Sait v. Town of Readfield

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

KENNEBEC, ss. - DOCKET NO. RE-0 -46

DHM-KEN> aJofoce

DAVID SAIT and CLAUDIA SAIT,

Plaintiffs

Vv. DECISION AND ORDER

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TOWN OF READFIELD, et al., CNG EENLE be”

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Defendants Whi’ Ae nm

This matter is before the court after bench trial. In October of 2000, the plaintiffs

filed a complaint against the Town of Readfield,~its town manager and road

commissioner and a contractor seeking injunctive relief in regard to maintenance of a

drainage easement, damages for overburdening of a drainage easement, damages for

taking of property rights, compensation for injury to land, damages for trespass and

damages for infliction of emotional harm. Prior to trial, plaintiff dismissed counts IV, V,

VI and VII disposing of the claims for statutory damages to land, construction damages

to land, trespass and damages for infliction of emotional harm. The town manager,

road commissioner and contractor have also been dismissed as parties in the case.

There remained, more specifically, a prayer for injunctive relief requiring the town to

properly maintain a drainage easement, damages for overburdening of a drainage

easement and statutory trespass in accordance with Title 23 M.RS.A. § 3251.

The Nickerson Hill Road runs east and west in the town of Readfield and

terminates at a “T” in its westerly end at the Palmeter Road, formerly known as the Pea

Ridge Road. A short distance to the north on the Palmeter Road, the Lane Road

commences running westerly. The terrain is such that the highest ground is to the west

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in the vicinity of the Lane Road and the land slopes to the east and southeast therefrom.

In June of 1998, a major rainstorm in the vicinity dropped up to five inches of rain over

a period resulting in substantial drainage problems in the general vicinity of the

Palmeter Road in its juncture with the Lane Road and, more particularly, the westerly

end of the Nickerson Hill Road. The preexisting drainage structures were insufficient

to protect the highway and damage occurred to property within the right-of-way. This

insufficiency of structure was known to the town authorities as it had previously

experienced “sheet” drainage wherein water, at a volume and rate too large for

culverts, drains over and across the highway. Such a condition not only creates a

hazard to motorists in warm weather but in marginally cold weather, can create

substantial ice on the highway.

In July through October of 1998, a committee of the town developed a plan for

reconstruction of the drainage facilities of the highway and various discussions took

place between the town officers, the committee, and the plaintiffs. The plaintiffs own

property upon which they have their residence easterly of the intersection on the

Nickerson Hill Road. Their property is down hill from the Palmeter Road and is

separated from the southerly extension of the Palmeter Road by property of another

upon which is a pond.

In July of 1998, the town contracted with an engineering firm to do a preliminary

flood analysis of the area to determine the nature of the problems which had existed for

sometime and to include in the analysis potential methods of alleviating the problems

identified. The issue for study was described in the engineer’s report as follows:

The problem area involves a pond (presently used as a fire pond with dry

hydrant) and a complex of culverts at the intersections of Nickerson,

Palmeter, and Lane Roads which are not sized in proportion to the

drainage area received by each. Hence behavior is erratic and different for

different sizes of storms. The behavior is most likely modified during the

winter months when snow and ice can be a significant factor in partially

obstructing inlets to the structures.

As a result of the courses of action recommended by the professional engineer,

the town retained a contractor who made major modifications to the drainage structure

in the area in question including enlarging culverts and a catch basin, enlarging

drainage ditches with rock lining, creating a “plunge” pool on property of the plaintiffs

within a town easement, and paving certain drainage areas alongside the highway.

Plaintiffs objected to this activity, even going to the extent of having their attorney serve

a notice of trespass on the town. It is clear that even though there was dialogue

between the plaintiffs and the town during the formulation of the plan, there is no

evidence that the plaintiffs ever approved of the final plan. The plaintiffs complain that

the results of the construction is such that in order to reduce the erosion, deposit of

sediment and damage to the Nickerson Hill Road, the town has directed all of the

natural storm drainage on the property of the plaintiffs, that this activity has

overburdened a preexisting drainage and that effectively, it has created new channels of

water and wet conditions on land of the plaintiffs not previously affected and

diminished the value of their property. They seek to have the court order the town to

make further modifications to the drainage plan to protect their property and to prevent

the overburdening of the drainage easement and to award them damages for the injury

to their land occasioned by the activities of the town in what they allege to be a

statutory trespass.

