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Lyons et al. v. Baptist School

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MAINE SUPREME JUDICIAL COURT                                                          Reporter of Decisions

Decision:          2002 ME 137

Docket:            Aro-01-681

Argued:            April 4, 2002

Decided:           August 16, 2002          

Panel:              SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

Majority:         SAUFLEY,  C.J., and DANA, ALEXANDER, LEVY, JJ.

Dissent:           CLIFFORD, RUDMAN, and  CALKINS, JJ.

EDWIN LYONS et al.[1]

v.

BAPTIST SCHOOL OF CHRISTIAN TRAINING

ALEXANDER, J.

            [¶1]  The Baptist School of Christian Training appeals from a judgment entered in the Superior Court (Aroostook County, Hjelm, J.) after a nonjury trial finding that a public, prescriptive easement exists across the Baptist School's property located in the Town of Chapman.  The Baptist School argues that the Superior Court erred in finding a public, prescriptive easement because there is insufficient evidence of adversity and because the court did not apply Maine's presumption of permissive use regarding recreational uses of open lands.  We vacate the Superior Court's judgment because the record fails to support the finding of adversity necessary to establish a public, prescriptive easement.

I. CASE HISTORY

            [¶2]  For the past fifty years, the Baptist School has owned a lot consisting of approximately 150 acres of mostly wooded land in the Town of Chapman (Chapman lot).  The Chapman lot adjoins another large lot owned by the Baptist School in the Town of Mapleton (Mapleton lot).  Until the 1940s, there was a residence on the Chapman lot, and four to six acres of the Chapman lot immediately abutting the Mapleton lot were cultivated for potatoes and other uses. Only a foundation remains today, and the formerly cultivated areas are now significantly overgrown.  Beginning in the 1950s, the Baptist School developed and expanded a summer camp for children on the Mapleton lot, constructing a number of buildings and open areas for camp activities and recreation. 

            [¶3]  The Baptist School's properties are accessed from the Carvel Road, a public way, onto the Baptist Park Road.  The Baptist Park Road runs through the Mapleton and Chapman lots and has provided access to other properties south of the Chapman lot and to the Presque Isle Stream.  The portion of the Baptist Park Road within the Town of Mapleton is a public way maintained by the Town of Mapleton.  The Town of Chapman has not been involved in maintaining the portion of Baptist Park Road within the Town of Chapman.  There is no evidence that, within the Town of Chapman, the Baptist Park Road exists as anything other than a private way across the land of the Baptist School and other owners within the Town of Chapman. 

            [¶4]  The programs on the Baptist School's property have expanded considerably in recent years from approximately 200 campers in the mid-1950s to nearly 1000 campers in the year 2000.  In addition, the nature of the programs has expanded from weekly summer camp offerings for children to larger weekly camp sessions in the summers.  There are also weekend sessions for children and adults at other times of the year.  Most of the camp-related activities have been conducted on the Mapleton lot.  In the past several years, however, the Baptist School has added an archery course, a climbing wall, and trails for cross-country skiing and mountain biking that use the Chapman lot.  With permission, the cross-country skiing and mountain biking trails extend onto a neighboring property. 

            [¶5]  In 2000, after increasing concern about abusive uses of their property by all-terrain vehicles and large-tire, four-wheel drive vehicles, the Baptist School placed a barrier across the Baptist Park Road.  Initially, this barrier was placed across the road on the Mapleton lot.  Later, because the road on the Mapleton lot is a public way, the barrier was moved back to the Chapman line.  The plaintiffs, all of whom own property in the vicinity of the Baptist School, then brought suit alleging that a public easement by prescription had been established on the portion of the Baptist Park Road located on the Chapman lot. 

            [¶6]  At trial, twelve witnesses testified, including six of the plaintiffs:  Thomas Kaiser, Steven Kaiser, Eugene Weaver, Edward Breeden, Edwin Lyons, and Larry Gardiner.  Also testifying for the plaintiffs were five area residents, John Edgecomb, Fernald Garland, Ronald Carney, Keith Condon, and Shane Thomas.  In addition, the Baptist School President, Raymond Todd, testified.  Todd, had been associated with the Baptist School since he was a camper in the 1950s. 

            [¶7]  All of the witnesses testified that through the years, they and other members of the public frequently used the Baptist Park Road for hunting, fishing, snowmobiling, and other recreational activities as well as to access the Presque Isle Stream and other properties south of the Chapman lot.  Among other uses, Eugene Weaver testified that he had owned a bulldozer and would "take it for a walk" on the road, clearing out any blow downs or obstructions as he did so. 

