U.S. v. PONTE

246 F. Supp.2d 74 (2003) | Cited 0 times | D. Maine | February 27, 2003

DECISION AND ORDER ON GOVERNMENT'S MOTION FOR ENTRY OF JUDGMENT BY DEFAULT AND DEFENDANT STONE'S MOTION TO SET ASIDE DEFAULT

These motions for default judgment and to set aside default involveenforcement of a government-held conservation easement on Black Island.Black Island lies in the vicinity of Acadia National Park. The contestedeasement language provides:

No new structures, except those for which immediate proximity to the water is essential, shall be located within the area between low and high water marks of the Property or between mean high water mark and a line parallel to, and set back 100 feet from, said high water mark.

Conservation Easement, Book 1205, Page 500, at 505 (Hancock CountyRegistry Deeds, Aug. 28, 1974) (Docket No. 81). The government seeks toenforce its conservation easement over the property. Fee ownership of theproperty has belonged successively to two trusts during the course of thislawsuit. At this point, the government seeks injunctive relief againstthe trusts and the trustees to compel them to remove a 20 by 24 footplatform or floor frame from the property.

The case has become a procedural morass. It has been pending since 1999and has had three district judges and two magistrate judges. Thedefendants have had two lawyers,1 and currently have none.Settlements have come and gone. Default judgments have been entered andremoved. During the pendency of the lawsuit, the initial defendantsconveyed the property and new defendants were added. Entry of defaultremains in place against all defendants. Individuals, the namedtrustees, have appeared and filed papers. They have been warned time andagain that they cannot represent the trusts in federal court because onlylawyers can represent entities, see, e.g., Knoefler v. United Bank ofBismarck, 20 F.3d 347,348 (8th Cir. 1994); C.E. Pope Equity Trust v.United States, 818 F.2d 696, 697-98 (9th Cir. 1987), but to no avail.Most recently I held a hearing on the government's request for defaultjudgment. No lawyer for the defendants appeared. Dr. Paula Stoneappeared, purporting to represent herself as a trustee; there was not evena purported appearance for her mother as a trustee of a different trust,or for the two trusts.

At the default judgment hearing the government stated on the recordthat it no longer seeks enforcement of a previous settlement agreementand no longer seeks removal of a certain pier and two floats. Thegovernment does continue to seek removal of the platform.

I. DEFAULT JUDGMENT

Two critical issues must be resolved before any default judgment can beentered:

1. Is the easement's 100-foot setback (the area "between mean high water mark and a line parallel to, and set back 100 feet from, said high water mark") to be measured horizontally,2 or over the face of the earth3 on this sloping property? The answer determines whether the platform offends the easement.

2. Is the offending structure one "for which immediate proximity to the water is essential"?

The legal effect of entry of default is clear; entry of default does notautomatically entitle the plaintiff to the relief it seeks, but it doesamount to an admission by the defendants of the material allegations ofthe complaint. Ortiz-Gonzalez v. Fonovisa, 277 F.3d 59, 62-63 (1st Cir.2002). A plaintiff must nevertheless establish that on the law it isentitled to the relief it seeks, given the facts as established by thedefault. Bonilla v. Trebol Motors Corp., 150 F.3d 77, 80 (1st Cir.1998). Here, the default results in an admission that the conservationeasement applies to the property,4 and that a structure exists whereit should not be, at least if the government's measurement method isaccepted.5 It does not amount to an admission in the government'sfavor of thetwo issues I have outlined. The government still mustsatisfy me that I should order the structure removed as a result ofinterpreting the easement, and the trustees can still attempt to persuademe that their structure fits within the easement's "essential"exception.6

I turn, therefore, to where the law and the record stand on the twoissues.7

As for the method of measurement, the default establishes that theplatform in question is within the prohibited distance from mean highwater mark,8 measuredhorizontally, but not if measuredover-the-ground. Defs.' Position Br. at 5, 14 (Docket No. 83); Defs.'Response Mot. Default Ex. A at 1 (Docket No. 47); Answer at 2 (DocketNo. 9) (answer for Iolanda Ponte only). The government asks me to declarethat horizontal measurement is the only way to measure easementdescriptions in the State of Maine, and therefore that the structure mustbe removed.

