Maine Law School Gets Large Gift

Portland, ME – The University of Maine School of Law is pleased to announce a generous gift of $100,000 from Doctors Victor and Anne McKusick of Baltimore, Maryland, to help support the Vincent L. McKusick Diversity Fellowship Fund. With an initial pledge of $100,000 from the law firm of Pierce Atwood LLP, the Maine Law School established this endowment fund late last year with the goal of increasing diversity among the student body and within the legal community in Maine. The Fund honors Vincent L. McKusick, former Chief Justice of the Maine Supreme Judicial Court and Victor McKusick’s twin brother.

- MaineBusiness

Landowner Challenging State’s Right-of-Way Claim

The Ellsworth American reports on a Hancock man who is challenging the State’s claim to the right-of-way, and railroad tracks that cross his land.

HANCOCK — A property owner who tried but failed to get a court order halting work on the 85-mile Ellsworth to Calais rails-to-trails project now claims the state does not own the right of way to the corridor.

Dale Henderson of Orrington bought 6,800 acres in Hancock 15 years ago. Four and half miles of the railroad tracks traverse his property.

His attorney, Tim Pease of Rudman & Winchell in Bangor, said he will file an amended complaint in Hancock County Superior Court within days.

The complaint will state that Maine Central Railroad in 1985 requested an abandonment order from the U.S. Interstate Commerce Commission for its railroad operations from Calais to Brewer.

Pease said the ICC granted the order in 1985.

In 1987, he said, Maine Central gave the state of Maine its right of way — access Pease maintains the railroad had already abandoned and no longer owned.

“Maine Central owned only a right of way, not the land, so when the railroad operations were abandoned the right of way automatically ended and reverted back to the prior owners of the land,” Pease said.

“If we are right about Mr. Henderson’s property, then the state wouldn’t be able to tear up that track and would not have the right to improve it or change it in any way,” he said.

The Maine Department of Transportation (MDOT) contends that it owns the right of way.

Another disbarment?

The Press Herald is reporting on another case of a lawyer stealing from their client.

A state ethics board has recommended that a Boothbay Harbor lawyer be disbarred for allegedly stealing at least $70,000 from a private trust that he controlled.

Information regarding the conduct of Franklin A. Poe also has been turned over to the financial crimes division of the state Attorney General’s Office, for a criminal review.

Poe was an attorney for Josephine Davis Day, who owned the Trailing Yew boarding home on Monhegan Island from the 1920s until her death in 1996, at age 99.

Poe prepared Day’s will and a trust that provided for the continuing operation of the Trailing Yew Inn. As the sole trustee, Poe was supposed to pay for the inn’s expenses, then divvy up profits to several beneficiaries. Instead, Poe was allegedly siphoning off profits for himself, and he stopped sending out payments entirely in 2003, according to court documents.

Because Poe never responded to the grievances filed against him, the state Board of Bar Overseers, under its rules, considered that an admission of guilt. Lawyers for the board are seeking to have Poe disbarred by the Maine Supreme Judicial Court.

Questionable Development Plans in Southwest Harbor

Update - 8/15

SOUTHWEST HARBOR — A developer proposing to build a 40-home subdivision on the waterfront along Main Street is already marketing the homes, though he has yet to get approval for all of them from the town’s planning board.

Developer Jeff Crafts announced last week his plans to develop The Village at Ocean’s End in three phases on a 35-acre parcel adjacent to Western Way Condominiums. The project includes an events center, swimming pool, walking trails and, on the harbor, a boat club with a deepwater dock and a golf cart tunnel under Main Street.

Mr. Crafts has permits to build three homes on the property. One, which will be a model home, is under construction.

Building a fourth home on the property would trigger subdivision review by the town’s planning board, according to Southwest Harbor code enforcement officer Don Lagrange. Maine law states “no person may sell, lease, develop, build upon or convey for consideration, or offer or agree to sell, lease, develop, build upon or convey for consideration any land or dwelling unit in a subdivision that has not been approved by the municipal reviewing authority” which, in Southwest Harbor, is the town’s planning board.

Mr. Crafts maintains that at this point he is only offering the three permitted homes for sale.
… more

- Mount Desert Islander

Adverse Possession and Maine’s Tradition of Permissive Use

By Elliott R. Teel

Casenote: Weeks v. Krysa

In a case that shows that the finer points of adverse possession law in Maine are still open to interpretation, the Maine Supreme Court issued a ruling on July 17, 2008 overturning a lower court who had found for the party claiming adverse possession. The lower court had ruled in favor of the party who had asserted that they had obtained title to a piece of property through adverse possession based its seasonal use of the land in question.

