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Steinherz v. Wilson, corrected 3-16-98
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Decision:		1998 ME 22
Docket:		Yor-96-723
On Briefs:		September 16, 1997
Decided :		January 28, 1998




	[¶1]  Richard D. Wilson appeals from a judgment entered in the
Superior Court (York County, Brennan, J.) in favor of Mary A. Steinherz. 
Wilson contends that the court erred in its determination of the location of
the boundary line between his lot and the lot belonging to Steinherz.  The
court located the line according to a survey made after the conveyances to
Wilson and Steinherz.  Wilson contends that the language in his deed
requires that the boundary line must be located on the face of the earth by
reference to the recorded plan of the Brooks Farm Subdivision. Because the
boundary recognized by the court was one created by parol agreement, and
was binding on the parties, we affirm the judgment, although on grounds
different than those relied on by the Superior Court.
	[¶2]  Wilson and Steinherz both purchased their adjacent lots from
Jonathan Milligan.  Wilson owns Lot 3, and Steinherz is the owner of Lot 3B
as identified on a subdivision plan.  The perimeter of the tract was surveyed
by Roland Libby in 1905 using boundary monuments.  Its 40 individual lots,
however, were superimposed on the tract between 1905 and 1961 by an
unknown drafter, apparently without being surveyed.  In 1961 Milligan hired
surveyor Thomas Ober to prepare a recordable plan of the Brooks Farm
Subdivision.  Without the benefit of a field survey, Ober transposed a map
that had distance and course data onto a map that had only lot lines.  The
resulting subdivision plan was recorded in 1961.  During this process and in
Ober's presence, Milligan drew a line on the map through original lot 3,
without using a stated length, compass course, or survey markers.  This
purported to create the lots in dispute: 3 and 3B. 
	[¶3]  No actual survey of any individual lot was done until its sale,
resulting in what is known as a "paper" or "protracted" subdivision.{1} 
Milligan hired Ober beginning in 1962 to survey a number of the lots sold in
conjunction with the sales.   
	[¶4]  As he surveyed lots, Ober found numerous inconsistencies
between the angles, equations, and distances shown on the Brooks Farm
plan and the location of landmarks on the face of the earth.  He reconciled
these inconsistencies using a "best-fit" approach, retaining consistent data
while revising inconsistent data in order to fit each lot within the perimeter
boundaries of the Brooks Farm plan.
	[¶5]  Wilson purchased lot 3 from Milligan in 1980 by a deed that
referenced the Brooks Farm subdivision plan.{2}  Wilson looked at the land
with Milligan for fifteen to twenty minutes prior to purchase.  Milligan did
not testify at trial, but Wilson testified that Milligan showed him a high point
of land with an old foundation, and told him that the foundation area was on
his side of the boundary.  Wilson testified that he "didn't know exactly
where [the boundaries] were."  The Brooks Farm subdivision plan
referenced by Wilson's deed also appeared to depict a structure on lot 3. 
Milligan and Wilson agreed before the conveyance that Milligan would have
Ober mark the boundaries of lot 3 on the face of the earth, including the
boundary line between lots 3 and 3B.{3}    Ober did not mark that boundary
line immediately after the Wilson purchase, however.  It was not until 1982,
in conjunction with Steinherz's purchase of her lot, that Ober surveyed and
marked that boundary line.
	[¶6]  Steinherz purchased lot 3B from Milligan in 1982.  Her deed
description also referred to the recorded plan.  Steinherz made placement
of precise boundary markers at Milligan's expense prior to closing an
express condition of the contract.{4}  Ober surveyed lot 3B for Milligan in the
summer of 1982.  That survey located the  boundary line between 3B and 3. 
Steinherz then hired an architect to begin the building process.  When the
architect found discrepancies between the Brooks Farm subdivision plan and
Ober's surveyed boundary lines, Ober did a second survey.  The second
survey confirmed to Ober that Steinherz's land included much of the
disputed high point of land and the old foundation.  On that basis Steinherz
had her house built near the old foundation, which her contractor filled and
graded.  No improvement has ever been made to Wilson's lot.
	[¶7]  Shortly after Steinherz's house was completed in May 1983,
Wilson, who is a resident of Massachusetts, visited his lot.  Upon seeing the
house, he expressed to Steinherz that he thought his boundary was further
up the knoll, and asked her for a plan for her lot.  Wilson later requested
information from Milligan, who verified that the boundary was essentially as
Ober had surveyed it, and as evidenced by the distinct tree line that Ober
cut and that Steinherz has maintained since 1983. 
