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Pettee v. Young
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 156
Docket:	Han-01-118
Submitted
  on Briefs:	October 2, 2001	
Decided:	November 9, 2001

Panel:RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

MAYNARD L. PETTEE

v.

LOUINE YOUNG

RUDMAN, J.

	[¶1] Maynard Pettee appeals from a judgment entered in the
Superior Court (Hancock County, Hjelm, J.), affirming a judgment of the
District Court (Bar Harbor, Gunther, J.) in Pettee's action against Young.{1}  
The District Court found the deed from Young to Pettee to be ambiguous. 
We disagree and vacate the judgment in part.

I.

	[¶2]  Young and Pettee own adjoining properties in the Seal Harbor
Village section of the town of Mt. Desert.  Pettee has two buildings on his
property.  One is a finished cottage with full utilities and the other is an
unfinished "carpenter's shop" without utilities.  The first cottage has a
sewer line that traveled through Young's property (including through the
basement of her residence) to the main sewer line on Jordan Pond Road. 
The easement was not of record, but was undisputed.
	[¶3]  Pettee regularly rented the first cottage during the summer
months, and periodically stayed there himself.  He decided to renovate the
carpenter's shop and add utilities so that he could begin renting it.  The
applicable zoning ordinance did not allow more than one residential building
on the property, but it would allow a single building with more than one
residential unit.{2}  Pettee sought to solve his problem by building a
"connector" between the cottage and the outbuilding so that they would be
one building with two units.  In order to obtain a permit to rent the building,
however, Pettee still needed to install a new sewer line from the carpenter's
shop to the main street.  Accordingly, Pettee had his attorney draft an
easement deed, which provided, in pertinent part:
	

	Be it known by these men present, that We, Ralph Young
and Louine Young . . . for One Dollar and other valuable
consideration, do grant to Maynard L. Pettee and Karen K. Pettee
(The Pettees) . . . as joint tenants, their heirs and assigns, an
easement across our land on the easterly side of the Jordan Pond
Road at Seal Harbor in the Town of Mount Desert,  County of
Hancock and State of Maine (Our land) for the purposes of i)
extending overhead lines of lines of [sic] communication and
electricity across Our Land from land owned by The Pettees
easterly of Our Land to the public utility lines in the Jordan Pond
Road and ii) laying and maintaining underground lines of sewer
pipe across Our Land from land owned by The Pettees to the
public sewer in the Jordan Pond Road.

	The easement hereby granted is to confirm a prior
easement which we granted The Pettees and to grant to The
Pettees, their heirs and assigns, the right to make such
adjustments and additions to the location of the overhead lines
and underground pipes as they deem necessary to properly serve
the land owned by The Pettees.

	The Pettees, for themselves, their heirs and assigns, 
agree that, upon completion of and laying or maintaining of the
underground line or lines which may have disturbed the surface
of the earth, they will restore the grade of the earth to that
which it was prior to the work undertaken.

The deed as proposed was signed by Young{3} and delivered to Pettee.{4}
	[¶4]  Pettee began renovating the carpenter's shop in the summer of
1996.  Young became aware that he was renovating the shop in 1997.   She
became concerned about and agitated with the traffic that the construction
project was creating.  Young first took the matter to the Town's Zoning
Board, which sided with Pettee.  Young appealed that decision to the
Superior Court, which affirmed the Zoning Board's decision in April 1998.
	[¶5]  In May 1998 Pettee informed Young that he was going to install
the new sewer pipe through her property.  Young contacted her son, Nathan
Young, who was the chief of the nearby Bar Harbor Police Department, and
asked him to call the Mount Desert Police Department.  Nathan called
Sergeant Arthur Lawrence, and Lawrence paid Pettee a visit as a result. 
Lawrence reported that Pettee was cooperative, and as a result of the visit
from Lawrence, Pettee ceased all construction activities.  After a final
unsuccessful attempt to persuade Young to voluntarily allow him to install
the sewer line, he instituted this litigation.  
	[¶6]  The District Court found the easement deed to be ambiguous
and accordingly considered extrinsic evidence of the parties' intent.  The
court concluded that Young had intended only to confirm the
already­p;existing rights of the Pettees, not to give them new rights to lay
additional pipes or relocate the present pipe.  The court interpreted the
language in the deed that referred to the laying of new pipes to allow Pettee
to do what was necessary to repair or replace the pipe if it failed or needed
to be replaced for some other compelling reason.  Thus, the District Court
entered a declaratory judgment that the deed described an easement over
the present course of the sewer line and forbade Pettee from moving or
expanding the line unless relocation was the only solution for some failure in
the line, and also entered judgment in favor of Young on slander of title and
punitive damages counts.
  	[¶7]  Pettee filed an appeal with the Superior Court, which affirmed
the District Court's decisions on all three counts.  We affirm in part and
vacate in part.

II.

