Deakyne v. Commissioners of Lewes

• Decision Date: 23 September 1969
• Docket Number: No. 17437.,17437.
• Citation: 416 F.2d 290
• Parties: Ethel C. DEAKYNE v. COMMISSIONERS OF LEWES, a Delaware corporation, Board of Public Works, a quasi corporate body, Gilbert M. Wiltbank, Daniel H. C. Littleton, William T. Manning, Clayton H. Ellis, Thomas B. Morris, Sr., Perry T. Burton, and Bayard Coulter. Commissioners of Lewes, a Delaware corporation, Board of Public Works, a quasi corporate body, Gilbert M. Wiltbank, Daniel H. C. Littleton, William T. Manning, Clayton H. Ellis, and Thomas B. Morris, Sr., Appellants.
• Court: U.S. Court of Appeals — Third Circuit

416 F.2d 290 (1969)

Ethel C. DEAKYNE v. COMMISSIONERS OF LEWES, a Delaware corporation, Board of Public Works, a quasi corporate body, Gilbert M. Wiltbank, Daniel H. C. Littleton, William T. Manning, Clayton H. Ellis, Thomas B. Morris, Sr., Perry T. Burton, and Bayard Coulter Commissioners of Lewes, a Delaware corporation, Board of Public Works, a quasi corporate body, Gilbert M. Wiltbank, Daniel H. C. Littleton, William T. Manning, Clayton H. Ellis, and Thomas B. Morris, Sr., Appellants.

No. 17437.

United States Court of Appeals Third Circuit.

Argued March 25, 1969.

Decided September 23, 1969.

William O. LaMotte, III, James M. Tunnell, Jr., Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for appellants.

Basil C. Clare, Chester, Pa. (Clement C. Wood, Wilmington, Del., on the brief), for appellee.

Before SEITZ, ALDISERT and STAHL, Circuit Judges.

OPINION OF THE COURT

STAHL, Circuit Judge.

This is an appeal from a judgment in a diversity suit brought by an owner of land against a Delaware municipal corporation.¹ Plaintiff-appellee, Ethel C. Deakyne, a citizen of Pennsylvania, brought this action to recover damages caused by an alleged trespass by appellants, the Commissioners of Lewes, the Board of Public Works and others (hereinafter sometimes referred to as Town), when they caused a sewer line to be installed in 1962 under a roadway which traversed a parcel of land appellee then owned in Lewes. Deakyne claimed that the road was part of her property and that the sewer line interfered with possible commercial exploitation of the property as a marina, resulting in a decrease in its market value.

The key issue in this appeal is whether the district court erred in refusing to include in its charge to the jury an instruction on a Delaware statute,² which appellants now claim to constitute a complete legal defense to the alleged trespass. In order to better comprehend the ultimate basis for the lower court's refusal to charge on the statute, it is necessary to relate the course of the litigation by reference to the pleadings, the pretrial proceedings, and the trial:

I. In paragraph 10 of their answer to the complaint, labeled "AFFIRMATIVE DEFENSE," appellants asserted:

10. In or about the year 1937, the aforementioned Anglers Road was constructed by the Commissioners of the Town of Lewes with public funds as and for a public road and the same has been continuously in use as a public road from 1937 to the present and has at all times been maintained through the use of public funds as a public road. Appendix (App.) 7a.

The district court recognized that,

While the answer did not expressly mention 17 Del.C. § 509, its language brought the defense within the terms of the statute. In effect, the answer pleaded the statute. 44 F.R. D. at 426.³

II. The original pretrial order of May 10, 1967, submitted by the parties, contained, inter alia, the following points:

ISSUES OF LAW TO BE LITIGATED

1. May a municipality acquire title by adverse possession to a road?

2. Was Anglers Road subject to an easement in the general public by virtue of a prescriptive right?

* * * * * *

(App. 24a.)

III. During the pretrial conference conducted the same day, May 10, 1967, the following colloquy took place between the court and counsel for the Town:

THE COURT: * * *

The defendant concedes that if plaintiff is right in its contention "that as a matter of law a municipality cannot acquire title to land by adverse possession" App. 20a, then the defense of adverse possession must fall.

Then I am going to talk about your second theory of defense. We have talked about adverse possession. Now what is your alternate theory?

MR. RAYSOR: Your Honor, it is not really a legal defense by way of justifying the laying of the sewer line. As I say, it goes more to the question of damages.

THE COURT: Now, let me stop you here. Then you have simply one defense, and that is adverse possession.

MR. RAYSOR: Yes.

THE COURT: All right. Put that down. The only defense to liability which the defendant asserts is that of adverse possession. * * * (App. 21a.)