Maine's Law Court has said that the horizontal method is the "common"method of measuring distances, Town of Union v. Strong, 681 A.2d 14, 18(Me. 1996),9 usingas authority a 1962 text, Curtis M. Brown &Winfield H. Eldridge, Evidence and Procedures for Boundary Location(1962), a text that was extant at the time this easement was drafted.Another text the Law Court cites states the principle that a surveyormust consider usage at the time a particular deed description wasdrafted. Walter G. Robillard et al., Brown's Boundary Control and LegalPrinciples 42 (4th ed. 1995) ("The unit of measurement indicated in thedescription is that unit of measurement used at the time of the survey orwhen the description was written."). Horizontal measurement, therefore,is appropriate for this 1974 easement. There is nothing to suggest thatthe parties to this conservation easement had anything different inmind.10

On the second issue, there is no showing or even suggestion whyimmediate proximity to the water is "essential" for the platformstructure. This is an issue where the trustees have the burden, since itis an exception to the easement's restrictions.11 What Dr. Stone saysis:

The platform functions in several critical ways, as follows:

a. The ground under the platform is seasonally wet, and very uneven, with large boulders. Without the platform, there would be no surface upon which to store materials, work, walk, sit, or even rest.

b. Picture, if you will, the logistical problems connected with this site. A barge arrives at high tide, which is the only time when it is able to unload materials onto the dock, and unloads lumber, or supplies for the summer season, such as food, fuel, etc. These things must be carried by hand up to the house or to the building site. Part way up, there must be a place where these things can be set down, or temporarily stored. At a normal house, there are driveways and garages for this purpose, but here there is only dense forest and rocky ground, and so there must be the functional equivalent of road access in order to serve the needs of safety and convenience; the various platforms, ramps, and stairs perform that function.

Defs.' Position Br. at 13.12 Much as this may describe why Dr. Stonewould like to have the platform where it is, it does not in any waydemonstrate that "immediate proximity to the water is essential" for the20 x 24 foot platform.

Accordingly, I conclude that the government is entitled to defaultjudgment unless the default should be set aside.

II. ENTRY OF DEFAULT

Dr. Stone has moved, on behalf of herself, as Trustee of the SamsaraMemorial Trust, and her mother, Iolanda Ponte, as Trustee of the Edwardand Iolanda Ponte Memorial Trust, to set aside the entry of default.Defs.' Mot. Set Aside Default (Docket No. 82). She made an oral requestto the same effect at the hearing. I DENY the motion. First, as anonlawyer she is unable to represent her mother in federal court. Thus,neither Iolanda Ponte, nor the two trusts, have effectively requestedremoval of the default.13 Second, Rule 55(c) of the Federal Rules ofCivil Procedure permits a court to set aside an entry of default only forgood cause shown. Dr. Stone claims that the entry of default should bevacated because the default was not willful and the defendants have ameritorious defense, as partially presented at the hearing before thiscourt on December 18, 2002. She contends that the default was a result ofimproper service of the Amended Complaint and the defendants' unawarenessthat a motion to set aside the default should have been filed. The burdenof demonstrating good cause lies with the party seeking to set aside thedefault. KPS & Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 14(1st Cir. 2003). While any action upon such a motion is a matter of sounddiscretion, the First Circuit has set out factors to consider:

(1) whether the default was willful; (2) whether setting it aside would prejudice the adversary; (3) whether a meritorious defense is presented; (4) the nature of the defendant's explanation for the default; (5) the good faith of the parties; (6) the amount of money involved; (7) the timing of the motion [to set aside entry of default].

Id. at 12 (quoting McKinnon v. Kwong Wah Rest., 83 F.3d 498, 503 (1st Cir.1996)).

Dr. Stone's conduct certainly borders on willful (factor 1), given hermachinations about where she will accept mail for service of process andher refusal to hire counsel despite this court's repeated admonishmentsthat a trust cannot be represented in federal court by laypeople. She wason notice that the defendants were in default by order of this court onNovember 4, 2002, but waited until December 18, 2002, and January 15,2003 (factors 2 and 7), to make her first and second requests,respectively, to set aside the default. Dr. Stone has no decentexplanation (factor 4) establishing good cause and I question her goodfaith on the issue (factor 5).14 Up until now, she has effectivelyobstructed bringing the case to a conclusion, and thus there would beprejudice (factor 2) to the government by removing the default at thislate date. As for the amount of money involved (factor 6), it is notdeterminable at this time, but I assume that the defendants' use of theproperty is important. I have considered any meritorious defenses (factor3) in dealing with the default judgment. Thus, the balance of factors isagainst removing the default.