	[¶8]  The construction of a deed is a question of law that we review
de novo.  Bennett v. Tracy, 1999 ME 165, ¶ 7, 740 A.2d 571, 573.  A court
construing the language in a deed must give the words their "general and
ordinary" meaning,  Rhoda v. Fitzpatrick, 655 A.2d 357, 360 (Me. 1995),
and must first attempt to construe the language of the deed by looking only
within the "four corners" of the instrument.  Rancourt v. Town of Glenburn,
635 A.2d 964, 965 (Me. 1993).  If the language of the deed is unambiguous,
then the court must construe the deed without considering extrinsic
evidence of the intent of the parties.  Id.  If the deed is ambiguous, then the
court may admit extrinsic evidence of the parties' intent.  Northern Utils.,
Inc. v. City of S. Portland, 536 A.2d 1116, 1117 (Me. 1988).  
	[¶9]  The District Court concluded that the deed language was
ambiguous for three reasons: (1) there was tension between the language
indicating that the deed "confirm[ed] a prior easement" and the language in
the same sentence that granted Pettee new rights, (2) the location of the
easement was not stated with particularity,  and (3) the phrase "adjustments
and additions" was modestly worded.  The reasoning of the District Court is
unpersuasive and does not survive a careful parsing of the language of the
deed.  
	[¶10]  Although the District Court did not err in determining that
the deed in question confirms the existing easement, we conclude that the
deed also grants additional rights.  Specifically, the sentence at issue does
two separate and distinct things, and there is no conceptual problem with
what it does or grammatical problems with how it does it.  Indeed, the word
"and" suggests that what comes before it and after will be different things,
and that the clause that comes after it will do something in addition to
confirming the prior easement.  Thus, there is no tension between the two
phrases, and their presence supports Pettee's broad construction of the
deed.
	[¶11]  The second reason that the District Court concluded that the
easement was ambiguous was that the deed did not establish with specificity
the scope of the rights granted or the geographic location of the easement. 
Pettee counters that the language of the deed unambiguously grants him the
right to lay pipes anywhere on Young's property that he deems necessary to
properly serve his own. 
	[¶12]  The plain language might at first support Pettee's reading of
the deed, but we have been reluctant to construe a clause in a deed as
unambiguously granting an unrestricted right merely because there is no
express limitation on that right.  See Anchors v. Manter, 1998 ME 152,
¶ 16, 714 A.2d 134, 139 (discussed in detail, infra); Fine Line v. Blake, 677
A.2d 1061, 1064 (1996) (discussed in detail, infra).  We have even found
language describing the scope of an easement to be ambiguous when the
deed expressly stated that the easement was granted "for all purposes."
Saltonstall v. Cumming, 538 A.2d 289, 290-91 (Me. 1988).   Nevertheless, a
careful reading of our decisions shows that we have always required some
reason to suppose that the absence of limiting language does not connote
the absence of limits.   
	[¶13]  For example, in Fine Line, 677 A.2d at 1065, we held that a
deed was ambiguous as to the purpose of the easement granted when the
deed said nothing about permissible purposes.  The easement in Fine Line
described the geographic extent of the easement in detail, but did not state
or limit the purpose of the easement.  Id. at 1063.  Because the deed did not
contain an express limitation on the purposes for which the easement could
be used, the trial court concluded that the easement unambiguously granted
an unrestricted right of way.  Id.  We vacated the decision of the trial court,
concluding that the absence of a clause indicating the purpose of the
easement did not mean that the easement was unrestricted.  Id. at 1064-65. 
Rather, it was an ambiguity that warranted consideration of extrinsic
evidence.  Id. at 1065.  We reached this conclusion because the original
deed had granted an easement that allowed access to a wooded lot at a time
when there were no plans for-and the parties could not reasonably have
been expected to foresee-the development of a multi-unit subdivision.   See
id. at 1064-65.
	[¶14]  We also held that the absence of a clause restricting the scope
of an otherwise unrestricted right did not unambiguously grant the right
without limitation or restriction in Crispin v. Town of Scarborough, 1999
ME 112, ¶ 32, 736 A.2d 241, 250.  The easement in Crispin granted to the
dominant estate-which was an undeveloped parcel with no plans for
development at the time that the deed was signed-the right of access to
"any additional lots or parcels resulting from one or more divisions of a
portion or portions of the Benefitted Property."  Id.  We held that, although
the easement grant did not contain a limitation on the number of parcels, it
was ambiguous because it did not indicate whether the grantor anticipated a
subdivision of the size proposed in the case.  Id.   What led us to decide that
the deed was ambiguous was the unforeseeability of the subdivision at the
time the easement was granted.  The parties may have contemplated
something on the scale of the proposed subdivision, but that was not clearly
indicated by the silence in the deed on the subject.
	[¶15]  While Fine Line and Crispin stand for the proposition that the
absence of limiting language does not necessarily mean that there are no
limits to the right granted, there is a significant distinction between those
two cases and this case.  In Fine Line and Crispin, the question was whether
an easement allowed the grantee to do something that might not have been
reasonably foreseeable at the time the easement was granted.  The deed in
this case specifically talks about utility lines and pipes, however.  Indeed,
from the face of the deed it is clear not only that it contemplated residential
sewer lines, but that it contemplated the possibility that Pettee would need
to make changes in the location of the pipes in the future.  Thus, the
absence of limiting language suggests the absence of a limitation much more
strongly than did the absence of limiting language in the Fine Line and
Crispin deeds.  This might be a different case if Pettee decided to do
something with this property that was completely unforeseeable when the
easement was signed (like open a large business establishment).  This deed
clearly contemplates residential sewer lines, so the absence of limiting
language does not create an ambiguity the way it did in Fine Line and
Crispin.
	[¶16]  Young relies heavily on Anchors to support her argument that
the deed is ambiguous.  In Anchors, this court held that an easement was
ambiguous when it failed to adequately define the geographical parameters
of the easement.  Anchors, ¶ 16, 714 A.2d at 139.  The deed merely
described the easement as "running in a general westerly direction" across
the property of the defendant. Id., ¶ 3, n. 2, 714 A.2d at 136.  Young argues
that like the deed in Anchors, the deed in the instant case is ambiguous
because it did not provide the location of the potential sewer lines with
particularity.
	[¶17]  The facts of this case and Anchors are similar, but there is a
critical difference between them.  Unlike the deed in Anchors, this deed
contains a provision providing a basis for determining where the lines can
be placed.  In contrast, the deed in Anchors contemplated an easement in a
discrete location but did not identify, or provide any basis by which the
parties could later fix with certainty, that location.  The present deed does
not share this defect because it does not contemplate a discrete location for
the utility lines.  The deed in this case provides explicitly that Pettee can
construct a line anywhere on the property that he sees fit. 
	[¶18]  The final reason that the District Court gave for finding that
the deed was ambiguous was that "adjustment and modifications" was
"modest phrasing."  We conclude that "adjustments and modifications" is
sufficiently clear to cover the placement of a new sewer pipe,
notwithstanding the fact that it might be "modest." 
	[¶19]  Thus, we construe this deed to grant Pettee broad discretion
to decide what needs to be done to properly service his property and may
lay pipes as required.{5}  Because the deed is not ambiguous, it is unnecessary
to consider the findings of the District Court, based on the extrinsic
evidence, to assist us in interpreting it.