The issue before the court was whether or not the use of the lot by the claimants as presented by the facts of the case was adequate to meet the burden of the elements of adverse possession under Maine law. The claimants use of the disputed lot consisted of only summer-time use, including such things as children playing there, crossing over the lot to get to a lake it bordered on, clearing trees, and the planting of a garden that extended onto the lot. Further, the claimants had paid the taxes on the lot for some years, but not for the past 20 years.

The court began its analysis by stating the law of an adverse possession case in Maine:

A party claiming title by adverse possession has the burden of proving, by a preponderance of the evidence, that possession and use of the property was (1) actual; (2) open; (3) visible; (4) notorious; (5) hostile; (6) under a claim of right; (7) continuous; (8) exclusive; and (9) for a duration exceeding the twenty-year limitations period.

The issue in the case came down to the fifth element, whether or not the use was in fact ‘hostile.’ The Court explained that Maine’s tradition of permissive land use negated the claim that the party’s use of the property could be considered hostile. The State has an “open lands tradition, [where] recreational use of unposted open fields or woodlands and any ways through them are presumed permissive and do not diminish the rights of the owner in the land.”

The Court also pointed to an 1882 case to support the establishment of this tradition of permissive use of land. In that case the Court addressed the issue of crossing over fields and woodlands to access a “great pond.”[1] There the Court explained that going back to the time when Maine was a part of Massachusetts such use was permitted, and accessing the pond would not considered trespassing. In the present case the lot bordered on a lake, and part of the use of the lot was to get to the lake.

The claim for adverse possession could not be established because the use of the lot of determined to be a permissive use, and not hostile. Since it was permissive, as under the States tradition, the owner did not need to restrict access in order to preserve ownership. This issue of permissive use applies when there is recreational use of open, unposted lands.[2]

The policy reasoning behind the tradition, which is given force of law, is to allow recreational use of unposted private lands. And as to not deter landowners from allowing recreational use, such use can never result in the loss of that land through adverse possession.[3]

As with all cases, the facts ultimately determine the outcome. Here the extent and type of use of the land by the claimants failed to show a hostile intent. The level of use was determined to be more of a recreational use, as opposed to evidence of a claim of ownership. And even though the lot in question appeared to be abandoned, the court noted that lack of use by the owner has no relevance to a case of adverse possession.

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[1] Defined as “natural ponds exceeding ten acres.”

[2] The case follows a split decision of the Maine Supreme Court in 2002 that arguably changed the law as to when the use would be considered permissive.

[3] The State has limited liability for those who open their land through the Recreational Use Statute.

Maine’s Recreational Use Statute

by Elliott Teel

In recognizing that vast timberlands in Maine are in private hands, the State created a law that provides legal protection to those landowners who allow free access to those lands for recreational purposes . The Recreational Use Statute, 14 M.S.R.A. § 159-A, protects a landowner from liability if a person is injured while recreating on the landowners property.

The law provides that as long as the landowner is not charging for the use of their land when used for recreational purposes, (and they have not willfully created any dangerous conditions on the land), they will not be liable to anyone who might be injured while on the property. Allowing access to large areas of timberlands in the northern part of the State may have been the impetus of the law, but it is not limited to those areas. Any improved or unimproved land is included in the law. The law also covers not just land, but structures and water bodies flowing through or standing on those lands.

The statute defines “recreational and harvesting activities” broadly as “including, but not limited to, hunting, fishing, trapping, camping, environmental education and research, hiking, recreational caving, sight-seeing, operating snow-traveling and all-terrain vehicles, skiing, hang-gliding, dog sledding, equine activities, boating, sailing, canoeing, rafting, biking, picnicking, swimming or activities involving the harvesting or gathering of forest, field or marine products” The only things it specifically excludes are commercial agriculture or timber harvesting.

Overall the law favors landowners, in the way it was written, and how it has been applied in the courts. Anyone injured on someone’s land needs to be very careful in deciding to bring a lawsuit, because if they are not successful the law provides that they must pay the landowner’s legal costs incurred in fighting the lawsuit.

The courts have consistently ruled in favor of landowners in lawsuits, applying the statute broadly. One of the main issues that has been a subject of litigation is when someone using the land does pay for part of their use of the land, but that payment is not considered “consideration” (i.e., compensation) under the law. This is significant because if there is payment, then the law does not apply, and the landowner owes a duty of reasonable care to those of their land. If the law does apply, there is essentially no duty of care owned to those on the land.

There are two primary cases where the Courts have rejected claims made by injured parties that they had made payments that would have removed the landowner from the protection of the law. In one case there was a toll paid by the injured party to use a road that went across several landowners properties. In another, the injured party rented a lot on the property, and they were allowed to put up a temporary camp on that lot. In both cases the Maine courts found that the payments made by the injured parties was not specifically for the recreational use of the property, therefore landowners were still protected by the law.

