Wallingford v. Kennedy

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 112
Docket:	And-99-333
Argued:	January 4, 2000
Decided:	June 15, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

DOROTHY WALLINGFORD{1}

v.

SHARON KENNEDY et al.{2}

DANA, J.

	[¶1]  Ivan and Dorothy Wallingford appeal from a judgment entered in
the Superior Court (Androscoggin County, Studstrup, J.) finding for Sharon
Kennedy and Robert Foss on the Wallingfords' trespass claims and finding
for Sharon Kennedy on her counterclaim seeking a declaratory judgment
that she is the owner of the parcel of property in dispute between the
parties.  The Wallingfords argue that the court erred when it determined
the boundary between the Wallingfords' and Kennedy's land.  We agree and
vacate the judgment.

I.  STATEMENT OF FACTS

	[¶2]  	In 1987, the Land Tree Corporation, which is owned by Robert
Foss and his wife through its parent corporation, acquired a piece of land in
the Town of Minot.  In the fall of 1993, Foss looked into building a house for
his daughter, Sharon Kennedy, on a triangular piece of land that he believed
was part of the parcel acquired in 1987.  He asked George Courbron to
identify the boundary lines of the property for him.
	[¶3]  Courbron had previously prepared a subdivision plan for one of
the prior owners of the parcel.  Using that plan, as well as tax maps and
deeds, Courbron drew up a plan for Foss.  Courbron, however, indicated that
he had merely traced the disputed boundary from a tax map and that he had
not actually surveyed the boundary in question according to standard
boundary survey procedures.
	[¶4]  With the plan indicating that the disputed parcel was part of the
parcel acquired by Land Tree in 1987, Foss hired a company to clear the
land.  After the company began cutting timber on the land, Ivan Wallingford
noticed the operation.  Ivan was under the impression that the triangular
piece of land being cleared was part of a piece of property that belonged to
him and his wife.  Ivan approached the individuals doing the cutting and
asked them to stop.  Although the parties differ as to the details, Ivan and
Foss spoke with one another sometime shortly thereafter.  Foss referred
Ivan to Courbron, but the dispute remained unresolved after Ivan and the
surveyor met.  Because of the dispute, Foss built the house on an undisputed
portion of the property owned by Land Tree.  In 1995, Land Tree conveyed
the 1987 parcel to Sharon Kennedy.
	[¶5]  In 1997, the Wallingfords filed a complaint against Kennedy and
Foss seeking damages for trespass, punitive damages for cutting timber, and
a declaratory judgment regarding the ownership of the property.  Kennedy
filed a counterclaim seeking a declaratory judgment regarding the
ownership of the disputed parcel.  Land Tree filed a complaint against the
Wallingfords for, inter alia, intentional interference with its contractual
relations.  The cases were consolidated.{3}
	[¶6]  The following evidence was introduced at trial:  In 1957, Lucien
Bardier owned two abutting parcels in Minot, one of which he transferred to
John Wallingford, and the other he transferred to John G. and Eugene O.
Wallingford.  In the deed to John G. and Eugene O. Wallingford, the relevant
boundary in the northern corner of the property was described thus:

On the north by York Road so-called
On the east by land of the Foster Lumber Co.
On the north by old Town road now discontinued
On the east by land of John Wallingford{4}

