Stickney v. City of Saco
Case Date: 05/02/2001
Court: Supreme Court
Docket No: 2001 ME 69
Stickney v. City of Saco, corrected 5-9-01 Download as PDF Back to the Opinions page MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2001 ME 69 Docket: Yor-00-285 Argued: April 11, 2001 Decided: May 2, 2001 Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ. MARION STICKNEY and WILLIAM CASAVANT JR. v. CITY OF SACO and WILLIAM CASAVANT JR. v. WILLIAM AND TAMMY DESJARDINS RUDMAN, J. [¶1] Marion Stickney and William Casavant Jr.{1} appeal from a judgment entered in the Superior Court (York County, Fritzsche, J.), that (1) declared Tasker Lane in the City of Saco to be a public way; (2) granted the City of Saco a prescriptive easement in land beyond the paved area of Tasker Lane; and (3) dismissed plaintiffs' § 1983 claim. William and Tammy DesJardins appeal from that portion of the court's judgment concluding that Casavant has an easement, ten feet in width, on the portion of the DesJardinses' property at which the parties share a common boundary. We disagree with parties' contentions and affirm the judgment of the Superior Court. I. FACTS & PROCEDURAL HISTORY A. The Lane [¶2] This consolidated action involves (1) the determination of the status of Tasker Lane, the narrow road-roughly 100 yards in length-connecting Hill and Lincoln Streets in the City of Saco, and (2) the status of a right-of-way reserved in a 1915 deed across the DesJardinses' property. Tasker Lane was first established as a "private passageway" to the Homestead Farm of Joseph Hill, the common grantor of all the property at issue. The Hill homestead, which sat on what is now the Casavant property, was destroyed in the 1960s. [¶3] The area in question is essentially triangular in shape, bounded on the northwest by Hill Street, on the south by Lincoln Street (formerly known as the "Boom Road"), and on the east by a strip of land owned by parties not involved in this action. Tasker Lane diagonally severs this area in two. Although the City did not pave the lane until 1985, it had maintained the road for over forty years. The Fitanides family helped to plow the lane since the 1940s. Within the past 40 years, however, the family's plowing has been infrequent and undefined in scope. Presently, Tasker Lane is a one-lane, paved road with no sidewalks or curbs. There are no sewer or storm drainage facilities on the road, but there is a water line servicing the area. B. The Abuttors [¶4] Since 1928, members of the Fitanides family have owned the southern parcel on the west side of Tasker Lane. Predeceased by her husband roughly 20 years earlier, Viola Fitanides lived there until she died in early 1995. Mrs. Fitanides left the property to her sons, Fred and Theophilus Fitanides. Stickney, Mrs. Fitanides's daughter, purchased the property from her brothers, and, in June 1995, Stickney's daughter and Casavant moved into the Fitanides homestead. As of the date of the trial, they continued to reside there. [¶5] Title to the Casavant and DesJardins lots, located directly across from the Fitanides homestead on the east side of Tasker Lane, was derived from a common grantor, Rishworth Jordan Jr. By deed dated April 6, 1865, Jordan conveyed the property comprising those lots to Samuel F. Tasker. After Samuel's death, his wife-Nellie Tasker-lived there until she died in the early 1950s.{2} [¶6] In 1915, however, Nellie Tasker conveyed the northern portion of her property to Clarence Young. In 1927, Young sold the property to Howard "Harry" Cousens, who later sold it to Walter Cousens. Theophilus Fitanides, one of Stickney's brothers, bought the property in 1965, and conveyed it to John and Sharon Sevigny in 1972. The Sevignys conveyed the property to Energy Homes in 1989. In 1990, Energy Homes sold the property to its current owners, the DesJardinses. [¶7] Nellie Tasker lived on the remaining lot, intending to will it to George Conley, a second cousin who lived with and cared for her until she died.{3} Nellie Tasker lost title to the remaining parcel in 1927, however, having failed to pay the accrued property taxes; the City, the highest bidder, purchased the property for the amount of taxes then owing. The City allowed Nellie Tasker and George Conley to live there until both died.{4} In 1970, the City sold the remaining Tasker parcel to Charles and Germaine Trakas. Casavant then purchased the property in December 1996 from Germaine Trakas. [¶8] In 1867, Jordan conveyed to Elijah Young the property comprising the parcels currently owned by Garry Ribaudo and Carole Fortin.