*1 Robert A. BROWN
Leopold WARCHALOWSKI, al. et
Supreme Judicial Court of Maine. Nov.
Argued 1983. Jan.
Decided *2 Webber,
Linnell, & Curtis Webber Choate Auburn, plaintiff. for (orally), Auburn, Mills, Dist. Atty., T. Janet County Com’rs. Oxford Lewiston, for L. Mangan (orally), Thomas Warchalowski. NICHOLS, C.J., McKUSICK,
Before
GLASSMAN,
ROBERTS,
WATHEN
DUFRESNE,
JJ.,
A.R.J.
DUFRESNE, Active Retired Justice.
required
need
out of the pri-
over
roadway
vate
Plaintiff’s property.
litigation concerning
instant
lay-
Both the
and the Referee
Justice
relied on
out of a
appellant
across
respective
two ancient cases for
ruling
Brown’s
over
land
the course of the previ-
reviewing
the actions
a munici-
ously
Young
discontinued Jim
Road in the
*3
laying
the
out
pality regarding
town of Buckfield at
request
appellee
thе
so,
to do
neither
way or the failure
the
Warchalowski and
originally
three other
nor
appeal,
the
persons was commenced more than twelve
municipality at
municipal officers or
years ago by petition to the town selectmen
and find
level,
initial
to consider
that
15,1971.
dated
need
October
The facts underly-
necessity”
“common
do re-
convenience
the referee’s report which the Superior
quire
requested
laying
pri-
out
Court has now accepted and which is the
Limerick,
cases,
way.
vate
These two
Peti-
subject
apрeal
of this
appear in
fully
tioners,
(1841)
Pettengill
183
18 Me.
v.
previous decisions of this Court and need
(1842),
377
repeated
here. See Warchalowski v.
subject
will
later in
Brown,
be the
of our comments
(Me.1980);
Appellant objections Brown’s to the ac- written Justice Thaxter Browne ceptance of the Referee’s report present Connor, A.2d concern are as follows: [Browne that (1941) laying conclude ] (3) The Referee erred as a matter of law would be out of a here con in declining to require the Coun- (Emphasis supplied). stitutional. ty Commissioners’ return contain a finding that public exigency required reverse the judgment vacate the taking. decision below. (5) The Referee erred as a matter of law Initially, we take notice refusing to hold that 23 M.R.S.A. way Referee did find that positively “[t]he 3006 is § unconstitutional. Klimek’s [Warchalowski’s] In report his which the Superior Court Jus- not of necessity,” convenience and common tice accepted and which provides the basis public exigency that “no need judgment instant in favor of the required private road out of the Appellee Warchalowski, the Referee deter- way specific over Plaintiff’s property,” mined and found objected to findings which have not been
that the private way was ‘not common opposition in his appellee Hence, cоnvenience and necessity'; it pro- acceptance report. those vided a direct benefit relevant, Defendant conclusive on findings, if are now Warchalowski; was of indi- them challenge Warchalowski for failure to rect benefit to the Town objections of Buckfield and in the Superior Court at the time its inhabitants it provided them to the were heard. acceptance report M.RCiv.P.; access to the Rule property; 53(e)(2), Warchalowski General Concord that no exigency public Mutual Indemnity Insurance Co. v. Home Warchalowski, 3012) govеrn disposition A.2d n. we continues In pointed petition since the instant this case. Comber v. of Plan See Inhabitants prior July 29, 1976, filed the effective date of Dennistown, tation n. 398 A.2d repealing (P.L.1975, 7), statute ch. (Me. 1979). repealed legislation (23 M.R.S.A. §§ 3001- Co., individuals, (Me.1977). necessity, between no Wend As im- Inc., ward no however Corporation Group Design, great, exigency, however minent, (Me.1981), at 58-59 no however valua- improvement, we reaffirmed no ble, refusal, unneighborly, however procedure that sound appellate precludes unreasonable, no of- obstinacy, however review оbjections our to a referee’s however extrava- compensation, fers report the specific objections unless have require any can man gant, compel timely Superior been filed Court. of his part with an inch estate. (Emphasis original). See also this case that dispute Inhabitants of Town of Sabattus v. There is no Bilodeau, across (Me.1978). A.2d 357 Brown’s land over the course of discon The resolution of this de- appeal must successful, Road, Jim if Young tinued pend, therefore, on the determination *4 constitute a in the constitu issue, ultimate whether in out of in a consti tional sense. In order result the reference private necessary it was necessary that tutional it is not “taking,” that it be found establishment of actually the owner of be removed property the private way required by common deprived of property completely from his or necessity. convenience and We answer that merely its that an interest possession, but requirement