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Stickney v. City of Saco, part 2

D. The Superior Court Did Not Err In Concluding That William Casavant Jr.
Has An Easement Over The DesJardinses' property 
	[¶28]  In October 1915, Nellie Tasker deeded to Clarence Young what
is now the DesJardinses' property.  The deed provided the following
[A] certain lot or parcel of land situated in said Saco, located and
bounded as follows Viz; South-westerly [sic] eighty feet by a
private way, known as Taskers [sic] Lane, North-westerly [sic]
one hundred and forty feet by land of Dora Young Hobbs and land
of said Clarence L. Young; Northeasterly eighty feet to land of
Frank L. Davis and land of Clarence L. Young and South-easterly
[sic] one hundred and forty feet by land of grantor, reserving a
right of way, ten feet wide on the South-easterly [sic]side of said
lot, from said Taskers Lane to the rear of grantors buildings, said
way to be unobstructed.
(Emphasis added).  The right-of-way was used for a time by George Conley
for the delivery of fertilizer to his garden.  The position of the barn that
existed at that time had blocked access to the back of Nellie Tasker's
property.{9}  The right-of-way, the length of which is in dispute, was also used
to access the outhouse located at the back of a barn.  The barn and the home
in which Nellie Tasker and George Conley lived was part of the original
Homestead of Joseph Hill, the original grantor of all the properties at issue;
it was destroyed some time after George Conley died.{10}  The right-of-way
was not used for parking purposes.       
	[¶29]  As previously discussed, though the City took title to the
property around 1927 by a tax deed, it allowed Nellie Tasker and George
Conley to continue residing there until the 1950s when both died; there is
evidence that George Conley used the easement well past 1927.  In 1972,
the City sold the property (the dominant estate) to Charles and Germaine
Trakas.  The right-of-way was not mentioned in the Trakases' deed or in any
deeds of record since the City acquired the Casavant property.  Indeed,
Casavant was unaware of the easement until after this litigation started.  With
respect to the DesJardinses' property (the servient estate), Energy Home's
deed to the DesJardinses also failed to reflect the right-of-way.  The right-
of-way, however, was consistently referenced in deeds conveying the
DesJardinses' property up until 1972.
	[¶30]  The present dispute revolves around the meaning of the
reservation.   The DesJardinses first assert that the 1915 deed conveying
the easement did not include the technical terms "heirs" and "excepting,"
which were required under Maine law to create an interest in land of
perpetual duration.   Because only the term "reserving" was used, they argue
that the conveyance created only a life estate in Nellie Tasker; the
easement, therefore, extinguished when Nellie Tasker died.{11}    The trial
court, however, found "no waiver of the easement and no loss of it through
adverse obstruction." It further concluded that the DesJardinses' technical-
word claims fail under the analysis provided in O'Neill v. Williams, 527 A.2d
322 (Me. 1987).  See O'Neill v. Williams, 527 A.2d 322, 324 n.1 (Me. 1987).
	[¶31]  An easement is a right of use over the property of another. 
O'Donovan v. McIntosh, 1999 ME 71, ¶ 7, 728 A.2d 681, 683.  The law
recognizes two different types of easements: an easement in gross and an
easement appurtenant.  Id.  An easement appurtenant is created to benefit
the dominant tenement and runs with the land.  Id.  To be appurtenant,
however, the easement must also be attached to or related to a dominant
estate of the grantor.  Id.
	[¶32]  An easement in gross may generally be described as an interest
in land which "is not appurtenant to any estate in land or not belonging to
any person by virtue of his ownership of an estate in other land, but is a
mere personal interest in or right to use the land of another."  LeMay v.
Anderson, 397 A.2d 984, 987 n. 2 (Me. 1979) (quoting Reed v. A.C. McLoon
& Co., 311 A.2d 548, 552 (Me. 1973)).  Generally, because it is purely a
personal right, an easement in gross is not assignable, absent evidence of
the parties' intent to the contrary, and terminates upon the death of the
individual for whom it was created.  O'Neill, 527 A.2d at 323; see also
O'Donovan, 1999 ME 71, ¶ 10, 728 A.2d at 684 (holding an easement in
gross is assignable when the parties clearly intend that it is assignable; this
policy promotes free alienability of land, which is a general policy of
property law).
	[¶33]  The traditional rules of construction for grants or reservations
of easements required that, whenever possible, an easement be fairly
construed to be appurtenant to the land of the person for whose use the
easement is created.  O'Neill, 527 A.2d at 323.  In resolving this issue, we
construe the deed in light of the law existing at the time it was made.  Id. 
(citing Stuart v. Fox, 129 Me. 407, 419, 152 A. 413, 418 (1930), cert.
denied, 284 U.S. 572, 52 S. Ct. 15, 76 L.Ed. 498 (1931)).  
	[¶34]  Under the common law, the unyielding rule required that, to
create an interest of perpetual duration in land by deed to an individual, it
was necessary to use the technical word "heirs."  O'Neill, 527 A.2d at 323. 
