Stickney v. City of Saco, corrected 5-9-01
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 69
Docket:	Yor-00-285	
Argued:	April 11, 2001	
Decided: 	May 2, 2001

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER,  and
CALKINS, JJ.
                            

                                            

MARION STICKNEY and WILLIAM CASAVANT JR.

v.

CITY OF SACO

and

WILLIAM CASAVANT JR.

v.

WILLIAM AND TAMMY DESJARDINS

RUDMAN, J.

	[¶1]  Marion Stickney and William Casavant Jr.{1} appeal from a
judgment entered in the Superior Court (York County, Fritzsche, J.), that (1)
declared Tasker Lane in the City of Saco to be a public way; (2) granted the
City of Saco a prescriptive easement in land beyond the paved area of Tasker
Lane; and (3) dismissed plaintiffs' § 1983 claim. William and Tammy
DesJardins appeal from that portion of the court's judgment concluding that
Casavant has an easement, ten feet in width, on the portion of the
DesJardinses' property at which the parties share a common boundary.  We
disagree with parties' contentions and affirm the judgment of the Superior
Court.

I.  FACTS & PROCEDURAL HISTORY

A.  The Lane

	[¶2]  This consolidated action involves (1) the determination of the
status of Tasker Lane, the narrow road-roughly 100 yards in
length-connecting Hill and Lincoln Streets in the City of Saco, and (2) the
status of a right-of-way reserved in a 1915 deed across the DesJardinses'
property.   Tasker Lane was first established as a "private passageway" to the
Homestead Farm of Joseph Hill, the common grantor of all the property at
issue.  The Hill homestead, which sat on what is now the Casavant property,
was destroyed in the 1960s. 
	[¶3]  The area in question is essentially triangular in shape, bounded
on the northwest by Hill Street, on the south by Lincoln Street (formerly
known as the "Boom Road"), and on the east by a strip of land owned by
parties not involved in this action.   Tasker Lane diagonally severs this area
in two.  Although the City did not pave the lane until 1985, it had
maintained the road for over forty years.   The Fitanides family helped to
plow the lane since the 1940s.   Within the past 40 years, however, the
family's plowing has been infrequent and undefined in scope.   Presently,
Tasker Lane is a one-lane, paved road with no sidewalks or curbs.  There are
no sewer or storm drainage facilities on the road, but there is a water line
servicing the area.
 
