Blaney v. Rittall

CourtSupreme Judicial Court of Maine (US)
Writing for the CourtBefore DUFRESNE; WEATHERBEE; Brown Brothers, Inc. filed two petitions with the appropriate governmental agencies, one seeking approval for its proposed extension under each respective statute. After notice and hearing, the municipal officers, with th
Citation312 A.2d 522
Decision Date26 November 1973
PartiesRoy C. BLANEY v. Chetley RITTALL et al. (two cases).

Page 522

312 A.2d 522
Chetley RITTALL et al. (two cases).
Supreme Judicial Court of Maine.
Nov. 26, 1973.

Page 523

Nissen & Westcott by Michael N. Westcott, Damariscotta, for plaintiff.

Thompson, Willard, Smith & McNaboe by U. Charles Remmel, II, Portland, Sanborn, Moreshead & Schade by Peter D. Dawson, John M. R. Paterson, Asst. Atty. Gen., Augusta, for defendants.



This case originates from the plans of Defendant Brown Brothers, Inc. to extend a wharf on its property in Boothbay Harbor. On January 5, 1972 Brown Brothers, Inc. wrote to the Board of Selectmen of Boothbay Harbor requesting a permit to extend a wharf as indicated on an enclosed plan. Five days later, Brown Brothers, Inc. filed an application form entitled 'Application for Permit to Alter Wetlands' with the Wetlands Control Board in Augusta and with the town of Boothbay Harbor. This form stated that the applicant intended to alter wetlands pursuant to certain plans showing the area, the extent of construction and so forth.

A public hearing was held on January 21, 1972 by the Board of Selectmen after publication of a public notice in the local newspaper. On January 31, 1972 the Selectmen granted Brown Brothers, Inc. permission to alter wetlands. This permit stated that the Wetlands Control Board had also approved the application on January 28. The entire permit reads as follows:

'Boothbay Harbor, Maine


Date: January 31, 1972

WHEREAS, under date of January 5, 1972 Brown Brothers, Inc./(Owner or Agent) of Atlantic Avenue/(Address) filed with the Wetlands Control Board and with the Municipal Officers of the Municipality of Boothbay Harbor a Notice of Intent to Alter Wetlands, in the Municipality of Boothbay Harbor, bounded and described as follows:

as per attached sketch

and WHEREAS, said Municipal Officers did hold a public hearing on said Notice of Intent to Alter Wetlands at 12:30 P.M./(time) on January 21 1972, in the at the site, continued at BH Firehouse,/(location) notice of said public hearing having been given by mail to Brown Bros. Inc.,/(Owner or agent) the Wetlands Control Board and all abutting owners, and to the public by publication in The Boothbay Register/(newspaper) on January 13, 1972, and WHEREAS, the Maine State Wetlands Control Board approved said application subject to certain conditions on January 28, 1972, NOW, THEREFORE, the Municipal Officers of the Municipality of Boothbay Harbor hereby grant to Brown Bros., Inc./(applicant) a permit to undertake the proposal to alter wetlands within the Municipality of Boothbay Harbor as set forth in the Notice of Intention dated January 5, 1972, subject to the following conditions: _ _

Majority of the Board of Selectmen or Councilmen

s/ Chetley Rittal

s/ Clarence L. Brewer

s/ Walter S. Reed, Jr.'


Following the issuance of this permit, the Plaintiff, an adjoining landowner, filed two appeals in the form of complaints authorized by M.R.C.P., Rule 80B. These appeals, directed to the Superior Court, were based on the Wharves and Weirs Statute (38 M.R.S.A. § 1021 et seq.) and Wetlands Act (12 M.R.S.A. § 4701 et seq.), respectively. Joined as Defendants in addition to Brown Brothers, Inc. were the Board of Selectmen of Boothbay Harbor and the Wetlands Control Board.

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On September 18, 1972 the Single Justice sitting below filed a decree which dismissed Plaintiff's first appeal. The Justice found that as the Wetlands Act did not repeal by implication the prior-in-time Wharves and Weirs Statute, there had been only one permit issued, that being under the Wetlands Act. Since no action had been taken under the Wharves and Weirs Statute, the Justice found that Defendant had received no permit under that statute, although one was required, and that therefore there had been no action by the Selectmen under this statute from which Plaintiff could appeal. Although in effect upholding the Plaintiff's theory, the Justice below dismissed the Plaintiff's first 80B appeal and thus the successful party appears from superficial examination to have been the loser.

The next day, September 19, the Plaintiff, apparently adopting the Justice's procedural reasoning, moved to dismiss his appeal based on the Wetlands Act, also claiming that the permit quoted above was void under that statute. The Justice decided that the permit was not valid, as the sketch referred to in the permit was missing and never was recorded and neither was any other description of the property in question. Thus, he ordered that this appeal of the Plaintiff also be dismissed, with prejudice.

