Norton v. Town of Long Island

• Decision Date: 11 October 2005
• Parties: John S. NORTON Jr. v. TOWN OF LONG ISLAND et al.
• Court: Maine Supreme Court

883 A.2d 889

2005 ME 109

John S. NORTON Jr. v. TOWN OF LONG ISLAND et al.

Supreme Judicial Court of Maine.

Argued: May 17, 2005.

Decided: October 11, 2005.

John S. Campbell (orally), Campbell & Associates, P.A., Portland, for plaintiff.

Paul R. Johnson (orally), Richardson, Whitman, Large & Badger, P.C., and Robert J. Crawford, Bernstein, Shur, Sawyer & Nelson, P.A., Portland, for defendant, Town of Long Island.

G. Steven Rowe, Atty. Gen., Dennis J. Harnish, Asst. Atty. Gen. (orally), Paul Stern, Deputy Atty. Gen., Augusta, for defendant.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, and LEVY, JJ.¹

SAUFLEY, C.J.

[¶ 1] John S. Norton Jr. appeals from the dismissal by the Superior Court (Cumberland County, Crowley, J.) of his claim against the Town of Long Island to quiet title to two roads that run through his property and from its declaration in his quiet title claim against the State of Maine and the Town of Long Island that he lacks any ownership interest in the submerged land known as a "small boat pool," which is located in Casco Bay adjacent to his Long Island property. Norton argues that the doctrine of res judicata does not bar his claim to quiet title to the roads and that the United States government had the authority to convey to him the submerged land comprising the small boat pool free of any public trust. We conclude, as did the Superior Court, that Norton's predecessor in interest took the small boat pool subject to the public trust held by the State, but we agree with Norton that the doctrine of res judicata does not bar his claim to quiet title to the roads. Accordingly, we affirm the judgment in part and vacate in part.

I. BACKGROUND

[¶ 2] The present dispute arises from the federal government's conveyance to John S. Norton Sr. of property obtained by the United States Navy through condemnation in the 1940s. At that time, preparatory to World War II, the United States government acquired by condemnation certain property on Long Island where it constructed and operated a Naval fuel annex. One of the piers within this property, known as Pier H, extended from the land into Casco Bay. Adjacent to Pier H was an angled breakwater. These structures, along with one or more wooden docks or other wooden structures enclosed an area known as a small boat pool. While the Navy had possession of the land, it guarded access to the small boat pool by sea and by land.

[¶ 3] Through a 1942 order, the United States obtained possession of the land "described in the Petition for Condemnation." The petition described the land as being bound on the shore by the "ordinary high water mark of Casco Bay." The petition listed thirteen individual owners from whom the land was to be taken and indicated that "the City of Portland, the County of Cumberland and the State of Maine may have or claim to have some interest in and to said lands." The subsequent declaration of taking and the judgment on that declaration² provided the same description of the boundary on the shore, but added that the property was to be taken in fee simple, "including the abutting rights in and to the boundary streets, riparian rights, and all right, title and interest in the adjacent submerged lands." The judgment on the declaration of taking does not list the parties from whom the land was taken. The final judgment as to the tracts taken, entered on April 6, 1945, stated that the United States obtained "full fee simple title (including, the abutting rights in and to the boundary streets, riparian rights, and all right, title and interest in the adjacent submerged lands ...)." The parties listed in the judgment as having been compensated for the taking were four individuals, a community club, and the City of Portland.

[¶4] After the war, the United States conveyed the land to John S. Norton Sr. and Peter K. Lannon by a 1964 quitclaim deed without covenant that described the boundary as being "along the [ordinary] high water mark of Casco Bay and along the shore line of Long Island." The United States also executed a quitclaim "confirmatory deed" without covenant in 1965; it was issued "to correct and confirm the deed of February 14, 1964 between the parties herein by including the exceptions and reservations ... which exceptions and reservations were erroneously omitted from the original deed." The language describing the border along the shoreline was identical to the language in the original deed.³ The 1965 deed reserved to the United States and its assigns, however,

for the benefit of its remaining land the right to use and maintain, in common with all others entitled thereto, for all purposes for which streets or ways are now or may hereafter be used in the City of Portland, Maine those ways known as Island Avenue and Marginal Street located within the above-described Parcel.