such is necessitated under the enjoyment or in its use and be property Constitution of the State of Maine and un- seriously impaired, such as when inroads der the statutory existing law at time or an own upon are made an owner’s title of laying-out process. extent use of the to an property er’s 1, 21, Article section of the Consti this a private parties as as in between tution of Maine provides “private prop v. servitude will attach to the land. Foss shall not erty be taken for uses with public 339, Turnpike Authority, Maine out just compensation; pub nor unless the Dickinson, (Me.1973); 344 v. United States lic exigencies require it.” This constitution 745, 1382, 1385, 748, 67 91 331 S.Ct. U.S. al guarantee surrounding acknowledged (1947). 1789 Cushman v. L.Ed. See also right private of of ownership nec property 247, Smith, 34 260 Estate of Me. essarily implies its from mere declaration 47, v. 50 Waggoner Gleghorn, 378 S.W.2d private property cannot be taken (Tex.1964). through governmental action for use, with or compensation, except recognize without estab do by the owner’s consent. Paine v. to 23 Savage, private way pursuant lishment of 121, 123, 664, 3006, although 136 665 for the primarily A. M.R.S.A. § 148, another, Haley 149, v. 132 not Davenport, Me. 168 benefit of land does create of 102, (1933). persons The of exigencies par right easement bene- as fited, ticular individuals in the easement enjoyment public but rather other state proрerty any own will not and of themselves case of the state, permit suffice to These limited county municipal, highway road. out private ways, action in laid appropriating ways, the land another such town provisions To involved purposes. statutory for road avoid a constitution violation, al proceedings, open public establishment road state, rights belong therein county, whether a use and the easement town individ- private way, any private must be for to the and not public use and ual, ways be are denominated requirement response pub its must whethеr these Connor, lic exigencies. ways. Browne protects constitution (1941). owner A.2d 709 See also Me. extent of Commissioners, 108 County “churlish obstinacy”, said Justice in Denham Kent (1871). & But considera- Bangor Piscataquis McComb, R.R. Co. v. Mass. (1872): pass To con- controlling. alone not tion muster, stitutional must laid require being be evidence of its for the for a use use, the time is a public individual, is, or of an benefit the town not aspect, a theoretical but rather be approved legal that it allowed in a in actuality, practicality effectiveness, meeting purpose called for the of acting under circumstances required public exi- upon it. gency. Gerald, See Brown v. Limerick, Petitioners, at 186. 61 A. 70 L.R.A. appear The Commissioners do to have Am.St.Rep. between clearly distinguished high- times, From the Legislature earliest our It is not ways private ways. neces- had comprehensive legislation re- sary, common convenience specting out, the laying repair or alteration promoted, should in order authorize highways of the State. In connec- latter descrip- establishment of the tion with new highways “from town to ways. tion of town, or place to рlace,” state highways or county roads, the statute expressly an- Pettengill at 380 chored the establishment such new ways (dictum). or the alteration of old ways upon But, portion in the revision preliminary finding ways that said new the location legislation regulating alterations of old ways be determined to be State, highways and alteration “of common or necessity.” convenience See private ways, *5 when town and dealing with 1, CXVIII, section chapter Maine, Laws of for the underscored inserted the first time 2 (1821). 9, Yol. 10, sections and 11 of phraseology: the 1821 laws the relating 18, the (Me.1857). R.S. ch. sec. by town and ways the selectmen of neglect municipal unreasonably officers
the several
towns in
the State or
the
or
out or
a town
refuse to
alter
Court of
particular
Sessions for the
county
or a
on
of an inhab-
petition
(later the county commissioners)
unrea-
on
for a
itant, or
therein
of an owner of land
delay
sonable
or refusal of the selectmen or
town,
im-
the
way leading
stated
from such land
preliminary finding of
common
the
convenience or necessity required,
provement
highway,
to a town or
indicated,
in the
case
state
county
year
or
petitioner
may, within one
therefor
repeated
roads was not expressly
in connec-
thereafter,
stating
the
petition
tion with the provisions referring to town
county
facts
commissioners
ways. The Revised Statutes of
session,
regular
at a
who are to
(1840)
Maine
carried a similar format as did
interested,
pro-
to all
and
notice thereof
the 1821 legislation.
