Portland Water Dist. v. Town of Standish

• Decision Date: 28 August 2006
• Citation: 2006 ME 104,905 A.2d 829
• Parties: PORTLAND WATER DISTRICT v. TOWN OF STANDISH.
• Court: Maine Supreme Court

905 A.2d 829

2006 ME 104

PORTLAND WATER DISTRICT v. TOWN OF STANDISH.

Supreme Judicial Court of Maine.

Argued: June 13, 2006.

Decided: August 28, 2006.

William S. Harwood, Esq. (orally), Seth W. Brewster, Esq., Scott D. Anderson, Esq., Verrill & Dana, LLP, Portland, for plaintiff.

Kenneth M. Cole III, Esq. (orally), Sally J. Daggett, Esq., Jensen Baird Gardner & Henry, Portland, for defendant.

G. Steven Rowe, Attorney General, Mary M. Sauer, Asst. Atty. Gen., Augusta, (for State of Maine), Patrick J. Scully, Esq., Bernstein Shur Sawyer & Nelson, P.A., Portland, (for Southern Maine Regional Water Council, Maine Water Utilities Assn., Maine Waster Water Control Assn.), for amici curiae.

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

SAUFLEY, C.J.

[¶ 1] In this appeal, we are called upon to answer two questions: (1) does the common law doctrine of nullum tempus occurrit regi, "time does not run against the king," apply in Maine to prohibit the taking of government owned land by adverse possession or prescriptive easement; and if so, (2) is the quasi-municipal special purpose Portland Water District a governmental entity for the purpose of applying the nullum tempus doctrine. We agree with the trial court (Cumberland County, Humphrey, C.J.) and answer both questions in the affirmative. Accordingly, we affirm the judgment in which the court declared that the Town of Standish may not assert a public prescriptive easement over the land of the Water District.

I. BACKGROUND

[¶ 2] This dispute concerns the public's ability to park cars beside a road that provides access to Sebago Lake. The Water District, which owns land adjacent to the lake and asserts title to the land alongside the road, argues that members of the public have not obtained a prescriptive easement to enable them to park on Water District land and access the lake.

[¶ 3] The Water District originally filed a two-count complaint against the Town on June 3, 2004, seeking declaratory judgments that (1) the Water District owns fee simple title to land in Standish adjacent to a traveled right-of-way known as the Northeast Road Extension, which runs from Route 35 to the shore of Sebago Lake ("the adjacent land"); and (2) the public does not have a prescriptive easement to obtain access over, or to use, the adjacent land. The Town moved to dismiss the complaint or, in the alternative, for joinder of necessary parties. The court ordered that the Water District join the heirs of the Proprietors of Pearsontown (the former name of Standish) to pursue its title claim because, when the proprietors conveyed land to a predecessor-in-interest of the Water District, they reserved and excepted "what may have been heretofore laid out for Roads and Landings."

[¶ 4] In response to the court's order, the Water District filed an amended complaint that omitted the first count and sought only a declaratory judgment that the public had not obtained a prescriptive easement over the adjacent land. The Water District moved for summary judgment, submitting a statement of material facts and affidavits. The Town filed an opposing statement of material facts and asserted additional facts. It attached five affidavits, though upon motion, the court struck portions of one affidavit. The Water District filed a reply statement of material facts in response to the new facts asserted by the Town.

[¶ 5] The parties' statements of material facts, as augmented by the court's order on the motion to strike, reveal the following. The Water District is a quasi-municipal, special-purpose district with a principal place of business in Portland. See P. & S.L.2001, ch. 25, § 1. The Water District, organized under private and special laws enacted by the Legislature, provides water service in the greater Portland area to roughly 200,000 people. The Water District obtains water for its customers from intake pipes at the southern edge of Sebago Lake. An elected board of trustees governs the Water District. P. & S.L. 2001, ch. 56, § 1.

[¶ 6] The land in dispute lies on both sides of the Northeast Road Extension in the Town of Standish. The road now known as Northeast Road Extension was first conceived in 1767, when the Town's proprietors met and voted to establish it as an eight-rod-wide road. In 1933, the Cumberland County Commissioners redefined the Northeast Road Extension to be a six-rod-wide county highway.

[¶ 7] Some of the land in the area of the Northeast Road Extension was used on occasion for rail transportation and access to a ferry terminal between 1870 and 1935, when the Water District obtained the land. As of 1933, there was a public float at the end of the road. In the time since the Water District obtained the land, members of the public have used the Northeast Road Extension for access to Sebago Lake and the Town has maintained a boat ramp and some parking in the area without the permission of the Water District.

