Milstar Mfg. Corp. v. Waterville Urban Renewal Authority

• Decision Date: 04 February 1976
• Citation: 351 A.2d 538
• Parties: MILSTAR MANUFACTURING CORPORATION v. WATERVILLE URBAN RENEWAL AUTHORITY and City of Waterville.
• Court: Maine Supreme Court

Page 538

351 A.2d 538

MILSTAR MANUFACTURING CORPORATION v. WATERVILLE URBAN RENEWAL AUTHORITY and City of Waterville.

Supreme Judicial Court of Maine.

Feb. 4, 1976.

Weeks, Hutchins, Frye & Welch by Bradford H. Hutchins, Waterville, for plaintiff.

Jolovitz & Niehoff by Lester T. Jolovitz, Waterville, for Waterville Urban Renewal Authority.

Shiro & Jabar by J. William Batten, John P. Jabar, Waterville, for City of Waterville.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD, and DELAHANTY, JJ.

ARCHIBALD, Justice.

This matter comes before us both on appeal and on report. Since the appeal is from the mandate reporting the case, it is evident that sustaining the appeal would automatically void this mandate. Therefore, our preliminary concern is with the issues raised by the appeal.

Waterville Urban Renewal Authority (Authority) in the exercise of its power of eminent domain (30 M.R.S.A. § 4807) acquired title to certain real estate in Waterville formerly known as 'Lockwood Park.' There is no dispute over the fair market value of the land taken, namely, $80,000.00. When the damages were not paid, Milstar Manufacturing Corporation (Milstar) being the owner of the fee in this land, pursuant to Rule 80B, M.R.C.P., brought a civil action for the purpose of recovering this sum. On motion of the Authority the City of Waterville (City) was joined as a party defendant since the Authority contended that 'a question has arisen as to the interest, if any, of the City of Waterville in said premises.' Ultimately an agreed statement of facts was executed by all parties, limiting the issues and agreeing to report the same to the Law Court pursuant to Rule 72(b), M.R.C.P., the appropriate order having issued February 12, 1974. Approximately three weeks thereafter the City filed a motion to relieve it from this order. Rule 60(b) M.R.C.P. Following a hearing this motion was denied and the City has appealed.

Initially we must determine whether the appeal from the order denying the City's motion is prematurely before us. Since this order did not result in a final judgment, under ordinary circumstances an appeal therefrom would not be ripe for appellate review because the ruling was interlocutory. However, the nonappealability of interlocutory orders is subject to certain well established exceptions. For illustrative cases and the rationale underlying these exceptions, see our very recent decision in Northeast Investment Co., Inc. v. Leisure Living Communities, Inc., Me., 351 A.2d 854 (1976).

The basic legal issues raised by the complaint are before the Court by virtue of the mandate of the report, under which we are required to 'render such decision as the rights of the parties require.' Our ultimate decision will result in a final judgment, thus rendering moot the issue raised by the appeal.

Under the foregoing circumstances the following language found in Munsey, Exec. v. Groves, 151 Me. 200, 202, 117 A.2d 64, 66 (1955), is appropriate:

'Where, however, it is deemed to be more in the interests of justice that the questions involved should now be determined, and the peculiar character of the Therefore, in the interests of justice and because of the exceptional posture of this appeal, we deem it appropriate to relax the final judgment rule and discuss the merits of the appeal. Packard v. Whitten, 274 A.2d 169 (Me.1971).

questions here presented hardly permits of postponement if any benefit is to be derived from it by the moving party, exceptions may be entertained by the Law Court before final hearing.'

We have been furnished with a transcript of the testimony offered in support of the City's motion, which we summarize.

Not later than November 21, 1973, counsel for the three litigants had fairly and objectively agreed to report the case and had stipulated the facts necessary therefor, but no order was obtained carrying into effect this agreement until February 12, 1974.

On December 18, 1973, counsel for the City wrote the following letter to counsel for the plaintiff, sending a copy to counsel for the Authority:

'I regret that this case has not gone forward as agreed to. In view of the suggested procedure, I felt that I must review my entire thinking on this matter.

I originally had agreed to stipulate that the taking was proper but I want to now re-evaluate that position and ascertain whether in fact there is any legal benefit for us to challenge that taking. In any event, for the record, I want the procedure itself in its entirety on the record for the Court.'