{5} Ribaudo's property abuts Hill Street and extends to both sides of Tasker Lane. A portion of his property is situated immediately north of Stickney's parcel on the west side of Tasker Lane. The other portion is situated to the northwest of the DesJardinses' property on the east side of the lane. Fortin's property is situated to the northwest of the DesJardinses' parcel and does not touch upon Tasker Lane. Although Ribaudo was a party defendant in this action, neither he nor Fortin are involved in this appeal and shall not be further mentioned herein. [¶9] The conveyances from Jordan to the Taskers and Elijah Young refer to a reserved street-Tasker Lane-along the southwesterly bounds of the parcels conveyed. Neither the plans nor descriptions, however, provide a width for the private way or reserved street. According to the undisputed testimony of Paul Ruopp, a licensed land surveyor hired by the plaintiffs, the width of Tasker Lane is 20.6 feet. The lane has been defined in the City's tax maps from 1938 to the present as a city street. In August 1995, the City formally took control of Tasker Lane. [¶10] In response, plaintiffs commenced this action against, inter alia, the City, Garry Ribaudo, and the DesJardinses,{6} alleging eight counts. Counts I - V are against the City, including an action for quiet title (Count I), action for easement by prescription (Count II), action for trespass (Count III), action for a taking without the payment of just compensation under the doctrine of reverse condemnation (Count IV), and an action pursuant to 42 U.S.C. § 1983{7} alleging procedural due process violations (Count V). [¶11] Count VI is an action to quiet title against the heirs of Rishworth Jordan and Joseph Hill. Count VII is a quiet title action against the DesJardinses and Sevignys. Count VIII is a quiet title action against Ribaudo. By an answer, the City denied the material allegations in the complaint and asserted four affirmative defenses, including the Maine Torts Claims Act and the failure to state a claim upon which relief may be granted. [¶12] On September 17, 1998, plaintiffs filed an amended complaint adding two counts. Count IX is a claim alleging that Casavant has an easement over the DesJardinses' property. Count X is a request for damages for trespass or nuisance arising out of the DesJardinses' obstruction of the easement. The trial court concluded that Tasker Lane was a public way and found for each of the defendants on Counts I, II, VII, and VIII. The court further found that plaintiffs' Count III trespass claim was not supported by evidence and that the claim also failed because plaintiffs did not comply with the requirements of the Maine Tort Claims Act prior to bringing suit. Similarly, the court found that "[n]either Count IV for inverse condemnation nor Count V for a due process violation is supported by the legal requirements for the claim or on the facts." With respect to counts IX and X, the court found in favor of Casavant, concluding that there was no waiver of the easement and no loss of it through adverse obstruction. This appeal followed.{8} II. DISCUSSION [¶13] We will uphold the Superior Court's factual findings unless they are clearly erroneous. Sturtevant v. Town of Winthrop, 1999 ME 84, ¶ 9, 732 A.2d 264, 267. "[T]he trial judge's findings stand unless they clearly cannot be correct because there is no competent evidence to support them." Id. (quoting Harmon v. Emerson, 425 A.2d 978, 982 (Me. 1981)). "[T]he function of an appellate court is not to review a cold transcript and draw its own factual inferences; rather, appellate review of factual findings is limited to [an] investigation of the record before [the appellate court] to determine whether competent evidence exists to support the lower tribunal's factual conclusions." Id. (quoting Lewisohn v. State, 433 A.2d 351, 354 (Me. 1981)). We will also give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Pine Ridge Realty, Inc. v. Massachusetts Bay Ins. Co., 2000 ME 100, ¶ 23, 752 A.2d 595, 601 n. 12 (citations omitted). [¶14] In addition, we will vacate a trial court's conclusion that a prescriptive easement was formed only if we determine that the evidence below compelled a contrary holding. Glidden v. Belden, 684 A.2d 1306, 1316 (Me. 1996). It is not sufficient to show that the trial court arguably could have concluded that the evidence supports a contrary result. Id. A. Tasker Lane is a Public Way [¶15] The doctrine that the public-at-large is capable of acquiring a non-possessory interest in land has long been accepted in Maine. Town of Manchester v. Augusta Country Club, 477 A.2d 1124, 1128 (Me. 1984) (citations omitted). Such non-possessory interests commonly arise in three ways: by the statutory method of layout and acceptance pursuant to 23 M.R.S.A. § 3022 et seq., by dedication and acceptance, or by prescription. Id. at 1129; see also Longley v. Knapp, 1998 ME 142, ¶ 9, 713 