Socec v. Maine Turnpike Authority

• Decision Date: 31 January 1957
• Citation: 152 Me. 326,129 A.2d 212
• Parties: Edmund M. SOCEC et ux. v. MAINE TURNPIKE AUTHORITY et al.
• Court: Maine Supreme Court

Page 212

129 A.2d 212

152 Me. 326

Edmund M. SOCEC et ux. v. MAINE TURNPIKE AUTHORITY et al.

Supreme Judicial Court of Maine.

Jan. 31, 1957.

Sanborn & Sanborn, Augusta, for plaintiffs.

George D. Varney, Portsmouth, N. H., H. Warren Paine, Drummond & Drummond, Portland, Goodspeed & Goodspeed, Augusta, for defendants.

Before WILLIAMSON, C. J., and WEBBER, BELIVEAU, TAPLEY and SULLIVAN, JJ.

WEBBER, Justice.

Plaintiffs brought this petition for declaratory judgment naming 48 defendants and seeking a determination as to whether certain building restrictions affect the use of plaintiffs' property or should be removed as a cloud upon their title. Those defendants who resist the action first filed an answer. They then moved to strike their answer and filed a demurrer. The motion and demurrer were overruled. Exceptions were allowed and forthwith prosecuted in the Law Court.

The issues presented here are basically procedural. They furnish a rather lucid illustration of the interesting results which sometimes flow from the formidable complexities and the demanding formalities of common law pleading. The issues are twofold. Are these exceptions prematurely before us? Is the nature of the case presented by this petition such as to dictate procedure as at law or as in equity? The procedure to be followed in a petition for declaratory judgment is governed by the "nature of the case". Sears, Roebuck & Co. v. City of Portland, 144 Me. 250, 68 A.2d 12, 17. The plaintiffs contend that the case is equitable in its nature. The defendants insist that law procedure should govern. The defendants have used the demurrer and exceptions, as they frankly admit, as a means of ascertaining at the very outset what their procedural vehicle should be to transport them over the long road of litigation. Their choice of a method of ascertainment appears remarkably efficacious, for the present state of the pleadings presents an interesting paradox. If this cause is equitable in its nature, 'ordinarily exceptions will not be entertained in the Law Court before a case in equity comes up for a final hearing.' Munsey v. Groves, 151 Me. 200, 202, 117 A.2d 64, 66. If that rule is applicable here, these exceptions to the overruling of the demurrer are prematurely before us and must be dismissed. If we dismiss them for that reason, however, we thereby determine that the cause is equitable, and thus indirectly give the defendants an answer to their question. On the other hand, if we entertain the exceptions as not being prematurely brought, we thereby determine that the proceeding belongs on the law side. In either event the defendants will obtain the answer they seek. We think it preferable and far more realistic to answer directly that which we are compelled in any event to answer indirectly. The limitation upon the right of immediate review of interlocutory orders is, however, subject to certain recognized exceptions which are set forth in Munsey v. Groves, supra. '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 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.' The statute, R.S.1954, Chap. 107, Sec. 26, governing the equity practice in such cases has long been deemed directory rather than mandatory upon the theory that the Legislature did not intend that a rigid adherence to the rule should defeat the ends of justice. Obviously the case before us falls within the stated exceptions. It is a matter of paramount importance to the parties to know at the outset whether the petition for declaratory judgment is governed by the rules of procedure which obtain at law or in equity. The right to jury determination of facts is involved. The consequences attending an erroneous conclusion can be disastrous. In the Sears case (supra), the losing party found himself without a right of review by the Law Court because he had misapprehended the 'nature of the case'. The 'interests of justice' are certainly involved and the matter 'hardly permits of postponement'. We hold therefore that the exceptions are not prematurely presented for consideration even though equity procedure applies.

The 'nature of the case' is not always transparently clear, a fact of which the matter before us furnishes an excellent illustration. The petition, briefly summarized, sets forth that plaintiffs acquired about twenty-seven acres of land; that they laid out a part of the tract in lots and recorded a plan; that they reserved a larger portion on which they operated a farm and a commercial enterprise; that they conveyed certain lots, imposing upon the grantees restrictions against commercial use and the like; that part of their remaining property has now been taken by the defendant, Maine Turnpike Authority, by eminent domain, and the presence of the turnpike and traffic circle have changed the nature of the area so as to impair its residential value. The plaintiffs now desire to sell or use some of their remaining property for commercial purposes, but have been threatened by some of the defendants with legal action if they do so. There is no suggestion in the petition that the plaintiffs as grantors ever expressly covenanted or agreed to impose similar restrictions on the land they retained. If the allegations be taken as true, as is proper on demurrer, the restrictions on the use of plaintiffs' property, if they ever came into existence at all, could only have been created by an implied covenant that the land retained by the grantors would be subjected to the same restrictions which were imposed on the grantees. Such implied restrictions have been recognized and enforced in equity under some circumstances by some courts. Ordinarily, courts which so hold deem it essential that there be proof of a general plan or scheme by which the whole tract would be subjected to like restrictions. Som...