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Guild v. Hinman
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 120
Docket:	Cum-96-619
on Briefs:	March 24, 1997 
Decided:	May 29, 1997




	[¶1]  James Hinman appeals from the judgment entered in the
Superior Court (Cumberland County, Mills, J.) after a nonjury trial
concluding that the scope of Hinman's right of way over Patricia Morrison
Guild's property does not include the right to install utility lines.  Hinman
contends the court erred when it found that the parties to the original
conveyance creating the right of way did not contemplate that the property
would be used for residential purposes.  We affirm the judgment.
	[¶2]  Guild owns land abutting the Lambert Road in Freeport.  Except
for the cleared land surrounding her house, the rest of her property is
wooded.  Hinman owns property adjoining Guild's land, and there is a right
of way over Guild's property that runs from Lambert Road to Hinman's
parcel.  The right of way across Guild's property originally appeared in a
1923 deed conveying what is now Hinman's parcel; the deed provided "a
right of way of reasonable and convenient width."  Hinman's deed from
1986 contains a similar provision.  In the late 1980s, Hinman decided to
build a single family residence on his property and brought in a company to
upgrade the right of way and install utility lines over the way.  Guild filed a
complaint seeking a declaratory judgment that the installation of power
lines would exceed the scope of the right of way conveyed in 1923. 
	[¶3]  At the trial the parties presented testimony about the historical
uses of the Hinman and Guild properties and the right of way.  Emily Smith,
a local resident who remembered the use of Hinman's land by the original
grantee of the right of way, testified that the grantee used the property in
the late 1920s for growing vegetables and accessed the land over the right
of way with a horse and wagon.  David Smith, a local resident and former
owner of Hinman's land, testified that the parcel was used for growing hay
in the 1930s and that the right of way was used to transport the hay to
Lambert Road.  About 25 years later Smith logged the property and hauled
wood over the right of way.  Smith built a camp on the land in the early
1970s and used it for hunting and fishing. 
	[¶4]  The court concluded that Hinman did not have the right to
install utility lines along the right of way because the court could not, on the
evidence presented, find "that the original grantor and grantee intended
the use now contemplated by [Hinman]."  The court found that the only
evidence of the original parties' use of the easement was for farming
purposes and there was no evidence that the original parties contemplated a
permanent residence on Hinman's land.
	[¶5]  Hinman contends that the trial court erred by prohibiting him
from installing utility lines because the language in the deed creating the
right of way is unrestricted and because he, as the owner of the dominant
estate, has a right to take any action reasonably necessary to ensure the full
enjoyment of the right of way.  He also argues that the court should not have
looked to the use of the land after the creation of the right of way in 1926 to
determine the intended purposes of the way.
	[¶6]  "The scope of a deeded right of way is not necessarily
unlimited."  Fine Line, Inc. v. Blake, 677 A.2d 1061, 1064 (Me. 1996). 
See also Davis v. Bruk, 411 A.2d 660, 666 (Me. 1980) (expressly granted
right of way, without more, did not give grantee the right to pave the way
because such a material change might give rise to added burden on servient
estate).  "Even a right of way 'for all purposes' does not automatically include
the right to install utility lines."  Fine Line, 677 A.2d at 1064.  See also
Saltonstall v. Cumming, 538 A.2d 289, 290-91 (Me. 1988) (deed conveying
right of way "for all purposes of a way" could not, as a matter of law, be
interpreted to include or exclude the right to install utility lines).  When
"the purposes of an express easement are not specifically provided, they are
to be determined by the presumed intent of the parties at the time the
grant is made."  Id. at 290 (citations omitted).  Thus, the conveyance of a
general right of way may include the right to install utility lines if the
circumstances surrounding the grant establishes that such use is within the
scope of its intended purposes.  See Ware v. Public Serv. Co. of N.H., 412
A.2d 84, 85, 86-87 (Me. 1980) (granting of "the right to use, for all
purposes, a way or road," together with the fact that property conveyed was
in residential subdivision developed in 1950s, created right to install
electric utility lines along right of way); Fine Line, 677 A.2d at 1064 (deed
granting right of way "fifty feet in width" did not necessarily include right to
install utility lines; trial court must look to circumstances at the time of
conveyance, such as type of use of the property).{1}  The use of an easement
"may vary from time to time with what is necessary to constitute full
enjoyment of the premises[,]" Willband v. Knox County Grain Co., 128 Me.