[¶ 8] In 1993, the Drinking Water Program of the Maine Department of Human Services granted the Water District a waiver of a filtration requirement imposed by federal law. For the Water District to maintain the waiver, federal regulations require demonstration "through ownership and/or written agreements with landowners within the watershed that it can control all human activities which may have an adverse impact on the microbiological quality of the source water." 40 C.F.R. § 141.71(b)(2)(iii) (2005).

[¶ 9] In December 2003, the Water District applied to the Town to permit construction of an ecology and education center in the boat ramp area. The application proposed regrading the traveled way, creating a bus turnaround, and creating parking spaces adjacent to the six-rod-wide right-of-way. The Town did not acquiesce in this plan, but instead asserted that the public had a prescriptive claim to the land the Water District wished to develop. The current litigation followed.

[¶ 10] Based on the summary judgment record, the court entered a summary judgment¹ in favor of the Water District:

The public has not acquired, and does not have, any prescriptive rights to cross or use the land of Plaintiff Portland Water District situated in the Town of Standish, County of Cumberland and State of Maine, on the Southerly and Southwesterly shore of Sebago lake, and being adjacent to and on both sides of Northeast Road Extension, so-called, which land of Plaintiff is more particularly bounded and described in two deeds from the Portland and Ogdensburg Railway to Plaintiff, both dated March 23, 1935, and recorded in the Cumberland County Registry of Deeds at Book 1468, Page 487 and at Book 1468, Page 491.

[¶ 11] The Town timely appealed from the summary judgment. The Southern Maine Regional Water Council, Maine Water Utilities Association, and Maine Wastewater Control Association, have filed an amicus brief discussing the application of the nullum tempus doctrine. The State of Maine also filed an amicus brief on this issue.

II. DISCUSSION

A. Public Prescriptive Easement Predating the Water District's Ownership

[¶ 12] The court concluded that the Town did not acquire a public easement before the Water District obtained its land because, taking into account that the court struck portions of the affidavit supporting certain statements of material facts,² the government records from 1870 to 1935 failed to establish the public's continuous use of the land for twenty years or more. Based on the summary judgment record, the court's conclusion is correct. Although the Town produced evidence establishing the existence of a train station in the late 1800s and a public float in 1933, this evidence does not demonstrate usage for the necessary prescriptive period. None of the evidence describes or depicts what portion of the land was used by the public or establishes the duration of the varied types of usage. Based on the limited facts presented, the court correctly concluded that the Town failed to raise a genuine issue of material fact regarding the public's acquisition of a prescriptive easement before the Water District obtained title to land on Sebago Lake.

B. Public Prescriptive Easement After the Water District Obtained the Land

1. Continued Vitality of the Nullum Tempus Doctrine

[¶ 13] We next address the court's conclusion that the public could not obtain a prescriptive easement after the Water District obtained the adjacent land. The Town argues that the court erroneously expanded the nullum tempus doctrine to protect a quasi-municipal special purpose district from a public prescriptive easement. As a municipality itself, the Town argues that public policy favors its claim that the public has obtained a prescriptive easement over the land.

[¶ 14] Whether the nullum tempus doctrine shields the Water District from the assertion of a prescriptive easement is a question of law. Cf. Sandmaier v. Tahoe Dev. Group, Inc., 2005 ME 126, ¶¶ 7-8, 887 A.2d 517, 518-19 (discussing the legal vitality of the nullum tempus doctrine). We review questions of law de novo. See Graves v. S.E. Downey Registered Land Surveyor, P.A., 2005 ME 116, ¶ 9, 885 A.2d 779, 781.

[¶ 15] The common law rule that time does not run against the king (nullum tempus occurit regi) is a broad common law doctrine that arises from the doctrine of sovereign immunity. See City of Colorado Springs v. Timberlane Assocs., 824 P.2d 776, 777-78 (Colo.1992). Two important common law doctrines arise from the nullum tempus doctrine: (1) the exception of the sovereign from statutes of limitations,³ State v. Crommett, 151 Me. 188, 193, 116 A.2d 614, 616-17 (1955); Inhabitants of Topsham v. Blondell, 82 Me. 152, 154, 19 A. 93, 94 (1889); and (2) the rule that property interests may not be obtained from a governmental entity by adverse possession, Sandmaier, 2005 ME 126, ¶ 7, 887 A.2d at 518-19; see also Inhabitants of Charlotte v. Pembroke Iron Works, 82 Me. 391, 396, 19 A. 902, 904 (1890).

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