Boothbay Harbor Condominiums, Inc. v. Department of Transp.

• Decision Date: 31 January 1978
• Citation: 382 A.2d 848
• Parties: BOOTHBAY HARBOR CONDOMINIUMS, INC. v. The DEPARTMENT OF TRANSPORTATION, State of Maine and the Inhabitants of the Town of Boothbay Harbor.
• Court: Maine Supreme Court

Page 848

382 A.2d 848

BOOTHBAY HARBOR CONDOMINIUMS, INC. v. The DEPARTMENT OF TRANSPORTATION, State of Maine and the Inhabitants of the Town of Boothbay Harbor.

Supreme Judicial Court of Maine.

Jan. 31, 1978.

Sanborn, Moreshead, Schade & Dawson by Peter T. Dawson, (orally), Augusta, for plaintiff.

Thomas Reeves (orally), Dept. of Transp., Lester A. Olson, Augusta, Bernstein, Shur, Sawyer & Nelson by Gordon F. Grimes (orally), Barnett I. Shur, Portland, for defendant.

Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY, GODFREY and NICHOLS, JJ.

WERNICK, Justice.

In March, 1975 plaintiff Boothbay Harbor Condominiums, Inc. instituted a civil action in the Superior Court (Lincoln County) against defendants Department of Transportation of the State of Maine and Inhabitants of the Town of Boothbay Harbor. The complaint alleged that the public was trespassing upon a dam and road in Boothbay Harbor claimed to be the plaintiff's and asked for a judgment declaring the public's continued use of the dam and road unlawful. Plaintiff also sought $1.5 million in damages and an injunction against the public's use of the road and dam until plaintiff had been compensated for the invasion of plaintiff's property rights.

The answers of defendants denied plaintiff's claims and asserted the existence of rights of the defendants as well as the public in the dam and road defeating any recovery by plaintiff.

By agreement of the parties the case was referred pursuant to M.R.Civ.P., Rule 53. Under the Agreement and Order of Reference the Referee was to "make a report on all issues of fact and law, exclusive of the issue of damages", and the parties specifically reserved the right to object to the Court's acceptance of the Referee's report.

The report of the Referee recommended judgment for defendants. After plaintiff had seasonably filed objections to the report the presiding Justice in the Superior Court accepted it, and judgment was entered in favor of the defendants on November 23, 1976.

Plaintiff has appealed from the judgment. We deny the appeal.

The dam and road in question were located at the outlet of Campbell's Cove between Southport and Boothbay Harbor. Prior to 1860 the public crossed the waters by ferry. Following an abortive attempt to provide passage over the waters by a toll bridge, the Legislature, by P. & S.L.1859, Chapter 305, chartered a company to build and maintain a free bridge. It was completed in 1860. By P. & S.L.1879, Chapter 111 the Legislature chartered Maine Ice Company as a corporation, formed by Eben D. Haley and others, authorized to

"build and maintain a dam to exclude the tide waters entirely from Campbell's Cove, at or above the present highway bridge . . . for the purpose of creating an ice pond."

The dam was completed in 1880, having been constructed to provide a "firm roadbed" on the top and thus serve the dual function of dam and road. It is unclear in the record whether the dam was built at the same site as the bridge. In any event, the bridge was removed and thereafter the dam provided the only roadway over the Cove.

In 1879 the voters of Boothbay Harbor appropriated $200 annually for ten years "for the exclusive use of a good and sufficient road across said Company's dam." By a series of conveyances plaintiff corporation ultimately acquired title to land formerly owned by Eben D. Haley on the shore of Campbell's Cove. Plaintiff's present claim is that by these conveyances he acquired title to the dam and road here at issue.

I.

We confront a threshold procedural question: whether plaintiff's appeal must be dismissed because of plaintiff's omission to file a statement of points to be relied on in the appeal, as required by Rule 74(d) M.R.Civ.P. ¹ Although we have tended to apply Rule 74(d) strictly, National Advertising Company v. Inhabitants of Town of York, Me., 345 A.2d 512 (1975); State v. Harriman, Me., 259 A.2d 752 (1969), supplemented in 265 A.2d 706 (1970); State v. Smith, Me., 244 A.2d 71 (1968); Frost v. Lucey, Me., 231 A.2d 441 (1967), lack of a required statement of points does not affect our jurisdiction, and we have a sound discretion to take cognizance of an appeal despite the omission of a statement of points on appeal. Indemnity Insurance Company v. Pioneer Valley Savings Bank, 343 F.2d 634 (8th Cir. 1965); Foremost Dairies v. Ivey, 204 F.2d 186 (5th Cir. 1953).

The purpose of requiring a statement of points on appeal is to provide the appellee with a basis for determining whether the appellant's designations to make the record on appeal are themselves adequate to allow a proper disposition of the issues which will be involved in the appeal, or whether the appellee must make supplemental designations. ² Field, McKusick and Wroth, Maine Civil Practice, § 74.7, p. 202.