III.

	[¶20]  In order to recover for slander of title, a plaintiff must prove
four elements: (1) publication of a slanderous statement disparaging a
claimant's title to an interest in land, (2) the statement was false, (3) the
statement was made with malice or with reckless disregard of its falsity, and
(4) the statement caused actual damage.  Colquhoun v. Webber, 684 A.2d
405, 409 (Me. 1996).  Pettee's slander of title claim was based on Nathan
Young's phone call to Sergeant Lawrence.  Pettee argues that Nathan was
acting as Young's agent because he called Lawrence upon her request and for
her benefit. 
	[¶21]  The District Court ruled in Young's favor on the slander of
title action because, having concluded that Pettee did not have a right to
relocate the sewer pipe, it found that the statements made by Nathan were
not false.  The District Court also concluded that Young would not be
responsible for the actions of her son, Nathan Young.  Because we vacate the
District Court's holding on Count I, and also because the single comment by
the District Court on Nathan Young's agency status does not dispose of this
issue, we must vacate the District Court's holding on this count as well.  We
remand to the District Court to reconsider Count II of Pettee's complaint.

IV.

	[¶22]  Punitive damages are available only when the plaintiff's
conduct is done with "actual malice" or is "so outrageous that malice toward
a person injured as a result of that conduct can be implied."  Tuttle v.
Raymond, 494 A.2d 1353, 1361 (Me. 1985).  The District Court's only
reason for denying punitive damages was that it denied Pettee recovery on
the slander of title claim.  Even though we are vacating the District Court's
holding in Count II, we affirm the denial of punitive damages on the basis of
the undisputed facts.  The record does not support a factual finding that
Young acted with malice toward Pettee, nor does Young's conduct rise to the
level of outrageousness required by Tuttle.  Thus, we affirm the District
Court's holding on Count III.
	The entry is:

Judgment vacated.  Remand to the Superior Court for
remand to the District Court for further proceedings
consistent with the opinion herein.

Attorneys for plaintiffs:

Sandra Hylander Collier, Esq.
Catherine L. Haynes, Esq.
P O Box 1391
Ellsworth, ME 04605

Attorneys for defendant:

Terence M. Harrigan, Esq.
Rosalind S. Prince, Esq.
Vafiades, Brountas & Kominsky, LLP
P O Box 919
Bangor, ME 04402-0919