Moreover, none of the listed factors is determinative. According to theFirst Circuit:

This flexibility is necessitated by the competing policies and values that underlie the concept of default. On the one hand, it "provide[s] a useful remedy when a litigant is confronted by an obstructionist adversary," and "play[s] a constructive role in maintaining the orderly and efficient administration of justice." It furnishes an invaluable incentive for parties to comply with court orders and rules of procedure. It encourages the expeditious resolution of litigation and promotes finality. On the other hand, countervailing considerations include the goals of "resol[ving] cases on the merits," and avoiding "harsh or unfair result[s]."

KPS, 318 F.3d at 12-13. Given these concerns, a review of the record inthis case makes abundantly clear why default should not be removed.15The trustees have been obstructionist and have interfered with theorderly and efficient progress of the case, brazenly ignoring courtorders and procedural rules and delaying finality. Moreover, theirsignificant defenses have been considered in the context of the motionfor default judgment. For these reasons, I conclude that good cause hasnot been shown to remove the default.

The motion to remove default is DENIED. The motion for default judgmentis GRANTED. It is hereby ORDERED that:

1. By June 1, 2003, the defendants shall have the offending 20 by 24 foot platform and all its supports removed.

2. The United States is authorized thereafter to remove the offending platform and its supports if the defendants have not removed it by June 1, 2003.

3. The defendants shall restore the area where the platform sits to its condition before construction.

4. The defendants are PERMANENTLY ENJOINED AND RESTRAINED from trespassing on the conservation easement of the United States.

SO ORDERED.

APPENDIX A

PROCEDURAL HISTORY

United States v. Iolanda Ponte, et al. Civil No. 99-281-B-H

This is a chronological summary of a portion of the procedural historyin this matter, highlighting requests for extensions of time, notices andentries of default, and address changes of the defendants.

12/08/99 Original Complaint filed against Iolanda Ponte ("Ponte") and Edward and Iolanda Ponte Memorial Trust ("Ponte Trust")

12/29/99 Ponte and Ponte Trust request 90-day extension (first extension) to answer, request temporary order restraining government from trespassing upon the property, and request that all future correspondence be sent to P.O. Box 112, Seal Harbor, ME 04675

Order granting extension until 04/03/00 for answer, denying temporary restraining order, and reminding the defendants (first reminder) that a non-lawyer cannot enter an appearance on behalf of an entity

03/29/00 Order striking answer on behalf of Ponte Trust for failure to observe D. Me. R. 83.1(c) (trust cannot appear pro se) (second reminder) and warning the defendants that they are subject to default (first mention of default); deadline for filing answer enlarged to 04/10/00 (second extension)

04/10/00 Motion by Attorney Bates on behalf of Ponte Trust to extend time to answer until 05/01/00 (motion mentions Paula Stone is taking care of the matter on behalf of her mother) (third extension) — GRANTED until 04/24/00

04/17/00 Attorney Bates moves to withdraw and requests extension for filing answer (fourth extension)

04/18/00 Ponte files answer

Response to Order striking answer on behalf of Ponte Trust, claiming the defendants did not understand trust could not be represented through trustee, did not understand there were two defendants, cannot afford attorneys, acknowledges cannot represent Ponte Trust, and requests dismissal of Ponte Trust — STRICKEN 05/11/00

04/25/00 Motion for Default filed (second mention of default)

05/11/00 Order defaulting Ponte Trust (third mention of default) for failure to appear or file an answer

[pretrial filings and settlement discussions]

03/15/01 Letter from Magistrate Judge Kravchuk to Paula Stone ("Stone") regarding settlement issues, including reminder that Ponte Trust is in default (fourth mention of default)

[settlement discussions]

10/23/01 Motion to amend complaint to add Stone and Samsara Memorial Trust ("Samsara Trust") as property was transferred to Samsara Trust on or about August 1, 2001 but the plaintiff did not learn of the conveyance until 10/22/01 — GRANTED 11/02/01