            [¶8]  All of the plaintiffs' witnesses testified that they currently or had previously used the road within the Town of Chapman with some frequency and, when they used it, they neither requested permission nor believed they needed to receive permission to use the road. 

            [¶9]  Witnesses Garland and Thomas and plaintiff Thomas Kaiser testified that they thought they had a right to use the road.  For example, in response to the question, "Did you use it as though you had a right to?"  Fernald Garland testified, "Yuh, that's the way I think that it is.  I mean, that's the way we always thought it was."  Garland and Thomas also testified that if  "No Trespassing" signs had been posted, they would have respected the signs, not used the road, and stayed off the property.  Witness Carney and plaintiffs Steven Kaiser, Breeden, and Lyons also testified that they would have respected "No Trespassing" signs, had they been posted.  Plaintiff Gardiner testified that he believed he could use the property for hunting because Maine did not have a "reverse trespass" law requiring affirmative permission from landowners prior to hunting. 

            [¶10]  Several witnesses, Garland, Condon, and Thomas, and plaintiffs Thomas Kaiser, Steven Kaiser, Weaver, and Breeden, acknowledged the existence of a tradition that embodies the belief that people have implicit permission to traverse and use other persons' open fields and woodlands without seeking express permission.  That implicit permission for public use continues until explicitly withdrawn by an affirmative act, such as placement of a barrier or "No Trespassing" signs, which would be respected.  The following colloquy between counsel for the Baptist School and Fernald Garland reflects the tradition of implicit permissive use:

Q.   [W]hen you weren't working and you were on defendant's land, did you feel that you had permission to be on their land?

A.      Well . . . I just didn't believe that they really minded if people went on there.  Through all of the years, people have been going on that piece of ground.  That's--I own property too, people go on [my land]. . . .  [I]t's just--we live in Aroostook County, and that's the way it is in Aroostook County, but I've never--I've hunted and fished and traveled .­.­. and I never yet have been told to leave a piece of property, . . . nor have I asked permission. . . .  [I]ts just the way we are, I guess, and I think its a great way to be.

Q.      [S]o I understand, then, that you did not feel you were a trespasser on their property?

A.      No sir. 

Q.      And, you did not feel you were--you were on their property against their wishes?

A.      That's true.

            [¶11]  Discussing the Baptist School's position regarding uses of its roadway, Raymond Todd acknowledged that many people used the road over the years and that generally use of the road was allowed without requesting or receiving explicit permission.  Todd testified, "We always let people go.  We [want to] be good neighbors."  Todd did testify that on a few occasions, people making excessive noise or using alcohol during times when camp was in session had been requested to and did leave the property.  Todd and several other witnesses also testified that, at one point in 1978, a cable was placed across the roadway.  This cable was present a brief period of time, a few days at most, and then was removed.  Other than that, there had been no barrier to use of the roadway and no "No Trespassing" signs until placement of the barriers in 2000.

            [¶12]  After trial, the Superior Court found that all of the necessary elements for a public, prescriptive easement had been proven and, accordingly, entered judgment for the plaintiffs.  The court's judgment was fairly brief, stating generally the elements necessary to prove a public, prescriptive easement and finding that those elements had been proven.  The Baptist School then filed this appeal. 

II.  DISCUSSION

            [¶13]  Where a trial court enters a judgment based on findings of fact, and no additional findings of fact are requested pursuant to M.R. Civ. P. 52(a), we will infer that the court made all the necessary findings of fact to support the judgment, if those findings are supported by evidence in the record.  Glidden v. Belden, 684 A.2d 1306, 1316 (Me. 1996); Blackmer v. Williams, 437 A.2d 858, 861 (Me. 1981).  The trial court's explicit and inferred findings of fact will be reviewed for clear error and will be affirmed if there is competent evidence in the record to support the finding of a public, prescriptive easement, even if the evidence might support alternative findings of fact.  Eaton v. Town of Wells, 2000 ME 176, ¶ 33, 760 A.2d 232, 244. 

