Lancaster v. Augusta Water Dist.

• Decision Date: 15 March 1911
• Citation: 79 A. 463,108 Me. 137
• Parties: LANCASTER v. AUGUSTA WATER DIST.
• Court: Maine Supreme Court

79 A. 463

108 Me. 137

LANCASTER

v. AUGUSTA WATER DIST.

Supreme Judicial Court of Maine.

March 15, 1911.

Exceptions from Supreme Judicial Court, Kennebec County, at Law.

Action by Mary I. Lancaster against the Augusta Water District to recover possession of certain land in Winthrop. At the conclusion of the testimony, the presiding justice ordered a verdict. The plaintiff excepted to several rulings made during the trial. Exceptions overruled.

Argued before WHITEHOUSE, SPEAR, PEABODY, CORNISH, KING, and BIRD, JJ.

Benedict F. Maher, for plaintiff.

Heath & Andrews, for defendant.

PEABODY, J. This is a writ of entry brought by the plaintiff as trustee under the will of Edward Church Williams, deceased, against the Augusta Water District, a corporation created by act of the Legislature of the state of Maine, to recover possession of a certain piece or parcel of land situated in Winthrop, in the county of Kennebec, state of Maine.

The defendant corporation filed a plea of the general issue, and a brief statement denying that it was tenant of the freehold or in possession of any portion of the premises described in the plaintiff's writ and declaration, except as to certain specific portions thereof, which it claimed to own when the action was brought, and disclaiming title to all the other parts of the demanded premises.

The case is before the law court on the plaintiff's exceptions to the rulings of the presiding justice, which are, in substance:

1. To the plea of the defendant, the plaintiff filed a replication and requested the court to direct the defendant to join issue thereon. This direction the court refused to give.

2. The court ordered the plaintiff, against her objection, to join issue upon the defendant's plea of general issue and disclaimer, ruling that her replication was unnecessary.

3. At the close of the opening statement of the plaintiffs counsel to the jury, the defendant moved to amend its pleading by striking out its claim to all the premises seized, and substituting therefor a claim to an easement to the premises and the right to the possession thereof, and the court, against the objection of the plaintiff, allowed the amendment.

4. Certain descriptions of the land in question, filed in the registry of deeds for Kennebec county, under an alleged taking by the defendant by right of eminent domain, were allowed in evidence against the plaintiff's objection that they were but evidence of an attempted compliance with an act which was unconstitutional as irrelevant, and do not give the name of the owner of the property taken.

5. Certain maps of the land in question, filed in the county commissioners' office in Kennebec county under an alleged eminent domain taking by the defendant, were allowed against the objection of the plaintiff that they were but evidence of an attempted compliance with an act which was unconstitutional, that they were not originals, and therefore not best evidence, and contained no certificate as to the date of filing.

6. The testimony of Stephen S. Lancaster, witness for the plaintiff, recalled by the defendant, was admitted against the objection of the plaintiff that it was irrelevant and immaterial, and that he could not be cross-examined on subjects other than those to which he testified on direct examination.

7. At the conclusion of the testimony, the plaintiff moved that the court direct a verdict for her on the grounds set forth in exceptions numbered 4 and 5 in the bill of exceptions, and that, there being no evidence of payment of compensation for the land taken, the right of possession, if any, which the defendant acquired by the filing of the maps had lapsed; also that payment of compensation to the plaintiff for the land in question was a prerequisite to the vesting of title to the lands in the defendant, which motion was denied.

8. But, on the motion of the defendant, the court directed the jury to render the following verdict: "The jury find that the defendant did disseise the plaintiff of the fee in the land described in her writ and not disclaimed by the defendant, but find that she holds the fee in said land, subject to the easement therein in favor of the defendant and the right to the actual possession thereof created by the taking by the defendant under the right of eminent domain as set forth in its brief statement of defense."

The first exception is to be determined by the provisions of R. S. c. 84, § 34, relating to pleading in civil actions, and the second by the provisions of R. S. c. 106, § 6, giving the defendant in a real action the right of pleading by a brief statement under the general issue, filed within the time allowed for pleas in abatement, that he is not a tenant of the freehold, or, if he claimed or was in possession of only a part of the premises when the action was commenced, to describe such part in a statement filed in the case and disclaim the residue. The defendant's pleading was within the procedure authorized by these statutes. Potter v. Titcomb, 16 Me. 423; Ministerial & School Fund v. Rowell, 49 Me. 330; Chaplin v. Barker, 53 Me. 275; Pratt v. Knight, 29 Me. 471.

The third exception is not available to the plaintiff, as the amendment to the brief statement was discretionary with the court. Rule 5, Supreme Judicial Court (70 Atl. vii); Ministerial & School Fund v. Rowell, supra.

The fourth and fifth exceptions involve the constitutionality of the legislative act creating the defendant a public service corporation and authorizing it to take private property for the purpose of its business, by reason of the failure to provide for notice of the proceedings for condemnation of the property under which the defendant claims an easement in the demanded premises, but only for those for determining the compensation to be paid.

The law which governs notice in eminent domain proceedings recognizes equally the right of the public and of the owner, and the requirement of personal notice to the owner in every case of the taking would be inexpedient and unreasonable. The title might be uncertain, the owners absent, numerous, or unknown, and their interests in the property different. It has therefore been decided that notice by publication or by posting, is sufficient even in respect to persons residing within the jurisdiction where the proceedings are pending (Wilson v. Hathaway, 42 Iowa, 173; McIntyre v. Marine, 93 Ind. 193); but the constitutional requirement will be satisfied by giving a reasonable notice; the standard being that it must be such as to afford the persons interested an opportunity to be heard upon matters affecting their private rights. The owners, being themselves part of the public whose interests are paramount, are not entitled to notice or a hearing upon the expediency or necessity of taking the property for public use (Moseley v. York Shore Water Co., 94 Me. 83, 46 Atl. 809; Brown v. Gerald, 100 Me. 351, 61 Atl. 785, 70 L. R. A. 472, 109 Am. St. Rep. 526; Holt v. Somerville, 127 Mass. 408; Old Colony Railroad, 163 Mass. 356, 40 N. E. 198); but after the seizure they are entitled to be heard upon all proceedings. Kennebec Water District v. Waterville, 96 Me. 234, 52 Atl. 774; Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914; Baltimore Belt R. R. Co. v. Baltzell, 75 Md. 94, 23 Atl. 74; Tracey v. Corse, 58 N. Y. 143; Woodruff v. Taylor, 20 Vt. 65; Cooley, Const. Lim. (7th Ed.) 759. The case of Appleton v. Newton, 178 Mass. 276, 59 N. E. 648, upholds the constitutionality of the statutes somewhat similar to those which are the foundation or the proceedings in this case, and the question of notice is there exhaustively discussed. The court, by Knowlton, J., say: "It does not follow...