If this word were omitted from the deed, the grantee received only a life
interest, no matter how plainly the deed expressed an intention to convey
an interest of perpetual duration.   Id. at 324.  We early perceived, however,
that this conceptual posture and consequent imposition of an apparently
arbitrary technical requirement of the word "heirs" operated, in most
instances, to frustrate the intention of the parties.   Id.
	[¶35]  "Consequently, to give effect to the intention of the parties this
court has routinely construed a provision in a deed purporting to reserve an
easement for the benefit of land retained by the grantor as the creation of an
easement appurtenant to that land and has obviated the requirement of the
technical word 'heirs' to preserve an interest of perpetual duration." Id.   
This result was usually accomplished by
[T]reating the reservation as an exception.  Strictly speaking, an
exception at common law "excepted" or excluded from the
conveyance a portion of the land conveyed.  Since the grantor's
interest was therefore unaffected by the conveyance no technical
words were necessary to preserve that interest. 
Id. at 324 n.1.   The distinction between "reservation" and "exception,"
however, is now virtually obsolete because the intention of the parties-not
the words in the deed-controls and the two terms are used
interchangeably.  Id.; see also 33 M.R.S.A. § 772 at infra note 12.
	[¶36]  In O'Donovan, we reiterated the O'Neill concept that, "to give
effect to the intent of the parties and promote alienability, we have abolished
the technical requirement that the word 'heirs' be used to preserve an
interest of perpetual duration." O'Donovan, 1999 ME 71, ¶ 10, 728 A.2d at
684.  Casavant contends that this statement and the relevant provisions of
the Short Form Deeds Act ("Act") has abolished the requirement that the
term "heirs" be used even when construing instruments drafted prior to the
effective date of the Act.  See 33 M.R.S.A. § 772 (Supp. 2000-2001).{12}  
Although it leads to the same result, this is not an accurate recitation of the
present status of the law.  
	[¶37]  In the O'Donovan case, the deed in question was drawn in
1989. O'Donovan ¶ 3, 728 A.2d at 682.  There was no need to discuss the
construction of pre-Act deeds.  Moreover, we have consistently stated that
the technical terms will only be disregarded if the intent of the parties is
clearly discernable from the facts of a given case or from the deed.  See 
O'Donovan, ¶ 3, 728 A.2d at 682; O'Neill, 527 A.2d at 324; Gilder v.
Mitchell, 668 A.2d 879, 882 (Me. 1995).
	[¶38]  In O'Neill, the reservation within the 1882 deed failed to
include the word "heirs." O'Neill, 527 A.2d at 323.  We, nevertheless,
refused to apply the "unyielding" common-law rule because the grantor
"clearly intended," as a littoral property owner, that the easement across
the land conveyed should benefit the land retained.  Id. at 324. 
"Otherwise[,] access to water was cut off by the conveyance, appreciably
diminishing the value of the retained land." Id.  We further noted, "[i]t is
highly unlikely that the grantor would knowingly have impaired the value of
the property he retained by limiting the easement to a life interest." Id.  
	[¶39]  We limited the O'Neill result, however, to circumstances where
the intent of the grantor can be presumed from the facts at play.  See Gilder
v. Mitchell, 668 A.2d 879, 882 (Me. 1995) (stating that because there was
no plainly expressed intention to reserve an interest of perpetual duration,
this case is not "similar to O'Neill, where the grantor's intent that the
easement should benefit his retained land" could be presumed from the
facts).  In fact, we made clear, in Gilder, that pre-Act deeds would still be
construed under the laws existing at the time they were drawn, unless the
parties' intent as discerned from the facts or the deed clearly indicated a
contrary result.  Gilder, 668 A.2d at 881.
	[¶40]  The trial court found that it was Nellie Tasker's intent to make
the reservation a perpetual interest.  The evidence shows that George
Conley used the right-of-way to have fertilizer transported to his garden. 
Although he was never a legal owner of the property and the use to which he
put the right-of-way arose after it was established, his use indicated that it
was the only way to access the yard at the back of the barn.  Further
supporting this "only access" analysis is the fact that the right-of-way was
also the only way to access an outhouse at the back of the barn.  This use,
presumably, did exist at the time the deed was drafted. 
	[¶41]  Nellie Tasker's intent, therefore, that the easement at issue be
perpetual in nature is clearly discernable from the fact that the right-of-way
was used to access the yard at the back of the barn, which otherwise would
have been inaccessible given the surrounding hilly terrain.  Presumably,
moreover, she expected that the barn would remain standing after her death
and the need to access the back yard would not cease upon her death.  The
evidence, therefore, supports the trial court's determination that the
grantor, Nellie Tasker, intended to create a reservation that was perpetual
in nature.  The trial court, therefore, did not err in finding that the right-of-
way did not terminate upon Nellie Tasker's death.