            [¶14]  Plaintiffs contend that an owner of open fields or woodlands who, over a twenty-year period, knows of and does not object to recreational crossings and/or uses of that land, forfeits a public easement and forfeits the owner's rights to object to a continuation and even an expansion of those uses by the public.  Maine's public, prescriptive easement law is not so quick to deprive landowners of rights to control access to their land.  The tradition of acquiescence in public access to nonposted fields and woodlands, acknowledged by six of the plaintiffs' witnesses, can, as a matter of law, remain alive and well in comity with Maine law governing public, prescriptive easements. 

            [¶15]  The party asserting a public, prescriptive easement must prove: (1) continuous use; (2) by people who are not separable from the public generally; (3) for at least twenty years; (4) under a claim of right adverse to the owner; (5) with the owner's knowledge and acquiescence; or (6) a use so open, notorious, visible, and uninterrupted that knowledge and acquiescence will be presumed.  Id. ¶ 32; accord S.D. Warren Co. v. Vernon, 1997 ME 161, ¶¶ 5, 16, 697 A.2d 1280, 1282, 1284; Town of Manchester v. Augusta Country Club, 477 A.2d 1124, 1130 (Me. 1984). 

            [¶16]  In this case, there is no serious dispute that the road crossing the Chapman lot was subject to continuous public recreational use for at least twenty years and that this use was known and allowed by the Baptist School until 2000.  The question before us is whether that public use was under a claim of right adverse to the Baptist School.

            [¶17]  An essential element of any prescriptive easement claim is "a demonstrated intention by the adverse user to claim title or a right to use property."  Jordan v. Shea, 2002 ME 36, ¶ 30, 791 A.2d 116, 124; see also Glidden v. Belden, 684 A.2d 1306, 1317-18 (Me. 1996).  Thus, for purposes of creation of a prescriptive easement, a use is adverse to the owner "'when a party . . . has received no permission from the owner of the soil, and uses the way as the owner would use it, disregarding his claims entirely, using it as though he owned the property himself. . . .'"  S.D. Warren Co., 1997 ME 161, ¶ 11, 697 A.2d at 1283 (quoting Blanchard v. Moulton, 63 Me. 434, 437 (1873)).  Accord Stickney v. City of Saco, 2001 ME 69, ¶ 21, 770 A.2d 592, 602.  We have characterized the type of acts that an adverse possessor must demonstrate as acts sufficient to give notice to the owner of the adverse claimants' "antagonistic purpose" or "hostile intent."  Emerson v. Maine Rural Missions Ass'n, Inc., 560 A.2d 1, 2-3 (Me. 1989); see also Webber v. Barker Lumber Co., 121 Me. 259, 264, 116 A. 586, 588 (1922) (hostile intent); Stewart v. Small, 119 Me. 269, 271, 110 A. 683, 684 (1920) (antagonistic purpose). 

            [¶18]  In cases involving claims of private, prescriptive easements, we have stated that where there has been unmolested, open and continuous use of a way for twenty years or more, with the knowledge and acquiescence of the owner of the servient estate, the use will be presumed to have been adverse and under a claim of right.  Blackmer, 437 A.2d at 862 (citing Jacobs v. Boomer, 267 A.2d 376, 378 (Me. 1970)); Burnham v. Burnham, 130 Me. 409, 411, 156 A. 823, 824 (1931).  However, application of such a presumption to a public, prescriptive easement claim for recreational uses is inappropriate when that claim applies to open fields or woodlands and the ways traversing them. 

            [¶19]  Under our precedents, public recreational uses of unposted open fields or woodlands and the ways through them are presumed permissive.  Thus, in S.D. Warren v. Vernon, 1997 ME 61, ¶¶ 15-17, 697 A.2d 1280, 1283-84, we affirmed a finding of a private prescriptive easement, but we vacated a finding of a public prescriptive easement based on evidence of use of a way for hunting or recreation, woods work and access by abutting landowners.  We held that "use of the road by the public for hunting or recreation is presumed permissive."  Id. ¶ 17.  In Town of Manchester v. Augusta Country Club, 477 A.2d 1124 (Me. 1984), we addressed a way maintained by the town through a golf course and used by the public for nearly fifty years to access a beach maintained by the country club.  We affirmed a trial court finding that a public prescriptive easement was not proven because the evidence was insufficient to "rebut the presumption that such use was permissive."  Id. at 1130.  We also noted that our rule that public recreational uses are presumed to be permissive "is predicated on the notion that such use by the general public is consistent with, and in no way diminishes, the rights of the owner in his land." Id.  This observation is consistent with the testimony about traditions underlying recreational uses of land that was offered by several of the plaintiffs' witnesses in this case.