11/01/01 Defendants object to motions to enforce settlement agreement and to amend the complaint, indicating they have been away since September and have just received the recent filings and claiming the plaintiff intentionally waited until then to file responses knowing that the defendants would be unavailable (request additional time to seek legal counsel) (fifth extension)

11/08/01 Amended Complaint filed; four summonses issued with Seal Harbor address

11/13/01 Motion by the defendants to dismiss on the basis that the plaintiff did not respond to the defendants' proposed settlement easement of May 2001 until September 2001 and response was unsatisfactory — DENIED 12/05/01

11/21/01 Letter (from Seal Harbor address) from the defendants to Magistrate Judge Kravchuk proposing settlement agreement, which includes promise not to build any permanent residence on the platform, indicating that they do not agree that the horizontal method of measuring distances is required by the easement, and representing that Stone will call the court next week to see if there are any additional filings, is not planning to be in Maine for the next few months or to pick up her mail, and cannot revolve her life around the Park Service who did not get back to her during the summer when she was available

11/30/01 Letter from Magistrate Judge Kravchuk to Stone advising her of case status and that scheduling is out of her control

12/13/01 Four new summonses issued with Bar Harbor, ME 04609 address (no specific street address on summonses)

01/03/02 Court enters change of address for Ponte from Seal Harbor to 182 Otter Cliff Road, Bar Harbor, ME

01/25/02 Motion For Extension of Time for Service/Service by Publication: copies of Amended Complaint mailed to Seal Harbor address on 11/08/01 but returned as "unclaimed" during the final week of November; copies sent to Pownal, VT, an address used earlier by Ponte and the Ponte Trust, returned as "undeliverable"; the plaintiff placed telephone calls to Stone on 12/12/01 (phone number changed), contacted her advisor and professor at the University of Maine (they had same old phone number, same e-mail, and Seal Harbor address), attempted to send her e-mails, and made over twenty visits to her last known address in Maine on Otter Cliffs Road, Bar Harbor (12/14/01-12/16/01; 12/19-12/22; 12/26-12/30; and 1/2/02-1/13/02) — GRANTED 01/29/02 (at least fifth mention of default)

01/29/02 Order authorizing service by publication and by leaving copies at place of abode (Manski Declaration dated 03/13/02 indicates copies were left at Otter Cliffs Road, Bar Harbor address)

03/13/02 Motion for Default Judgment on basis of prejudice by over two-year delay and failure to respond to Amended Complaint

03/15/02 Motion for Default against Ponte, Stone, and Samsara Trust (Ponte Trust defaulted 05/11/00) (sixth mention of default)

04/05/02 Defendants' Motion for Jury Trial and to Restrain Park Service from Trespassing; Response to Motion for Default (seventh mention of default), indicating the defendants were not in Maine since November 2001 and last pleading received was Order of 11/02/01 (granting leave to file amended complaint so the defendants were on notice that Amended Complaint would be forthcoming) and representing they will not be in Maine for another few weeks so cannot read the contents of the Amended Complaint, Order permitting service by publication, or Motion for Default (address is 182 Otter Cliff Road, Bar Harbor, the location visited a dozen times for attempt to personally serve the Amended Complaint)

04/11/02 Order Defaulting Ponte, Stone and Samsara Trust on basis that service has been effected in accordance with the procedures of the court and the defendants have failed to plead or otherwise appear and have failed to proffer any excuse for their neglect

04/17/02 Court enters change of address for Stone from Seal Harbor to Otter Cliff Road, Bar Harbor

05/08/02 Motion by Attorney Cloutier on behalf of the defendants to set aside default judgment pursuant to Rule 55(c) and request for extension of time to respond to Amended Complaint (at least sixth extension) — GRANTED 09/23/02

06/11/02 Order Granting the defendants' Motion for Stay pending outcome of Motion to Set Aside Default

09/23/02 Consent Judgment

Endorsement entered granting the defendants' Motion to Set Aside Default Judgment (and request for extension of time to respond to Amended Complaint)

10/02/02 Attorney Cloutier moves to withdraw — GRANTED 11/04/02

11/01/02 Defendants' Request for Extension of Time to File Reply — MOOT (seventh extension)