62, 71 (1929) (quotations omitted), and an express easement may
accommodate modern developments.  See Stevens v. Anderson, 393 A.2d
158, 159 (Me. 1978).  Any changes in use, however, must be consistent with
the purpose for which the easement was originally granted.  Id. (right of way
granted in 1915 for "cattle, teams and foot passengers" did not necessarily
exclude travel by car when language indicated intent to allow all modes of
common travel at time of grant); Ware, 412 A.2d at 86.
	[¶7]  The trial court must ascertain the objectively manifested
intention of the parties in light of circumstances in existence recently prior
to the conveyance, Fine Line, 677 A.2d at 1064, such as the relation of the
parties, the nature and situation of the dominant and servient property, and
the apparent purpose behind the grant.  Ware, 412 A.2d at 86.  We will
uphold the trial court's determination regarding the objective manifestation
of the parties' intent unless it is clearly erroneous.  See Englishmans Bay Co.
v. Jackson, 340 A.2d 198, 200 (Me. 1975).
	[¶8]  There is competent evidence in the record to support the
court's finding that the parties to the original conveyance creating the right
of way did not contemplate that the land would be used for residential
purposes and that they did not contemplate that the right of way would be
used for services necessary to support a residence.  According to the
witnesses' testimony, Hinman's land at the time of the conveyance was used
for agricultural purposes and, later, timber harvesting.  Not until almost 50
years after the creation of the right of way was a seasonal cabin constructed
on the property.  The use of the property for agricultural and logging
purposes supports the court's conclusion that the parties did not
contemplate residential use of the property.
	[¶9]  Although Hinman correctly asserts that there was no evidence
showing the use of the property in the years prior to the conveyance of the
right of way from which the court could have determined the parties' intent,
the court properly looked to the use of the land in the years shortly after the
original grant to Hinman's predecessors.  To determine the objectively
manifested intent of the parties, a court may consider 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. . . . [T]he proved conduct of the
parties is sometimes of great importance in the case of ancient
grants, when other evidence of the situation and circumstances
has faded away. 
Drummond v. Foster, 107 Me. 401, 404 (1910) (citation omitted).  See also
Restatement (First) of Property § 483 (1944) ("In ascertaining the extent of
an easement created by conveyance, the following are important factors . . .
(d) the use made of the servient tenement after the conveyance."); 28A
C.J.S. Easements § 146 (1996) ("Subsequent use of the easement may also
be relevant [to determining its scope], at least if ambiguity exists.").  The
character of the land in the years shortly after the conveyance informed the
court of the likely use of the property at the time of the conveyance.  
Because there is competent evidence in the record to support the court's
finding that the parties did not contemplate that Hinman's parcel would be
used for residential purposes, its finding is not clearly erroneous.
	The entry is:
					Judgment affirmed.
Attorney for plaintiff: Jonathan G. Rodgers, Esq. Weeks & Hutchins P O Box 417 Waterville, ME 04903-0417 Attorneys for defendant: James A. Hopkinson, Esq. David C. Webb, Esq. Hopkinson & Abbondanza, P.A. 511 Congress Street, Suite 801 Portland, ME 04101
FOOTNOTES******************************** {1}. The Legislature has provided rules of construction for easements created after 1990. 33 M.R.S.A. § 458 (Supp. 1996) provides: 1. Easements or rights-of-way established on or after January 1, 1990. The owner of an easement or right-of-way does not have the right by implication to install utility services on or under the easement or right-of-way if: A. The easement or right-of-way is originally established in a written instrument executed on or after January 1, 1990; and B. The instrument granting or reserving the easement or right-of- way does not expressly include the right to install utility services.