[¶ 5] After purchasing the property from the United States, John S. Norton Sr. considered the small boat pool to be his exclusive property. Both he and his son exercised control over the property consistent with ownership, but neither the City of Portland nor the Town of Long Island acceded to the Nortons' ownership.

[¶ 6] It was not until October 22, 1986, that John S. Norton Sr. and Mary L. Norton, as joint tenants, obtained a deed from the United States that stated, "It was the intent of the Grantor herein to convey the said Pier `H' and breakwater in the aforesaid deed of May 28, 1965."

[¶ 7] In April 1989, John S. Norton Sr. and Mary L. Norton obtained yet another deed from the United States that was "intended to clarify [the] two prior deeds" from 1965 and 1986. The deed granted all interests described in the prior deeds "and consisting of submerged land adjacent to a parcel of property and bulkhead, said property formerly being a part of the U.S. Naval Fuel Annex situated on Long Island."

[¶ 8] In 1988, John S. Norton Sr. commenced an action in the United States District Court for the District of Maine alleging that the City of Portland (which at the time contained Long Island) had violated his Fourteenth Amendment rights by using the roads for travel and parking, and by encouraging others to do so. Upon the parties' cross motions for summary judgment, the United States Magistrate Judge (Cohen, M.J.) recommended that the City's motion be granted for multiple reasons. The magistrate concluded that Norton Sr. failed to plead a procedural due process claim properly, but further stated that, even if Norton Sr. had pleaded the claim properly, his remedy would be a post-deprivation remedy, such as bringing a quiet title action, not a pre-deprivation process. The magistrate specifically stated that Norton Sr. "could have brought a quiet title action," and that he could have minimized damages "had he pursued available state law remedies to clarify and enforce his rights when the parking first began to be a problem in July 1986." The magistrate also concluded that the complaint had pleaded substantive due process and equal protection claims, but that no violations existed based on the summary judgment record.

[¶ 9] The United States District Court (Carter, J.), upon the recommendation of the magistrate judge, granted a summary judgment in favor of the City. The court concluded that Norton Sr. failed to establish a procedural due process remedy, could not therefore sustain a substantive due process claim, and could not succeed on his equal protection claim because the City had a rational basis for regarding the streets as public ways. The court further stated that the issues presented "depend[ed] upon the legal rights of the parties which are traditionally resolved under state law," and that "a healthy sense of federal-state comity dictates that the resolution of [the title] issues should be left to the state courts, which are better positioned to definitively adjudicate them." The court explicitly stated that the decision of the city manager to allow travel and parking was "in no sense an adjudication of the status of Plaintiff's title to the real estate," and the city manager's "decision to leave [Norton Sr.] to the invocation of his legal rights and remedies was an option legitimately open to him." As a result, the decision of the city manager "cannot be taken to be a deprivation of any constitutionally secured right, immunity, or privilege of the Plaintiff."

[¶ 10] In 1996, this time without the benefit of an attorney's assistance, Norton Sr. filed a nearly identical federal complaint against the Town of Long Island. Upon motion by the Town of Long Island, the United States District Court for the District of Maine (Hornby, J.) granted a summary judgment on the basis of res judicata and collateral estoppel because of the earlier federal claim.

[¶11] In 2002, John S. Norton Sr. commenced the present action against the State of Maine and the Town of Long Island seeking to quiet title to the small boat pool and the portions of Island Avenue and Marginal Street that run through his property, which he contends are not public ways. As amended, Norton Sr.'s complaint alleged the following claims: quiet title to Island Avenue and Marginal Street against the Town (count one), quiet title to the submerged lands against the Town (count two), damages for the Town's alleged taking without just compensation (count three), and quiet title to the submerged lands against the State (count four).

[¶ 12] Upon a motion by the Town, the court dismissed count one seeking to quiet title to the portions of Island Avenue and Marginal Street that ran through his property based on the doctrine of res judicata. The court reasoned that Norton Sr. should have prosecuted his quiet title action in conjunction with the 1988 federal court complaint he filed that alleged the violation of his Fourteenth Amendment rights based on municipal encouragement of the public use of the two roads.⁴

[¶ 13] Upon John S. Norton Sr.'s death, John S. Norton Jr. successfully moved to...