Neither party disputes the fact that the York Road referred to in this deed is
the same road that the Wallingfords now claim marks the boundary between
their property and that of Kennedy.  The above boundary call resulted in the
disputed triangle of property being included in the parcel of land
transferred to John G. and Eugene O. Wallingford.  In 1962, these two
parcels were conveyed in one deed to John Wallingford Fruit House, Inc.
(Wallingford Fruit House) excepting a parcel not relevant to this appeal. 
Ownership of the two parcels was thereby reunified.  The only descriptions
of the two parcels in the deed to Wallingford Fruit House refer back to the
deeds from Lucien Bardier.
	[¶7]  In 1984, Wallingford Fruit House conveyed the parcel formerly
belonging to John Wallingford to Chuck R. Starbird, again excepting parcels
not relevant to this appeal.  One of the alternate descriptions of the property
refers back to the Bardier deed to John Wallingford.  Later that year,
Starbird deeded the property back to Wallingford Fruit House, who in turn
deeded it back to Starbird.  The parties agree that the purpose of this series
of exchanges was to correct the description of one of the excepted parcels
that, as noted previously, is not relevant to this appeal.  Notably, however, all
three deeds continued to refer back to the original Bardier deed as an
alternate description of the property.  The parties do not dispute the fact
that at this point in time, the York Road referred to in the Bardier deed ran
along the road now claimed by the Wallingfords to mark their boundary with
Kennedy and that it marked the boundary of the two parcels that had again
been separated by the conveyance to Starbird.
	[¶8]  As a result of these conveyances, Wallingford Fruit House still
owned the parcel of land once belonging to John G. and Eugene O.
Wallingford that included the disputed triangle of land.  Starbird now owned
the land once belonging to John Wallingford.  The next reunification of the
two parcels took place in 1987.
	[¶9]  In August 1987, Starbird conveyed the parcel of property that
formerly belonged to John Wallingford to Peter Wallingford.  The
description in the deed refers back to the deed conveying the land to him
that in turn refers back to the Bardier deed.  Also in August 1987,
Wallingford Fruit House conveyed all of its property in the towns of Auburn,
Minot and Bowdoinham to Peter Wallingford.  This included the parcel of
land formerly belonging to John G. and Eugene O. Wallingford that included
the disputed triangle.  Ownership of the two parcels was united again.
	[¶10]  All the land conveyed from Wallingford Fruit House to Peter
Wallingford was described in a separate attachment incorporated by
reference in the deed.  Notably, also included in this attachment was a
description of the property that Wallingford Fruit House had already
conveyed to Starbird and no longer owned.{5}  This error would be of little
consequence because Starbird conveyed the piece of property to Peter
Wallingford anyway, but the description of the parcel in the attachment is
not the one contained in previous deeds and it is the first description of the
property that includes the disputed boundary call.
	[¶11]  When Peter Wallingford conveyed the parcel formerly belonging
to Starbird to Earl and Constance Sprague, predecessors in title to Kennedy,
he used the new description from the Wallingford Fruit House attachment,
repeating the disputed boundary call.  At the same point in time, Peter
Wallingford also conveyed the parcel formerly belonging to John G. and
Eugene O. Wallingford, which had heretofore included the disputed triangle,
to Ivan and Dorothy Wallingford.  Rather than using the same attachment, he
transcribed the descriptions found in the attachment, but properly omitted
the description of the Starbird parcel from the list.
	[¶12]  The parties agreed at trial, as they now do on appeal, that the
deed from Peter Wallingford to the Spragues controls this dispute.{6}  The
disputed boundary call reads, "thence running northwesterly on the York
Road five hundred twenty-four (524) feet to land now or formerly of
Timberlands, Inc."  The Wallingfords argued that the reference to the York
Road is to the road that the parties agree marked the boundary between the
properties until 1987, resulting in the disputed triangle's inclusion in their
property.  Kennedy and Foss argued that the reference to the York Road is
to an old road bed running between two stone walls.
	[¶13]  After hearing testimony from both parties' experts and
reviewing all the evidence, the trial court found that there was a latent
ambiguity in the call in the 1987 Wallingford to Sprague deed regarding
which route was meant by the reference to the "York Road," specifically
noting that the course of the road had been changed in 1892 creating two
possible routes for the reference to the "York Road."  The court also noted
that the reference to the York Road in the 1987 deed to the Spragues was in
a different context than the previous reference to the York Road in the 1957
Bardier deed.  The court found that the reference to another monument in
the 1987 deed, i.e., the reference to the land of Timberlands, was equivocal
because both routes ran to the land of Timberlands.  The court then
concluded that the distance reference in the boundary call assumed more
importance and indicated that the reference to the York Road was meant to
be to the old road bed between the stone walls as argued by Kennedy and
Foss.
	[¶14]  The court found for Kennedy and Foss on all the claims against
them, determining that the disputed triangle belonged to Kennedy.  The
court also found for the Wallingfords in the action brought against them by
Land Tree.  Only the Wallingfords appealed.

