The opinion
STATE OF MAINE SUPERIOR COURT
WALDO, SS. Docket No. RE 99-019
FOM-WAL- ¢/a3 2000
Eldon Perkins, et al,
Plaintiff,
ORDER ON MOTIONS
FOR SUMMARY JUDGMENT
STATE OF MAINE
Waldo County Superior Court
Town of Searsport,
Defendant.
Nee ee Oe Ne Oe Oe ee
AUG 23 2000
REC'D AND FILED
Joyce M. Page, Clerk
The facts of record in this matter are sketchy because of the passage
of time but it is clear the offending rocks were placed on the shore of the
Plaintiffs’ predecessor in title in the early 1970s. Moreover, the culvert
about which Plaintiffs also complain was introduced at or about the same
time as the rocks were placed. That original action by the Town of
Searsport took place in its entirety many years ago. In fact, it is evident
that it was prior to the time when Alice Perkins acquired the title to the
property by devise in 1974.1
There is no evidence respecting the desires of the owner of the ~-
property as of the time of the placement nor is there any suggestion that
the then owner objected to the Town’s action. The facts in the case at bar
suggest that at the time of introduction there was a mutual benefit to
both the Town and the Plaintiffs’ predecessor. The scope of the mutual
benefit is impossible to judge today because the facts are lost in the
mists of time. It might have been that the introduction of the rocks and
culvert were more necessary for the Plaintiffs’ predecessor’s estate than
1 Defendant legitimately questions whether or not Eldon Perkins
holds title sufficient to bring the action. It is suggested by the Plaintiffs
that he holds a “life lease” which in their view is sufficient. There is no
evidence of his estate. The record is clear that Alice Perkins retains the
full estate.
2
for the Town’s road. Such a query is the reason for the statute of
limitations in the first instance: to fix facts before “the mind of man
runneth not to the contrary”.
The Plaintiffs claim that their right is based on the continuing nature
of the trespass or the nuisance. Plaintiffs do not distinguish the two, that
is, trespass and nuisance. That is so notwithstanding footnote 1 in
Jacques v. Pioneer Plastics,Inc., 676 A.2d 504, 505 (Me. 1996). Here, as
was the case there, it is Plaintiffs’ belief that “decision does not rely on
the distinction between the two causes of action . . . (trespass is an
invasion of the plaintiff's interest in the exclusive possession of his land,
while nuisance is an interference with the use and enjoyment of it).”
The gist of Jacques, a 1996 case was not the length of the statue of
limitations which was held to be six years (14 M.R.S.A. § 752 (1980) even
though there had been no dumping since 1978, but whether “the materials
on Lot B constitute a continuing nuisance or trespass.” The Court relied on
Russell: v. Brown, 63 Me. 203 (1873) which, like the case at bar, involved a
wall.
The argument in Jacques and Russell make clear that one threshold
question is “abatability”. There is a question left open in Russell which
emanates from the following language: “[T]he future may be taken care of
by successive actions at law, or by applying to the equity courts for its
abatement.” Id, 343. The opinion does suggest that there was a period of
limitation based upon a potential resort to equity for abatement. Jacques
acknowledges that logic and suggests that where “abatability” exists in
fact, the statute of limitations does not apply. It said: “... a new cause
of action accrues each day the hazardous material remains and the
plaintiffs’ action is not barred by the statute of limitations.” Id, 506.
But in doing that Jacques is careful to note that it dealt with a fact
question not answered in the trial court on summary judgment. Its
predicate was, therefore, “[T]he abatability of the materials currently on
lot B is a question of fact.” Id, 508.
In the case at bar, abatability is conceded by the Town.2 Thus were
there no caveats in Jacques, summary judgment against the Town’s would
be mandated and Plaintiffs’ would be entitled to the relief they seek.3
However, the Jacques court left open the question of whether an
otherwise continuing trespass and nuisance is a permanent one, against
which the statute of limitations would run, because it is the type of
trespass and nuisance which a court of equity would not abate because of
the “value to the community.” Id, 507. The language of Foss v. Maine
Turnpike Authority, 309 A.2d 339, 334-345 (Me. 1973) relates to the same
concept. The Court analyzed nuisance and trespass but in dealing with
public works said: “.. . if Plaintiff's property had been injured by an act
of defendant that was reasonably performed but which resulted in a
constitutional taking of the property ..._ plaintiffs would be entitled to
the same damages as would be available to them in a proceeding in
Eminent Domain. Equitable relief, moreover would, not be available, the
Constitution requiring merely “just compensation”. But there are limits
to the time available to seek that compensation.
The initial invasion of the sort in the case at bar is in the nature of
a trespass which a party might seek to enjoin if brought within the
original period of limitations because the creation would be an
unconstitutional taking but equity would not act because the damage
would be in the nature of an eminent domain taking. See Foss, 344 fora
discussion of the correlation between a taking and a trespass or nuisance.
The equitable action or the damage action being brought, the Town having
eminent domain rights, the statute of limitations would be relevant.
2 That is true of the wall and the culvert. It might leave open the
question of the odor caused by the decaying, collected materials which
apparently are drain fed or ocean matter cast ashore. By implication, in
this Court’s view, the Town has admitted that abatement of the wall and
the drain would alleviate the odors which appear to be the substance of
the continuing nuisance claim.
3. As a possessor, Eldon Perkins would be entitled to relief from the
continuing nuisance even if he had no standing on the continuing trespass
question.
