The opinion
STATE OF MAINE . SUPERIOR COURT
. CIVIL ACTION
YORK, ss. DOCKET NO. CV-00-264
GAR OP - 5/8 [A 00R
WILLIAM D. FULLER, et al.,
Plaintiffs
vy. JUDGEMENT DONALD L. GARBRECHT
LAW LIBRARY
TOWN OF BUXTON, et al., MAY 4 2002
Defendants
This case involves claims and counterclaims which seek declaratory
judgements as to whether Spruce Swamp Road and Osborne Road Extension are_
public ways in the Town of Buxton. Also pending is a Rule 80B appeal, which the
parties agree is subsumed within the declaratory judgement action. The case was
heard without a jury on February 11 and 12, 2002. The parties submitted post-trial
memos and closing arguments were heard on March 22, 2002. Following review
and consideration, judgement will enter in favor of the Town of Buxton.
BACKGROUND
The pleadings in this case seeka-declaratory judgement as to” the status-of —-------—
certain roads in Buxton. For ease of reference, attached hereto is a schematic
representation of Plaintiffs’ Exhibit #35, a diagram depicting the features of the area
in dispute.
The Fullers claim Spruce Swamp Road from point 2 to point 3 on the
diagram is no longer a public way and that the Osborne Road Extension from point
2 to point 4 on the diagram is no longer a public way. The town asserts that both
remain public ways.
FINDINGS OF FACT
1. The parties stipulate that Spruce Swamp Road (also called Trundy
Spring Road) was laid out and accepted as a public road within the Town of Buxton
during the period 1765 to 1780. As laid out, it extends approximately 1.3 miles from
what is now known as Waterman Road easterly to what is now known as Route
202. Its location, as laid out, and references to the official documents laying it out as
a public road are shown on a plan prepared by Robert A. Yarumian, II, PLS. Def. Ex.
59. This is shown as point 1 to 3! on the diagram.
2. The parties stipulate Osborne Road Extension was laid out and accepted
as a public road within the Town of Buxton during the period 1765 to 1783. As laid
out, it extends approximately 1,900 feet from what is now known as Osborne Road
southerly to the intersection with Spruce Swamp Road. Its location, as laid out, and
references to the official documents laying it out as a public road are shown on Def.
Ex. 59. This is shown as point 2 to 4 on the diagram.
3. In 1983 the Fullers purchased a large tract of land from Mervin Rowe.
That deed is recorded in the York County Registry of Deeds at Book 3208, Page 81.
Def. Ex. 16. They have owned that property since that time. A portion of this land
had been used for many years by Rowe and, before him, by his grandfather for hay
farming. In 1983, some of the land was open fields and some of the land was
1 Point 3 is actually at Libby Ave., a short, el-shaped roadway connecting to Rt. 202.
2
wooded. There were no structures on the property in 1983 except the foundation
from what appears to have been a small building that apparently was burned or
otherwise destroyed before 1900.
4. Both Spruce Swamp Road and the Osborne Road Extension cross the
Fuller property.
5. The November 29, 1983 deed from Rowe to the Fullers refers to the
conveyed land as “being situated on both sides of the Spruce Swamp Road in the
Town of Buxton.” The property description in that deed refers to Spruce Swamp
Road when it states: “Beginning . . . on the sideline Spruce Swamp Road” and
“crossing Spruce Swamp Road.”
6, The property description in the November 29, 1983 deed from Rowe to
the Fullers refers to Osborne Road Extension when it states: “on the northwesterly
sideline of a Town road” and “thence... by said Town road.”
7. The Fullers acknowledge that the section of Spruce Swamp Road from
Waterman Road to their house/barn is a public road
8. The survey plan prepared by T.O. Brown P.E. and dated December 1981,
1
Revised November 21, 1983, was commissioned by Mervin Rowe. It shows the
property conveyed to the Fullers. It also shows Spruce Swamp Road and Osborne
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9. When the Fullers purchased their property, they intended to use
Osborne Road Extension and Spruce Swamp Road, from its intersection with
Osborne Road Extension, to access their proposed home construction site.
10. In the late fall and winter of 1983/84, after the Fullers purchased their
property, the Town of Buxton spent approximately $700.00 to improve the traveled
way of Spruce Swamp Road from the bridge over the Little River to the site of the
Fullers’ house construction. Funds for this project came from the general road
maintenance account of the Buxton Road Commissioner in charge of this area of
the Town. Prior to this work, this section of Spruce Swamp Road was a dirt road,
showing a clear traveled way with wheel tracks and grass growing in the center.