The history of the area insofar as it relates to surface water drainage is highly

relevant. In 1978, the area in question was owned by Saunders Mfg. Co., Inc. That

company created a development plan called “Hilltop Acres” and consistent therewith

recorded a development plan upon survey by D.O. Harriman in the Kennebec Registry

of Deeds on May 4, 1978. On that plan exists the “pond” created by an “earth dam” in

the same location as the existing pond. In January of 1984, some six years after the

recording of the development plan, Saunders Mfg. Co., Inc. conveyed to the Inhabitants

of the town of Readfield:

A certain easement across parcel number 4 as shown on Plan of Hilltop

Acres Phase 1 recorded in the Kennebec County Registry of Deeds...

To construct and maintain a driveway to an existing manmade pond to

install and maintain dry hydrants, and to do all other things that may be

necessary or desirable in the construction and maintenance of the pond for

the purposes of fire prevention and firefighting. Said rights to be used for

public health and safety, only.

The driveway to be located upon a strip of land twenty-five (25) feet wide,

the centerline being described as follows . ..

Said easement area being generally as shown on the above-referred-to

plan.

The plan illustrates a culvert running from the westerly side of the Town Farm

Road, now an extension of the Palmeter Road, to a ditch on the westerly side of the

pond diverting drainage around to the south. The plan also shows a culvert running

from the north side of the Nickerson Hill Road to the area of the northeast corner of the

pond at the same location as the outlet to the pond and within the 100-foot easement for

fire protection described. The plan then shows, by arrows, the water from the pond and

the culvert proceeding easterly and southerly between two stonewalls, presently

referred to as the cattle path. This cattle path is essentially the westerly boundary of the

Sait property.

When the town undertook the construction in the Fall of 1998, it increased the

capacity of the catch basin and culverts such as to channel the storm drainage both to

the uphill side of the pond, southerly side of the pond and the culvert leading into the

town easement at the northerly end of the cattle path. At that location, the town also

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constructed a “plunge pool.” This containment made up of rocks has a damming effect

creating a storm pond of approximately 25 feet in length the purpose of which is to

attenuate the effects of large volumes of water and to collect sediments just as the pond

in question is designed to do. This channeling effect sends a greater volume of water

down the cattle path. Over time, the water has diverted from the cattle path downhill

through the stonewall and instead of proceeding southerly all the way to an

intermittent stream, it is drained on to the rear of the plaintiffs’ property both in the

improved and unimproved section of their land. There has been testimony, not entirely

disputed, that the land of the plaintiffs always has experienced wetness after rainstorms

and spring drainage. However, since the reconstruction by the town was designed to

and has had the effect of minimizing the amount of drainage going easterly down the

Nickerson Hill Road and thereby creating water damage to the highway, it can be

reasonably inferred that more water is directed down the cattle path then previously

had been experienced-

The plaintiffs are not “babes in the woods” when it comes to some of the land

protection issues existing in this case. They both have degrees in sciences related to

environmental issues and they are both employed by the State of Maine, Department of

Environmental Protection. ‘While they admit they participated in discussions regarding

the reconstruction plan to be approved and implemented by the town, it is clear they

did not agree with the ultimate plan implemented and, in fact, complain that they did

not receive the final approved plan until after it had been initiated thus giving rise to

the notice of trespass. However, the fundamental facts are very little in dispute and are

best described in the summary and conclusions appearing in the “Supplement to Final

Storm Water Analysis for the Nickerson Hill Road Site in Readfield, Maine, for the

Town of Readfield, Maine, by John J. Simon, P.E.” dated November 18, 1999:

Careful examination of the figures shown in consideration of the history

of the area appear to indicate that the issue is a legal one involving who is

responsible for what, and the limits on legal rights of a town to maintain

and upgrade drainage systems associated with local roads.

The existing erosion along the Sait property and the associated deposition

of sediment is a ‘fixable’ situation. The crux of the matter seems to be

who is responsible for correcting this long standing condition, the town or

the present landowners. In summary, the data available to the author and

the analysis presented do not clearly indicate culpability on anyone’s part

but does indicate that an inappropriate decision was made by the builder

of the pond some 40 to 50 years ago on where to divert the overflow. from

the pond. The effects of that decision are the crux of the present situation.

As further stated in the engineer’s observations, the ultimate and best solution to the

problem for everyone’s concern is to move the out flow from the pond to its southerly

limits and to divert all of the expanse of storm water in the area southerly along the

Palmeter Road to a location southerly of the pond such that all water will be diverted

into the intermittent stream considered a State Jurisdictional Stream subject to

regulation.