Following these two actions of the Justice, the Defendant Brown Brothers, Inc. seasonably filed a notice of appeal. The Defendant appealed

'from the following Orders or portions of Orders designated below:

1. That part only of the Order of the Lincoln County Superior Court signed by (the Presiding Justice) of September 18, 1972 which determines that the Wharf and Weirs Statute, 38 M.R.S.A. § 1022 is not impliedly repealed and superceded by the Wetlands Control Act, 12 M.R.S.A. § 4701 and that the Defendant, Brown Brothers, Inc., is required to obtain a permit under both Acts.

2. That part only of the Order of the Lincoln County Superior Court signed by (the Presiding Justice) of September 19, 1972 which constitutes a judicial determination that the permit of Brown Brothers, Inc. under the Wetlands Control Act, 12 M.R.S.A. § 4701 is not a proper permit and is void under the recorded requirement set forth in 12 M.R.S.A. § 4702.'

Thus, the Defendant's appeal raises two issues, namely, those of repeal by implication and permit validity. Each will be considered in turn.

Before discussing the first issue on the merits we feel obliged to clarify the procedural situation created by the Defendant's appeal. The Single Justice's two orders of September 18 and 19, 1972, are each in the form of a dismissal of an aspect of the Plaintiff's 80B complaints. On the surface, one would wonder how the Defendant, ostensibly successful at the Superior Court level, could now appeal to this Court from two decrees which were in form, at least, in its favor. 1

Rather than be bound by form alone, this Court will look closely to ascertain the substance of the lower court decrees. In order to be entitled to appeal from these decrees, the Defendant must meet requirements specified by both statutory and case law. 14 M.R.S.A. § 1851 states that

'(i)n any civil case any party aggrieved by any judgment, ruling or order may appeal therefrom to the law court within 30 days or such further time as may be granted by the court pursuant to a rule of court.'

In addition, this Court has ruled that the judgment from which an aggrieved party

Page 525

appeals must generally 2 be a final judgment. See, e. g., Jandreau v. Rodriguez, Me., 284 A.2d 86 (1971); Fidelity & Casualty Co. v. Bodwell Granite Co., 102 Me. 148, 66 A. 314 (1906).

Both the requirements for an 'aggrieved party' and for a 'final judgment' have been defined earlier by this Court. In discussing the concept of aggrievance, this Court in Jamison v. Shepard, Me., 270 A.2d 861, 862-863 (1970), recently stated:

'For aggrievance by a judgment or order, such judgment or order must operate prejudicially and directly upon a party's property, pecuniary or personal rights.'

The Court has described a final judgment as one which 'fully decides and disposes of the whole cause, leaving no further questions for the future consideration and judgment of the court.' Gilpatrick v. Glidden, 82 Me. 201, 203, 19 A. 166, 167 (1889); as one which is 'in such a condition that, if there be an affirmance, the court below will have nothing to do but execute the decree already entered.' Sawyer v. White, 125 Me. 206, 209, 132 A. 421, 422 (1926); as one whose effect is 'in concluding the rights of the party appealing; if his (the appellant's) rights are concluded so that further proceedings after the ruling cannot affect them, there is a final judgment.' Hazzard v. Westview Golf Club, Inc., Me., 217 A.2d 217, 222-223 (1966). It is clear that this Court will as a rule review only those cases in which the appellant's rights have been adversely affected by the ruling in which the ruling has been a final one.

We look to the 'nature and scope' of the orders of the Justice here to determine whether the basic prerequisites of aggrievance and finality are present.

The Defendant Brown Brothers, Inc. desired to extend its wharf which is situated in tidewater. The legislature had enacted two statutes which appeared to control the action which Brown Brothers, Inc. proposed to take-38 M.R.S.A. § 1022 et seq., which concerns the building or extension of wharves, weirs and traps in tidewaters and 12 M.R.S.A. § 4701 et seq., which controls the alteration of coastal wetlands.

Brown Brothers, Inc. filed two petitions with the appropriate governmental agencies, one seeking approval for its proposed extension under each respective statute. After notice and hearing, the municipal officers, with the approval of the Wetlands Control Board, issued one permit to Brown Brothers, Inc., authorizing the applicant to alter coastal wetlands.

This action by the governmental agencies was subject to appeal and the method of appeal is that provided by M.R.C.P., Rule 80B. Plaintiff appealed by bringing two 80B complaints attacking the validity of the approval which Brown Brothers, Inc. had received, and the two complaints were ordered consolidated by the Justice. The Defendant Brown Brothers, Inc. answered and asked that Plaintiff's 80B complaints be dismissed. The Justice then proceeded to rule upon Plaintiff's contention that the one license which Brown Brothers, Inc. received was not, under either statute, a valid authorization for Brown Brothers, Inc. to proceed with the extension of its wharf.

The Justice first disposed...

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