor, her heirs and assigns, and excepted out of and from this conveyance, the following described right-of-way over the premises conveyed by this deed, viz; a right-of-way running in a general westerly direction from the so-called Young Road across these conveyed premises to Hale's Pond; said right-of-way to be used in common by Olive Mooney and Robert C. Ingham, their heirs and assigns, and others who may in the future be granted a like right, including the Grantee, his heirs and assigns. Doris Ingham also conveyed a right-of-way over lot B to Olive Mooney, who since 1952 had owned lot A adjacent to lot B. Mooney conveyed lot A to the Manters in 1971. {4} See Knud E. Hermanson and Donald R. Richards, Maine Roads and Easements, 48 Me. L. Rev. 197, 260 ("To prevent these [stranger to the title] problems, the grantor can convey the easement to the appropriate parties prior to the grantor's conveyance of the fee simple title in the servient estate . . . ."). See also 7 Thompson on Real Property § 60.03(a)(2)(ii) ("To reach the desired result under the common law rule, one could first create and convey away an easement in one action and then convey away the servient tenement in another, excepting from the conveyance that now pre-existing easement.") (emphasis added). {5} The Manters's contention that Anchors's claim is based on adverse possession or an easement by prescription is without merit. Anchors claims through a deeded interest in the right-of-way, not by adverse possession.