F.  Whether the Easement was Terminated 

	[¶42]  The next question, then, is whether the easement has been
terminated.  An easement can be extinguished in five ways: (1) by expiration;
(2) by an act of the dominant owner (either by release or abandonment); (3)
by the act of the servient owner (by prescription or conveyance to a bona
fide purchaser without notice); (4) by conduct of both parties (merger or
estoppel); or (5) by eminent domain, mortgage, foreclosure, or tax sale. 
Great Cove Boat Club v. Bureau of Public Lands, 672 A.2d 91, 94 (Me. 1996)
(citing 3 Richard R. Powell, The Law of Real Property ¶¶ 421-426 (1992)). 
In this case, the parties focus on the second, fourth, and fifth methods for
terminating easements.

	i.  Equitable Estoppel

	[¶43]  The trial court found that there was "insufficient evidence that
the doctrine of estoppel should be applied because of the silence of Trakas,
who was unaware of the easement, during the construction by the
DesJardinses of a driveway over a portion of the likely location of the
easement."  The DesJardinses argue that the trial court erred by so ruling
because Trakas, Casavant's predecessor in title, through inaction and
silence, caused the DesJardinses to materially alter their position to their
	[¶44]  The doctrine of equitable estoppel "bars the assertion of the
truth by one whose misleading conduct has induced another to act to his
detriment in reliance on what is untrue."  Longley, 1998 ME 142, ¶ 12, 713
A.2d at 943 (quoting Anderson v. Comm'r of Dep't of Human Servs., 489
A.2d 1094, 1099 (Me. 1985)).  Equitable estoppel precludes an owner from
asserting his legal title when, by his own action or inaction, he has caused
another to act or to alter her position to her detriment.  Id.  Intent to
mislead is not required-equitable estoppel may be applied when a party
"remains silent when it is his duty to speak, as where inquiries are made of
him . . . or when circumstances are such that would 'impel an honest man to
speak.'" Id.   (quotations omitted).  Equitable estoppel should be "carefully
and sparingly applied." Id.  We review a court's application of equitable
estoppel for clear error.  Id.
	[¶45]  Given the facts of this case, the doctrine of equitable estoppel
does not apply.  The DesJardinses are not innocent purchasers entitled to
application of the doctrine; they are charged with constructive notice of the
easement because the easement has been recorded in conveyances of their
servient property up until 1972.  See Hendley v. Overstreet, 318 S.E.2d 54,
55 (Ga. 1984) (finding that easement continues to burden property owner's
parcel because property owners are not innocent purchasers without notice;
recorded deeds and restrictive covenants are constructive notice).  
	[¶46]  The right and burden relative to an appurtenant easement
respectively pass to grantees of the dominant and servient tenements,
assuming the grantees of the servient tenement have actual or constructive
notice of the easement.  O'Neill, 527 A.2d at 323 (citing  LeMay, 397 A.2d at
989).  Before purchasing real estate, a purchaser should clear up the doubts
which apparently hang upon the title, by making due inquiry and
investigation.  Waxler v. Waxler, 1997 ME 190, ¶ 11, 699 A.2d 1161, 1164. 
	[¶47]  The easement is of record.  Had the DesJardinses made due
inquiry and investigation, they would have found that an easement existed
where they built their driveway.  The DesJardinses' problems, consequently,
are self-made; they should not be allowed to invoke an equitable doctrine
when they themselves have failed to act in a responsible manner.  See
Hamm v. Hamm, 584 A.2d 59, 61 (Me. 1990) (stating, "it is an elementary
principle of equity jurisprudence that 'whenever a party, who as actor seeks
to set the judicial machinery in motion and obtain some remedy, has
violated conscience or good faith, or other equitable principle in his prior
conduct, then the doors of the court will be shut against him in limine; the
court will refuse to interfere on his behalf, to acknowledge his right or to
award him any remedy").  The trial court did not err in rejecting the
DesJardinses' estoppel claim.
	ii.  Title Argument

