Brawn v. John Lucas Tree Expert Co.
Decision Date | 11 May 1961 |
Citation | 157 Me. 242,170 A.2d 694 |
Parties | Ivan BRAWN v. JOHN LUCAS TREE EXPERT CO., Inc. |
Court | Maine Supreme Court |
Gerald E. Rudman, Paul L. Rudman, Bangor, for plaintiff.
Herbert T. Silsby, Ellsworth, for defendant.
Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.
Plaintiff was awarded a summary judgment interlocutory in character on the issue of liability alone. Maine Rules of Civil Procedure, 56(c), 155 Me. 559. This case has been reported to the Law Court upon motion of the defendant pursuant to Rule 72(c), M.R.C.P., 155 Me. 573, for determination of a question of law.
Plaintiff had instituted a civil action against the defendant under the provisions of R.S. c. 124, § 11. The complaint alleges:
The defendant answered:
'The Defendant in its own behalf alleges:
Under Rule 33, M.R.C.P., 155 Me. 529, the defendant served the following written interrogatories upon the plaintiff who gave the subjoined answers:
Answer: 'Yes.'
Answer: 'Irene B. Herrick.'
Answer: 'Premises purchased from Irene B. Herrick by deed dated November 30, 1954, recorded in Book 766, Page 280.'
Answer: 'Premises are rented to Ralph Rideout and to Clyde Grindell.'
Answer: 'Ivan Brawn.'
Answer: 'No.'
Answer: 'Ivan Brawn.'
Answer: 'Not to my knowledge.'
Answer: 'Yes.'
Answer: 'At some time prior to 1960 she did.'
Answer: 'I do not know.'
Answer: 'I was in the store which is across the street from the premises and is about 100 feet away.'
After a pre-trial conference a court order was rendered stating, by stipulation and agreement of counsel:
'* * * that the plaintiff had an adult sister by the name of Irene B. Herrick who at the time of the cutting and previous thereto was living at the Jed Prouty Tavern in Bucksport, Maine, which is not on the land on which the plaintiff claims the two elm trees were nor is it contiguous to that land;
that the cutting of the two elm trees herein involved took place March 1 and 2, 1960, and that these two elm trees measured respectively 26"' X 85' tall and 32"' by 90' tall; that the land on which the plaintiff claims that these two elm trees were situated had been purchased by the plaintiff from the said Irene B. Herrick on November 30, 1954 by deed recorded in Hancock County Registry of Deeds, Book 776, Page 280, and was still owned by the plaintiff on March 1, 2, 1960; that the said two elm trees were removed by the defendant.
* * *
* * *
'It is the contention of the defendant that these two elm trees were situated within the public right of way of either Elm or Bridge Streets, or both, in Bucksport, Maine, but it is the contention of the plaintiff that said trees were situated on the land owned by the plaintiff.'
Defendant in its brief adverts to the pretrial conference with the following comment:
Plaintiff moved for a summary judgment in his favor on the limited issue of liability of the defendant upon the asserted ground that there was no genuine issue as to any material fact and that the plaintiff was thus entitled to such judgment as a matter of law. Such motion was based upon the pleadings, answers to interrogatories and the affidavit of the plaintiff.
The presiding Justice ordered the Clerk to enter, as a matter of law, summary judgment for plaintiff against defendant in respect to liability. The Justice found no issue as to the cutting, destruction or removal of the trees. He decided that an examination of the complaint, answer, affidavit, counter affidavit and pre-trial order revealed that the defense of the defendant as to ownership of the trees by the plaintiff rested solely upon the factual premise that the trees were within the public right of way abutting the plaintiff's land without any suppletory claim by the defendant that those trees stood beyond the center line of the abutting public highway. On the authority of Brooks v. Bess, 135 Me. 290, 195 A. 361, the Justice ruled that the trees, upon the case record, were, therefore, presumptively the property of the plaintiff who was the adjoining landowner. The Justice resolved that the defendant's assertions as to the apparent agency of Mrs. Herrick to authorize the cutting of the trees were not susceptible of admissible testimony by the defendant and the Justice reached a like conclusion in the matter of defendant's statements concerning awareness of the nonresisting plaintiff as to the defendant's destruction of the trees.
Defendant contends that the Justice erred in ordering the interlocutory, summary judgment and the case is reported for interlocutory review here.
Rule 56, M.R.C.P., 155 Me. 559, ff., provides:
'(f) * * * Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.'
Of summary judgment Field and McKusick, Maine Civil Practice, say with sustaining authorities:
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Collett v. Bither
...the natural purport of the language of the rule. Our Court has so construed it in practical operation. See, Brawn v. John Lucas Tree Expert Co., Inc., 1961, 157 Me. 242, 170 A.2d 694, where this Court acted upon the lower Court's report to determine the propriety of its grant of summary jud......
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Lindsley v. Lindsley
...shall be entered against him.See Sawyer v. Congress Square Hotel, 157 Me. 111, 170 A.2d 645 (1961); Brawn v. John Lucas Tree Expert Co., Inc., 157 Me. 242, 170 A.2d 694 (1961).We need not decide what effect this portion of the rule might have on Mr. Lindsley's failure to file opposing affid......
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