Brown v. Warchalowski

• Citation: 471 A.2d 1026
• Parties: Robert A. BROWN v. Leopold WARCHALOWSKI, et al.
• Decision Date: 19 January 1984
• Court: Maine Supreme Court

Page 1026

471 A.2d 1026

Robert A. BROWN v. Leopold WARCHALOWSKI, et al.

Supreme Judicial Court of Maine.

Argued Nov. 8, 1983.

Decided Jan. 19, 1984.

Linnell, Choate & Webber, Curtis Webber (orally), Auburn, for plaintiff.

Janet T. Mills, Dist. Atty., Auburn, for Oxford County Com'rs.

Thomas Mangan (orally), Lewiston, for L. Warchalowski.

Before McKUSICK, C.J., NICHOLS, ROBERTS, WATHEN and GLASSMAN, JJ., and DUFRESNE, A.R.J.

DUFRESNE, Active Retired Justice.

The instant litigation concerning the laying out of a private way across appellant Brown's land over the course of the previously discontinued Jim Young Road in the town of Buckfield at the request of appellee Warchalowski and originally of three other persons was commenced more than twelve years ago by petition to the town selectmen dated October 15, 1971. The facts underlying the referee's report which the Superior Court has now accepted and which is the subject of this appeal fully appear in the previous decisions of this Court and need not be repeated here. See Warchalowski v. Brown, 417 A.2d 425 (Me.1980); Brown v. MacDonald, 448 A.2d 912 (Me.1982). The present appeal marks the final chapter in a protracted and fragmented controversy carried at a snail's pace under legislation which is now obsolete. ¹

Appellant Brown's objections to the acceptance of the Referee's report of present concern are as follows:

(3) The Referee erred as a matter of law in declining to require that the County Commissioners' return contain a finding that public exigency required the taking.

(5) The Referee erred as a matter of law in refusing to hold that 23 M.R.S.A. § 3006 is unconstitutional.

In his report which the Superior Court Justice accepted and which provides the basis of the instant judgment in favor of the Appellee Warchalowski, the Referee determined and found

that the private way was 'not of common convenience and necessity'; that it provided a direct benefit only to Defendant Warchalowski; that the way was of indirect benefit to the Town of Buckfield and its inhabitants in that it provided them access to the Warchalowski property; and that no public exigency or public need required the laying out of the private roadway over Plaintiff's property.

Both the Justice and the Referee relied on two ancient cases for their respective ruling that, in reviewing the actions of a municipality regarding the laying out of a private way or the failure to do so, neither the county commissioners on appeal, nor the municipal officers or municipality at the initial level, need to consider and find that "common convenience and necessity" do require the laying out of the requested private way. These two cases, Limerick, Petitioners, 18 Me. 183 (1841) and Pettengill v. County Commissioners, 21 Me. 377 (1842), will be the subject of our comments later in this opinion.

Both the Justice and the Referee, on the constitutional question, felt bound by our statement in Warchalowski v. Brown, 417 A.2d at 430, where we said:

We reaffirm the well-considered opinion written by Justice Thaxter in Browne [Browne v. Connor, 138 Me. 63, 21 A.2d 709 (1941) ] and conclude that the laying out of a private way here would be constitutional. (Emphasis supplied).

We vacate the judgment and reverse the decision below.

Initially, we take notice that the Referee did positively find that "[t]he way to Klimek's [Warchalowski's] property is not of common convenience and necessity," and that "no public exigency or public need required the laying out of the private roadway over Plaintiff's property," specific findings which have not been objected to by the present appellee in his opposition to the acceptance of the report. Hence, those findings, if relevant, are now conclusive on Warchalowski for failure to challenge them in the Superior Court at the time objections to the acceptance of the report were heard. Rule 53(e)(2), M.R.Civ.P.; Concord General Mutual Insurance Co. v. Home Indemnity Co., 368 A.2d 596, 599 (Me.1977). In Wendward Corporation v. Group Design, Inc., 428 A.2d 57, at 58-59 (Me.1981), we reaffirmed

that sound appellate procedure precludes our review of objections to a referee's report unless the specific objections have been timely filed in the Superior Court. (Emphasis in original).

See also Inhabitants of Town of Sabattus v. Bilodeau, 391 A.2d 357 (Me.1978).

The resolution of this appeal must depend, therefore, on the determination of the ultimate issue, whether in the laying out of the reference private way it was necessary that it be found that the establishment of the private way was required by common convenience and necessity. We answer that such requirement is necessitated under the Constitution of the State of Maine and under the statutory law existing at the time of the laying-out process.