23,
See sections
respect-
act
ceed to
thereon as is
27,
26,
31,
32 and
ch.
(Me.1840).
R.S.
ing
provided).
highways....
(Emphasis
It is under
legislation
this
that the cases of
act
thereon as
“proсeed
direction to
Limerick, Petitioners,
(1841)
mon convenience necessity the pub- for or that an ex- necessity, convenience and lic, when the statute it to authorizes be altered or discontin- isting way be laid out shall for use of the only, ued, they proceed perform one more individuals thereof shall All, .... which the statute seems required; duties .... into play; come gy, then the rule not notice this Court’s statement
We take rather, an intent Hughes Farrar, (1858) might 45 Me. indicate it change legislative body part of the law. principal in the revision of design, [t]he collate, revise, arrange was ‘to inserting its believe do State,’ and, in all the laws of the the mandate to of the laws 1857 revision revising, practica- as far as condense out, when ble, ‘with such new laws as indications of discontinuing town altering might necessary,’ be deemed suitable and pro- as is to act thereon ways, “to proceed and, on of the commission- examination Legislature highways,” respecting vided ers’ no indications of report, perceive as practi- as far merely condensing was not change respect- particular [i.e. law, through change but existing cable relating the law to the factual scenar- the new indicating, as language io case before the presented court]. conveys, the additional re- literally wording Also, we are general aware of rule existing law quirement, read out gen- a statute incorporated [w]hen Pettengill, of com- Limerick Court in statutes, eral revision of re- all necessity statutorily mon convenience along enacted the re-enactment of with constitutionally mandated statutes, other its and effect are purpose similarly so con- The Court of highways. changed some compel- unless there be with revision in connection strued the 1857 change in ling language. Usually law Inhabit- aspect another simply revision of the statutes interates v. County ants Orrington former legislative declaration of will. Everett, 260, 264, 19 Cummings v. 82 Me. Farrar, Hughes Furthermore, section Cram v. of County Inhabitants of 1857 chapter 18 of the revised statutes Cumberland, 521-22, Forty-First amended specifically *6 (1953). 1862, so that said section as Legislature of follows: shall read full as amended
Thus, the gener- revised statutes of 1857 question, ated the whether the introduction municipal officers 22. When the Sect. therein of the com- phraseology new to neglect or refuse unreаsonably —“the to missioners are to act thereon as proceed way way, a town alter is in- provided respecting highways,” inhabitant, or of an owner —was an petition of require tended to in the Legislature leading therein, for from of land location, alteration discontin- improvement to town such land ways uance of town and the same may thereof petitioner highway, preliminary always it had finding which a peti- present thereafter year within one location, in the dis- required alteration or the commission- the facts to stating tion of con- county ways, сontinuance state or session, county regular at a ers of made this Court trary statements all thereof to in- who notice are construing when Pettengill, in Limerick thereon as to act proceed terested the 1821 laws. respecting highways. provided recorded, is returned and their decision of statutory The stated rule general right same have the parties interested presumes application construction for its court supreme judicial appeal to the seg interpretation any particular of right and also the same county, said statutes that ment of revision of aby com- damages estimated their have language substantially of the revision is this chap- provided as is jury mittee existing as that of the law. previously (Emphasis add- highways. ter respecting new shows a sub phraseology Where the ed). existing stantial difference from terminolo-
P.L.
ch.
sect. 22.2 This amend
involving a
Although
and not a
ment was made
a distinction
without the benefit of
which is not
ma-
judicial
interim
terial under M.R.S.A.
