Town of Manchester v. Augusta Country Club

• Decision Date: 22 September 1983
• Citation: 477 A.2d 1124
• Parties: TOWN OF MANCHESTER, et al. v. AUGUSTA COUNTRY CLUB et al.
• Court: Maine Supreme Court

Page 1124

477 A.2d 1124

TOWN OF MANCHESTER, et al. v. AUGUSTA COUNTRY CLUB et al.

Supreme Judicial Court of Maine.

Argued Sept. 22, 1983. ^*

Decided May 23, 1984.

Sanborn, Moreshead, Schade & Dawson, Lee K. Bragg (orally), Augusta, for plaintiffs.

James E. Tierney, Atty. Gen., Paul Stern, Asst. Atty. Gen., Augusta, for amicus curiae.

Locke, Campbell & Chapman, Joseph Campbell (orally), Augusta, for defendants.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, VIOLETTE, GLASSMAN and SCOLNIK, JJ.

ROBERTS, Justice.

The plaintiffs ¹ claim that the general public has acquired the right to use a right-of-way and a beach on land of the defendants along the northern shore of Lake Cobbosseecontee. In addition, the Town of Manchester alleges that the defendants are estopped to deny that the town holds such an easement in trust for the general public. The plaintiffs appeal from a judgment of the Superior Court, Kennebec County, in favor of the Augusta Country Club and the Augusta Golf Company. Because the evidence supports the decision of the Superior Court and because the right of the plaintiffs to trial by jury, if indeed they had such a right, was not preserved, we affirm the judgment.

I.

The evidence, viewed in the light most favorable to the defendants, would warrant the following conclusions. Lake Cobbosseecontee is an oblong body of water whose northernmost shore lies just west of the Manchester town center and south of Route 202, a main highway between Winthrop and Augusta. In 1916, one Arthur Brainard deeded a parcel of land located between Route 202 and the Lake to the Augusta Golf Company, a Maine corporation. This parcel, located in the towns of Winthrop and Manchester, formed the western portion of the property now the subject of dispute. The eastern portion, also situated between Route 202 and the Lake, but lying wholly within the borders of Manchester, was deeded to the Company by Herbert Hammond in 1917. Together these parcels are occupied by the Augusta Country Club, a Maine corporation and a tenant at will of the Augusta Golf Company.

Where the two properties would otherwise converge along the lake shore there is a small, trapezoidal parcel of land conveyed by Brainard to John Gould in 1903. The deed to Gould also conveyed a right-of-way running south from Route 202, along the Manchester-Winthrop town line, to a sand beach adjacent to and westward of the Gould estate. This right-of-way was used to gain access to the Gould property, but was also used by members of the general public to gain access to the beach. In 1931, the country club began construction of an additional nine holes for its golf course. This construction interfered with Gould's right-of-way, but in 1932 the Augusta Golf Company conveyed a new right-of-way to Gould, beginning well to the east of the Manchester town line and running southward and then westward to the Gould property. This easement was conveyed "subject, however, to any and all rights that the town of Manchester may have in and to said right of way."

Since 1932, members of the general public have used the beach and lake for purposes of recreation and for commercial and noncommercial ice-cutting. In 1935, the country club hired an attendant to supervise the beach and to restrict its use to club members and their guests. Nevertheless, it appears that use of the right-of-way and of the beach by the general public continued unabated. In 1957, the club began restricting access to the beach to club members and to residents of the Town of Manchester. ² Residents were asked to present identification cards, which were provided by the town, and signs were posted along the right-of-way stating that the beach was the private property of the club. The club also installed a chain, and later a gate, across the right-of-way to prevent after-hours use of the beach.

Throughout the years, the club made numerous improvements to the beach, including the installation of a bath house. The town, on the other hand, maintained the right-of-way. At its annual meeting in 1975, the town voted to appropriate $2500 for the security and maintenance of the beach. ³ It appropriated $1000 for this purpose each ensuing year from 1976 to 1980. From 1960 to 1980, however, the population of Manchester had approximately doubled, and use of the beach by residents of the town increased accordingly. In a letter to the Manchester Board of Selectmen dated February 24, 1981, the club informed the town that "we reluctantly are compelled to close the beach to all but club members and their invited guests commencing with the 1981 season."

