Rines v. City of Portland

• Decision Date: 23 November 1899
• Parties: RINES et al. v. CITY OF PORTLAND.
• Court: Maine Supreme Court

44 A. 925

93 Me. 227

RINES et al.

v. CITY OF PORTLAND.

Supreme Judicial Court of Maine.

Nov. 23, 1899.

(Official.)

Appeal from supreme judicial court, Cumberland county.

Action by Joseph H. Rines and others against the city of Portland. From an estimation of damages, complainants appeal. Dismissed.

Argued before PETERS, C. J., and EMERY, HASKELL, WHITEHOUSE, STROUT, and SAVAGE, JJ.

B. D. and H. M. Verrill, for appellants.

Carrol W. Morrill, City Sol., for appellee.

SAVAGE, J. This is an appeal by the complainants, or appellants, from an estimate and award of damages made by the city council of Portland for land taken in the laying out or alteration of Portland street. The appellee has filed a motion to dismiss, and, by the stipulations of the report, we are to determine whether the appeal shall be dismissed, or shall stand for trial.

The allegations in the appeal itself are to the effect that the legal title to the land, at the time of the taking, was in one George D. Clark, in trust for the benefit of himself and others. It appears from the case that Portland street was laid out or altered by the city council July 7, 1896, and on the same day damages to the amount of $1,378 were awarded to Clark, as owner. On the day following, by virtue of a decree of court in certain proceedings in equity, to which Clark was a party, the entire parcel of land, of which a portion had been taken, was sold at public vendue to these appellants. Subsequently the sale was confirmed by the court, and on July 28, 1896, the land was conveyed to the appellants by Clark, "together with all damages allowed or recovered for the taking by the city of Portland" of the land in question. It does not appear whether Clark appealed from the award of damages. But the appellants, within the time limited for appeals, filed this appeal to the supreme judicial court in Cumberland county at its October term, 1896. The appellee's motion to dismiss was filed at the April term, 1898. The ground taken in the motion to dismiss is that it appears by the appeal itself that at the time the land was taken by the city the appellants did not own it, nor any portion of it, nor any right, title, or interest in it, and therefore that they were not "aggrieved" by the award of the city council.

The first contention of the appellants is that the motion to dismiss was not seasonably filed. Their learned counsel take the ground that this motion is in the nature of a plea in abatement, and should have been filed within the time limited for pleas in abatement. This ground is not tenable. This motion does not go to such things as are properly matters in abatement, but rather to the merits of the appeal, and is based upon the allegations in the appeal itself. Such a motion, in a proceeding like this, serves the purpose of a demurrer. The question raised by it is whether, assuming all the allegations in the appeal to be true, the appellants are, as a matter of law, entitled to maintain it. It is a convenient and proper method of attacking the sufficiency of the allegations in the appeal, or, as in this case, of denying that the appellants, upon their own showing, have any ground for an appeal.

But the appellants further contend that they are entitled to maintain this appeal upon its merits. They say that, although they were not the owners of the land when it was taken by the city, still they were aggrieved by the award, within the meaning of the laws relating to appeals in such cases, (1) because they became the owners of the land taken within the period allowed for appeals as to damages; and (2) because, as the purchasers and assignees of the claim of their grantor, in whose favor the award appealed from was made, they were at the time of their appeal the owners of the claim which is the subject-matter of the appeal.

We will consider these positions in their order, only premising that the right of appeal from an award of damages is limited to those who are "aggrieved" by the estimate and award. City Charter of Portland (Priv. & Sp. Laws 1863, c. 275, § 9).

Were the appellants, as subsequent owners of the land, within the time for taking an appeal, "aggrieved" by the action of the city council? Certainly not. If aggrieved at all, it must have been at the time the city council acted. If they were not aggrieved then, they could not be aggrieved afterwards. But they were not aggrieved then. They were...