11/04/02 Order vacating Judge Singal's orders, Consent Judgment and Default Judgment; denying the defendants' motion to dismiss; reminding the defendants that trusts cannot appear pro se (at least third reminder); denying request for jury trial; and denying motion to enter the defendants' proposed consent judgment — all the defendants in default (eighth mention of default)

12/03/02 Defendants' Motion to Continue Hearing — DENIED (eighth extension)

12/09/02 Defendants' Motion for Reconsideration, citing Rules 55 and 60 — DENIED (ninth extension)

12/18/02 Hearing — oral motion for default (ninth mention of default) — DENIED on grounds that request was not timely and no adequate basis to excuse

1. They have also had at least one additional lawyer who did not enteran appearance. See, e.g., Report Pretrial Conf. & Order at 2 (DocketNo. 26).

2. "The horizontal measurement methodology contemplates measurement ofthe designated distance by extending lines vertically from the two pointson the ground between which the surveyor is measuring and then measuringalong a horizontal straight line perpendicular to these two lines." Townof Union v. Strong, 681 A.2d 14, 17 n. 3 (Me. 1996). I am not persuadedby the government's argument that the use of the term "parallel lines" inthe text of the easement ipso facto requires horizontal measurement.Although parallel lines are in a plane, there is an infinite variety ofpossible planes.

3. This method "requires the surveyor to measure the required distancein a straight line along the surface of the earth." Id.

4. Dr. Stone suggests that the government has the wrong chain of titleand therefore cannot enforce the easement. Defs.' Position Br. at 1-3(Docket No. 83). She is foreclosed from doing so by the default.Moreover, there are three Black Island conservation easements, indifferent chains of title, but each has identical language on the issuesbefore the court. There is no substantial assertion that the property inquestion is governed by none of them.

5. As a result of the entry of default, the following materialallegation of the Amended Complaint is deemed admitted:

Unknown to the plaintiff, at some time during 1998, the defendant Ponte Memorial Trust had constructed or authorized, arranged and entered an agreement for construction on the Black Island property within the area between mean high water mark and a line parallel to, and set back 100 feet from said high water mark within which construction of such structures is prohibited pursuant to the said conservation easement a concrete post and rebar foundation with wooden posts and a floor frame 24 feet long by 20 feet wide and four to six feet in height. . . .

Am. Compl. ¶ 8 (Docket No. 38) (emphasis added). The defendants concede that the platform lies within the 100 foot setback only if the horizontal method of measurement is used and lies beyond the 100 foot setback if over-the-ground measurement is used. Defs.' Position Brief at 4-5. In a final attempt to avoid the government's requested relief of removal of the offending platform, the defendants also appear to concede that the platform violates the setback restriction by 20 feet using horizontal measurement.

Most importantly, the disruption to the land that will result from removing the platform will be greater than any harm which is done by it remaining there; in other words, the Plaintiff's proposed remedy is worse than the alleged violation. And if the platform is moved back 20 feet, the clearing of trees required will be a visual scar that will violate the alleged easement, especially because it would have to be moved back more like 100 feet, since directly behind the 20 x 24 platform, there is first a vertical cliff, and then a very steep slope for another approximately 100 feet.

Id. at 14-15 (emphasis added).

6. Dr. Stone also argues that the government's actions constitutefailure to properly administer the easement, selective enforcement of theeasement, harassment of the defendants, retaliation for Dr. Stone'sprevious complaint against the Park Service for misrepresentation ofgovernment policies, abusive litigation, and deliberate misrepresentationof facts. The first four are irrelevant and the last twounsubstantiated, and I do not consider them.

7. On the legal issues, I am greatly hampered by the trustees' failureto hire a lawyer. Their positions on important real estate conveyancingissues are presented in amateurish and confusing fashion. Moreover, theabsence of effective advocacy for the defendants results in the issuesbeing ill-formed and shifting and does not produce the clarity inargument from the government that a sharply focused opponent wouldgenerate. In a word, development of the issues is muddled. This isparticularly troubling in an area that affects conveyancing for there,perhaps more than any other legal area, a court pronouncement affectsfuture practices.