~ Plaintiffs seek injunctive relief ordering the defendants to maintain the ‘drainage

easement located on the plaintiffs’ property and argue that the defendants fail to

properly maintain the easement in accordance with 30-A M.RS.A. § 3403. That statute

provides:

After a public drain has been constructed and any person has paid for

connecting with it, the municipality shall maintain and keep it in repair to

afford sufficient and suitable flow for all drainage entitled to pass through

it, but its course may be altered or other sufficient and suitable drains may

be substituted in its place. If the municipality does not so maintain and

keep it in repair, any person entitled to drainage through it may have an

action against the municipality for damages sustained by the

municipality’s neglect.

To this claim, the defendants respond citing Dyer v. South Portland, 111 Me. 119; 88 A.

398 (1913). In that case, our Court was called upon to decide the legislative meaning of

the phrase “drainage entitled to pass through it” when faced with the question whether

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catch basins, designed to carry off surface water, and, at that time, part of the sewer

system, was such as to come within the statute! The Court asked the question:

Now what is the statutory duty of the town, for failure in the performance

of which the town is made liable? It is to maintain a sewer so as to afford

sufficient and suitable flow for ‘all drainage entitled to pass through it.’

Did the legislature mean to make towns which have catch basins liable for

failure to keep them in such condition that surface water can pass through

them into the sewer, or merely for failure to keep the sewer proper, within

the limits of its capacity, in such condition that drainage or sewer from

lands of persons who have paid to connect with it may pass through it? In

the first place, is surface water ‘drainage’ within the meaning of the

statute?

The Court goes on to then examine the statutory scheme of the sections preceding the

language in question. It notes the statute providing for the construction of sewers, the

taking of land, the assessment and payment of damages therefor, landowner connection

with the sewer and attendant assessments, permits. The Court concludes that these

statutory provisions “are concerned only with the machinery by which the abutter may

become entitled to connect with the sewer so that he can flow his drainage or sewage,

whichever it be called, from his land to the sewer. Not in the remotest degree is there

any reference to any other drainage.” In the final analysis, the court decided:

When an abutter has paid an assessment, or has received a permit and has

connected with the sewer, he is entitled to have his drainage pass through

it, and the town is bound to keep the sewer in such repair, up to its limit of

capacity, that his drainage, so entitled, may pass through it. We hold

therefore that a town is not liable under [the then existing statute] for

damages caused by surface water, which is prevented from entering a

sewer by the clogged and obstructed condition of catch basins, and which

in consequence flows upon adjoining land and does damage.

The reconstruction of the preexisting drainage scheme in the area in question in

this case and the attendant diversion of additional waters to land of the plaintiffs

‘Th this day of sewage treatment plants, storm water Systems are separated from septic sewer systems

but those developments have come long after many of the cases deciding this issue.

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through a preexisting drainage prescriptive easement is not actionable under 30-

A M.LRS.A. § 3403 and plaintiffs’ claim must fail.

Next, the plaintiffs claim that there has been an overburdening of the preexisting

drainage easement as described and cites therefore Gutcheon v. Becton, 585 A.2d 818 (Me.

1991). By their claim, the plaintiffs admit that there exists a prescriptive easement

southerly on the cattle path for the watershed of the area in question. “A prescriptive

easement is established if the claimant can prove ‘a continuous use for at least 20 years

under a claim of right adverse to the owner, with the knowledge and acquiescence, or

by a use so open, notorious, visible and uninterrupted that knowledge and

acquiescence will be presumed.” Gutcheon, 585 A.2d at 821, citing Town of Manchester v.

Augusta Country Club, 477 A.2d 1124 (Me. 1984). Gutcheon further explains:

Whether a prescriptive easement is overburdened is a question of fact, and

we review the record to ascertain if there is competent evidence to support

the factfinder’s conclusions. In general, a person who possesses an

easement over another’s property can exercise his right only in a

reasonable manner.

See Beckwith v. Rossi, 157 Me. 532 (1962). Unlike an express easement, whose terms can

usually be ascertained from the creating instrument, the permissible uses of an

easement acquired by prescription are necessarily defined by the use of the servient

land during the prescriptive period. See McKenna v. Town of Searsmont, 349 A.2d 760

(Me. 1976).