11. On February 9, 1984, Central Maine Power Company; in connection
with bringing power to the Fullers, applied to the Town for a Pole Location Permit
to erect poles along Osborne Road Extension. This Permit was approved by the
Town Selectmen. Def. Ex. 20.
12. In 1984, the Buxton Town Meeting voted a specific appropriation of
$10,000 to improve the traveled way of Spruce Swamp Road. Town records show
the following action taken at the Town Meeting:
Article 19. Moved and seconded to appropriate from the Dept. of
Transportation Local Road Assistance fund the sum of $10,000 to
rebuild a portion of the Spruce Swamp Road.
Pi. Ex. 25.
13. - The funds appropriated in. 1984 were expended by the Road
Commissioner in 1984 to add gravei, to grade, to construct culverts and otherwise to
improve the traveled way from the bridge over the Little River to the intersection of
Spruce Swamp Road and Osborne Road Extension; although most of the work was
done between the bridge and the Fullers’ house, which by that time had been built.
See photo at Def. Ex. 74.
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14. In 1984, the Road Commissioner’s crew used a bulldozer to clear and
grade the section of Spruce Swamp Road from the intersection of Osborne Road
Extension to Libby Avenue, a few hundred feet from Route 202. This work was
done at the same time that the Town was doing the other improvements to Spruce
Swamp Road funded with the $10,000 appropriation by the Town Meeting.
15. From 1984 until the present, the Town has plowed Spruce Swamp
Road from Waterman Road to the Fuller house. Occasionally, since 1984, the Town
‘has plowed past the Fuller house to the intersection with Osborne Road Extension.
The school bus traveled up Spruce Swamp Road to the Fullers’ house while the
Fullers’ daughter was in school.
16. The Fullers attempted to keep the public from traveling over the
section of Spruce Swamp Road beyond their house during the winter, spring and
other wet times of the year. They have erected a “Road Closed” sign near their
house and have strung a wire cable across the road in front of their house. They
have also attempted to keep the public from traveling over Osborne Road Extension
by erecting a gate across the roadway.
~ T AA TOO Le TAasesae Te i i
17. On June 24, 1985, the Town’s Attorney wrote to the Fullers informing
them that the Town had received reports that the Fullers were obstructing Sprtice
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AtwaTh ee area wri
Own consiacers opt uce
Swamp Road. The Attorney went on to state inai the
Swamp Road “to be a public way” and to threaten legal action if the Fullers obstruct
or damage the road.
18. The section of Spruce Swamp Road from Waterman Road to just
before the bridge over the Little River has been paved by the Town. There are at
5
least 12 houses on that section. Until the 1950’s, there were few if any houses on
that section. It was essentially a dirt road, consisting of a traveled way showing
wheel tracks with grass growing in the center. The Town improved that section,
including paving it, as houses were built.
19. In 1952, the Town Meeting voted to appropriate $700 to repair a culvert
on Spruce Swamp Road.
20. In 1960, the Town Meeting voted to appropriate $1,500 to put a cement
slab on the bridge over the Little River on Spruce Swamp Road.
21. In 1961, the Town Meeting voted to appropriate $1,000 for graveling
Trundy Spring Road, also known as Spruce Swamp Road.
22. In 1965, the Selectmen placed an article on the Town Meeting Warrant
to discontinue Spruce Swamp Road from the Little River to Route 202. The 1966
Town Meeting voted to indefinitely postpone that article; effectively defeating it.
23. In 1970/71, Road Commissioner Sharon Elwell used a bulldozer to
clear and grade the section of Spruce Swamp Road from its intersection with
Osborne Road Extension up to Libby Road. Mr. Elwell testified that this work was
ah . —Z 1 at 1 sak te th
the same time as the CETA workers were clearing brusn in tne area.
24. In 1980, the Town Meeting voted against appropriating $25,000 for
maintenance of Trundy Spring Road, also known as Spruce Swamp Road.
25. In 1985, the requisite number of voters signed a petition, prepared by
Linda Fuller, placing an article on the Town Meeting Warrant, to discontinue
Spruce Swamp Road. The Town Meeting voted against that article.
26. In 1985, the Selectmen placed an article on the Town Meeting Warrant
to appropriate $10,000 to “complete the rebuilding program of the Spruce Swamp
Road.” The Town Meeting voted against that article.
27. OnJune 17, 2000, the Town Meeting voted to appropriate a sum not to
exceed $3,000 for improvements to Spruce Swamp Road.
