Baker v. Petrin

• Citation: 148 Me. 473,95 A.2d 806
• Parties: BAKER et al. v. PETRIN et al.
• Decision Date: 23 March 1953
• Court: Maine Supreme Court

Page 806

95 A.2d 806

148 Me. 473

BAKER et al. v. PETRIN et al.

Supreme Judicial Court of Maine.

March 23, 1953.

Waterhouse, Spencer & Carroll, N. B. & T. B. Walker, Biddeford, for plaintiffs.

Lausier & Donahue, Biddeford, for defendants.

Before MURCHIE, C. J., and FELLOWS, MERRILL, NULTY, WILLIAMSON and THAXTER, JJ.

FELLOWS, Justice.

This is an action of trespass quare clausum, brought in the Superior Court for York County, to recover statutory double damages for the destruction of a long guard rail fence on land claimed by the plaintiffs under a lease from the heirs of the original proprietors of 'South Point Cottage Lots' so-called, at Biddeford Pool in the city of Biddeford, Maine. The action is brought by Edna Heard Baker, Janet G. Edwards and Frances P. Wood against Arthur Petrin, Wilfred Bolduc, Norbert Tremblay, Antonio Mariello, Arthur Pratt and Antoine Martel. The defendants filed plea of the general issue with brief statement claiming dedication of the locus to the public. The case was tried before a jury and the verdict for single damages was $950, with special finding that the trespass was wilfully committed, and the damages were doubled by the Justice presiding. The defendants filed general motion for new trial and also submitted a bill of exceptions. There was a view by the jury at beginning of trial.

The principal facts in this case appear to be that in the year 1882 the proprietors of certain land at Biddeford Pool in Biddeford, Maine, laid out more than 275 cottage lots, with streets and avenues between lots to provide access, and called them 'South Point Cottage Lots.' The lots did not border directly on the Atlantic Ocean because the strip of land, varying in width and consisting of rocks, beaches, and some level areas with beach grass and bushes, between the lot development and the ocean, was not laid out in lots as appears on the plan recorded in York Registry in 1882. Lots have been sold with reference to the plan since 1882. This method of laying out many cottage lots, where owners of the greater number of cottages cannot see the lake or ocean, is usual in Maine summer developments, in order that a lot owner may have opportunity to fully use the nearby shore or beach, with other owners, for recreational purposes.

This portion of the development, not laid out in lots and bordering directly on the ocean, was very irregular in size and shape, and extended around the easterly and southerly sides of the lot area. One part now in question was triangular in shape and approximately 180 feet wide, or deep, and was marked on the 1882 plan 'Common.' The evidence shows that when this was part of a farm and known as South Point Pasture, it had a barn on it, sweet grass was gathered from it, cottagers picnicked there, farmers hauled seaweed from the rocks on the shore, and the lobstermen and fishermen went to and from boats over it, as occasion required. The area was remote from the city, and only occasionally or rarely used by cottage owners and fishermen, until the present days of automobiles with 'parties and parking.'

Easterly of the area comprising the lots, and westerly of the area on the ocean shore that was marked 'Common,' there was a 50-foot highway named 'Ocean Avenue' on the plan. This highway next to the lotted area, and along the ocean side of the lots, was between the cottage lots and that part of the shore that was not laid out in lots.

In 1913 the city of Biddeford purported to lay out and accept portions of Ocean Avenue according to the plan of 1882, but the city did not fully comply with the Statutes and Charter, and evidence conflicts as to this highway's width and exact location, and exactly where it had been used and travelled. No plan of the street was filed when 'laid out' by the city, and there was no complete record in the city's street record.

The plaintiffs are the owners of lots on the easterly and ocean side of the development. The plaintiffs' lots are on Ocean Avenue. Across the Avenue from the plaintiffs' lots lies the land marked 'Common' on the ocean front.

On September 18, 1894, the then proprietors sold to the United States government, by indenture with the Secretary of the Treasury, certain of the lots across the Avenue from the 'Common,' for the establishment of a Life Saving Station with 'right to erect and maintain 'Wreck Spar' on the 'Common', so-called, be the contents what they may, with full right of egress and ingress thereto * * * and the right to pass over said streets and shore in any manner in the prosecution of said purpose, and also the right to erect such structures upon the said land as the United States may see fit.' On April 3, 1896, another indenture with the Secretary of the Treasury conveyed more lots, with rights similar to those in the first indenture. Fire hydrants and electric lights have been installed at various points along the highway, under either the direction of water and electric companies, or by the city.