A.2d 939, 942. In this case, the City claims an interest in Tasker Lane by prescription. [¶16] The requirements for the creation of a public way by prescriptive use parallel those for the creation of a prescriptive easement. Longley, ¶ 14, 713 A.2d at 943. "The party asserting an easement by prescription must prove continuous use for 'at least 20 years under a claim of right adverse to the owner, with his knowledge and acquiescence, or a use so open, notorious, visible, and uninterrupted that knowledge and acquiescence will be presumed.'" Shadan v. Town of Skowhegan, 1997 ME 187, ¶ 6, 700 A.2d 245, 247 (quoting Jost v. Resta, 536 A.2d 1113, 1114 (Me. 1988)). These elements must be proved by a preponderance of the evidence. Glidden, 684 A.2d at 1317. [¶17] The trial court concluded that the City has established Tasker Lane as a public way by prescriptive use. The court was influenced by numerous facts, including that: (1) the City has maintained and plowed the lane for well beyond the required time; (2) members of the general public could drive over the street; (3) people from nearby streets have used the lane as if it was a public way; and (4) the City paved the street. The court also found that, while the intensity of City control increased in 1995, all of the requirements for creating a public way by prescriptive use existed. i. Continuous Use for at Least 20 Years [¶18] "Continuous" means "occurring without interruption." Striefel v. Charles-Keyt-Leaman P'ship, 1999 ME 111, ¶ 16, 733 A.2d 984, 993 (quoting Bryan A. Garner, A Dictionary of Modern Legal Usage 213 (2d ed. 1995)). Continuous possession and use requires only the kind and degree of occupancy (i.e., use and enjoyment) that an average owner would make of the property. Id. (citations omitted). For the purposes of a public easement, however, evidence of the use of a road by the abutting landowners to access their own land is insufficient to establish the existence of a public prescriptive easement. Rather, the test of a public use is the use of the road by people who are inseparable from the public generally; it is not the frequency of the use of the number of people using the way. Id.; see also Longley, 1998 ME 142, ¶ 14, 713 A.2d at 944 (holding, "[c]ontinuous public use is not determined by 'the frequency of the use, or the number using the way, but its use by people who are not separable from the public generally.'"). [¶19] There is sufficient, competent evidence in the record to support the court's finding that the City and the public's use was continuous for over 40 years, well beyond the 20 year requirement. See Eaton v. Town of Wells, ¶ 35-37, 760 A.2d 232, 245 (finding as compelling the testimony of residents regarding use of beach). Such a finding is not clearly erroneous. ii. Claim of Right that is Adverse to the Owner [¶20] There must be a showing that the use of Tasker Lane by the public was under a claim of right that is adverse to the owner. Augusta Country Club, 477 A.2d at 1130. "Under a claim of right" means that the claimant "is in possession as owner, with intent to claim the land as [its] own, and not in recognition of or subordination to [the] record title owner." Striefel, 1999 ME 111, ¶ 14, 733 A.2d at 991-92. [¶21] A use is adverse "when a party . . . has received no permission from the owner of the soil, and uses the way as the owner would use it, disregarding [the owner's] claims entirely, using it as though he owned the property himself. . . ." S.D. Warren Co. v. Vernon, 1997 ME 161, ¶ 11, 697 A.2d 1280, 1283 (quotation omitted). In a majority of jurisdictions, where there has been an open, unmolested, and continuous use for the prescribed period with the knowledge and acquiescence of the owner, such use is presumed to have been adverse. Augusta Country Club, 477 A.2d at 1130 (citations omitted). [¶22] The record supports the trial court's conclusion that the public and the City intentionally possessed and used the lane as though they owned it, without recognition of-or subordination to-the true owner. The testimony at trial shows that the public and the City's use has been open, unmolested, and continuous for well over 20 years. The record evidence, therefore, supports the trial court's finding that the City possessed and used the parcel "under a claim of right" that was adverse to the owner throughout the limitations period. iii. Knowledge and Acquiescence [¶23] "Acquiescence by the owner to the use is essential, and, in this regard, the acquisition of an easement by prescription differs from the acquisition of title by adverse possession." Shadan, ¶ 6, 700 A.2d at 247 (quoting Augusta Country Club, 477 A.2d at 1130). "Acquiescence implies 'passive assent or submission to the use, as distinguished from