Several days prior to February 12, 1974, counsel for the plaintiff served notice on both counsel for the City and the Authority that he would bring the agreement to report before the Justice then presiding for the purpose of obtaining the necessary order. This was done. Counsel for the City did not attend the hearing and testified that although he had notice thereof he felt his presence was unnecessary because the issue had become 'moot.' He further testified he communicated this reason for his nonattendance to a subordinate in the office of the Clerk of Courts by telephone. This information was not made known to the other counsel, who were at the hearing, or to the Justice who ultimately signed the order.

Since Rule 60(b) motions are addressed to the sound discretion of the Justice before whom they are heard, an appeal from the denial of such a motion is subject to reversal only on a clear showing of an abuse of judicial discretion. Ingham v. Tzikas, 320 A.2d 665 (Me.1974).

From the record furnished us relating to this motion there is no evidence that counsel for either the Authority or Milstar, when presenting the order to report the case to the Justice below, misrepresented any facts or otherwise acted in bad faith. The City has not shown that any of the facts it had previously agreed upon were contested or erroneous.

There was a suggestion that another Justice of the Superior Court had informally expressed some reservation about the propriety of reporting the case, suggesting that it might be more appropriate to decide the case at the Superior Court level, from which decision an appeal could be taken. This informal opinion would seem to have been the basis for the letter of December 18 quoted supra. However, the City made no showing that any prejudice could result to it from reporting the case and neither did it suggest that any additional facts would have been relied upon by the City had the case been tried in the Superior Court.

Since the City has failed to demonstrate any abuse of discretion in the denial of the Rule 60(b) motion, the appeal from this ruling is without merit and must be denied.

We now turn to the issues raised by the report which we summarize as follows:

(a) Did the City of Waterville have any compensable interest in the land taken by eminent domain?

(b) If the City did have such an interest, what was the value of this interest?

(c) Must Waterville Urban Renewal Authority pay interest on $80,000.00 and, if so, from what date and at what rate?

On June 15, 1950, the City and Lockwood-Duchess, Inc., entered into an agreement under the terms of which the City obtained permission to use certain property owned by Lockwood-Duchess, Inc., which became commonly known as 'Lockwood Park.' The purpose was to effectuate rotary traffic at the western terminus of a bridge crossing the Kennebec River.

Milstar is the successor in title to this real estate and any rights that Lockwood-Duchess, Inc., had in this property are now owned by Milstar.

According to the plans included as exhibits in the record, aided by aerial photographs, it is now clear that the Authority has constructed a public way leading from the western terminus of the bridge directly through what was Lockwood Park. Rotary traffic has been eliminated and the flow of traffic to a shopping center situated westerly of Main Street in Waterville has been facilitated. Such was the purpose of the Authority when it took the property by eminent domain.

Our first inquiry will be to determine whether the City had any compensable interest in the condemned land. If it had none, then the second issue reported is moot.

Whatever rights the City had in this property were created by the agreement of June 15, 1950, which provided:

'1. The said Company hereby agrees to permit the said City to use certain property . . .. This permission to continue for so long as the City shall not be in default of any of the terms of its agreement . . .. ¹

2. Said permission so given by the Company is not to be construed as a dedication of said property owned by the Company to public use, nor does said permission constitute the relinquishment of any rights other than as herein granted; and the City hereby agrees that no prescriptive rights or rights by adverse possession shall be claimed as the result of any use under this permission.

4. The entire area in which this permissive use operates, including the so-called Lockwood Park in the center thereof, shall during continuance of the permission be under the sole and exclusive control of said City . . ..

6. The said City further agrees that the premises in the center of the rotary traffic system as set forth in said plan will be used for no other purpose except as a park except by the written consent of the said Company.' (Emphasis supplied.)

The City has argued that Milstar's predecessor in title contractually dedicated the property to the City for use as a park and that although there has been a change in the physical characteristics of the area, it still remains a park. However, for the City to argue that the land had been dedicated to public use as a park would be to fly in the face of the plain language of the contract. Paragraph 2 clearly states that the permission given by Milstar's predecessor in title was not to be construed as a dedication to public use, and the City expressly consented to this limitation. Absent an intent by...