4
However, once the six year period for seeking relief or for bringing an
action against a taking had passed, the trespass would be considered a
permanent one and the statute of limitations would apply thereby
preventing the seeking of damages for what would be a permanent
trespass.
it could well be that the 20 year statute for adverse possession is
the one which controls the period for bringing the action. See City of Sioux
Falls v. Miller, 492 N.W. .2d 116, 120 (S.D. 1992): “. . . the twenty-year
statute of limitations applying to adverse possession is applicable where
property rights are damaged in the name of the public, regardless of the
underlying tort claim”. That is irrelevant here since more than 20 years
had passed since the rocks were placed and the culvert set. The material
facts which are undisputed make clear that the 20 year statute of
limitations has passed. Jacques by implication is to the same effect as
~ Sioux Falls. It noted the period, but, because the parties were not public
bodies, did not deal with the “taking” concept.
The nuisance is a different question. In the words of Jacques: “[I]n
the present action the subject of our inquiry is not the dumping itself, but
instead the hazardous material that remains on the plaintiffs’ land.” Id,
507. Jacques cites Beatty v. Washington Metro Authority 860 F.2d 1117,
1122 (D.C. Cir. 1988) which reversed a summary judgment rendered by the
District Court on the basis “that there existed a genuine issue as to the
nature of the invasion. -
The statute does not run on so much of the matter as related to the
abatability of any continuing nuisance. See Harrisonville v. W.S. Dickey
Clay Mfg Co. , 289 U.S. 334, 53 S.Ct. 602, 77 L.Ed.1208 (1933) which said:
“The discharge of the effluent into the creek is a tort; and the nuisance
being continuous or recurrent, is an injury for which an injunction may be
granted. Thus the question here is not one of equitable jurisdiction. The
question is whether, upon the facts found, an injunction is the appropriate
remedy. For an injunction is not a remedy which issues as of course. Where
substantial redress can be afforded by the payment of money and issuance
of an injunction would subject the defendant to grossly disproportionate
hardship, equitable relief may be denied although the nuisance is
indisputable.”
_ Thus it is clear that the Town had acquired rights which entitled it
to leave the wall and the drain in their present position without damages
being assessed. But it may well be that conditions surrounding that right
are actionable and may allow litigation. As to that possibility, there are
material facts at issue and complete summary judgment is not in order.
There being no material facts at issue with respect to the trespass
because the statute of limitations has run, the Order will be: Summary
judgment is granted to the Town of Searsport on the issue of trespass. On
the issue of the continuing nuisance - whether there is an interference
with Plaintiffs’ use and enjoyment of their property- there are issues of
material facts and summary judgment must be and is denied.
The Clerk is directed to incorporate this Order into the docket by
reference pursuant to M.R.Civ.P Rule 79 (a).
Dated: August 23, 2000
ond
Francis C. Marsano /
JUSTICE, SUPERIOR COURT
Date Filed july 21, 1999 Waldo Docket No. RE-99-19
County
Action_fasement, Trespass, Equitable Action TITLE TO REAL ESTATE IS INVOLVED
ELDON PERKINS and ALICE PERKINS vs. TOWN OF SEARSPORT
Plaintiff's Attorney Defendant's Attorney
Edmond J. Bearor, Esq. Peter K. Mason, Esq.
P.O. Box 1401 PO Box 286, 61 E Main St.
Bangor, Maine 04402-1401 Searsport, ME 04974-0286
947-4501 Tel: 548-2589
Date of
Entry
7/21/99 Complaint dtd. July 20, 1999, filed.
Summary Sheet, filed.
7/21/99 Case file notice to atty. Bearor.
8/10/99 Defendant's Answer to Plaintiffs' Complaint dtd. Aug. 9, 1999.
> 8/10/99 |Affirmative Defenses dtd. Aug. 9, 1999, filed by Deft.
8/18/99 Summons dtd. July 20, 1999 with Acceptance of Service by atty. Mason
for Town of Searsport on Aug. 3, 1999, filed.
8/20/99 Scheduling Order filed. Discovery deadline is April 30, 2000. (Mills, J.
Notice of entry and copy Scheduling Order to attys. Bearor and Mason.
8/20/99 Additional Affirmative Defenses dtd. Aug. 19, 1999, filed by Deft.
10/1/99 Notification of Discovery Service dtd. Sept. 30, 1999 filed by Plff.
showing service of Plffs' First Interrogatories Propounded Upon Deft.
and Plffs' First Request for Production of Documents and Tangible
Things, served on Atty. Mason on 9/30/99.
10/15/99 Notification of Discovery Service by deft. showing service of Deft's
Request for Production of Documents on atty. Bearor on Oct. 14, 1999,
filed.
01-20-00 Notification of Discovery Service by Plffs. showing service of Plffs'
Response to Request for Production of Documents by Deft. on atty. Mason
on Jan. 19, 2000, filed.
01-26-00 Notification of Discovery Service by Deft. showing service of Deft's
Response to Plff's Request for Production of Documents and Deft's
Response to Plff's Request for Interrogatories Propounded by PIlff.
on atty. Bearor on Jan. 25, 2000, filed.
> 04/11/00 Notification of Discovery Service by Plff. showing service of Deft.'s
First Interrogatories Propounded upon Plffs. pursuant to M.R.Civ.P.
26 and 33 on atty. Bearor on April 6, 2000, filed.
04/11/00 Motion for Summary Judgment dtd. April 6, 2000, filed by Deft.
Statement of Material Facts, filed. Memorandum of Law, filed.
Proposed Order, filed.