Fuller v. Town of Searsport

• Decision Date: 29 June 1988
• Citation: 543 A.2d 361
• Parties: Ellen O. FULLER v. TOWN OF SEARSPORT.
• Court: Maine Supreme Court

Page 361

543 A.2d 361

Ellen O. FULLER v. TOWN OF SEARSPORT.

Supreme Judicial Court of Maine.

Argued May 2, 1988.

Decided June 29, 1988.

Francis C. Marsano, (orally), Eaton, Glass, Marsano & Woodward, Belfast, for plaintiff.

Peter K. Mason, (orally), Searsport, for defendant.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, SCOLNIK and CLIFFORD, JJ.

SCOLNIK, Justice.

The plaintiff, Ellen O. Fuller, appeals from a final judgment entered in the Superior Court, Waldo County, denying her petition for a permanent injunction against the defendant, Town of Searsport ("the Town"). Fuller sought to enjoin the Town from taking part of her property by eminent domain to install a portion of a sewage line.

Fuller is a permanent resident of Pennsylvania and owns a summer residence in Searsport. In May, 1985, a town meeting was held in Searsport during which the Selectmen were authorized to borrow and expend funds required for the installation of a new municipal wastewater collection treatment system. In the course of the following year, an engineering firm was hired to prepare plans for the system and assist with grant applications for the project that would be submitted to federal and state agencies.

The engineering firm developed a plan for the wastewater treatment system that involved part of the wastewater pipeline crossing Fuller's land along the northerly line of her property. On or about May 21, 1986, the town manager, Donald Grant, notified Fuller by letter dated May 12, 1986 that the Town wanted an easement across her property for the planned wastewater pipeline. By letter dated June 4, 1986, Grant informed Fuller that he had instructed the Town attorney to begin eminent domain proceedings against her in order to obtain the easement. Fuller then commenced the present action in the Superior Court on July 28, 1986, seeking a permanent injunction against the Town.

On August 25, 1986, a special town meeting was held in Searsport. The voters of the Town who were present approved an article determining a public exigency required taking the most northerly 30 feet of Fuller's property. Fuller attended the meeting and was allowed to speak, but because she was a non-resident, she was not permitted to vote. Fuller had proposed several alternatives to the revised wastewater system plan; these were studied and then dismissed by the Town's engineers on the ground they were not cost-effective.

An evidentiary hearing was held in the Superior Court on Fuller's request for a permanent injunction on December 12, 1986. In a written Decision and Order filed on January 6, 1987, the court found that Fuller did not dispute the legitimacy of the procedures employed by the Town in acquiring her land, and it further found that there was no showing, that the Town's actions constituted a manifest abuse of power. Consequently, the court denied Fuller's request for a permanent injunction.

DISCUSSION

In her appeal to this court, Fuller challenges the procedures employed by the Town in acquiring her land. Although we disapprove of the apparent failure of the Town to conform to the statutory requirement to state in the warrant the specific amount of damages to be paid for the interest taken, ¹ because this issue was not pursued before the Superior Court, we deem it unpreserved for appellate review. As previously noted, the court, based upon a letter-brief from Fuller's counsel, stated in its decision that Fuller did not contest the Town's procedures but relied instead only on "a clear abuse of power on the part of the Town" or "bad faith in the exercise of its power." Although she did subsequently file a motion for a new trial or to alter judgment under M.R.Civ.P. 59(b) and (e), Fuller based this motion on grounds other than procedural deficiencies. Accordingly, she made no objection to the court's finding that the statutory procedure issue was not contested and therefore must be deemed to have waived it here on appeal. See Poire v. Manchester, 506 A.2d 1160, 1163-64 (Me.1986).

Fuller further argues that an injunction should have issued because the Town committed a manifest abuse of its eminent domain power in taking her land. A taking by eminent domain will not be reversed on appeal absent a showing that the power of eminent domain has been abused. See Finks v. Maine State Highway Commission, 328 A.2d 791, 797-98 (Me.1974). Although a legislative determination that the taking was for a public purpose is a judicially reviewable decision, a finding of public exigency is not reviewable by the courts unless there was no rational basis to support a finding that an exigency existed. ² Ace Ambulance Service v. City of Augusta, 337 A.2d 661, 663 (Me.1975). Fuller does not appear to dispute that the easement was for a public use.

There is no evidence in the record of a manifest abuse of power in the Town's decision to take Fuller's land. The undisputed testimony of the Town's engineers indicated that the most cost-effective way for the Town to construct the wastewater system involved the construction of a...