	[¶48]  The DesJardinses next assert that the trial court erred in
concluding that the Casavant property benefitted from the easement
reserved by Nellie Tasker in 1915.   They assert that, because Casavant's
property title was obtained through the City and not from Nellie Tasker or a
Tasker heir, any rights to the easement have long been extinguished.  In
other words, they appear to be arguing that, because Casavant acquired title
from a party who purchased the property in a tax sale, the easement has
been extinguished.
	[¶49]  Whether a tax sale can extinguish an easement is an issue of
first impression in Maine. 	Although there is no unanimity among the
various jurisdictions on this question, a substantial number of states have
found that a tax sale does not extinguish an easement appurtenant where its
value or burden is included in the assessed value of the properties at issue. 
3 Richard R. Powell, Powell on Property ¶ 426 n. 18 (1992).  See also Hearn
v. Autumn Woods Office Park Prop. Owners Ass'n, 757 So.2d 155, 162 (Miss.
2000) (holding "[t]his Court joins the majority of jurisdictions that hold that
an easement appurtenant . . . is not extinguished because of a tax sale, if that
easement is properly assessed and included in the value of the property";
owner of servient property failed to overcome presumption that value of
easement was included in assessment of lot that he acquired by tax deed);
Flax v Smith, 479 N.E.2d 183, 185 (Mass. 1985) (stating servient estate that
was sold in a tax sale was burdened by implied easement for water and
sewer lines where all parcels had been in common ownership prior to
taking of servient parcel for nonpayment of taxes, use of residences on such
parcel required that water and sewer services be supplied through lines to
the street, and reasonable necessity for continued use of existing line was
shown); Ross v. Franko, 40 N.E.2d 664, 665 (Ohio 1942) (holding that tax
sale does not ordinarily divest easement charged on property sold).  Maine
is a state that includes the value of non-possessory interests in the tax
valuation of property.  See Central Maine Power Co. v. Town of Turner, 128
Me. 486, 148 A. 799 (1930) (holding power company held mill privileges
for dam and power development that could be considered in determining
value of its property).   Accordingly, we adopt the rationale put forth by the
above-cited cases and conclude that an easement is not extinguished upon a
tax sale.