3006 so far
specific
interpretation
as
finding
prerequisite
common conve-
reference section of the 1857 revision of
concerned,
necessity is
nience and
the case
laws. An amendatory law enacted through
Freeman,
1033 I, 21, of the Constitution finding such a was of Article Section necessity, since of Maine. unnecessary, to 23 M.R. taking pursuant Supe- The S.A. 3006 was constitutional. § can taken property Private the Referee’s accepted rior Court Justice uses, only and then public ap- report objections, over Brown’s the use for exigency. Whether issue, brings up whether peal a is authorized is taking which a appellant’s out a over the a judicial question in the end use is not com- way when such Court. Ace for the determination by and necessity mon convenience as found Service, Augusta, v. City Inc. Ambulance the Referee constituted both an unconstitu- 661, (Me.1975); Paine Sav 337 663 the statute 664, tional violation of 121, 124, 136 Me. A. age, 126 ways. regulating Gerald, 351, 360, the location 61 A. Brown v. 472, 109 Am.St.Rep. 70 L.R.A. we hold that our state Initially, Water District v. Water (1905); Kennebec effect ment in Warchalowski 241-42, 774, ville, 234, pri conclude that out of a “we Jay, Allen here is in vate would be constitutional” Am.Rep. the instant decisive of the issue in v. Town of out Bruk рointed We have statement was made appeal. upon Such (Me.1981) 436 A.2d Georgetown, proof of facts limited to the manner of set judicial complaints seeking that in cases of one specific before the commissioners of pursuant governmental action review preliminary determination that select the use of the reference 80B M.RCiv.P. unreasonably men acted on November available, mechanism, should not although 1971, in refusing requested procedure if that furthers except be allowed private way. merely statement served Our ordеrly handling the efficient point (23 out that the statute M.R.S.A. Brown and we indicated in particular case 3006) was not on its unconstitutional MacDonald, (Me. n. 2 MacDonald, face. As indicated Brown v. 1982) may instant reference have A.2d, objections at Brown’s nevertheless, we do rec inappropriate, been acceptance of the based on report Referee’s does 53(b)(1), M.RCiv.P. ognize that Rule present points his on which were not appeal, may appoint court provide that “[t]he expressly by implication upon ruled plain agree parties referee all cases where party, trial court or waived disposition remained available for appeal further notice that remand, on trial level and before this Court Superior Court from decision Warchalowski, subsequent appeal. locating on Brown’s Commissioners necessity this Court did not consider the by Warcha- private way requested land the a preliminary finding of common conve 80B, to Rule pursuant was taken lowski necessity nience and under the statute or M.RCiv.P., provides that both, constitution the issue Court, Superior review [w]hen presented. nоt appellant pre otherwise, appeal or whether having ruling cluded from a review of the to act or refusal action failure *8 at this time. any de- agency, including governmental The location of this over commission, officer, board, partment, the Referee as a fact appellant’s land which is otherwise by statute or provided required by found not common convenience for such law, by proceedings available necessity was not shall, provid- except review otherwise Rules statute, for a use under circum- these governed be ed modified public exigencies, stances of and as of Civil Procedure in 3006 and rule. was violation 23 M.R.S.A. § county Review of 81(c), commissioners’ action it Rule “[t]he
the laying of ways, including private mandamus, facias, prohibition, writs of scire ways, was made available owners or ten- certiorari, are quo warranto abolished. ants of the land involved or other party action any Review of or failure refusal to interested under 23 M.R.S.A. including act by governmental agency, appeal Superior Court as is board, commission, any department, or offi- in sections 2063 to 2066. pro- Section 2064 cer, procedure shall in accordance with be vides as follows: prescribed by Any Rule other 80B. relief If person appears prosecute any heretofore available of such writs appeal provided for in section the may by appropriate be obtained action or judgment commissioners may be prescribed by motion the practice under the appellant appears, affirmed. If it 81(e), these In Rule is further rules.” appoint court may committee of 3 disin- any applying stated that these rules to “[i]n sworn, terested persons, who shall be applicable, proceeding they dies, if one of them declines or becomes statute which is terminology also interested, the court some may appoint applicable, inconsistent with that where suitable person place. They his shall inappropriate these rules these ordered, such notice as the court has rules, taken to the device shall be mean route, view the hear parties and make procedure under these rules.” proper their report to the 60 days court within rules, we these stаted in Applying such further time as the court allows Warchalowski, after appointment, whether of Rule simplified procedures 80B