28. On August 16, 2000, the Selectmen held a public hearing on the
question of whether they should declare Spruce Swamp Road to be abandoned
pursuant to 23 M.RS.A. Sec. 3028. The Selectmen voted unanimously on
September 13, 2000 that Spruce Swamp Road from the Waterman Road to Route 202
had not been abandoned.
29. In 2001, the Town Meeting appropriated $3,590 to place new guard rails
along the bridge over the Little River and another bridge.
30. In 2002, the Road Commissioner installed culverts for drainage under
Spruce Swamp Road, in the vicinity of the Phinney property.
31. Frank Davis, a life long resident of the area, testified that he and others
drove vehicles on these roads from the 1950’s on. He testified that he drove his
car /truck (as did others) over the entire Spruce Swamp Road and Osborne Road
Extension, including the portion of Spruce Swamp Road up to what is now Libby
Avenue regularly until the late
32. Frank Davis also testified that various persons have used the section of
Spruce Swamp Road for vehicular travel between its intersection with Osborne
Road Extension and Route 202 in the 1980’s and 1990’s. This was also evidenced by
the fact that William Fuller and others have been approached by vehicle operators
whose vehicles have become stuck along that section.
33. The condition of Spruce Swamp Road in the 1960’s and through the
1990’s, in that section between Osborne Road Extension and Route 202, was as a dirt
road, showing two wheel tracks. There are no houses or other structures served by
this section of the road. .
34. In the 1970’s and 1980’s, the Fullers rode Mr. Fuller’s motorcycle over
Osborne Road Extension and thence over the section of Spruce Swamp Road
between Osborne Road Extension and Waterman Road.
35. Mervin Rowe testified that, before World War II, both roads were
maintained by the Town and were passable with vehicles. For example, he stated
that his family and their employees used the roads for hauling hay to train stations
for shipment to Boston. This included -use of both roads to access the main roads,
i.e., Route 202 and Waterman Road. Mr. Rowe considered them to be town roads.
36. In the early 1970's, the Selectmen applied for permission from the York
County Commissioners not to plow Spruce Swamp Road and Osborne Road
Extension. That permission was granted.
37. . ‘In 1954/ 1955, Road Commissioner ‘Wilmot Lewis cut brush from the
sides of the traveled way of Osborne Road Extension and spread gravel on and
graded Osborne Road Extension. He had 4 or 5 men in his crew and the work took
his crew a week or two. Mr. Lewis testified that the Selectmen who directed him to
do the work said the Extension was a town road.
38. In the 1960’s, the Road Commissioner for that area brought in a culvert
and installed it at a low point in Osborne Road Extension. Gravel was also brought
in and spread in this area. This work was done in response to requests from Mervin
Rowe.
39. Sharon Elwell, Road Commissioner, testified that in the 1960's and 70’s
he hauled in gravel for Osborne Road Extension at various times.
40. While Robert Libby was a Selectman, i.e., from 1968 to 1982, Mervin
Rowe came to the Selectmen almost annually to ask for work to be done on Osborne
Road Extension. The Selectmen responded by sending the Road Commissioner,
Harry Roberts, Sr., to perform the maintenance work on the Road. Mr. Libby often
checked himself to see that the work had been done.
41. Mr. Wilmot Lewis, who was a Selectman from 1973-1975, testified that
Mervin Rowe sometimes contacted him and he, Mr. Lewis, would have the Road
Commissioner do work on Osborne Road Extension.
42. The current condition of Osborne Road Extension is a clearly defined
dirt road that is readily passable with motor vehicles.
43. The current condition of the Spruce Swamp Road is a clearly defined
and readily passable dirt road from the bridge, past the Fullers’ house, to the
intersection with Osborne Road Extension. From the intersection to Li
defined dirt road, but in very rough condition.
44. At their February 27, 1991 meeting, the Selectmen determined, 2-1, that
Osborne Road Extension is a town road. Def. Ex. 30.
45. On April 10, 1991, two Selectmen signed a letter stating that Osborne
Road Extension had been abandoned. PIEx. 1. No formal vote on the substance of
the letter was taken at the Selectmen’s meeting held on the same date as the letter
prior to issuance of the letter.
46. In 1994, the Chair of the Board of Selectmen issued three letters to
abutting property owners (Capterton, Bowder and Fuller) indicating that Osborne"
Road Extension is a town road. Def. Ex. 35, 37; Pl. Ex. 5.
47. In 1995, the Chair of the Board of Selectmen discovered the April 1991
letter and felt bound by it. He then wrote letters indicating that, based on the April
1991 letter, Osborne Road Extension had been abandoned.