	[¶8]  Wilson took no action until 1988, when he learned that Middle
Branch Engineering (MBE) had done a systematic survey of the entire
subdivision to resolve numerous inconsistencies between the Brook Farm
subdivision plan and the surveys of individual lots that had been done
"piecemeal" over the years.  The MBE survey, commissioned by prospective
developers of some of the lots, was a mathematical construction of how the
1961 Brooks Farm subdivision plan would appear if projected on the ground. 
The MBE survey concluded that the Steinherz house had been built on lot 3,
Wilson's lot.  Wilson purchased the MBE survey and recorded it.  Steinherz
then brought this action to quiet title and, because of the recording of the
MBE survey, for slander of title.  Wilson counterclaimed for trespass and
sought an injunction to remove Steinherz's house.  Noting the fact that the
description in Wilson's deed does not "precisely locate the boundary on the
face of the earth," and that Wilson at least implicitly agreed to have Ober
work the boundary between lots 3 and 3A, the court concluded that the
boundary worked by Ober in 1982 became the legal boundary.{5}  The court
entered judgment for Steinherz on her quiet title action and for Wilson on
Steinherz's claim for slander of title.{6}  It decided in favor of Steinherz on
Wilson's counterclaim.  Wilson then filed this appeal.
	[¶9]  Wilson contends that the issue is one of law.  He notes that his
deed refers to a recorded subdivision plan with specific dimensions and
landmarks, and that his deed identifies his land by lot number.  He contends
that even though the boundary line between lots 3 and 3B on the plan shows
no course distance or monument, nevertheless that line can be located on
the face of the earth, the MBE survey determines its true location, and he
cannot be divested of the land within that boundary.  We disagree.
	[¶10]  The court recognized the boundary established by Ober as
being the true boundary between Wilson's lot 3 and Steinherz's lot 3B.  The
court explicitly found that Wilson and Milligan agreed that Ober would
survey the boundary between lots 3 and 3B, and that there was a similar
agreement between Milligan and Steinherz.  Those findings are amply
supported in the record.  Ober in fact conducted such a survey and located
that boundary, which had theretofore been both unsurveyed and ambiguous. 
Accordingly, pursuant to the agreement Wilson had with Milligan, albeit
delayed until the Steinherz purchase, Ober's survey established that
boundary.  Once established, the legal effect of the boundary so established
was not diminished by the later MBE survey.{7}  Although the trial court did
not rely precisely on the doctrine of the establishment of a boundary by
parol agreement, nevertheless its findings that Wilson agreed to have Ober
survey and determine the boundary between the lots lead to the application
of the doctrine.  Steinherz is the beneficiary of that agreement.
	[¶11] We have previously recognized boundaries by parol agreement. 
Bemis v. Bradley, 126 Me. 462, 464 (1927) ("It is a familiar and well settled
principle of law that a boundary line may, under certain circumstances be
established by parol agreement of adjoining owners.").  See also Ames v.
Hilton, 70 Me. 36, 46 (1879). 
	[¶12]  Although Wilson had only an oral agreement with Milligan that
Ober would survey the boundary, a written agreement is not necessary:
	A contract between owners of adjoining tracts of land
fixing a dividing boundary is within the Statute of Frauds but if
the location of the boundary was honestly disputed the contract
becomes enforceable notwithstanding the Statute when the
agreed boundary has been marked or has been recognized in the
subsequent use of the tracts.  Restatement (Second) of
Contracts § 128(1).

	[¶13]  The reason that a parol agreement regarding an unascertained,
uncertain or disputed boundary falls out of the Statute of Frauds is that "no
estate is created [and] . . . the coterminous proprietors hold up to it by virtue
of their title deeds, and not by virtue of a parol transfer of title." Osteen v.
Wynn, 62 So. 37, 39 (Ga. 1908).  Cf. Piotrowski v. Parks, 691 P.2d 591, 596
(Wash.App. 1984) (oral agreement valid if parties designate a visible
boundary); Foster v. Duval County Ranch Co., 260 S.W.2d 103, 109-110 (Tex.