In order to remain useful to the dominant estate it serves, a prescriptive

right-of-way must encompass some flexibility of use, and adapt to natural

and foreseeable developments in the use of the surrounding land. When

presented with an alleged overburdening of a prescriptive easement, the

factfinder must balance the prior use of the right-of-way established

during the prescriptive period against any later changes in the method of

use that unreasonably or unforeseeably interfere with the enjoyment of

the servient estate by its current owner.

Gutcheon, 585 at 823.

recognizes that,

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Further, Gutcheon tells us that Benner v. Sherman, 371 A.2d 420 (Me. 1977)

prevent a clearly foreseeable overburdening.” Finally, the Court notes:

Id. at §§ 478-479: Gu tcheon, 585 at 825; dissent of Wathen, J. joined by McKusick, CJ.

The extent of an easement created by prescription is fixed by the use

through which it was created.” RESTATEMENT OF PROPERTY, § 477.

Although some variation is inevitable, the use made under a prescriptive

easement must either be consistent with the general pattern of use that

gave rise to the creation of the easement or result from the normal

evolution of that use.

“The scope of a prescriptive easement should be so limited as to

Parenthetically, the court notes that according to the Plan of Development

recorded in 1978, the outlet to the pond drained in an easterly and southerly manner

down the cattle path. While the plan is not clear as to the property line between

' Saunders Mfg. Co., Inc. and its next easterly neighbor, the cattle path either runs down

the boundary line or it exists easterly of the boundary on the land of one Bingham. At

88 A.L.R. 4", 891, the court finds the following language:

Under the common-enemy doctrine, adopted by the courts of some

jurisdictions, each landowner has an unqualified right to fend surface

waters as the landowner sees fit without being required to take into

account the consequences to other landowners, or have the duty and

tights to protect themselves as best they can (78 Am. Jur. 2d Waters, 120).

Differing from the common enemy doctrine is the civil law rule that the

owner of the upper or dominant estate has a legal and natural easement or

servitude in the lower or servient estate for the drainage of surface water

flowing in its natural course and manner; and that such natural flow or

passage of the waters cannot be interrupted or prevented by the servient

owner to the detriment or injury of the estate of the dominant proprietor,

unless the right to do so has been acquired by contract, grant, or

prescription. (78 Am. Jur. 2d Waters, § 121).

The drainage of the pond onto the property of another would appear to have created

the prescriptive easement in the manner of a dominant estate draining surface waters

on a servient estate. Certainly this appears to be clear as a matter of record as of April

1978.

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Plaintiffs also rely upon Title 23 M.R.S.A. § 3251 which reads as follows:

The municipal officers of a town may at the expense of the town construct

ditches, drains and culverts to Carry water away from any highway or

road therein, and over or through any lands of persons or corporations,

when they deem it necessary for public convenience or for the proper care

of such highway or road... If such town does not maintain and keep in

repair such ditches, drains, culverts, the owner or occupant of the land

through or over which they pass may have his action against the town for

damages thereby sustained.

Plaintiffs cite Austin v. Inhabitants of St. Albans, 144 ME 111, 65 A.2d 32 and Whalen v.

Town of Livermore, 588 A.2d 319 (Me. 1991). These cases confirm the requirement in the

statute of a municipality to maintain and keep in repair ditches, drains and culverts.

Unfortunately, in each of those cases, there was no evidence that any ditch or drain was

ever legally constructed by the town. However, the language in Austin is of assistance.

At 65 A.2d 34, the Court says:

If a ditch is constructed by legal act of the municipal officers of a town,

and is not large enough to care for the water, there is no remedy under

this statute. It is only through failure to maintain and keep and repair

such ditch, as it was constructed by the municipal officers, that the

resulting damage can be recovered. The municipal officers do not act

under the statute under agents, and if damage results from insufficient

size of a ditch, or other fault in original plan of construction, the town is

not liable. When municipal officers act judicially as a statutory board, the

town is not for its honest errors of judgment. There must be a failure to

repair, to maintain, to the standard of efficiency of its original plan of

construction.

Keeley v. Portland, 100 Me. 260, 61 A. 180; Davis v. Bangor, 101 Me. 311, 64 A. 617.

Under the facts of the instant case, the damage claimed by the plaintiffs is the

result of the plan of construction not the failure of repair or maintenance. It is contrary

to the failure to repair or maintain because it is precisely the nature of the repair of

which plaintiffs complain. Further, the defendants point out that consistent with

Whalen v. Livermore, the town has never constructed the drain over the property of the

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plaintiffs, they have simply channeled the water to an existing drain created by the

existence of the pond.