8. "Mean high water mark" is a "monument" according to Maineconveyancing law. Proctor v. Hinkley, 462 A.2d 465, 470 (Me. 1983). Whatthe term means is a question of law for me as the judge. Where it islocated on the face of the earth is ordinarily a question of fact that Ias factfinder must determine. Id. at 469 ("What the boundaries are, asascertained from the language of a deed, is a question of law; where theyare on the face of the earth is a question of fact."). The United StatesSupreme Court has defined the term "mean high water mark." The SupremeCourt concluded that the term high water mark "does not mean . . . aphysical mark made upon the ground by the waters; it means the line ofhigh water as determined by the course of the tides." Borax Consol.,Ltd. v. City of Los Angeles, 296 U.S. 10, 22 (1935). The Court treatedmean high water mark as equivalent to mean high tide line and approvedusing the definition of the United States Coast and Geodetic Survey forinterpreting this standard: "`Mean high water at any place is the averageheight of all the high waters at that place over a considerable period oftime.'" Id. at 26-27 (quoting Tidal Datum Plane, Special Publication No.135, at 76). The Court noted "that `from theoretical considerations of anastronomical character' there should be `a periodic variation in the riseof water above sea level having a period of 18.6 years.'" Id. at 27(quoting Tidal Datum Plane, Special Publication No. 135, at 81). Ittherefore approved the Ninth Circuit's instruction to a trial courtthat, to ascertain a mean high tide line, "an average for 18.6 yearsshould be determined as near as possible by observation or calculation."Id. at 14-15; see also Carolina Beach Fishing Pier, Inc. v. Town ofCarolina Beach, 177 S.E.2d 513, 516 (N.C. 1970) ("The high-water mark isgenerally computed as a mean or average high-tide, and not as the extremeheight of the water."). The Supreme Court's definition is persuasivebecause it demonstrates linguistic usage known to lawyers before thiseasement language was drafted, not because federal law controls. No oneargues that federal law controls; this easement appears in a private deedin which a private corporation conveyed an easement over Maine realproperty, albeit to the federal government. See Wallis v. Pan Am.Petroleum Corp., 384 U.S. 63, 70-71 (1966) (holding federal common lawdoes not apply to dealings of private parties in oil and gas leasesconcerning federal lands). In fact, Maine statutory usage near the sametime as the easement was created is consistent. The Saco River statute,as publicly enacted in 1979, defines mean high water line as the "averagehigh tide level." An Act Concerning the Saco River Corridor Commission,ch. 459, § 1, 1979 Me. Laws 746, 749; see also 38 M.R.S.A. §952. An earlier version of the statute, enacted as a private and speciallaw in 1973, defines it as "the line delineated by the United StatesGeological Survey for the tidal portion of a river or estuary showing thelocation of the annual average high tide level." An Act to Establish aSaco River Corridor, ch. 150, § 1, 1973 Me. Laws 1605, 1608; see alsoBlack's Law Dictionary's definition of "mean high water mark": "[t]hepoint on the shore which the average high tide will reach." Black's LawDictionary 980 (6th ed. 1990) (the definition argued for by thegovernment).

I conclude that mean high water mark means an average, not a physicalmark. This is to be distinguished from "normal high-water line," definedby Maine statute as "that line which is apparent from visible markings,changes in the character of soils due to prolonged action of the water orchanges in vegetation, and which distinguishes between predominantlyaquatic and predominantly terrestrial land." 38 M.R.S.A. § 436-A(9)(the definition argued for by Dr. Stone). At this point, I have not beeninformed how either party's surveyor proposes to determine the mean,whether by observation or calculation. See Borax, 296 U.S. at 15; seealso National Oceanic and Atmospheric Administration, National OceanService, Center for Operational Oceanographic Products and Services,http://www.co-ops. nos.noaa.gov (collecting historical and currentmeasurements of mean high water from various coastal stations in Maine).Given the consequence of the defendants' default and my conclusion intext on how distance is to be measured, the distinction is irrelevant forthe permissibility of the defendants' structure.

9. Horizontal is not the only method. The ordinance the Law Courtinterpreted in Strong as requiring horizontal measurement for somepurposes required over-the-ground measurement for other purposes. 681 A.2dat 17; see also Walter G. Robillard et al., Brown's Boundary Control andLegal Principles 45 (4th ed. 1995):

In GLO [General Land Office] surveys the presumption is that allmeasurements are horizontal along a straight line because the lawrequired the surveyors to perform as such. In the metes and bounds statesthe early measurements are presumed to be "slope" or "along the lay ofthe land." However, the contrary may always be proved.