The town responded by appointing a Manchester Beach Committee, which, on May 6, 1981, submitted nine proposals to the club as a means of assuring continued access to the beach by both club members and residents of the town. On July 1, the club announced that, effective July 10, the beach would be restricted to club members and their invited guests. ⁴ The town, seeking to represent the interests of the general public, filed suit in the Superior Court on July 10. After a trial without jury, the Superior Court found that no rights had been acquired by the public and entered judgment for the defendants.

On appeal, the plaintiffs repeat their contention that use of the right-of-way and of the beach by the public at large has given rise to an easement for the benefit of the general public. The town also claims that the defendants are estopped by the language of the 1932 deed to Gould to deny its rights in the way. In addition, the plaintiffs claim the court erred in denying their demand for trial by jury. Our task, therefore, is to determine first, whether plaintiffs have preserved their jury claim and second, whether the evidence viewed most favorably to the defendants supports the denial of the relief plaintiffs claim.

II.

The rules of civil procedure do not purport to describe the only manner by which the right of jury trial may be preserved or waived. We have previously held that unconventional procedure may produce the same result as procedural regularity. See Smith v. Tonge, 377 A.2d 109 (Me.1977); Supruniuk v. Petriw, 334 A.2d 857 (Me.1975). Compare Maine Broadcasting Co. v. Eastern Trust & Banking Co., 142 Me. 220, 49 A.2d 224 (1946) (single justice lacking in jurisdiction of declaratory judgment action) with Sowles v. Beaumier, 227 A.2d 473 (Me.1967) (trial before single justice without demand for jury trial of legal issue). Where a plaintiff has a choice of remedies he may control the right of trial by jury vel non. 1 Field, McKusick & Wroth, Maine Civil Practice § 38.1 at 553 (2d ed. 1970). Where a plaintiff elects an equitable remedy he may forfeit any right to trial by jury of legal issues. Matsushita Electric Corp. of America v. Sonus Corp., 362 Mass. 246, 284 N.E.2d 880 (1972); McAdams v. Milk, 332 Mass. 364, 125 N.E.2d 122 (1955). We hold, in the narrow circumstances of this case, that the plaintiffs did not seasonably demand a trial by jury.

From July 10, 1981, when the complaint was filed until the June 17, 1982 ruling denying a jury trial, the parties conducted this litigation as an equity action. On July 10, 1981, the plaintiffs sought and obtained a temporary restraining order that was later extended by agreement. All further action in this case was before the same trial judge. Count I of the complaint alleged irreparable injury and no adequate remedy at law, and sought declaratory and injunctive relief. Count II alleged that the action was brought pursuant to the general jurisdiction of the Superior Court to grant equitable relief and pursuant to 14 M.R.S.A. § 6651 (1980) (although there was no request that the defendants be required to commence a land action) and § 6658 (1980) (although the plaintiffs now argue that the land in question is cultivated). After the parties agreed to extend the restraining order, the case was set for non-jury hearing on September 17. Plaintiffs did not then demand a trial by jury pursuant to M.R.Civ.P. 38(b). The record contains nothing that explains why that hearing did not occur.

The case was next set for non-jury trial on February 26, 1982. The defendants obtained a continuance due to the absence of witnesses. Nevertheless, on February 26 counsel appeared before the trial judge who granted leave to amend count I and set a schedule for pretrial conference and trial. On March 18, 1982, counsel carried the file from Kennebec to Cumberland County for pretrial conference. Thereafter, plaintiffs filed an amended, single-count complaint once again alleging "no adequate remedy at law" and requesting declaratory and injunctive relief. Plaintiffs' trial brief, filed six days later, discusses both prescriptive rights and equitable estoppel theories of relief. Plaintiffs' second pretrial memorandum filed on June 16, 1982 again claims both prescriptive rights and equitable estoppel. The memorandum also repeats a pro-forma jury trial request: "Trial by jury is requested." ⁵

On June 17, 1982, just five days before the scheduled non-jury trial, the attorneys once again traveled out of county to appear before the trial judge. At the hearing in Knox County, plaintiffs' counsel explained his claim for a jury trial by saying that the case "by tradition is one of law bringing forward legal issues." According to the trial judge that was the first occasion upon which plaintiffs' jury demand had been brought to his attention--although the case had been scheduled for trial twice before. It is significant that by usual Superior Court practice, absent an individual assignment by the Chief Justice, only non-jury cases are retained under the control of an individual justice.

We also find significant the fact that the plaintiffs could not be harmed by delay because of the continuing restraint on the defendants. The trial judge was aware of the need to decide promptly this case, which had been pending almost a year. The trial judge perceived the ...