412 A.2d 1225 | Me. | 1980
Plaintiff-appellant Town of South Berwick brought suit in the Superior Court (York County) against 39 owners of property abutting a 1.6-mile portion of Belle Marsh Road located in the town, seeking a declaration pursuant to 23 M.R.S.A. § 3028 (Supp.1979)
We conclude, as did the referee, that the legislature intended the statutory presumption of abandonment to arise only in those cases where the nonapplication of public funds for the maintenance of the town way was continuous and uninterrupted during the entire period from 1946 to 1976. Such is the plain meaning of the statutory language delineating the factual circumstances under which the rebuttable presumption arises. See n. 1 above. An examination of the legislative debates concerning section 3028 unambiguously confirms the view that the legislature intended the presumption to be unavailable where funds had been expended for maintenance at any time during the statutory period. See 1976 Leg.Rec. 627 (remarks of Mr. Henderson), 683 (remarks of Mr. Dam), 789-90 (remarks of Sen. Merrill and Sen. Carbon-neau). That interpretation of the statute is fully consistent with the principle that “[a] court . . . [will] not lightly find that the public has abandoned a highway easement.” Smith v. Dickson, Me., 225 A.2d 631, 635 (1967) (common law abandonment through nonuser).
The Town also argues that any public expenditures that did not bring the road up to the “safe and convenient” condition required of the municipality by 23 M.R.S.A. § 3651 (Supp.1979)
Section 3028 provides a special, onetime rule creating a rebuttable presumption of abandonment through the nonapplication of public funds on a town way during the 1946-76 period. See Board of Selectmen, Town of China v. Kennebec County Commissioners, Me., 393 A.2d 526, 528 (1978) (dealing with procedural questions concerning section 3028). However, the absence of public expenditures in that period is by no means the exclusive method for discontinuing a town way. The legislature has provided in 23 M.R.S.A. § 3026 (Supp.1979) a universally available procedure by which a municipality may voluntarily discontinue a town way after giving appropriate notice and making provision for the payment of damages to abutting owners. Furthermore, the existence of section 3028’s special presumption of abandonment does not impair the availability of common law abandonment through public nonuser, although the referee found that the requisite showing had not been made in the instant case. See Smith v. Dickson, supra.
Finally, contrary to the Town’s contention before this court that P.L.1973, ch. 456
The entry will be:
Appeal denied.
Judgment affirmed.
. 23 M.R.S.A. § 3028 provides:
Abandonment of public ways
It shall be prima facie evidence that a town or county way established prior to January 1, 1946, and not kept passable for the use of motor vehicles at the expense of the municipality or county for a period of 30 or more consecutive years next prior to January 1, 1976, has been discontinued by abandonment. A presumption of abandonment may be rebutted by evidence that manifests a clear intent by the municipality or county and the public to consider or use the way as if it were a public way. .
. Section 3028 speaks in terms of both "prima facie evidence” (in the first sentence) and a “presumption” (second sentence) of abandonment. M.R.Evid. 301(b) provides:
A statute providing that a fact or group of facts is prima facie evidence of another fact establishes a presumption within the meaning of this rule.
Thus, under either label, once the party asserting abandonment has established the factual prerequisites, M.R.Evid. 301(a) serves to impose on the adverse party “the burden of proving that the nonexistence of the presumed fact [i. e., abandonment] is more probable than its existence.”
.23 M.R.S.A. § 3651 provides:.
Highways, town ways and streets legally established shall be opened and kept in repair so as to be safe and convenient for travelers with motor vehicles. In default thereof, those liable may be indicted, convicted and a reasonable fine imposed therefor.
. P.L.1973, ch. 456 provided:
A town way which has not been maintained by the town for a period of 20 years shall thereby be discontinued by operation of law. Such discontinuance by operation of law shall be presumed to relegate the town way to the status of a private way.
. Since chapter 625 was enacted with an emergency preamble, the special 91-day effective date provision was necessary as to the section repealing chapter 456 (§ 133-A) so that the repealer would not go into effect earlier than the chapter it was repealing. A nonemergency piece of legislation and its subsequent non-emergency repealer passed at the same session would in the ordinary course go into effect simultaneously, without the need for any special effective date provision on the repealer.