Franklin Property Trust v. Foresite, Inc.

Decision Date01 December 1981
Citation438 A.2d 218
PartiesFRANKLIN PROPERTY TRUST v. FORESITE, INC., et al.
CourtMaine Supreme Court

Zuckerman & Avaunt, Lawrence J. Zuckerman (orally), Rochelle J. Brinnick, Gray, for plaintiff.

Orestis & Garcia, Peter M. Garcia (orally), John C. Orestis, Lewiston, Verrill & Dana, Lewis Epstein, William S. Harwood, Portland, for defendants.

Before GODFREY, NICHOLS, ROBERTS, CARTER and VIOLETTE, JJ.

CARTER, Justice.

This appeal involves the title to a parcel of land (hereafter "Sign property") which serves as an entrance to the Promenade Mall in Lewiston. The defendants, Foresite, Inc., formerly Rosenthal Investments, and Lisbon Street Shopping Trust, the successor in title to Foresite, Inc., (hereafter referred to collectively as "Foresite") 1 claim title by virtue of 33 M.R.S.A. § 460 et seq. The plaintiff, Franklin Property Trust (hereafter "Franklin"), asserts that it owns the Sign property in fee subject to a nonexclusive right-of-way held by Foresite. The Superior Court entered summary judgment on the issue of title in favor of the defendants. We reverse the judgment of the Superior Court and remand for further proceedings.

The basic facts are not in dispute. Through three separate conveyances, Foresite acquired property abutting on three sides of the disputed parcel which is a rectangular parcel measuring 85' by 50'. In one of these conveyances, Foresite also acquired a nonexclusive right-of-way over the Sign property. The fourth side of the Sign property is bordered by Lisbon Street. Franklin Company, Franklin's predecessor in title, previously owned the Sign property and the property owned by Foresite. Defendants acquired their interest in these lands prior to 1973. Franklin, after these conveyances, did not own any property abutting the Sign property.

The dispute arose following Foresite's placement of a large commercial sign identifying the Mall on the Sign property. The plaintiff claimed that the sign was in violation of the right-of-way limited to ingress and egress and sought payment of rent or removal of the sign. Foresite, believing that it owned the land, refused to meet these demands. Franklin then brought an action in 1979 seeking relief in implied contract and trespass, and to confirm or quiet title. Subsequently, Franklin sought summary judgment on the issue of title to the Sign property. The Superior Court, relying on the provisions of 33 M.R.S.A. §§ 461 and 462, granted summary judgment to the defendants.

Under § 461, a conveyance made prior to October 3, 1973 which transfers land abutting a road or way is deemed to convey the grantor's interest in the road or way unless the grantor expressly reserved his title to that road or way. 2 Section 462 permits a grantor, who conveyed land prior to the effective date of the Act, to preserve his claim to the road or way, if he failed to expressly reserve his interest in the deed, by recording a notice within two years after the Act's effective date. 3

The parties agree that Franklin Company did not expressly reserve title to the Sign property in any of the conveyances of the abutting parcels, or file the notice required by § 462. Nevertheless, Franklin contends that the Act does not apply in the factual context of the instant matter. 4 Franklin also asserts that the statute unconstitutionally deprived persons of vested property rights and impairs the obligation of contracts. The Superior Court assumed the constitutionality of the statute, rejected the claim that under the particular facts of the case the statute did not apply, and ruled in favor of Foresite on the issue of title.

Franklin appealed this ruling but the case was remanded by the Law Court for further proceedings on the remaining claims, viz, the actions in trespass and implied contract, or for issuance of an order pursuant to M.R.Civ.P. 54(b). Finding the remaining claims dependent on Franklin having title to the Sign property, the Superior Court amended the judgment by granting summary judgment to Foresite on all counts. Franklin has now appealed from this amended judgment.

I.

Before reaching the substantive merits of this controversy, we must first address Foresite's contention that the plaintiff has no standing to challenge the effect of § 461. This issue was raised for the first time on appeal. While sound appellate practice dictates that appellate cognizance be denied as to issues raised for the first time on appeal, Emerson v. Ham, Me., 411 A.2d 687, 690 (1980); Walsh v. City of Brewer, Me., 315 A.2d 200, 209 (1974), standing is a threshold issue bearing on the court's power to adjudicate disputes, Nichols v. City of Rockland, Me., 324 A.2d 295, 296 (1974). Accordingly, we may properly address this issue at this stage of the proceedings. Id., McNicholas v. York Beach Village Corp., Me., 394 A.2d 264, 266 (1978) (standing may be raised on court's own motion for first time at the appellate level); Walsh v. City of Brewer, Me., 315 A.2d 200, 209 (1974) (cognizance of standing issue raised for first time on appeal depends on distinctive features of each case).

