In Re Hadlock.

• Decision Date: 22 July 1946
• Citation: 48 A.2d 628
• Parties: In re HADLOCK.
• Court: Maine Supreme Court

48 A.2d 628

In re HADLOCK.

Supreme Judicial Court of Maine.

July 22, 1946.

Proceeding in the matter of the application of George P. Hadlock to the municipal officers of the town of Cranberry Isles for a license to erect a fish weir or trap in front of his shores in the tidewaters of Broad Cove within such town. To review a decree directing the municipal officers to issue the license sought, an owner of shore property bordering on the cove brings exceptions.

Exceptions dismissed.

George R. Hadlock, of Bangor, and Blaisdell & Blaisdell, of Ellsworth, for petitioner.

Woodman, Skelton, Thompson & Chapman, by Nathan W. Thompson, and Richard S. Chapman, all of Portland, for respondent.

Before STURGIS, C. J., and THAXTER, HUDSON, MURCHIE, and TOMPKINS, JJ.

MURCHIE, Justice.

The proceedings to which the Bill of Exceptions herein presented relates originated in petitioner's application to the Municipal Officers of the Town of Cranberry Isles for a license to erect a fish weir or trap in front of his shore in the tidewaters of Broad Cove within said town. The application being denied, he appealed to a ‘justice of the superior court’ pursuant to R.S.1944, Chap. 86, Sec. 7. The appeal is dated December 17, 1945, was filed December 19, 1945, and was heard near the premises on January 29, 1946, pursuant to order thereon. A decree entered February 1, 1946, directed the municipal officers to issue the license sought. Attested copies of that decree and the findings on which it was based were forwarded to the parties, i. e. the petitioner and municipal officers, on that day.

The Bill of Exceptions was filed on behalf of an owner of shore property bordering on the Cove. Counsel for the exceptant appeared at the hearing and raised objections both to the form of the application and to the granting of the license but took no formal action to make his client a party to the process. The bill presents the petition, appeal, exhibits presented at the hearing on the appeal, findings, decree and docket entries. In the findings it is recorded that no objections were presented at the hearing before the municipal officers; that thereafter two of them wrote certain summer visitors and received objections from them; and that the application was denied. The lack of a transcript of the oral evidence taken out before the Justice who heard the appeal makes it impossible to consider whether any of his factual findings lack the support of credible evidence, but this is not material if the proceedings cannot be brought forward on exceptions. That is the issue to be resolved.

The licensing of fish weirs by general law traces back to the enactment of P.L.1876, Chap. 78. Earlier regulation had prohibited the extension of stationary weirs ‘into more than two feet depth of water at ordinary low water,’ R.S.1871, Chap. 40, Sec. 34. The license law constituted municipal officers as the sole licensing authority for the construction of fish weirs in their cities and towns and charged them with the duty of determining whether a proposed weir would interfere with navigation or the rights of others. If not it gave them discretionary authority to issue a license. The language conferring discretion was stricken out by P.L.1883, Chap. 239, wherein earlier restrictions were repealed and the granting of a license to one person for placing a weir in front of the shore of another without the owner's consent was prohibited. It was restored without express legislative sanction in the statutory revision of 1883 (R.S.1883, Chap. 3, Sec. 60), where changed phraseology leaves the meaning and effect unaltered except for the restored discretion which has since received legislative sanction in numerous amendments of the law, the first of which appears in P.L.1911, Chap. 110.

Until 1921 there was no appeal from the decision of the municipal officers put P.L.1921, Chap. 135, provided that any person aggrieved by their decision ‘in either granting or refusing to grant a license’ might appeal to the commission of sea and shore fisheries, and in P.L.1935, Chap. 88, the appellate authority was changed to ‘any justice of the superior court.’ The 1921 law provided that the decision on the appeal should be communicated to the municipal officers promptly; should bind them; and that they should issue a license if so directed. Except for the period from 1921 to 1925 the 1876 law, as amended from time to time, has governed wharves as well as weirs and fish traps but since 1921 its provisions have been especially appropriate for structures designed for catching fish. This is particularly apparent in P.L.1923, Chap. 127, which gave the owners of islands not within the jurisdiction of any town the power and authority of municipal officers in connection with fish weirs and traps, with the equivalent of an appeal to the director of sea and shore fisheries. That provision was left unchanged when the 1935 law, supra, Chap. 88, substituted a justice of the superior court for the commission of sea and shore fisheries as the appellate authority for weir licenses within the limits of towns.

The statute...