B.  The Abuttors

	[¶4]  Since 1928, members of the Fitanides family have owned the
southern parcel on the west side of Tasker Lane.  Predeceased by her
husband roughly 20 years earlier, Viola Fitanides lived there until she died
in early 1995.   Mrs. Fitanides left the property to her sons, Fred and
Theophilus Fitanides.   Stickney, Mrs. Fitanides's daughter, purchased the
property from her brothers, and, in June 1995, Stickney's daughter and
Casavant moved into the Fitanides homestead.   As of the date of the trial,
they continued to reside there.    
	[¶5]  Title to the Casavant and DesJardins lots, located directly
across from the Fitanides homestead on the east side of Tasker Lane, was
derived from a common grantor, Rishworth Jordan Jr.  By deed dated
April 6, 1865, Jordan conveyed the property comprising those lots to
Samuel F. Tasker.  After Samuel's death, his wife-Nellie Tasker-lived there
until she died in the early 1950s.{2} 
	[¶6]  In 1915, however, Nellie Tasker conveyed the northern
portion of her property to Clarence Young.  In 1927, Young sold the
property to Howard "Harry" Cousens, who later sold it to Walter Cousens. 
Theophilus Fitanides, one of Stickney's brothers, bought the property in
1965, and conveyed it to John and Sharon Sevigny in 1972.  The Sevignys
conveyed the property to Energy Homes in 1989.  In 1990, Energy Homes
sold the property to its current owners, the DesJardinses.
	[¶7]  Nellie Tasker lived on the remaining lot, intending to will it to
George Conley, a second cousin who lived with and cared for her until she
died.{3}  Nellie Tasker lost title to the remaining parcel in 1927, however,
having failed to pay the accrued property taxes; the City, the highest bidder,
purchased the property for the amount of taxes then owing.  The City
allowed Nellie Tasker and George Conley to live there until both died.{4}  In
1970, the City sold the remaining Tasker parcel to Charles and Germaine
Trakas.  Casavant then purchased the property in December 1996 from
Germaine Trakas.  
	[¶8]  In 1867, Jordan conveyed to Elijah Young the property
comprising the parcels currently owned by Garry Ribaudo and Carole
Fortin.{5}  Ribaudo's property abuts Hill Street and extends to both sides of
Tasker Lane.  A portion of his property is situated immediately north of 
Stickney's parcel on the west side of Tasker Lane.  The other portion is
situated to the northwest of the DesJardinses' property on the east side of
the lane.  Fortin's property is situated to the northwest of the DesJardinses'
parcel and does not touch upon Tasker Lane.  Although Ribaudo was a party
defendant in this action, neither he nor Fortin are involved in this appeal
and shall not be further mentioned herein.
	[¶9]  The conveyances from Jordan to the Taskers and Elijah Young 
refer to a reserved street-Tasker Lane-along the southwesterly bounds of
the parcels conveyed.  Neither the plans nor descriptions, however, provide
a width for the private way or reserved street.  According to the undisputed
testimony of Paul Ruopp, a licensed land surveyor hired by the plaintiffs, the
width of Tasker Lane is 20.6 feet.  The lane has been defined in the City's
tax maps from 1938 to the present as a city street.  In August 1995, the City
formally took control of Tasker Lane.   
	[¶10]  In response, plaintiffs commenced this action against, inter
alia, the City, Garry Ribaudo, and the DesJardinses,{6} alleging eight counts. 
Counts I - V are against the City, including an action for quiet title (Count I),
action for easement by prescription (Count II), action for trespass
(Count III), action for a taking without the payment of just compensation
under the doctrine of reverse condemnation (Count IV), and an action
pursuant to 42 U.S.C. § 1983{7} alleging procedural due process violations
(Count V).  
	[¶11]  Count VI is an action to quiet title against the heirs of
Rishworth Jordan and Joseph Hill.  Count VII is a quiet title action against
the DesJardinses and Sevignys.  Count VIII is a quiet title action against
Ribaudo.  By an answer, the City denied the material allegations in the
complaint and asserted four affirmative defenses, including the Maine Torts
Claims Act and the failure to state a claim upon which relief may be granted.
	[¶12]  On September 17, 1998, plaintiffs filed an amended
complaint adding two counts. Count IX is a claim alleging that Casavant has
an easement over the DesJardinses' property.  Count X is a request for
damages for trespass or nuisance arising out of the DesJardinses'
obstruction of the easement.  The trial court concluded that Tasker Lane
was a public way and found for each of the defendants on Counts I, II, VII,
and VIII.  The court further found that plaintiffs' Count III trespass claim
was not supported by evidence and that the claim also failed because
plaintiffs did not comply with the requirements of the Maine Tort Claims
Act prior to bringing suit.  Similarly, the court found that "[n]either Count IV
for inverse condemnation nor Count V for a due process violation is
supported by the legal requirements for the claim or on the facts."  With
respect to counts IX and X, the court found in favor of Casavant, concluding
that there was no waiver of the easement and no loss of it through adverse
obstruction.  This appeal followed.{8}   

II.  DISCUSSION

	[¶13]  We will uphold the Superior Court's factual findings unless
they are clearly erroneous.  Sturtevant v. Town of Winthrop, 1999 ME 84,
¶ 9, 732 A.2d 264, 267.  "[T]he trial judge's findings stand unless they
clearly cannot be correct because there is no competent evidence to support
them."  Id. (quoting Harmon v. Emerson, 425 A.2d 978, 982 (Me. 1981)). 
"[T]he function of an appellate court is not to review a cold transcript and
draw its own factual inferences; rather, appellate review of factual findings is
limited to [an] investigation of the record before [the appellate court] to
determine whether competent evidence exists to support the lower
tribunal's factual conclusions."  Id. (quoting Lewisohn v. State, 433 A.2d 351,
354 (Me. 1981)).  We will also give due regard to the opportunity of the trial
court to judge the credibility of the witnesses.  Pine Ridge Realty, Inc. v.
Massachusetts Bay Ins. Co., 2000 ME 100, ¶ 23, 752 A.2d 595, 601 n. 12
(citations omitted).
	[¶14]  In addition, we will vacate a trial court's conclusion that a
prescriptive easement was formed only if we determine that the evidence
below compelled a contrary holding.  Glidden v. Belden, 684 A.2d 1306,
1316 (Me. 1996).  It is not sufficient to show that the trial court arguably
could have concluded that the evidence supports a contrary result.  Id.
    