48. Both Spruce Swamp Road and Osborne Road Extension are visible as
traveled ways on aerial photographs taken in 1954 (Def. Ex. 7), 1969 (Def. Ex. 13) and
1994 (Def. Ex. 34).
CONCLUSIONS OF LAW
A. Statutory Abandonment.
The relevant statute, 23, M.R.S.A. §3028, while written to address the
situation in which a municipality argues that a wa}
nevertheless applies here as well.
1. Maine statutes provide that it shall be prima facie evidence o
abandonment of a town way if that way is not kept passable for use of motor
vehicles at the expense of the town for a period of 30 or more consecutive years. 23
M.RS.A. §3028.
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2. A presumption of abandonment may be rebutted by evidence that
manifests a clear intent by the town and the public to consider or use the way as if it
were a public way. 23 M.R.S.A. §3028. Thus, acts of maintenance which, taken
alone, are not enough to rebut a presumption of abandonment, but when coupled
with other evidence showing a clear intent on the part of the public and the town to
consider or use the way as if it were a public way, will rebut the presumption. 23.
M.R.S.A. §3028. Stated differently, a clear intent on the part of the public and the
town to consider or use the way as a public way will rebut a presumption of
abandonment which is based upon lack of maintenance which results in the road
becoming impassable.
3. It is the plaintiff who bears the burden of proving that at no time
during a 30 year period has the road been kept passable for motor vehicles at town
expense. Lamb v. Euclid Ambler Associates, 563 A.2d 365, 367 (Me. 1989).
4. The term “passable” is not synonymous with “safe and convenient”
and the public will not lose its rights to continuation of a public way by the town’s
failure to maintain the road to a “safe and convenient” standard. Town of South
Berwick v. White, 4iz A2d 1225, 1227.
5. Road maintenance at town expense will preclude a prima facie case of
abandonment. Earwood v. Town of York, 1999 ME 3, 722 A.2d 865 (Me. 1999).
6. In Town of South Berwick v. White, 412 A.2d 1225 (Me. 1980), a case
decided before the statute was amended, inter alia, to provide that isolated acts of
maintenance do not rebut a presumption of abandonment, the Law Court found
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that the statutory presumption of abandonment arises “only in those cases where
the nonapplication of public funds for the maintenance of the town way was
continuous and uninterrupted” for the requisite 30 year period.
7. The provision in 23 M.R-S.A. §3028 to the effect that a determination by
the selectmen of the status of a road as abandoned or not did not become effective
until October 9, 1991. 1991 P.L.Ch. 195. The April 10, 1991 letter from the selectmen
indicating abandonment pre-dated this provision and, in any event, was not a
formal vote or decision by the board.
B. Common Law Abandonment
1. The common law holds that there may be abandonment of a public
road by non-user. Smith v. Dickson, 225 A.2d 631 (Me. 1967). See, Town of South
Berwick v. White, 412 A.2d 1225 (Me. 1980).
2. The common law of abandonment recognizes that rights in public
ways may be lost through neglect. Shadan v. Town of Skowhegan, 1997 ME 187,700
A.2d 245 (Me. 1997). Under the doctrine of common law abandonment, a
presumption of public intent to abandon a road may be raised by evidence of nonuse
for twenty years or more, intentional and voluntary desertion of a road, or
acquiescence, even for a few years, in the discontinuance of an old road combined
with use of a new road. Lamb v. Town of New Sharon, 606 A.2d 1042 (Me. 1992).
This presumption, once raised, may be rebutted by evidence of a contrary intent on
the part of the public. Shadan, supra.
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3. There is abundant evidence that both the town itself and various
citizens consistently understood and intended that the disputed roadways
maintained their public character.
AFFIRMATIVE DEFENSES
Plaintiffs fail to establish that equitable estoppel applies because it is clear
from their deeds that they were aware that the disputed roadways were either
currently or in the past public ways and that their status as public ways was, at the
very least, in question. (i.e. the 1985 Town Meeting vote against abandonment).
The entries will be as follows:
On Plaintiffs’ complaint in all its particulars, judgement
for Defendants.
On Defendants’ counterclaim, judgement for Defendants
to the effect that the disputed roadways are declared public
ways.
Dated: May 8, 2002
, Arthur frennch
ustice, Stiperior Court
Plaintiff: /
Kurt E Olafsen, Esq.
Olafsen & Butterfield
PO Box 130:
Portland ME 04112-0130
Defendant:
John A. Graustein, Esq.
Drummond Woodsum & MacMahon
PO Box 9781
Portland ME 04104
13
Route 202 & 4
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