Lawsuit Over Plans on Great Diamond

PressHerald:

The Friends of Great Diamond Island filed a lawsuit in Cumberland County Superior Court this week that seeks to block a 32-unit hotel and condominium project on the site of historic Fort McKinley.

“We think it really is inconsistent, incongruous with the nature of the island. The island is a quiet place,” said William Robitzek, head of the group.

The lawsuit asks a judge to overturn a vote by an island homeowners association in support of the project. The plaintiffs allege that the city of Portland illegitimately voted in the election, casting 23 ballots that tipped the decision in favor of the project and allowed the developer to clear a key hurdle in a quest to build the hotel condos.

City officials deny the allegation.

“We voted in an appropriate, legal way,” City Manager Joseph Gray Jr. said Thursday.

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.