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Weinstein v. Sanborn
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 181
Docket:	Yor-99-74
on Briefs:	November 17, 1999	
Decided:	December 8, 1999




	[¶1]  Neal Weinstein appeals from the judgment of the Superior Court
(York County, Warren, J.), entered after a nonjury trial, finding that he had
failed to establish title to property abutting his lot by adverse possession,
acquiescence, or parol agreement.  Contrary to Weinstein's contentions, the
trial court did not err when it determined that he failed to satisfy his burden
of proof on all of these theories.  See Stowell v. Swift, 576 A.2d 204, 205
(Me. 1990); Calthorpe v. Abrahamson, 441 A.2d 284, 289 (Me. 1982);
Steinherz v. Wilson, 1998 ME 22, ¶ 12, 705 A.2d 710, 713.
	[¶2]  Additionally, we find that Weinstein's appeal was frivolous and
brought for the purpose of delay.  His appeal is wholly lacking in merit for
several reasons.  Weinstein does not challenge the survey that set the
boundaries of his property.  He does not challenge any of the legal standards
applied by the trial court, nor can he.  Rather, he challenges the well-
written, amply supported factual findings of the trial court in an unvarnished
effort to delay the effectuation of the judgment.  See Fleet Bank of Me. v.
Hunnewell, 633 A.2d 853, 854 (1993); M.R. Civ. P. 76(f).  
	[¶3]  In support of his appeal regarding his claim of title by oral
agreement, Weinstein argues that the court should have believed his
testimony regarding his conversation with Sanborn, not the clear and
articulate testimony of Sanborn.  No principle of appellate review is better
established than the principle that credibility determinations are left to the
sound judgment of the trier of fact.  See Estate of Siebert, 1999 ME 156,
¶ 10, -- A.2d --; Butler v. Rockland, Thomaston & Camden St. Ry., 99 Me.
149, 153, 58 A. 775, 776 (1904).
	[¶4]  Weinstein also challenges the court's conclusion that he did not
meet his burden of proving that he had acquired a strip of his neighbor's
land through adverse possession or by acquiescence.  See Stowell, 576 A.2d
at 205 (requiring that possession be "actual, open, notorious, under a claim
of right, continuous and exclusive for a period of at least 20 years" to satisfy
common law adverse possession); 14 M.R.S.A. § 815 (1980) (requiring
"actual . . . adverse, open, peaceable, notorious and exclusive possession" for
forty years to satisfy statutory adverse possession); Calthorpe, 441 A.2d at
289 (requiring "acquiescence for a long period of years such that the policy
behind the doctrine of acquiescence is well-served by recognizing the
	[¶5]  At the time of trial, Weinstein had owned the land for only 16
years.  His predecessor-in-interest had owned or lived on the land for
approximately 40 years.  Notwithstanding pressure from Weinstein, his
predecessor-in-interest averred in two separate affidavits and testified in
her deposition repeatedly that she had never thought that the strip of land
belonged to her family; that she had never intended to occupy the land or
possess it to the exclusion of the neighbor; and that she did not use the land
in any manner consistent with exclusive ownership.  Finally, she consistently
declined Weinstein's invitation to testify that the placement or use of a
clothesline that Weinstein claimed had extended his property line by
acquiescence-a clothesline that had been out of use before Weinstein
acquired the property and that Weinstein had never used-was intended to
mark a boundary line.  In short, not even the most generous reading of the
evidence could support an argument that the court was compelled to make
the findings urged by Weinstein.
	[¶6]  Because Weinstein's appeal was entirely frivolous, we order
Weinstein to pay treble costs along with reasonable attorney fees and
expenses to Sanborn pursuant to M.R. Civ. P. 76(f).
	The entry is:
Judgment affirmed.  Treble costs, reasonable attorney
fees, and expenses are assessed against the appellant. 
Counsel for appellee shall submit an attorney fee and
expense affidavit, along with a statement of costs, to
this court within 30 days.

For plaintiff: Neal L. Weinstein, Esq. P O Box 660 Old Orchard Beach, ME 04064-0660 Attorneys for defendant: Seth D. Harrow, Esq. Daniel F. Driscoll, Esq. Smith Elloitt Smith & Garmewy, P.A. P O Box 1179 Saco, ME 04072