White v. Zela

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:  1997 ME 8
Docket:  YOR-96-150
Submitted on briefs November 15, 1996
Decided January 10, 1997

PANEL:  WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, and LIPEZ, JJ.  


HAROLD WHITE, et al.

v.

NICKEY ZELA, et al.


CLIFFORD, J.
	[¶1]  Harold White and Claire White appeal from the judgment entered
in the Superior Court (York County, Fritzsche, J.), affirming the modified
judgment of the District Court (York, Humphrey, J.) affecting the parties'
right-of-way and the location of their common boundary with Nickey Zela
and Marguerite Zela.  The Whites contend that the court erred in
determining the width of the former railroad right-of-way that is the
common boundary between the properties.  We are unpersuaded by the
Whites' contentions and affirm the judgment.
	[¶2]  The evidence discloses that the Whites and the Zelas own
adjacent properties in York.  After a somewhat complicated and unusual
procedural history resulting from the merger of the law practices of the
original attorneys in this case, the District Court granted in part and denied
in part the Whites' motion for relief from judgment following a dispute as to
whether the judgment previously entered accurately reflected a settlement
the terms of which had been placed on the court record.  The Whites
challenged that order and the revised judgment in their appeal to the
Superior Court.  After the court affirmed the order and revised judgment,
the Whites filed this appeal.
	[¶3]  The Whites challenge the determination by the trial court that
the width of the former railroad right-of-way is thirty-three feet.  It is well
established in Maine that what the boundaries are is a question of law, but
the location of the boundaries on the face of the earth is a question of fact. 
Rhoda v. Fitzpatrick, 655 A.2d 357, 359 (Me. 1995) (citing Dupont v.
Randall, 648 A.2d 437, 438 (Me. 1994)).  The finding of a trial court on the
location of boundary lines will not be disturbed unless clearly erroneous.  Id.
at 360.  (citation omitted).  A trial court's factual determinations are "clearly
erroneous" only if there is no credible evidence on the record to support
them, or if the court bases its findings of fact on a clear misapprehension of
the meaning of the evidence.  Id. (citation omitted).  Moreover, the weight
to be given disputed evidence, including that of opinion evidence by
surveyors, is for the factfinder.  Liebler v. Abbott, 388 A.2d 520, 522 (Me.
1978).  When the Superior Court acts as an intermediate appellate court, we
directly review the decision of the trial court.  Casco Northern Bank v.
Estate of Grosse, 657 A.2d 778, 780 (Me. 1995).
	[¶4]  In the present case, the court heard the competing views of two
expert witnesses, the Zelas' expert, Richard Parker, and the Whites' expert,
Thomas McCullom, as to the width of the right-of-way forming the easterly
boundary of the Zelas' property.  The experts both agreed that the easterly
boundary of the Zelas' property was the centerline of the former railroad
right-of-way.  Their disagreement focused entirely on the width of the right-
of-way.  Parker, who concluded that the right-of-way was thirty-three feet,
testified that his survey was based on a standard boundary survey prepared
from research that included, inter alia, work at the Registry of Deeds, at the
assessor's office, and a review of unrecorded surveys from other surveyors. 
McCullom, the Whites' expert, relied primarily on a deed granting an
eighteen foot right-of-way to conclude that eighteen feet was the
appropriate width.  The court's determination that the right of way is thirty-
three feet and its location of the boundary line on the face of the earth is
amply supported by the evidence and is not clearly erroneous.
	 The entry is:
									Judgment affirmed.

                                                            
Attorney for plaintiffs:			
Ricky L. Brunette, Esq.			
P. O. Box 7494				
Portland, ME  04112-7096		
						
Attorney for defendants:

Joseph V. Lenkowski, Esq.
SCACCIA, LENKOWSKI and ARANSON
P. O. Box 929
Sanford, ME 04073