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Perkins v. Town of Searsport
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 118
Docket:	Wal-00-615
Submitted
  on Briefs:	June 25, 2001
Decided:	July 20, 2001

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

								

ELDON PERKINS et al. 

v.

TOWN OF SEARSPORT

ALEXANDER, J.

	[¶1]  Eldon and Alice Perkins appeal from the judgment of the
Superior Court (Waldo County, Marsano, J.) granting the Town of Searsport's
motion for summary judgment on the Perkinses' trespass claim.  The
Perkinses contend that the Superior Court erred in determining that the
Town's placement of granite blocks and a culvert on their property
constituted a permanent trespass and that, as a permanent trespass, the
Perkinses' claim was barred by the statute of limitations.{1}  Because disputes
as to material facts remain concerning whether the placement of the granite
blocks and culvert is an actionable continuing trespass, or a statute of
limitations barred permanent trespass, we vacate the judgment.

I.  CASE HISTORY

	[¶2]  The Perkinses have owned shorefront property in Searsport
since 1974.  Following a storm in the early 1970s, the Town placed granite
blocks and a culvert on the Perkinses' property to control erosion and limit
further storm damage.  
	[¶3]  In the mid­p;1990s, the Perkinses discussed with the Town
concerns that the granite block "rip rap" limited their shorefront access
and emitted noxious odors that resulted from decaying material becoming
lodged in the blocks.  Failing to reach any agreement with the Town on
these problems, the Perkinses filed this action in 1998.  
	[¶4]  The original action included claims for civil rights violations
under 42 U.S.C. § 1983, unconstitutional taking, trespass, and nuisance. 
The Town responded with a motion for summary judgment, asserting that
the Perkinses' claims were barred by the statute of limitations.  The Town's
motion was supported by only a one paragraph memorandum of law and a
very brief and very general statement of material facts.{2}  The Perkinses
opposed the Town's motion and filed their own motion for summary
judgment supported by affidavits and a detailed statement of material facts
with appropriate record references.  
	[¶5]  After hearing, the trial court granted the Town's motion for
summary judgment with regard to the trespass claim, but denied summary
judgment on the companion nuisance claim.  In its opinion, the court
correctly noted that the viability of the Perkinses' trespass claim depended
upon whether the Town's conduct constituted a continuing trespass or a
permanent trespass.  See Jacques v. Pioneer Plastics, Inc., 676 A.2d 504,
506-08 (Me. 1996).  The court also appropriately noted that abatability is a
key factor in determining whether a trespass is continuing or permanent. 
See id. at 508.  The court further stated that, on the record available to it,
abatability was essentially conceded by the Town.  
	[¶6]  However, citing Foss v. Maine Tpk. Auth., 309 A.2d 339 (Me.
1973), the court determined that the challenged conduct in this case
constituted a permanent trespass because it was undertaken to benefit the
community and because it had attributes of a constitutional taking or
eminent domain acquisition.  Accordingly, the court granted summary
judgment to the Town on the trespass claim.  After the court's ruling, all
other claims, including the nuisance claim upon which summary judgment
had been denied, were dismissed, and the Perkinses brought this appeal
focusing on their trespass claim.  

II.  DISCUSSION

	[¶7]  When reviewing a grant of a motion for summary judgment, we
consider "'only the portions of the record referred to, and the material facts
set forth'" in the parties' statements of material facts, "to determine
'whether there was no genuine issue as to any material fact and that the
successful party was entitled to a judgment as a matter of law.'"  See Lavigne
v. R.B.K. Caly Corp., 2001 ME 77, ¶ 4, 770 A.2d 653, 655 (quoting Handy
Boat Servs., Inc. v. Prof'l Servs., Inc., 1998 ME 134, ¶ 16, 711 A.2d 1306,
1310).  
	[¶8]  In this case, the court could consider only the facts contained
in the Perkinses' statement of material facts because those facts were not
contested by the Town and because they were the only facts supported by
appropriate record references.  Nothing in that statement established,
without dispute, that the trespass in question was permanent because of any
intended permanency of the shoreland alterations or any anticipated value to
the public, or because the circumstances of the trespass reflected a
constitutional or eminent domain taking.  See Jacques, 676 A.2d at 507-08;
Foss, 309 A.2d at 344.  The Town's brief, generalized statement of material
facts provided no support for findings that would be essential to establish a
permanent trespass without dispute as to material facts.{3}   Accordingly, the
trial court's judgment must be vacated and the case remanded for
appropriate proceedings to resolve disputes as to material facts regarding
whether the trespass is continuing or permanent, and to determine the
nature of any remedy should the trespass be found to be continuing such
that it is not barred by the applicable statute of limitations.  
	The entry is:
Judgment vacated.  Remanded for
further proceedings consistent with this
opinion.
Attorney for plaintiffs: 

Edmond J. Bearor, Esq.
Luke M. Rossignol, Esq.
Rudman & Winchell, LLC
P O Box 1401
Bangor, ME 04401-1401

Attorney for defendant:

Eric B. Morse, Esq.
Strout & Payson, P.A.
P O Box 248
Rockland, ME 04841-0248