Foresite's contention rests on Franklin's acquisition of title to the Sign property from Franklin Company after the expiration of the two year grace period provided by § 462. Franklin had no interest in the property at the time of the expiration of this period. Thus, asserts the defendant, Franklin was not adversely affected by the statute and therefore has no standing to challenge its application.

Foresite, however, misconceives the basis of the concept of standing by only examining the plaintiff's temporal relationship to the land in question. While standing is an amorphous concept fraught with a plurality of meanings, see Walsh v. City of Brewer, 315 A.2d at 205-06 and 209, its basic purpose and requirements are clear. A party must assert a personal stake in the outcome of the litigation and present a real and substantial controversy touching on the legal relations of parties with adverse legal interests. McCaffrey v. Gartley, Me., 377 A.2d 1367, 1370 (1977); State v. Van Reenan, Me., 355 A.2d 392, 394 (1976); Nichols v. City of Rockland, Me., 324 A.2d 295, 296-97 (1974); Bourque-Lanigan Post No. 5 v. Carey, 148 Me. 114, 117, 90 A.2d 710, 712 (1952); see generally Nichols, Standing to Sue: The Litigant's Key to the Courthouse Door, Me. B. Bull., January 1975, at 1. Without these elements, the concrete adverseness crucial to the illumination of legal issues and the proper exercise of judicial power cannot be assured. See McCaffrey v. Gartley, 377 A.2d at 1370; Nichols v. City of Rockland, 324 A.2d at 296-97.

In City of Auburn v. Mandarelli, Me., 320 A.2d 22 (1974), this Court faced a question analogous to the issue at bar. There defendant acquired title to property subject to a tax lien after the statutory notice of nonpayment had been served on the prior owner. By operation of law, title had vested in the City after the expiration of the redemption period. The defendant challenged the City's title on the ground that the notice was constitutionally insufficient. The Law Court, noting the defendant's tenuous position with regard to standing to challenge the propriety of notice, nevertheless, stated:

Since the plaintiff's (the city's) ostensible title would be a nullity, if as contended by the defendant, the notice requirements of the statute were constitutionally insufficient to satisfy the due-process-of-law strictures, the defendant has standing to question the same in these proceedings.

City of Auburn v. Mandarelli, Me., 320 A.2d at 26; see Martel v. Bearce, Me., 311 A.2d 540, 543 (1973) (defendant who levied on and sold property after city's tax lien matured sought to confirm title in buyer who purchased lot at sheriff's sale; court finds evidence insufficient to justify finding of noncompliance with tax procedures and therefore concludes that title had passed to city; issue of standing not discussed in opinion).

Adopting this rationale, we find that Franklin has standing to bring this action. Foresite's claimed title will be a "nullity" if Franklin prevails on the merits. The plaintiff stands to lose or confirm its title to the Sign property by resolution of this dispute. Because these proceedings raise a substantial controversy involving adverse legal interests, Franklin has standing to assert its claims as a plaintiff.

II.

In the proceedings below, Franklin urged that the term "private way" as used in the Act was limited to private ways created by municipal authority and did not include rights-of-way established by private agreement. This issue was not addressed by the brief of either party, although Franklin did raise it at oral argument. Generally, an issue raised in this manner is viewed as waived on appeal. August Realty v. Inhabitants of Town of York, Me., 431 A.2d 1289, 1290 (1981). The primary purpose behind this rule of practice is to ensure a proper determination at the trial level of the facts underlying the issue. Id., In re Estate of Blouin, Me., 430 A.2d 822, 824 (1981). Here, a question of law involving the applicability of a statute is presented to us which requires no further fact-finding. Moreover, both parties addressed this issue in their memoranda in support of summary judgment and have filed supplemental briefs herein on this point. Therefore, we do not treat this issue as waived. See August Realty v. Inhabitants of Town of York, 431 A.2d at 1290.

By its express terms, § 461 applies to town or private ways, county roads or highways. 5 No definition of these terms is set forth in the Act. The parties do not contest the Superior Court's finding that the Sign property is not a county road, highway or town way. Rather, the crux of their dispute is whether the Sign property is a "private way" within the scope of the Act.

As noted by the Massachusetts Supreme Judicial Court, the term "private way" can be defined in several...

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