Article 1, section 21, of the Constitution of Maine provides that "private property shall not be taken for public uses without just compensation; nor unless the public exigencies require it." This constitutional guarantee surrounding the acknowledged right of ownership of private property necessarily implies from its mere declaration that private property cannot be taken through governmental action for private use, with or without compensation, except by the owner's consent. Paine v. Savage, 126 Me. 121, 123, 136 A. 664, 665 (1927); Haley v. Davenport, 132 Me. 148, 149, 168 A. 102, 103 (1933). The exigencies of particular individuals in the enjoyment of their own property will not in and of themselves suffice to permit state, county or municipal, action in appropriating the land of another for road purposes. To avoid a constitutional violation, the establishment of any road or way, whether a state, county, town or private way, must be for a public use and its requirement must be in response to public exigencies. The constitution protects the owner of property to the extent of "churlish obstinacy", said Justice Kent in Bangor & Piscataquis R.R. Co. v. McComb, 60 Me. 290, 295 (1872):

As between individuals, no necessity, however great, no exigency, however imminent, no improvement, however valuable, no refusal, however unneighborly, no obstinacy, however unreasonable, no offers of compensation, however extravagant, can compel or require any man to part with an inch of his estate.

There is no dispute in this case that the laying out of a private way across Brown's land over the course of the discontinued Jim Young Road, if successful, would constitute a taking in the constitutional sense. In order to result in a constitutional "taking," it is not necessary that the owner of property actually be removed from his property or completely deprived of its possession, but merely that an interest in the property or in its use and enjoyment be seriously impaired, such as when inroads are made upon an owner's title or an owner's use of the property to an extent that, as between private parties as in this case a servitude will attach to the land. Foss v. Maine Turnpike Authority, 309 A.2d 339, 344 (Me.1973); United States v. Dickinson, 331 U.S. 745, 748, 67 S.Ct. 1382, 1385, 91 L.Ed. 1789 (1947). See also Cushman v. Smith, 34 Me. 247, 260 (1852); Estate of Waggoner v. Gleghorn, 378 S.W.2d 47, 50 (Tex.1964).

We do recognize that the establishment of a private way pursuant to 23 M.R.S.A. § 3006, although primarily for the benefit of land of another, does not create a private easement right of the persons benefited, but rather a public easement as in the case of the laying out of any other state highway or county road. These limited ways, such as town or private ways, laid out under the statutory provisions involved in the present proceedings, are open to public use and the easement rights therein belong to the public and not to any private individual, whether these ways are denominated private or town ways. Browne v. Connor, 138 Me. 63, 21 A.2d 709 (1941). See also Denham v. County Commissioners, 108 Mass. 202, 204 (1871). But this consideration alone is not controlling. To pass constitutional muster, the way must be laid out for a use which at the time is a public use, not only in a theoretical aspect, but rather in actuality, practicality and effectiveness, under circumstances required by public exigency. See Brown v. Gerald, 100 Me. 351, 373, 61 A. 785, 796, 70 L.R.A. 472, 109 Am.St.Rep. 526 (1905).

From the earliest times, our Legislature had provided comprehensive legislation respecting the laying out, repair or alteration of the highways of the State. In connection with new highways "from town to town, or place to place," state highways or county roads, the statute expressly anchored the establishment of such new ways or the alteration of such old ways upon a preliminary finding that said new ways or alterations of old ways be determined to be "of common convenience or necessity." See section 1, chapter CXVIII, Laws of Maine, Vol. 2 (1821). In sections 9, 10, and 11 of the 1821 laws relating to the laying out of town and private ways by the selectmen of the several towns in the State or by the Court of Sessions for the particular county (later the county commissioners) on unreasonable delay or refusal of the selectmen or town, the stated preliminary finding of common convenience or necessity required, as indicated, in the case of state or county roads was not expressly repeated in connection with the provisions referring to town or private ways. The Revised Statutes of Maine (1840) carried a similar format as did the 1821 legislation. See sections 1, 3, 23, 26, 27, 31, 32 and 34, ch. 25, R.S. (Me.1840). It is under this legislation that the cases of Limerick, Petitioners, 18 Me. 183 (1841) and Pettengill v. County Commissioners, 21 Me. 377 (1842), were decided, in which this Court said:

It should not be expected, that the selectmen or the town, or the commissioners, when acting in their place on appeal, would adjudge such a way to be of common convenience or necessity for the public,...