Browne v. Inhabitants of Bowdoinham

• Decision Date: 12 April 1880
• Citation: Browne v. Inhabitants of Bowdoinham, 71 Me. 144 (Me. 1880)
• Parties: J. LOYALIST BROWNE and others, in equity, v. INHABITANTS OF BOWDOINHAM.
• Court: Maine Supreme Court

71 Me. 144

J. LOYALIST BROWNE and others, in equity, v. INHABITANTS OF BOWDOINHAM.

Supreme Judicial Court of Maine.

April 12, 1880

BILL IN EQUITY, to restain the town from expending money raised for the support of ways, upon a road established by the following deed and vote of the town:

Deed. " Know all men by these presents, that I, Robert Jack of Bowdoinham, in the county of Sagadahoc, and State of Maine, in consideration of one dollar paid by the inhabitants of Bowdoinham, the receipt whereof I do hereby acknowledge do hereby give, grant, bargain, sell and convey unto the said inhabitants of the town of Bowdoinham, the following described piece or parcel of land, situated in Bowdoinham, in the county of Sagadahoc and bounded and described as follows to wit: commencing on the northern side of town way, near Robert Jack's stable, thence running southeast by east forty-six rods, opposite John Brown's dwelling house; thence running southeast by east, one-half east, twenty-nine and one-half rods opposite John L. Brown's house; thence running south, southwest ten rods opposite the said Robert Jack's house on Abbagadasset point; thence south by west eight rods; thence east, southeast forty rods to low water mark on Kennebec river; thence two rods southerly by low water mark; thence W. N. W. forty rods; thence N. by E. eight rods; thence N. N. E. ten rods; thence N. W. by W. one half W. twenty-nine and one-half rods; thence N. W. by W. forty-six rods to the said town way; thence northerly to the first mentioned bounds; meaning to convey the land graded up and made a road, by said Jack, two rods in width, on condition that said grantees maintain a town road over the premises, and keep the same in good repair, so that the same may be safe and convenient for travelers, as by law provided. To have and to hold the aforegranted and bargained premises with all the privileges and appurtenances thereof, to the said inhabitants of Bowdoinham, to their use and behoof forever, so long as they shall maintain and keep in repair the road aforesaid over said premises. And I do covenant with the said inhabitants of Bowdoinham, that I am lawfully seized in fee of the premises, that they are free of all incumbrances, that I have good right to sell and convey the same to the said inhabitants of Bowdoinham to hold as aforesaid, and that I and my heirs shall and will warrant and defend the same to the said inhabitants of Bowdoinham against the lawful claims and demands of all persons. In witness whereof, I, the said Robert Jack and Nancy M. Jack, wife of the said Robert Jack, in testimony of her relinquishment of her right of dower in the above described premises, have hereunto set our hands and seals this twentieth day of February, in the year of our Lord, one thousand eight hundred and seventy-eight."

Signed, sealed and delivered in the ) ROBERT JACK, (SEAL.)

presence of Edward J. Millay. ) NANCY M. JACK, (SEAL.)

Acknowledged same day.

Article in warrant for town meeting, dated February 20, 1878: " To see if the town will vote to accept as a gift to the inhabitants of said town the following road already constructed by Robert Jack, to wit: Leading from the terminus of the town way at said Robert Jack's stable to the Kennebec river, at low water mark, according to warranty deed, dated February 20, A. D., 1878."

Vote at town meeting March 4, 1878: " Voted to accept as a gift a road from Capt. Robert Jack already constructed, to wit: Leading from the terminus of the town way at said Robert Jack's stable to the Kennebec river, at low water mark, according to warranty deed, dated February 20, A. D., 1878.

It was agreed that the town meeting of March 4, 1878, was a legal meeting and that the road described in the bill had been opened to public travel by the town for a year prior to the date of the bill, and that the selectmen had made repairs upon it during that time.

J. W. Spaulding and F. J. Buker, for the plaintiff, cited: R. S. c. 18, § 44; Hemphill v. Boston, 8 Cush. 195; Marquis of Stafford v. Coyney, 7 B. & C. 257; Commonwealth v. Low, 3 Pick. 408; Avery v. Stewart et als. 1 Cush. 501; Commonwealth v. Belding, 13 Met. 10; R. S., c. 18, § 68; Maine v. Strong, 25 Me. 296; Cleaves v. Jordan, 34 Me. 9; Waterford v. Co. Com'rs, 59 Me. 450; State v. Sturdivant, 18 Me. 66; R. S., c. 18, § 21; Bartlett v. Bangor, 67 Me. 460; Todd v. Rome, 2 Me. 55; State v. Berry, 21 Me. 169; State v. Bunker, 59 Me. 366; Hobbs v. Lowell, 19 Pick. 408; Valentine v. Boston, 22 Pick. 75; Larned v. Larned, 11 Met. 423; Commonwealth v. Holliston, 107 Mass. 232; Mayberry v. Standish, 56 Me. 348; Windham v. Co. Com'rs, 26 Me. 409.

Counsel contended that an underlying principle, disclosed by the authorities cited, seemed to be, that a way established by dedication and acceptance, could not be a town way, and that the condition of the deed, requiring a " town road" to be maintained, could only be performed by establishing a town way over the premises in the manner provided by the statutes--a simple method familiar to everybody. And the effect of the deed was only to relieve the town of damages to land owner and give them the benefit of Capt. Jack's labor in constructing the road.

C. W. Larrabee, for the defendant, cited: Cleaves v. Jordan, 34 Me. 12; R. S., c. 1; § 1; c. 19, § 1; c. 18, § § 44, 77; Windham v. Co. Com'rs, 26 Me. 406; Mayberry v. Standish, 56 Me. 355; Stedman v. Southbridge, 17 Pick. 162; Hill v. Turner, 18 Me. 413; Todd v. Rome, 2 Me. 55; Hemphill v. Boston, 8 Cush. 195; Stafford v. Coyney, 7 B. & C. 39; Commonwealth v. Low, 3 Pick. 408; 2 Smith's Leading Cases, 208-212; Peck v. Smith, 1 Conn. 103; 2 Dill. Mun. Corp. 503-505.

BARROWS J.

The diligent counsel for the plaintiffs have labored zealously to construct out of various dicta, uttered diverso intuitu, and applicable almost exclusively to the cases in which they are found, together with some early cases in Massachusetts and this State which have since been rejected by both courts, an argument in favor of the proposition that there is no mode in which a town road or way can be established, except the statute method of condemning the land and appropriating the easement by the action of the municipal officers in laying it out for a road, and the subsequent vote of the town accepting it; and, as a sequence, the further proposition that when the town has recived and accepted a conveyance of land from the owner upon condition that they will maintain a road already constructed over it as a town road, " and keep the same in good repair, so that the same may be safe and convenient for travellers as by law provided," they cannot lawfully appropriate or use the town's money for the performance of the condition under which they hold the estate.

The ingenious effort of counsel fails to satisfy us that these propositions can be maintained.

The statute provisions are made in order to enable the town and the public to acquire a needed easement against the owner of the soil, whether he be willing or unwilling, and to secure to the owner of the land a mode of ascertaining, and a certain payment, of the damages to which he is entitled.

But we know of no law which prevents the owner of land from waiving any possible claim which he might have for damages, and conveying...