            [¶20]  Some of our past decisions may not have been entirely clear as to whether the presumption of permissive use is generated by the public, recreational use itself, or by the nature of the land on which the use occurs, which we have sometimes characterized as "wild and uncultivated."  Thus, in Town of Kennebunkport v. Forrester, 391 A.2d 831, 833 (Me. 1978), we stated that:

In a consistent line of cases this court has declined to hold that the mere use by the general public of wild and uncultivated land as a route for hauling seaweed, for hunting, or for mere pleasure or recreation, is sufficient to show the adverse [use] essential to create a prescriptive easement.

            [¶21]  In support of this statement, we cited Piper v. Vorhees, 130 Me. 305, 312, 155 A. 556, 560 (1931), Littlefield v. Hubbard, 124 Me. 299, 304, 128 A. 285, 288 (1925), and Mayberry v. Inhabitants of Standish, 56 Me. 342, 353 (1868).  In these earlier cases, the issue of use was addressed in the context of land that was variously described as "unenclosed, unimproved and unoccupied"[2] or "open and unenclosed."[3]  Littlefield and Mayberry also noted the "trifling value" of the land.[4]  However, some of the characterizations of land in these past precedents may be reflective of a tendency to cite phrases from old cases where the issue addressed is not really the land itself, but the use of the land.  In Forrester, for example, it is doubtful that the land at issue, abutting Ocean Avenue in Kennebunkport, could be characterized as "wild."  It certainly would not be of "trifling value."  These terms are maintained in the precedents because the significance of the precedents is not what they say about the land, but the principles they establish regarding public, recreational uses of land.  Were the law otherwise, with the presumption of permissive use generated by the character of the land rather the public recreational use of the land, the law would invite the perverse result that a public easement claim could fail when land was undeveloped but become viable as land was developed.

            [¶22]  The distinction between focus on land and focus on use is evident in Town of Manchester v. Augusta Country Club, 447 A.2d at 1126, 1130, where the principle that public recreational use of land is presumptively permissive was applied to land--a town maintained way through a golf course--that certainly was not wild, or uncultivated or unimproved.  Even that case, applying the presumptively permissive use principle to a very different type of land, cites the old precedents from which the principle was derived and their references to "wild and uncultivated" land or land of "trifling value." 477 A.2d at 1130.[5]

            [¶23]  The "wild and uncultivated" terminology was resurrected in S.D. Warren, 697 A.2d at 1284, a case involving a maintained roadway crossing defendant's house lot, where we found a private, prescriptive easement proven, but we found the evidence of uses of the way insufficient to rebut the presumption that public, recreational uses are permissive.  Id.  Thus, we vacated the trial court's finding of a public prescriptive easement.  Id.

            [¶24]  These later cases make it evident that it is the public recreational uses of land, not the nature of the land alone, that triggers application of the rebuttable presumption of permissive use in public prescriptive easement cases.  The presumption that public recreational uses of open, unposted land are permissive applies equally to children playing on a vacant lot in town, hunters and snowmobilers crossing a cultivated field after the harvest, or families camping on privately owned wood lots, and it applies to the uses testified to by the plaintiffs in this case.[6]

            [¶25]  In this case, the long history of public, recreational uses of the Chapman lot and the way through it, creates a presumption of permissive use, not a presumption of adversity.  This presumption of permissive use does not result in burden shifting.  It leaves with the plaintiffs the burden of proving adversity through a claim of right hostile to the owner's interest, without benefit of any presumption of adversity arising from long term public recreational uses of the land.

            [¶26]  The plaintiffs must prove that their actions in using the way demonstrated hostility or antagonistic intent in order to impose a public, prescriptive easement and deprive the Baptist School of its capacity to limit use of the property.  In the context of an adverse possession or prescriptive easement claim, hostility does not require a "heated controversy or a manifestation of ill will" toward the owner.  Striefel v. Charles-Keyt-Leaman P'ship, 1999 ME 111, ¶ 13, 733 A.2d 984, 991.  But proving the hostile claim of right element does require a showing that the use was: (1) without the express or implied permission of the owner, id.; (2) with the intent to displace or limit the owner's rights to the land, id. ¶ 14; and (3) undertaken in a manner that provided the owners with "adequate notice . . . that the owner's property rights are in jeopardy."  Id. ¶ 11.  See also Emerson, 560 A.2d at 2