1953) ("where parties are in doubt as to where the true division line
between them of their lands may be, they may fix it by parol agreement
which would be mutually binding on them, even though they were mistaken
as to its true locality"); Gulf Oil Corp. v. Marathon Oil Co.,
152 S.W.2d 711, 714 (Tex. 1941) (agreement may be proven by acts and
conduct falling short of express statement or acquiescence).
	[¶14]  In conjunction with Wilson's purchase of lot 3, he and Milligan
orally agreed that Ober would survey the boundary.  The trial court found
that, although after the boundary was marked Wilson did not explicitly agree
to it,{8} and that although he began to inquire into the boundary when he first
saw the house, he had "requested and expected" that it would be marked by
Ober.  In short, Milligan and Wilson made a parol agreement that Ober would
mark the boundary, and the line so determined became the boundary.  While
Wilson's subsequent behavior does not demonstrate an uncontradicted
agreement as to the location of the actual line marked, he must be held to
the agreement itself and thus to its result.  If a valid parol agreement is
found, the agreement can determine an uncertain boundary.  See, e.g.,
Emery v. Fowler, 38 Me. at 102 (boundary marked by mutual agreement of
parties with intent to conform to a deed already given controls
notwithstanding inconsistency with the deed).
	[¶15]  Although the conclusion of the trial court that the Ober survey
established the boundary between lots 3 and 3A was arrived at by reason of a
different legal theory, nevertheless the court's conclusion was correct, and
its judgment must be affirmed.  See Baybutt Construction Corp.
v. Commercial Union Ins.  455 A.2d 914, 916 (Me. 1983) (where trial
court's ultimate conclusion is correct in law, it must be sustained on appeal,
although its conclusion may have been reached on incorrect legal theory).
	The entry is:
			Judgment affirmed. 
Attorney for plaintiff: John C. Bannon, Esq. Murray, Plumb & Murray P O Box 9785 Portland, ME 04104-5085 Attorney for defendant: Alan E. Shepard, Esq. Hodsdon, Read & Shepard 56 Portland Road Kennebunk, ME 04043
FOOTNOTES******************************** {1} This method contrasts with the layout of a subdivision after a survey is completed and boundary markers have been laid down, which allows the lots to be conveyed with metes and bounds descriptions. {2} The Milligan to Wilson deed contained the following description: A certain lot or parcel of land with any improvements thereon, as more fully delineated on "Plan of the Brooks Farm at Cape Porpoise", dated 1905, made by R. W. Libby, Engineer, Saco, Maine, and recorded in the York Registry of Deeds, Plan Book 33, Page 7, said lot being LOT NO. 3, as show on said Plan, to which Plan reference may be had for a more complete description. {3} Wilson testified on direct as to pre-conveyance discussions about the survey: [Milligan] stated to me there is not any actual physical markers on the land, but with my purchase he would have, have the markers put in, that was agreed upon, that that would be a part of the, the closing price, you know, that was included in the purchase of the land . . . . Milligan also responded in writing to Wilson's post-conveyance inquiries twice in 1980 telling him that he would have Ober "put corners down." Wilson testified: Q. That is to say, there is no question but that you did ask him to set the pins? A. I asked Mr. Milligan to set the pins, yes. . . . Q. And you had no objections to Mr. Milligan's using Tom Ober to survey your lot did you? A. No, I did not. {4} Steinherz was 71 years old at the start of trial. She had experience as a real estate broker. {5} The court also relied on what it referred to as the "common grantor" theory. See Hall v. Pickering, 40 Me. 548, 554-55 (1855). The court rejected theories of establishing the boundary by practical location, see Calthorpe v. Abrahamson, 441 A.2d 284, 288 (Me. 1982) and acquiescence, id. at 289. The court also considered it significant that Ober's survey was the first to mark the common boundary with precision. See Adams v. Hoover, 493 N.W.2d 280 (Mich. App. 1992) (citing Diehl v. Zanger, 39 Mich. 60 (1878) (Cooley, J.) (Cooley doctrine provides that original survey has priority over later surveys)). {6} The court concluded that Wilson did not act with malice toward Steinherz, but rather had a good faith colorable claim to the disputed property. {7} The surveyor who testified as an expert for Wilson conceded that the Ober survey was not inherently wrong, but that MBE had merely used a "better" but not necessarily more accurate approach. {8} Wilson does not argue that Milligan had made an enforceable oral boundary agreement by virtue of telling him that the old foundation was on lot 3. In his summary of facts he merely states that prior to purchase he understood "[t]hat the lot included an area surrounding an old foundation."