the granting of a license or permission given with the intention that the licensee's use may continue only as long as the owner continues to consent to it.'" Id., ¶ 7 (quoting Augusta Country Club, 477 A.2d at 1130). Acquiescence is "consent by silence." Augusta Country Club, 477 A.2d at 1130 (quoting Dartnell v. Bidwell, 115 Me. 227, 230, 98 A. 743, 745 (1916)). The testimony, which the court found credible, demonstrates that the owners have acquiesced to the public and City's use. The testimony shows that no one ever asked for permission to use the lane and the owners never obstructed its use until this action was commenced. The trial court did not err in finding that the owners acquiesced to the public's use of Tasker Lane. B. The Easement Extends Beyond the Paved Lane [¶24] Pursuant to a motion by the City, the Superior Court (York County, Fritzsche, J.) amended its judgment to add that "a boundary survey by Paul Ruopp dated April 1, 1998, accurately depicts on the face of the earth the metes and bounds of Tasker Lane." The plaintiffs contend that the trial court erred by granting prescriptive-easement rights beyond the paved portion of Tasker Lane. Ruopp, plaintiffs' expert witness, testified on direct examination as follows: My conclusion, after researching the records and evaluating the physical evidence on the ground, is that the width of the lane is 20.6 feet. This is true because we traveled what encompassed the travel lane, the width between the adjoining property is 20.6 feet. This testimony was never controverted by the plaintiffs in any way. See Glidden, 684 A.2d at 1317 (Me. 1996) (finding uncontroverted testimony influential in determining a lack of acquiescence for purposes of prescriptive easement). The trial court, therefore, did not err in finding that the width of the lane was 20.6 feet, extending beyond the paved portion of the lane. [¶25] Plaintiffs argue, alternatively, that, even if the shoulder portions of the lane were generally considered to be a part of the easement prescriptively obtained, their regular and continuous use of that portion near the Stickney homestead for parking prevented it from being prescriptively obtained. The trial court found that the requirements for the creation of a public way by prescriptive use existed for about 40 years. Hence, for 40 years, the lane-including the unpaved portion-has been a public way. As we have noted in the past, "one cannot assert a claim of title by adverse possession against a municipality." Flowers v. Town of Phippsburg, 644 A.2d 1031, 1032 (Me. 1994) (citing Phinney v. Gardner, 121 Me. 44, 48-49, 115 A. 523, 525 (1921)). Plaintiffs' claim, therefore, lacks merit. C. The Trial Court Did Not Err By Dismissing the Plaintiffs' § 1983 Claims [¶26] The plaintiffs contend that the trial court erred in its decision to deny their constitutional claims. Although this part of the plaintiffs' claim was brought under 42 U.S.C. § 1983, they also relied on provisions in the Maine Constitution. In particular, the plaintiffs argue that the City has violated their constitutional rights by: (1) taking their property without just compensation in violation of U.S. Const. Amend. V and Me. Const. art. I, § 21; (2) taking their property without a justifiable public purpose in violation of U.S. Const Amend. V and Me. Const. art. I, § 21; and (3) violating their property rights in an arbitrary and capricious manner without legal authority. [¶27] The plaintiffs' federal and state takings claims are unpersuasive. Generally speaking, "[t]he theory of prescriptive easement does not grant the State affirmative authority to take property without just compensation." Weidner v. Dep't of Transp. and Pub. Facilities, 860 P.2d 1205, 1212 (Alaska 1993). Nevertheless, "the prescriptive period-as with any statute of limitations[]-requires a private landowner to bring an inverse condemnation action for public use of private property within a specified period of time." Id. At the expiration of that time, the landowner's right to bring suit is extinguished, effectively vesting property rights in the adverse user. Id. The plaintiffs' state takings claim, therefore, has been extinguished by the expiration of the prescriptive period. Similarly, plaintiffs' federal takings claim, pursuant to § 1983, has been extinguished by the expiration period prescribed under 14 M.R.S.A. § 752 (1980). See McKenney v. Green Acres Manor, 650 A.2d 699, 701 (Me. 1994) (stating, "[a]ll claims brought pursuant to section 1983 must be characterized as personal injury actions governed by the general statute of limitations period applying to personal injury claims" - i.e. 14 M.R.S.A. § 752). On to part 2 of this opinion. On to the attorneys and footnotes. Back to the Opinions page. |