Overall the law serves its purpose well in that lets landowners allow people onto their land without being concerned with lawsuits, and in return allows thousands of acres of private land to be open the general public to use. Landowners benefit by the way the law was written, and how the courts have applied the law, landowners do not have much to worry about with letting people on their land. And everyone else benefits because the law encourages landowners, who hold vast areas of land in Maine, to open that land without charging for access.

Permanent Disbarment for Lawyer

The Verrill Dana attorney who stole thousands of dollars from his clients has been permanently disbarred from practicing law in Maine.  This was the first lifetime disbarment in the state.

He will also mostly spend two years in jail.

A former Verrill Dana law partner will not appeal the lifetime disbarment handed down against him by Maine’s highest court.

The historic ruling permanently bans John D. Duncan from practicing law in this state, and effectively ends his law career. It is the most severe professional sanction ever imposed on a Maine lawyer, according to the state Board of Bar Overseers.

“He accepts the consequences,” Duncan’s lawyer, Toby Dilworth, said Monday.

“From the beginning of my representation of him, he has acknowledged his misconduct and taken full responsibility.”

- Press Herald

Employer Liability

By Elliott R. Teel

The Maine Supreme Court recently ruled on a case that suggests greater liability for employers for actions of their employees. The case concerned a employee who was driving home after completing a work assignment when he crashed into another vehicle, killing one and injuring two others.

The significance of the Court’s ruling is its indication that in future cases, Maine courts should allow for an expansion of time when an employer may be legally liable for the actions of an employee. The dissenting judges in the case noted that the ruling is a change in Maine law. The legal standard has been that a person who is “going to or coming from work is responsible for his or her own actions.”

Under Maine law, an employer is liable for the actions of an employee when their actions were within the “scope of employment.” To determine if the specific actions were within the scope of the employment, the court will look at three factors: (1) if the action was the type the employee was hired to perform; (2) the action took place substantially within the time and space as authorized by the employer; and (3) the action was done, at least in part, to benefit the employer.

The exact impact of the Court’s ruling is not yet known, though the ruling may lead to an employer being liable for the actions of an employee when they are driving to or from work or a specific assignment.  The ruling in the case overturned a lower courts dismissal of the case at an early stage of the case, and the Court did not articulate a new standard for the lower court to use, or for other future Maine cases. The Court did not explain what specific facts it found to be different in this case, or if they thought the current standard was outdated. However, based on the somewhat limited facts of the case, employers should be aware that they may be liable for their employees actions while they driving to or from work, or a specific assignment.

Court Upholds Takings

The Maine supreme court says the state Transportation Department legally took land occupied by a well-known restaurant so it could build a new bridge over the Penbobscot River.

In its ruling Thursday, the court says the former owners of the Sail Inn failed to present any evidence, other than personal opinion, contradicting the state’s position that taking all five acres of the restaurant’s land in Prospect was necessary.

The court also says plaintiffs Paul and Robert Dyer not contest that traffic safety concerns existed during construction of the Penobscot Narrows Bridge near the site of the Sail Inn.

The state condemned land for construction of a bridge to replace the Waldo-Hancock Bridge, which was built in 1931. The replacement bridge opened in 2006.

- Maine Today

Why automatic rental terminations are illegal

The story below describes a property management company that was automatically charging tenants a penalty if they moved out before their lease ended. While typically if you back out of a contract, which is essentially what your lease is, you still have to meet your obligation, or pay to compensate the other party.

The reason a landlord cannot automatically charge the tenant the remainder of the lease amount or even a fee, is that if the landlord fills that unit, they will be making more than what they would have made under the contract. The landlord can only recover what they would have made if the lease / contract was fulfilled by the tenant.

But this does not you can just get out of your lease without risk. If you sign a one year lease, and move out before the end of the lease, you may have to pay the rent while you are not there. Your landlord will need to try to find another

A Portland-based property management company has agreed to stop automatically charging early termination fees when tenants leave an apartment before a lease is up.

According to Maine’s attorney general, Port Property Management typically charged tenants early departure fees of $600, even if it immediately re-rented the apartment. Attorney General Steve Rowe says automatic early termination fees can be illegal under Maine law if a landlord immediately finds a new tenant.

Under a court-ordered consent decree, Port Property Management also agreed to pay a $10,000 civil penalty and to refund money to tenants who were improperly charged early termination fees.

Port Property Management, which manages more than 700 apartments in Portland and South Portland, did not admit to any wrongdoing.

-wcsh6