In the instant situation the omission of plaintiff to file the required statement of points on appeal caused no prejudice to defendants as appellees in respect to the protection conferred by Rule 74(d). Defendants made no motion to dismiss the appeal pursuant to Rule 73(a) M.R.Civ.P. ³ Even though the filing of such a motion is not a pre-requisite to dismissal of an appeal under Rule 74(d) M.R.Civ.P. ⁴ the absence of it, here, suggests that defendants were not really burdened in their efforts as appellees to assess the sufficiency of the record designated by the plaintiff-appellant. In any event, within a few days of the filing of the designation of plaintiff-appellant, defendants filed their own record designations in which they saw fit to bring before us the entire record of the proceedings at nisi prius.

In similar circumstances and, indeed, at a time when the statement of points also served as appellee's notice of the issues to be met on appeal this Court refused to dismiss, or remand, for lack of a statement of points on appeal. Waltz v. Boston & Rockland Transportation Company, 161 Me. 359, 367, 212 A.2d 431, 435 (1965).

A makeweight circumstance is present, here, favoring consideration of plaintiff's appeal. Plaintiff had filed timely objections to the Referee's report, thus to provide defendants notice of the issues to be covered on appeal as well as a basis to evaluate the sufficiency of the record designations of plaintiff-appellant.

We therefore exercise the discretion reposing in us to take cognizance of the instant appeal notwithstanding the omission of plaintiff, as appellant, to file the statement of points required by Rule 74(d). ⁵

We limit the scope of our review to the issues we deem fairly comprehended within the written objections filed by plaintiff corporation to the report of the Referee. See Thompson v. Willette, Me., 353 A.2d 176 (1976); Cunningham v. Cunningham, Me., 314 A.2d 834 (1974); Dubie v. Branz, 145 Me. 170, ("rescript" inadvertently published) 146 Me. 455 (full text of opinion), 73 A.2d 217 (1950).

II.

Plaintiff complains on appeal that the judgment ⁶ failed to declare the rights of the parties in accordance with the issues raised by the pleadings, evidence and reference agreement.

The judgment incorporated by reference the report of the Referee and thus constituted a determination of "the rights of the parties . . . as the Referee . . . determined them." Bank of Maine v. Giguere, Me., 309 A.2d 114, 117 (1973).

We therefore deem the contention of plaintiff now under discussion to be directed to the issue raised by plaintiff's first objection to the Referee's report ⁷ that the Referee should have decided concerning plaintiff's claims to fishing and flowage rights as well as its claim to the dam and bridge.

The contention fails. First, the Referee had authority to determine only the issues actually submitted to him. Rule 53(e)(1) M.R.Civ.P.; Cunningham v. Cunningham, supra. The Order of Reference directed the Referee to report on all issues of fact and law exclusive of the issue of damages. A pre-trial order ⁸ limited the issues to those necessary for the rendition of a

" . . . declaratory judgment in which plaintiff seeks to establish title to a . . . certain dam and/or bridge, approach roads and dam road in Boothbay Harbor."

Plaintiff indicated no objection ⁹ to the provisions of the pre-trial order which controlled the further course of the proceedings. Rule 16(c)(4) M.R.Civ.P., Frost v. Barrett, Me., 246 A.2d 198 (1968). Hence, plaintiff cannot now complain of an incomplete adjudication of the issues. ¹⁰

Second, plaintiff's fishing and flowage rights may not properly be adjudicated in the absence of those persons, not here made parties to the action, required to be parties under 14 M.R.S.A. § 5963, i. e., those

" . . . who have or claim any interest which would be affected by the declaration . . . ."

Plaintiff's flowage rights should not be determined in the absence of other owners of land surrounding Campbell's Cove whose interests would be affected thereby. Plaintiff's fishing rights should not be determined in a proceeding to which the appropriate State agencies are not parties, the State having responsibility to regulate all fishing activities in its waters. Woods v. Perkins, 119 Me. 257, 110 A. 633 (1920).

III.

We reject another appeal contention of plaintiff corporation that, contrary to the finding of the Referee, plaintiff established a good title to at least a portion of the dam or road.

The Referee found that

" . . . the dam rests on land which was substantially, if not wholly, beneath navigable waters and thus owned by the State of Maine."

The finding of fact by the Referee as to the location of the dam is conclusive unless clearly erroneous. Rule 53(e)(2) M.R.Civ.P.; Bank of Maine v. Giquere, Me., 309 A.2d 114 (1973). Ample evidence supported this factual finding. P. & S.L. 1879, Chapter 111 granted to Maine Ice Company

" . . . authority to build and maintain a dam . . . at or above the present highway bridge. . . ."

The highway bridge, authorized by P. & S.L. 1859, Chapter 305, was to be built

" . . . with a...