judgment should [t]he govern ‘any now the review of action or reversed; whole part affirmed which, act being by governmental agency,’ refusal to accepted judgment entered, thereon as the shall forthwith be certi- and are intended to serve sole fied to the clerk of judicial place the commissioners. means of review of all writs, extraordinary including the former Also, prior 80B, adoption Rule certiorari. review of the record in commission- ers’ was proceedings through available the Thus, appointment we conclude writ extraordinary of certiorari. In re See single referee in this case not be- County Commissioners of Aroostook Coun- yond Superior Court. jurisdiction ty, 244 77 (Me.1968). Superior The The will be: entry Court in the instant case not appoint did Court vacated. Judgment Superior persons committee of 3 disinterested as di- Superior Case remanded to the Court for rected by the statute. to rest any To defendant-appel- for the entry judgment possible appeal beyond claim action on Brown, lant, Superior Court Robert jurisdiction Court; of the Superior the clerk of Commissioners certify to should examine the situation. County judg- for the of Oxford appointment are aware that be, and the ment of the Commissioners the 3 persons, disinterested the regula is, wholly reversed. surrounding tions their appointment, in the appellate process from the location of roads respective shall bear their parties by the county commissioners looked costs of appeal. upon as a mandatory provision affecting jurisdiction. Windham, See Inhabitants concurring. All Pet’rs., (1851); Abbott, 452Me. Friend v. Justice, WATHEN, concurring. French v. County in the I concur the result reached Tut tle necessary Com’rs Court’s it County, opinion of Somerset but find *9 my separately. state views were the state constitutions away.
I 3006 is would hold that M.R.S.A. au- were not in terms unconstitutional because it to such laws purports adopted, time thorize it was not at the prohibited, a finding without of common convenience with general provision supposed I to rec- necessity. attempt pub- to the regard this pronouncements oncile the past It prohibit to them. lic use was intended further engage any Court or effort was years before doubt many was recog- construe statute. It should be such constitutionality of upon the thrown nized that a constitu- dealing with then late it was too legislation, and back- tional anacronism. historical long acquiescence disregard entirely ground development and the evolutionary its enforcement. of the of the from colonial times to law Sackman, Updated (City Public Use— day cogently has been summarized Proceeding Raiders), in v. Oakland Oakland as follows: Planning, Zoning, the Institute on study history A uses which thosе (M. 208-9 Landwehr Domain Eminent originated with the first settlement 1983). ed. country brings period us back to demon- review of the case law Maine A when the the success- natural obstacles to en- to an evolutionary response strates ful colonies permanent establishment The histor- croachment on the constitution. too proved many in America had cases longer valid and justification ic to be At a time formidable overcome. ad- no longer permits private constitution when de- very community life to the property rights vantage override use pended advаntageous the most upon Nei- by the statute. contemplated extent of, every resource could be availed sup- nor antiquity ther public acquiescence it expected was not to be that overre- 3006. of section continued toleration ports fined scruples respect rights with to be unconstitutional I find statute private property would be allowed judg- reversing and therefore concur stand in the individual that an Commissioners. ment of Oxford who title colonial held his own from a grant would be allowed to use that selfs- title
ame to thwart efforts of others Furthеrmore, keep alive. it colony
is to be then remembered there were upon
no constitutional limitations every
power legislature un- necessarily
colonial valid statute
less it charter of repugnant by English or was forbidden colony CAMPLIN Peter It such
law. was under conditions cer- private individuals were allowed in YORK1. TOWN OF upon prop- tain instances to encroach develop in order erty others of Maine. Judicial Court Supreme for their natural resources land Argued Jan. 1984. gain for the own incidental which authorized advantage. Statutes Feb. Decided upon were encroachment looked laws, even af- reasonable and wholesome en-
ter the which made their conditions passed had public necessity
actment a Levesque action. Planning a named defendant the York Board 1. We have deleted