In 1930, and for some years previously, the drivers and occupants of automobiles in large numbers were using this land, across the Avenue from the plaintiffs' lots, for 'parking and drinking party purposes,' to the great annoyance and disturbance of the lot owners at all times of the day and night. Automobiles were used as beach houses to put on swimming garments, and clothes were hung on bushes to dry. There was much noise. There was much rubbish left. On July 25, 1930 the plaintiffs (or their predecessors in title) obtained a lease from the then proprietors, of a portion of this vacant land between Second and Fourth Streets (as and if extended to the sea) and marked 'Common' on the plan of 1882, subject to 'all rights and easements of the public in any way acquired over and along Ocean Avenue, so-called, and land adjacent thereto.' The lease was to continue until six months' written notice be given to terminate. After receiving the lease, the plaintiffs, or their predecessors in title, apparently went into possession, as they engaged a surveyor to run the lines of Ocean Avenue, and they then in 1930 proceeded to erect a substantial automobile fence or guard rail fence along the easterly or south-easterly side of the travelled portion of the Avenue. The fence was built of strong wooden posts and heavy wire cable, and built to prevent automobiles from entering and parking on the vacant land thus situated on the ocean and marked 'Common' on the 1882 plan. Openings were left near a hydrant, and near the ends of the fence, so that persons on foot had access to the sea. The fence, claimed to be owned by the plaintiffs, extended a short distance beyond the limits fixed by the lease. After the erection of this fence, the plaintiffs had no further trouble from drinking parties and automobile 'parkers' during more than twenty years from 1930, and until the trespass and destruction of the fence in 1951.

There was conflicting evidence regarding the bounds of Ocean Avenue, and whether the fence was or was not within the limits of Ocean Avenue as laid out on the plan of 1882. The presiding Justice in his charge referred to and explained Revised Statutes 1944, Chapter 84, Section 102 relative to a 20-year fence as a bound. There was conflicting evidence on what had been the regular travelled portion since 1882. There was conflicting evidence on whether there was a 'driveway,' or usual place across the so-called 'Common' to the shore where farmers and fishermen could drive to the water, and a conflict as to whether or not they did so drive. There was a conflict as to whether sand had been taken away, and whether the owners or lessees had forbidden the taking of sand but had permitted the taking of sea-weed. A seventy-four year old witness, who was a daughter of one of the early proprietors and owners, testified, without objection, in relation to the 'Common' on the plan, as follows: 'When the land was laid out, it was restricted land, put aside by my grandfather and uncle, Thomas Cole, for the use of, to protect the people on the other side of the road. It wasn't to be built on * * * and it was for the purpose of the land owners down there, the lot owners.' She further testified that the use of this land by the public to get sea-weed and to get to boats was permissive, but the taking of sand was prohibited and prevented by her father and other owners. It was only occasionally or rarely used by the general public from 1882 to the advent of the automobile. It was used by the lot owners to go to the shore to swim, to picnic, to gather sweet grass and other recreational activities.

In August 1951, the Mayor of the city of Biddeford said to the husband of one of the plaintiffs: 'That fence is coming down Monday morning.' The witness answered: 'That fence is on private property and we don't want you to touch that fence,' and the Mayor repeated: 'That fence is coming down Monday morning.'

On the morning of August 21, 1951, the defendants (who were then the Assistant Street Commissioner of Biddeford and his crew) with two trucks, commenced to tear down the fence. At this time an attorney for the plaintiffs was present and told the defendants not to move or destroy the fence. The defendants, however, demolished the fence. The estimates of value of the fence were from $1,200 to $1,500, with one witness who was a truck driver for the city estimating that the fence could be replaced for $200 by using the same materials. The verdict was $950 with a special finding that the trespass was committed wilfully and knowingly.

The claim of the defendants, as stated in pleadings and in briefs, is that the land where the alleged trespass was committed 'was dedicated to the public partly as a public way known as Ocean Avenue and the balance of said land as the 'Common' with the right of owners of lots on plan of 'South Point Cottage Lots' to enjoy the rights as members of the public * * * and said plaintiffs are not owners within the...