IV. As a result of the pretrial conference, a supplemental pretrial order was entered on the first day of the trial, May 15, 1967, providing, inter alia, as follows:

I. AS TO THE ISSUE OF LIABILITY

* * * * * *

D. The defendants assert title in the Town of Lewes as the only defense and, in spite of the claim of the plaintiff to record legal title, the Board of Public Works bases its right to construct the sewer under the bed of Anglers Road on the theory that when the sewer line was constructed, the Town of Lewes was the owner of Anglers Road where the line was located by virtue of adverse possession arising from its open, notorious, exclusive and hostile exercise of dominion over the same under a claim of right.

E. The plaintiff asserts that as a matter of law, a municipality cannot acquire title to private land by adverse possession.

F. The defendants concede that if a municipality cannot acquire title to private land by adverse possession, then the defense of adverse possession must fall. App. 28a-29a.

The supplemental pretrial order stated further, under the caption "AS TO DAMAGES":

B. The defendants assert that the public acquired an easement over Anglers Road through twenty years uninterrupted use under a claim of right and that this prescriptive right would prevent interference by the plaintiff with Anglers Road under which the sewer line is laid. App. 29a.

V. During the second day of the trial, after the appellee had rested and the Town had begun to present its case, the court called counsel for the parties into conference in chambers when an objection was made to proffered testimony showing the use of public funds to maintain the road. App. 32a. At this conference the trial judge called to the attention of the parties the provisions of 17 Del.C. § 509,⁴ relating to the creation of public roads by public user and maintenance.

The trial judge indicated he was not certain what significance the statute had but that he thought "it ought to be considered." Counsel for appellee countered that he was "familiar with that act" and that it "has nothing to do with the situation at hand" because it "pertains to dedication, and most of the cases — I would say all the cases there are cases where a plot plan has been recorded and laid out, and so forth." (App. 33a-34a.)

Counsel for the Town remained silent during this discussion.

VI. The trial then continued with the presentation of further evidence by appellants, including testimony by present and former employees of the Town as to the public use and public maintenance of the road, the kind of evidence which would seem to fit the requisite elements of 17 Del.C. § 509. Appellee's counsel objected to the testimony, not expressly on the ground that it related to a different theory than adverse possession, but primarily because there was no showing of "corporate action" on the part of the Town authorizing the maintenance of Anglers Road with public funds. (App. 33a, 47a-48a.) The other objection to this line of testimony was the reiteration of appellee's position that a public body may not constitutionally acquire private property by adverse possession. (App. 48a.) The testimony was admitted over appellee's objection. (Trial Transcript 257-258.)

VII. At the close of the evidence, in the afternoon of May 17, 1967, the trial judge called counsel for the parties into chambers for a conference on the prayers, or instructions, to the jury. The court again queried counsel as to whether 17 Del.C. § 509 was relevant, and this time the trial judge appeared to take the lead in attempting to convince the parties that the statute was applicable to the facts here. (App. 54a-57a.) Appellee's counsel again claimed the statute was not applicable, contending that it required an initial dedication, evidently meaning a dedication by the private owner of the land not formally accepted by the public body.

This time counsel for the Town commented on the Act, replying to the trial judge that he knew of no reason why it should not be applied, and stating further,

I have intended to ask instruction on it, your Honor. I first had to get the evidence of the maintenance at public funds in. (App. 56a.)⁵

The court then recessed the conference and asked the parties to research the question for later consideration.

After the conference resumed the same day, the trial judge informed counsel that he would charge on the statute, even setting forth the exact language he proposed to use after giving the text of the statute:

If you find, members of the jury, that the portion of Marsh Road between Market Street and the Anglers Association Restaurant or the Anglers Restaurant has been used and maintained at the public charge for 20 years or more, you may find it to be a common highway. But if you fail to find that such road has been used and maintained at the public charge for 20 years or more, you may not find it to be a public highway. (App. 58a.)

Counsel for appellee strenuously reiterated his position that the statute was inapplicable. For the first time, he argued that the Town was interjecting into the case a statutory defense and a new legal theory different from adverse possession. This began to sway the trial court in the opposite direction, because of the sole defense of adverse possession specified in the supplemental pretrial order and the failure of appellants to assert the statute specifically until the end of the trial. Counsel for the Town then proposed that the pleadings be amended to conform to the evidence, explaining that the statute was not pleaded sooner because counsel was not certain until after the entry of the supplemental pretrial order that he had a witness who could testify as to the public maintenance of Anglers Road.⁶ By the end of the May 17, 1967 conference, the trial judge had decided not to charge the jury on the statute. (App. 58a-71a.)

On the...