A.  Tasker Lane is a Public Way

	[¶15]  The doctrine that the public-at-large is capable of acquiring a
non-possessory interest in land has long been accepted in Maine.  Town of
Manchester v. Augusta Country Club, 477 A.2d 1124, 1128 (Me. 1984)
(citations omitted).  Such non-possessory interests commonly arise in three
ways:  by the statutory method of layout and acceptance pursuant to
23 M.R.S.A. § 3022 et seq., by dedication and acceptance, or by
prescription.  Id. at 1129; see also Longley v. Knapp, 1998 ME 142, ¶ 9,
713 A.2d 939, 942.  In this case, the City claims an interest in Tasker Lane
by prescription.  
	[¶16]  The requirements for the creation of a public way by
prescriptive use parallel those for the creation of a prescriptive easement. 
Longley, ¶ 14, 713 A.2d at 943.  "The party asserting an easement by
prescription must prove continuous use for 'at least 20 years under a claim
of right adverse to the owner, with his knowledge and acquiescence, or a
use so open, notorious, visible, and uninterrupted that knowledge and
acquiescence will be presumed.'"  Shadan v. Town of Skowhegan, 1997 ME
187, ¶ 6, 700 A.2d 245, 247 (quoting Jost v. Resta, 536 A.2d 1113, 1114
(Me. 1988)).  These elements must be proved by a preponderance of the
evidence.  Glidden, 684 A.2d at 1317.
	[¶17]  The trial court concluded that the City has established Tasker
Lane as a public way by prescriptive use.  The court was influenced by
numerous facts, including that:  (1) the City has maintained and plowed the
lane for well beyond the required time; (2) members of the general public
could drive over the street; (3) people from nearby streets have used the
lane as if it was a public way; and (4) the City paved the street.    The court
also found that, while the intensity of City control increased in 1995, all of
the requirements for creating a public way by prescriptive use existed.

	i.  Continuous Use for at Least 20 Years

	[¶18]  "Continuous" means "occurring without interruption." Striefel
v. Charles-Keyt-Leaman P'ship, 1999 ME 111, ¶ 16, 733 A.2d 984, 993
(quoting Bryan A. Garner, A Dictionary of Modern Legal Usage 213 (2d ed.
1995)).  Continuous possession and use requires only the kind and degree of
occupancy (i.e., use and enjoyment) that an average owner would make of
the property.  Id. (citations omitted).  For the purposes of a public easement,
however, evidence of the use of a road by the abutting landowners to access
their own land is insufficient to establish the existence of a public
prescriptive easement.  Rather, the test of a public use is the use of the road
by people who are inseparable from the public generally; it is not the
frequency of the use of the number of people using the way.  Id.; see also
Longley, 1998 ME 142, ¶ 14, 713 A.2d at 944 (holding, "[c]ontinuous public
use is not determined by 'the frequency of the use, or the number using the
way, but its use by people who are not separable from the public
generally.'").  
	[¶19]  There is sufficient, competent evidence in the record to
support the court's finding that the City and the public's use was continuous
for over 40 years, well beyond the 20 year requirement.  See Eaton v. Town
of Wells, ¶ 35-37, 760 A.2d 232, 245 (finding as compelling the testimony
of residents regarding use of beach).  Such a finding is not clearly erroneous.

	ii.  Claim of Right that is Adverse to the Owner

	[¶20]  There must be a showing that the use of Tasker Lane by the
public was under a claim of right that is adverse to the owner. Augusta
Country Club, 477 A.2d at 1130.   "Under a claim of right" means that the
claimant "is in possession as owner, with intent to claim the land as [its]
own, and not in recognition of or subordination to [the] record title owner."
Striefel, 1999 ME 111, ¶ 14, 733 A.2d at 991-92.  
	[¶21]  A use is adverse "when a party . . . has received no permission
from the owner of the soil,  and
uses the way as the owner would use it, disregarding [the owner's] claims
entirely, using it as though he owned the property himself. . . ." S.D. Warren
Co. v. Vernon, 1997 ME 161, ¶ 11, 697 A.2d 1280, 1283 (quotation omitted). 
In a majority of jurisdictions, where there has been an open, unmolested,
and continuous use for the prescribed period with the knowledge and
acquiescence of the owner, such use is presumed to have been adverse. 
Augusta Country Club, 477 A.2d at 1130 (citations omitted). 
	[¶22]  The record supports the trial court's conclusion that the public
and the City intentionally possessed and used the lane as though they owned
it, without recognition of-or subordination to-the true owner.  The
testimony at trial shows that the public and the City's use has been open,
unmolested, and continuous for well over 20 years.  The record evidence,
therefore, supports the trial court's finding that the City possessed and used
the parcel "under a claim of right" that was adverse to the owner
throughout the limitations period. 
 