Darling v. City of Bangor, 68 Me. 108 (1878) tells us that principles of law

applicable to the liabilities of cities and towns are somewhat settled.

Municipal corporations are endowed with certain judicial or quasi-judicial

powers, to be exercised, not for their private convenience or profit, but as

part of a public duty, for the furtherance of those things necessary or

convenient to the community at large. Performance of these duties,

involving as they do the exercise of judgment as t time and manner of

accomplishment is a general rule imposed no liability to an action for

private injury resulting from acts within their jurisdictions. When these

acts to be judicial and become ministerial only, then for negligence or

omission, an action may be maintained by a person suffering injury

thereby. Thus, the maintenance of sewers and drains, if they are

necessary to the public health, or to keep roads in safe conditions, comes

within these judicial powers; the manner of building and keeping them in

repair, are usually considered as ministerial duties.

Darling 68 at 109.

Plaintiff claims their right to damages in accordance with Title 23 M.RS.A.

§ 2103:

When any real estate is damaged by the use and control for highway

purposes of such land outside the existing improved portion and within

the limits of one and half rods on each side of the center of the travel

portion, they shall award damages to the owner as provided...

The court has examined the evidence presented to it. The plaintiffs have not

presented any evidence sufficient to meet its burden of proof that the construction

undertaken by the town as complained of was either outside of the three-rod limits of

the highway or outside of the easement granted to it by the Saunders Mfg. Co., Inc.

which it had a right to maintain.

In the final analysis, the court concludes, as indicated by the professional

engineer, that the solution to the problems of the plaintiffs are rather clear. The issue is

whether plaintiffs have met their burden of establishing, as a matter of law,

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responsibility in the defendant for either the cost of fixing the problem or, more

appropriate to the cause of action, the difference between the value of the plaintiffs’

land as it is now exists compared with its value prior to the construction in the Fall of

1998. Since the historical drainage previously existed and there has been no evidence

established of before and after value, the court would be required to find a duty on the

- part of the town to generate a manmade drainage where none previously existed in

order to elevate the value of land to the plaintiffs by diverting the natural storm water

to a preexisting stream. Given the facts as they had been presented to the court and the

law as the court understands it, the court concludes there is no such duty nor has there

been such a change in circumstances off the prescriptive drainage easements such that it

was not foreseeable, at the very least when the easement was created by the installation

of the initial culvert and the fire prevention pond.

For all the reasons expressed herein, the entry will be:

Judgment for the defendants.

Dated: February 6, 2004 -_ LA fe —

“Donald H. Marden

Justice, Superior Court

DAVID SAIT - PLAINTIFF SUPERIOR COURT

. KENNEBEC, ss.

Attorney for: DAVID SAIT * Docket No AUGSC-RE-2000-00046

CLIFFORD GOODALL

DYER GOODALL AND FEDERLE LLC

61 WINTHROP sT DOCKET RECORD

AUGUSTA ME 04330

CLAUDIA SAIT - PLAINTIFF

Attorney for: CLAUDIA SAIT

CLIFFORD GOODALL

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

vs

TOWN OF READFIELD - DEFENDANT

Attorney for: TOWN oF READFIELD

LEE BRAGG

BERNSTEIN SHUR SAWYER & NELSON

PO BOX 5057

AUGUSTA ME 04332-5057

GREGORY GILL - DEFENDANT

Attorney for: GREGORY GILL

LEE BRAGG

BERNSTEIN SHUR SAWYER & NELSON

PO BOX 5057

AUGUSTA ME 04332-5057

WILLIAM ROURKE - DEFENDANT

Attorney for: WILLIAM ROURKE

LEE BRAGG

BERNSTEIN SHUR SAWYER & NELSON

PO BOX 5057

AUGUSTA ME 04332-5057

Filing Document : COMPLAINT Minor Case Type: TRESPASS

Piling Date: 10/27/2000

Docket Events:

08/16/2002 FILING DOCUMENT - COMPLAINT FILED ON 10/27/2000

08/16/2002 NOTE - PRIOR ENTRIES IN MANUAL DOCKET ENTERED ON 10/27/2000

08/16/2002 Party(s): DAVID SAIT

ATTORNEY - RETAINED ENTERED ON 10/27/2000

Page 1 of 5 Printed on: 02/10/2004