iii.  Abandonment

	[¶50]  The DesJardinses contend that the trial court committed a
clear error by ruling that the easement has not been abandoned.  The
effectiveness of an abandonment depends on a finding of intention.  Great
Cove Boat Club, 672 A.2d at 94 (citation omitted).  The requisite intent to
abandon an easement may be demonstrated by unequivocal acts which are
decisive and conclusive and indicate a clear intent to extinguish the
easement.  Id.; see also Phillips v. Gregg, 628 A.2d 151, 153 (Me. 1993)
(stating "[t]o prove intent to abandon, a party must show 'unequivocal acts
inconsistent with the further assertion of rights associated with the
existence of the easement . . . .  The acts asserted as evidence of
abandonment must be decisive and conclusive and thereby indicate a clear
intent to abandon the easement'").
	[¶51]  The party alleging abandonment of a right-of-way has the burden of proving, 
by clear and convincing evidence, either : (1) a history of nonuse coupled 
with an act or omission evincing a clear intention to abandon, or (2) adverse 
possession by the servient estate.  Canadian Nat'l Ry. v. Sprague, 
609 A.2d 1175, 1179 (Me. 1992).  For the purposes of the first method, 
the acts asserted as evidence of abandonment "must be decisive and conclusive ... 
thereby indicat[ing]" a clear intent to abandon the easement."
Witt v. McKenna, 600 A.2d 105, 106 (Me. 1991) (quoting Chase v. Eastman, 
563 A.2d 1099, 1102 (Me. 1989)). To meet this burden, the evidence must establish
each factual element to be highly probable.  Id. (citation omitted).  Although
we have recognized that the acquiescence to the erection of a permanent
barrier on a right-of-way can satisfy the burden of both prongs, nonuse alone,
regardless of the duration, is insufficient to extinguish a right-of-way.  Id.
(citing Chase, 563 A.2d at 1102 (failure to object to the construction of a
cottage partly in the path of a right-of-way constituted partial abandonment
of an easement)); Fitzpatrick v. Boston & Maine R.R., 84 Me. 33, 24 A. 432
(1891) (failure to object to erection of houses of a "permanent character"
obstructing easement supported finding that easement was abandoned).
	[¶52]  Although the DesJardinses' driveway is arguably a permanent
structure, it is not a decisive act that permanently obstructs the right-of-
way, compelling an objection for the purposes of abandonment.  See Phillips,
628 A.2d at 153 (stating "[f]ailure to object to a decisive act on the part of
the servient estate may constitute an omission evincing a clear intent to
abandon").  Instead, it arguably facilitates the use of at least a portion of the
right-of-way.  The DesJardinses have not met their burden of showing that
the easement has been abandoned.   Their claim, therefore, under a theory
of abandonment fails.

iv.  Vehicular Use

	[¶53]  Pursuant to the DesJardinses' post-judgment motion, the trial
court amended the judgment to provide that traffic is permitted over the
easement and that tenant parking in the easement would constitute an
obstruction.  In so finding, the DesJardinses contend that the trial court
committed a clear error.  The construction of language creating an easement
is a question of law, which we review de novo.  Anchors v. Manter,  1998 ME
152, ¶ 16, 714 A.2d 134, 139 (citing Fine Line, Inc. v. Blake, 677 A.2d
1061, 1063 (Me. 1996)); see also Crispin v. Town of Scarborough, 1999 ME
112, ¶ 30, 736 A.2d 241, 250 (same).  If the language of the deed is
unambiguous, the scope of a party's easement rights is determined solely
from that language.   Crispin, ¶ 30, 736 A.2d at 250 (quoting Rancourt v.
Town of Glenburn, 635 A.2d 964, 965 (Me. 1993)).  If the language of the
deed is ambiguous, however, extrinsic evidence may be considered to
determine the intent of the parties.  Anchors,  ¶ 16, 714 A.2d at 139.
	[¶54]  Here, neither the specific scope of the right-of-way nor its
precise length is known.  Id.   In such a case, the intention of the parties
creating the easement is a question of fact.  Id. at 139-40.   We will uphold
"the trial court's determination regarding the objective manifestation of the
parties' intent unless it is clearly erroneous." Id. at 140 (quoting Guild v.
Hinman, 1997 ME 120, ¶ 8, 695 A.2d 1190, 1193).  
	[¶55]  The evidence shows that deliveries of fertilizer were made to
the yard at the back of the barn and that a vehicle of some sort would have
also been needed to maintain the outhouse that was located there.  Vehicular
use, therefore, is not beyond the scope of the original use of the easement,
and the court did not err in permitting the use of vehicles on the right-of-
 		The entry is:
Judgment affirmed.

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