No. KNO RE-01-022
Superior Court of Maine, Knox.
June 6, 2002

This legal decision addresses a dispute between Bruce E. and Mary T. Parmley (plaintiffs) and Jules E. Bernard, III and Patricia W. Bernard (defendants) regarding a right-of-way in Rockport, Maine.

The plaintiffs sought a declaratory judgment and injunctive relief, claiming that the defendants’ asserted right-of-way was undefined and unlocated, and that the defendants intended to construct a road down the center of their property, pave it, and install utility lines. The plaintiffs argued that any road should be located with the least damage to their property.

The defendants denied that the right-of-way was undefined, asserting their right to construct a driveway at a specified location. They requested the dismissal of the plaintiffs’ complaint.

The court determined that the plaintiffs had the burden of proving the nonexistence of a deeded monument for the right-of-way. Both parties presented expert testimony and evidence, including aerial photographs and survey plans, to support their claims regarding the location of “the graveled road” mentioned in the original 1952 deed.

The court found that a definable location for “the graveled road” did exist, consistent with the 1956 aerial photograph and other corroborating evidence. It concluded that the plaintiffs did not meet their burden of establishing that the graveled road could not be located or had disappeared due to nonuse.

Regarding the extent of the defendants’ rights, the court ruled that while the right-of-way could be used for a driveway, it must remain a graveled road with a maximum 10.5-inch gravel bed and a width not exceeding 9 feet. The court enjoined the defendants from paving the driveway, citing that a paved road through the plaintiffs’ wooded lot would constitute an unreasonable burden. However, it allowed for the possibility of buried utility lines within the limit of disturbance of the proposed driveway, provided they do not interfere with the plaintiffs’ use of their land.

The court declared that a defined right-of-way exists, as located on the Exploration Location Plan dated May 11, 2001, by Summit Engineering Services, and that the defendants may utilize it and a reasonable extension consistent with the Sketch Plan for Jules and Pat Bernard dated July 13, 2001, by Landmark Corporation.

Summary by Gemini