II.  THE DISPUTED BOUNDARY

	[¶15]  "The law is well established that the determination of the
boundaries of property as ascertained from a deed is a question of law. 
Where the boundaries are on the face of the earth is a question of fact and
the court's factual finding in that regard will not be disturbed unless clearly
erroneous."  Lawton v. Richmond, 1997 ME 34, ¶ 9, 690 A.2d 953, 955
(citing Snyder v. Haagen, 679 A.2d 510, 513 (Me. 1996)); see also Theriault
v. Murray, 588 A.2d 720, 721 (Me. 1991).  We look initially to the face of a
deed for the controlling intent of the parties.  See Snyder, 679 A.2d at 513. 
However, if facts extrinsic to the deed reveal a latent ambiguity,{7} we must
resort to standard rules of construction and circumstances surrounding the
drafting of the deed to resolve it.  See Lawton, 1997 ME 34, ¶ 9, 690 A.2d
at 955; Snyder, 679 A.2d at 513;  Theriault, 588 A.2d at 722.
	[¶16]  It is clear from the face of the controlling deed in this case that
the parties intended that the York Road mark a portion of the boundary
between the two adjacent parcels of land.  However, as the trial court noted,
there were two possible routes for the road when the description was
applied to the face of the earth.  At the time the deed was drafted, there
existed a woods road that had previously marked the boundary between the
parcels when title to the two parcels rested in separate hands and an old
road bed that ran between two stone walls.  Consequently, we, like the trial
court, must resort to the rules of construction regarding deeds, as well as
surrounding circumstances, to divine the intent of the parties regarding
which route marks the boundary.
	[¶17]  The trial court, relying on the rules of construction,
determined that, the other evidence being equivocal, the distance call of
524 feet was dispositive for purposes of determining which route was meant
by the reference to the York Road.  The court then concluded that the call
referred to the old road bed running between the stone walls, resulting in
the disputed parcel of land belonging to Kennedy.  This determination,
however, is not supported by the evidence.
	[¶18]  Unless application of the standard rules of construction would
yield absurd results or results manifestly inconsistent with the intention of
the parties to the deed, the rules require that boundaries be controlled in
descending order of priority by monuments, courses, distances and quantity. 
See Lawton, 1997 ME 34, ¶ 9, 690 A.2d at 955 (citing Perkins v. Graves,
642 A.2d 1349, 1351 (Me. 1994)).  The one monument call other than the
reference to the York Road, i.e., the reference to the land of the abutter,
does not resolve the ambiguity because both routes run to the abutter's land. 
Therefore, the rules of construction indicate that the course call be the next
call relied on.
	[¶19]  The trial court made no finding of fact regarding the course call
of "northwesterly" in its decision.  The Wallingfords, however, did not
request findings of fact subsequent to the entry of the court's judgment.  We
are left to assume, therefore, that the court made an implicit finding
regarding the course call that supports its decision.{8}  See Markley v. Semle,
1998 ME 145, ¶ 4, 713 A.2d 945, 946-47.  Because the court ultimately
relied on the distance call to resolve the ambiguity in the deed, we must
assume that the court found that both alternate routes ran "northwesterly"
and then proceeded to the distance call to resolve the ambiguity in its
application of the rules of construction.  This finding, however, is not borne
out by the evidence in the record.
	[¶20]  Generally, references to points of the compass in a boundary
course call are considered to run to the point referenced.  The American
Law of Property indicates that courts have generally held:

[W]hen the course is given as running toward a point of the
compass or at a stated variation from it, the point which must be
held to have been intended, unless there is something in the
description or elsewhere in the conveyance to indicate
otherwise, is the true cardinal point.

III American Law of Property § 12.105 at 411 (1952); see also  23 Am. Jur. 2d
Deeds § 309 at 280 (1983) ("the words 'easterly,' 'westerly,' and the like,
when used alone in the description of land, will be construed to mean 'due
east,' 'due west,' and the like, unless other words are used to qualify their
meaning").  We have noted previously, however, that the use of words such
as "north" or "northerly" do not always mandate that a boundary run due
north when adhering to the general rule would yield incongruous results. 
See Milliken v. Buswell, 313 A.2d 111, 115 (Me. 1973); see also Proctor v.
Hinckley, 462 A.2d 465, 472 (Me. 1983) (holding that call to go "east"
meant "easterly" rather than "due east" when running boundary due east
would result in absurd boundary inconsistent with other descriptions of
property found in deed).  We have also declined to hold that there is a legal
presumption favoring the magnetic meridian over the true meridian and
have, instead, treated the determination as one of fact to be made from the
evidence in the record.  See Milliken, 313 A.2d at 115; see also Herbert B.
Chermside Jr., Annotation, Boundaries:  Description in Deed as Relating to
Magnetic or True Meridian, 70 A.L.R. 3d 1220, § 5 at 1228-29 (1976).
	[¶21]  The record evidence in this case reflects that the old road bed
runs almost exactly due north using magnetic north while the woods road
runs north 45° 57' 45'' west, almost exactly northwest, again using
magnetic north.  It would appear, then, that the boundary call "running
northwesterly on the York Road" refers to the route following the woods
road that runs almost exactly northwesterly, not the old road bed that runs
almost due north, and that the magnetic meridian should be used in this
case.  We do not agree with the general argument of Kennedy and Foss that
the course call "northwesterly" refers to a route running toward any point
falling between the compass points north and west, and, as they specifically
argue in this case, between true north and true west.  Therefore, the trial
court's implicit finding that both routes run northwesterly is not supported
by the evidence.  Rather, only the woods road runs northwesterly.
	[¶22]  Although the distance call of 524 feet is more consistent with
the length of the old road bed,{9} we have previously observed in similar
circumstances, "[b]y itself . . . the loss of length on one boundary is not an
absurd result that is manifestly inconsistent with the parties' intentions as
reflected in the provisions of [the] deed."  Snyder, 679 A.2d at 513. 
Furthermore, according to the rules of construction, a course call in a deed
controls over a distance call.  See Conary v. Perkins, 464 A.2d 972, 975 (Me.
1983).  In Conary, we noted with regard to a surveyor whose survey was
adopted by a court-appointed referee:

It is apparent from his explanations at trial that when the
application of this rule [that boundaries are established in
descending order of control by monuments, courses, distances
and quantity] brought about what he felt was an unacceptable
variance from the stated distances in the deed, he would give
preference to distances over monuments or courses.  In this he
was in error, and, by so doing . . . was proceeding on the
assumption that the terms of the deed were incorrect and he in
fact was reforming the . . . deed."  

Id.  at 976.  We vacated the Superior Court's decision adopting the referee's
report as a result.  See id.  Based on the rules of construction, alone, it
would appear, then, that the trial court's placement of the York Road as
following the old road bed as opposed to the woods road was error.  In this
case, however, we are not forced to rely on the rules of construction alone.
	[¶23]  As we noted above, when there is a latent ambiguity in a deed,
we also look to the circumstances surrounding the drafting of the deed to
resolve it.  See Lawton, 1997 ME 34, ¶ 9, 690 A.2d at 955; see also Slipp,
651 A.2d at 825-27 (examining extrinsic evidence regarding parties' intent,
including circumstances surrounding the drafting of the deed, in an action
to reform the deed).  Kennedy and Foss argue that, despite the fact that
references to the York Road in deeds prior to the one at issue in this case
referred to the woods road as the boundary between the two parcels of land,
in 1987 Peter Wallingford not only intended to change the boundary
between the two parcels, but also to change the route meant by the name
"York Road."  Again, the record evidence does not support this contention.
	[¶24]  Both parties acknowledge that, until 1987, the reference to
"York Road" in the Bardier deed, and its incorporation by reference in other
deeds, placed the York Road on the woods road.  This had been the
understanding of all the parties to those deeds, including Peter Wallingford,
the grantor in the disputed deed.  Additionally, the woods road had always
marked the boundary between the two parcels when owned by separate
owners.  Although it is true that at the time of the drafting of the controlling
deed in 1987, Peter Wallingford could have redrawn the boundary between
the two parcels as the owner of both of them, Kennedy and Foss offer no
argument to explain why he would use the descriptive term "York Road" to
demarcate a different boundary from the one that the same term had
previously described.
	[¶25]  Additionally, Peter Wallingford testified to the circumstances of
the transfer of the properties, and he explained that the reason he acted as
a conduit for the purchasers was because he had been the approved buyer by
the bankruptcy court, but had not been able to acquire the necessary
financing.{10}  He was the owner of the abutting parcels for less than one day. 
It is unlikely that in that one day he would decide that one of the boundaries
between the parcels needed to be changed.
	[¶26]  Lastly, the first appearance of the disputed description is not in
the conveyance from Peter Wallingford to the Spragues but, rather, is in the
attachment to the earlier deed from Wallingford Fruit House to Peter
Wallingford (although at that time Wallingford Fruit House did not actually
own the parcel).  Because Wallingford Fruit House did not own both parcels
at the time the description first appeared, it was not in a position to change
the boundary between the two parcels of land by means of a new description. 
Therefore, the new description was likely intended to describe the parcel as
it had always been, with the boundary running along the woods road.  The
description then gets repeated by Peter Wallingford in his deed to the
Spragues, the deed both parties agree controls this dispute.  Again, although
he did have unity of ownership of the two parcels at the time, this repetition
of an earlier description does not appear to indicate an intention to change
the boundary as argued by Kennedy and Foss.
	[¶27]  We have stated that we will affirm a trial court's finding of fact
unless it is based on a clear misapprehension of the meaning of the
evidence.  See Dowley v. Morency, 1999 ME 137, ¶ 13, 737 A.2d 1061,
1066-67.  The trial court, by placing the boundary call referring to the York
Road along the old road bed, appears to have based its finding on a
misapprehension of the meaning of the record evidence.  The old road bed
does not run northwesterly as described in the deed, while the woods road
does.  Additionally, the circumstances surrounding the drafting of the deed
do not reflect an intent to either change the historical boundary between
the two parcels of land, nor to change the route connoted by the description
"York Road" from the woods road to the old road bed.  We therefore vacate
the trial court's decision.
	The entry is:
Judgment vacated.  Remanded for an entry of
judgment consistent with this opinion and a
determination of damages.
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