Harris v. City of S. Portland

• Citation: 108 A. 326
• Parties: HARRIS v. CITY OF SOUTH PORTLAND.
• Decision Date: 27 November 1919
• Court: Maine Supreme Court

108 A. 326

HARRIS

v. CITY OF SOUTH PORTLAND.

Supreme Judicial Court of Maine.

Nov. 27, 1919.

Agreed Statement from Supreme Judicial Court, Cumberland County, at Law.

Proceeding for damages for the taking of land for a street by Louis W. Harris against the City of South Portland. From a decision of the municipal officers refusing to award damages, petitioner appeals. On agreed statement of facts for the Supreme Judicial Court. Appeal sustained, and judgment directed for petitioner.

Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, MORRILL, and DEAST, JJ.

Frank H. Haskell, of Portland, for plaintiff.

Edward H. Wilson and William A. Connellan, both of Portland, for defendant.

CORNISH, C. J. This is an appeal from the decision of the municipal officers of the city of South Portland because of their refusal to award any damages for the taking of certain land in said city in 1918 for a street. The proceedings are all admitted to be regular. The single point at issue is the title or interest of the petitioner in the land taken.

From the agreed statement of facts it appears that in 1863 one Day owned a large tract of land in the town of Cape Elizabeth, now South Portland, of which the premises described in the complainant's petition were a part. In that year he plotted the land into several hundred lots, and caused a plan thereof to be made, with several streets or avenues delineated thereon, said plan being marked as "Day's plan of East Portland." One of the said streets was named Adams avenue. At the time of the original plotting in 1863, Day sold several lots by reference to the plan, five of said lots abutting on Adams avenue, of which the complainants' were two, Nos. 35 and 36 in block 20. The plotted streets were never accepted nor laid out by the town of Cape Elizabeth, nor by the city of South Portland until 1918.

Between 1863 and 1866 Day sold about 90 lots, all with reference to the same plan, and they conveyed the balance of the tract as an entirety by warranty deed, without reserving any of the streets plotted on said plan, but excepting the lots previously sold. No lots have been sold since that time. The entire tract, with no streets opened, remained practically unchanged until 1918.

In 1869 one James Merriam, complainant's predecessor in title, received title and possession by warranty deed of said lots 35 and 36, block 20, and at some time prior to 1875 erected a fence inclosing said lots and that part of Adams avenue described in complainant's petition as being a strip 112 feet in length and 36 feet in width, thereby annexing to his purchased lots that portion of Adams avenue lying opposite thereto and using the whole as one lot. Merriam and his successors in title ever afterward kept and maintained said fence continuously, and used that portion of Adams avenue as a part of their garden, having open, notorious, continuous, and exclusive possession thereof and exercising dominion and control over it as thus fenced, until the laying out of the new street by the city in 1918. Merriam himself so retained and used both the lots and the disputed tract for a period of over 34 years or until March 29, 1909, when he conveyed all of said property, including the disputed piece, by warranty deed to one Hutchins, and on the same day Hutchins conveyed all by warranty deed to the plaintiff, and their possession has been of the same character and to the same extent as Merriam's.

Under this state of facts did the complainant...