	iii.  Knowledge and Acquiescence

	[¶23]  "Acquiescence by the owner to the use is essential, and, in this
regard, the acquisition of an easement by prescription differs from the
acquisition of title by adverse possession."  Shadan, ¶ 6, 700 A.2d at 247
(quoting Augusta Country Club, 477 A.2d at 1130).  "Acquiescence implies
'passive assent or submission to the use, as distinguished from the granting
of a license or permission given with the intention that the licensee's use
may continue only as long as the owner continues to consent to it.'" Id., ¶ 7
(quoting Augusta Country Club, 477 A.2d at 1130).  Acquiescence is "consent
by silence." Augusta Country Club, 477 A.2d at 1130 (quoting Dartnell v.
Bidwell, 115 Me. 227, 230, 98 A. 743, 745 (1916)).  The testimony, which
the court found credible, demonstrates that the owners have acquiesced to
the public and City's use.  The testimony shows that no one ever asked for
permission to use the lane and the owners never obstructed its use until this
action was commenced.  The trial court did not err in finding that the
owners acquiesced to the public's use of Tasker Lane.

B.  The Easement Extends Beyond the Paved Lane

	[¶24]  Pursuant to a motion by the City, the Superior Court (York
County, Fritzsche, J.) amended its judgment to add that "a boundary survey
by Paul Ruopp dated April 1, 1998, accurately depicts on the face of the
earth the metes and bounds of Tasker Lane."  The plaintiffs contend that the
trial court erred by granting prescriptive-easement rights beyond the paved
portion of Tasker Lane.  Ruopp, plaintiffs' expert witness, testified on direct
examination as follows:

My conclusion, after researching the records and evaluating the
physical evidence on the ground, is that the width of the lane is
20.6 feet.  This is true because we traveled what encompassed
the travel lane, the width between the adjoining property is 20.6
feet.

This testimony was never controverted by the plaintiffs in any way.  See
Glidden, 684 A.2d at 1317 (Me. 1996) (finding uncontroverted testimony
influential in determining a lack of acquiescence for purposes of
prescriptive easement).  The trial court, therefore, did not err in finding
that the width of the lane was 20.6 feet, extending beyond the paved portion
of the lane.
	[¶25]  Plaintiffs argue, alternatively, that, even if the shoulder portions
of the lane were generally considered to be a part of the easement
prescriptively obtained, their regular and continuous use of that portion near
the Stickney homestead for parking prevented it from being prescriptively
obtained.  The trial court found that the requirements for the creation of a
public way by prescriptive use existed for about 40 years.  Hence, for 40
years, the lane-including the unpaved portion-has been a public way.  As we
have noted in the past, "one cannot assert a claim of title by adverse
possession against a municipality." Flowers v. Town of Phippsburg, 644 A.2d
1031, 1032 (Me. 1994) (citing Phinney v. Gardner, 121 Me. 44, 48-49, 115
A. 523, 525 (1921)).  Plaintiffs' claim, therefore, lacks merit.
  
C.  The Trial Court Did Not Err By Dismissing the Plaintiffs' § 1983 Claims 

	[¶26]  The plaintiffs contend that the trial court erred in its decision
to deny their constitutional claims.  Although this part of the plaintiffs' claim
was brought under 42 U.S.C. § 1983, they also relied on provisions in the
Maine Constitution.  In particular, the plaintiffs argue that the City has
violated their constitutional rights by: (1) taking their property without just
compensation in violation of U.S. Const. Amend. V and Me. Const. art. I, §
21; (2) taking their property without a justifiable public purpose in violation
of  U.S. Const Amend. V and Me. Const. art. I, § 21; and (3) violating their
property rights in an arbitrary and capricious manner without legal
authority.  
	[¶27]  The plaintiffs' federal and state takings claims are unpersuasive. 
Generally speaking, "[t]he theory of prescriptive easement does not grant
the State affirmative authority to take property without just compensation." 
Weidner v. Dep't of Transp. and Pub. Facilities, 860 P.2d 1205, 1212 (Alaska
1993).  Nevertheless, "the prescriptive period-as with any statute of
limitations[]-requires a private landowner to bring an inverse condemnation
action for public use of private property within a specified period of time."
Id.   At the expiration of that time, the landowner's right to bring suit is
extinguished, effectively vesting property rights in the adverse user.  Id.   
The plaintiffs' state takings claim, therefore, has been extinguished by the
expiration of the prescriptive period.  Similarly, plaintiffs' federal takings
claim, pursuant to § 1983, has been extinguished by the expiration period
prescribed under 14 M.R.S.A. § 752 (1980).  See McKenney v. Green Acres
Manor, 650 A.2d 699, 701 (Me. 1994) (stating, "[a]ll claims brought
pursuant to section 1983 must be characterized as personal injury actions
governed by the general statute of limitations period applying to personal
injury claims" - i.e. 14 M.R.S.A. § 752).