[The GLO survey] presumption has not always been in effect; in a fewlocalities proof has been found indicating that original measurementswere made along the surface. . . . [Kentucky case citation].

Although Maine was a metes-and-bounds state, see Paul G. Creteau, MaineReal Estate Law 204 (1969), horizontal measurement is the "modern" methodof measurement according to the Law Court. Strong, 681 A.2d at 18 (citingWalter G. Robillard et al., Brown's Boundary Control and Legal Principles45 (1995)). The method has been advocated since at least the late 18thcentury. Curtis M. Brown & Winfield H. Eldridge, Evidence andProcedures for Boundary Location 112-13 (1962); see also Robillard etal., supra, at 79 (quoting Edward Tiffin's instructions to NorthwestTerritory surveyors in 1815 to use horizontal measurements, not over thesurface of the ground).

10. Under Dr. Stone's interpretation, a structure perched oceanside onthe edge of a 100-foot vertical precipice would satisfy thesetback.

11. The suggestion that if they do not build the platform here, theywill build it somewhere else on the parcel that will be more disruptiveis not an adequate basis. The trustees also try to justify theirstructure under a preceding paragraph of the easement, for accessory-typestructures. Specifically, the easement language provides:

4. There is also reserved to the Grantor, its successors and assigns, the right to build any non-residential structure accessory to any permitted residence or useful in connection with any permitted use of the Property (including construction to provide utilities to the residence and accessory structures) provided any such structure is located so as not unnecessarily to alter the natural and scenic appearance of the landscape when viewed from offshore or from the property of any other landowner on said Black Island.

5. No new structures, except those for which immediate proximity to the water is essential, shall be located within the area between low and high water marks of the Property or between mean high water mark and a line parallel to, and set back 100 feet from, said high water mark. There shall be not more than one float or pier on the Property.

Conservation Easement, Book 1205, Page 500, at 505 (Hancock CountyRegistry Deeds, Aug. 28, 1974). The only reasonable way to read thislanguage is that paragraph 5 is a further restriction upon paragraph 4.Therefore, if the structure does not satisfy paragraph 5, paragraph 4 isof no help to the trustees.

12. In earlier filings, the defendants stated that the platform "wasintended to be the beginning of a residence." Answer at 3 (Docket No.9); see also Defs.' Position Br. at 8-9 (Docket No. 83).

13. Actually, Paula Stone also cannot request removal of the defaultin any capacity because she is a party only in her capacity as trustee,not as an individual. Dr. Stone appears in the lawsuit in her fiduciarycapacity because as trustee she holds title to the real estate. That issolely a representative capacity, and one that requires a lawyer infederal court. See, e.g., C.E. Pope Equity Trust v. United States,818 F.2d 696, 698 (9th Cir. 1987) ("He may not claim that his status astrustee includes the right to present arguments pro se in federalcourt."); accord Knoefler v. United Bank of Bismarck, 20 F.3d 347 (8thCir. 1994); United States v. Stepard, 876 F. Supp. 214 (D.Ariz. 1994);Oregon v. Loe, 65 B.R. 16, 18 (D.Or. 1986) ("[H]e may not represent theTrust by bringing an action in his capacity as Trustee."). The sameresult would occur in Maine courts. See, e.g., Boutet v. Miller, No.Civ. A. CV-00-698, 2001 WL 1711531, at *1 (Me. Super. Mar. 9, 2001)("While a trust is not a person in the legal sense and the trustee is theproper person to sue or be sued on behalf of the trust, `a trustee'sduties in connection with his or her office do not include the right topresent argument pro se in courts of the state. . . .'") (citationomitted). Both the government and earlier rulings by a magistrate judge,however, have allowed Dr. Stone to believe that she could proceed astrustee without a lawyer. I therefore do not rely on this element of thedefault.

14. The specious issues Dr. Stone raises, see footnote 6, confirm theview that she is engaging in obstructionism.

15. See Appendix A for a partial summary of the procedural history.

Back to top