Warchalowski v. Robert A. Brown et al. Robert A. Brown v. Burton MacDonald, 417 A.2d 425 (Me. 1980)

McKUSICK, Chief Justice.

By agreement of the parties this consolidated action was referred to a referee who rejected appellant Warchalowski’s claim of a right of way by either prescription or necessity over appellee Brown’s land, but upheld the action of the Oxford County Commissioners (the Commissioners) that had granted Warchalowski’s petition for the laying out of a private way. After both parties objected to the referee’s report, the

Superior Court (Androscoggin County)1 affirmed the denial of any easement by necessity or prescription, but reversed the decisions of the referee and the Commissioners regarding the laying out of the private way. Warchalowski appeals to this court from the Superior Court’s judgment declaring Brown’s property to be unburdened by any claimed easement or right of way.

We deny Warchalowski’s appeal to the extent it relies upon a claimed easement by necessity, but sustain his appeal as to the Commissioners’ action in laying out a private way.

Almost nine years ago, by petition dated October 15, 1971, appellant Warchalowski and three other persons2 petitioned the selectmen of the town of Buckfield3 (the Selectmen) to lay out a private way across appellee Brown’s land that would follow the course of a town way, the Jim Young Road, that had been discontinued on August 28, 1951, just 17 days after the town sold a lot fronting on the road to one Tanguay, a predecessor-in-interest of Warchalowski. There was no indication as to whether Tan-guay sought or was awarded damages by reason of the road’s discontinuance. As a result of a tax lien filed against Tanguay the town of Buckfield, on March 9, 1955, reacquired ownership of the lot and, on October 17,1956, sold it to one Carrier by a quit-claim deed that described the lot as being bounded “on the south by the highway [Jim Young Road].” Warchalowski purchased an interest in the land-locked lot in 1970 and attempted to use the discontinued road across Brown’s land in order to reach a county road. After resistance from Brown, the petition for a private way was filed.

The Buckfield Selectmen denied the petition on November 4, 1971, prompting War-chalowski and his co-owners two weeks later to petition the Oxford County Commissioners pursuant to former 23 M.R.S.A. § 3006 (1964) (repealed effective July 29, 1976)4 to lay out the private way. After an

on-site inspection and a full hearing, the Commissioners granted Warchalowski’s petition on October 9, 1972, laid out a private way subject to gates and bars over the discontinued Jim Young Road, and awarded damages to Brown in the amount of $1.00.

Brown then appealed the Commissioners’ decision to the Superior Court pursuant to former section 3006. While the Superior Court appeal was pending, Warchalowski filed in that appeal action a counterclaim and cross-claim, alleging an easement by prescription or, in the alternative, by necessity. On December 17, 1976, Warchalowski brought a separate Superior Court action against Brown, asserting a right of way by prescription. After consolidating the actions, the Superior Court appointed a referee who, after a hearing, rejected Warcha-lowski’s claims of a right of way by prescription or necessity but upheld the action of the Commissioners in laying out a private way. The Superior Court then overruled Warchalowski’s objections to the referee’s report and sustained Brown’s objection to the referee’s conclusion that the Commissioners had acted properly in laying out the private way.

Before the Law Court, as below, Warchalowski argues that an easement by necessity5 was created in 1951, when the town of Buckfield sold the lot in question to his predecessor Tanguay. However, at the time of the Tanguay conveyance on August 11, 1951, the Jim Young Road was a public way over which access to the county road was readily available. Because Tanguay’s lot was thus not then inaccessible, the law cannot infer an easement by necessity. Nor was such an easement created by the road’s discontinuance 17 days later; that discontinuance could give a right to damages against the town, but under former section 3004 (repealed effective July 29, 1976) gave him no right to an easement by necessity over land of his neighbor Brown or over a road to which his grantor, the town, was giving up all interest.

’Warchalowski’s argument that the 1956 conveyance by the town of Buckfield to Carrier created an easement by necessity also fails. Even though the lot was conveyed as bounded by “the highway” (meaning the Jim Young Road), such a reference creates a private easement only if the grantor, at the time of the conveyance, owns in fee the land under the road. Young v. Braman, 105 Me. 494, 75 A. 120 (1909). In this case, there was no evidence that the town of Buckfield owned the land under the discontinued road at the time of the conveyance to Carrier. Consequently, the Superior Court correctly accepted the referee’s conclusions that no easement by necessity was created either in 1951 or 1956.

The primary question presented by War-chalowski’s appeal is whether or not it was necessary for the Commissioners to make an express finding on their return that the Selectmen had acted unreasonably in refusing to lay out the requested private way. Former section 3006 provided that if the municipal officers “unreasonably neglect or refuse to lay out” a requested private way, a petition can be brought before the county commissioners who may then act to lay out the way. In the case at bar, Warchalow-ski’s petition alleged unreasonable neglect and refusal, but the Commissioners’ return included no such express determination. The referee ruled that a specific finding of unreasonableness was not mandated by former section 3006 and-could be inferred from the inclusion of the petition itself in the Commissioners’ return and the granting of the requested relief. The Superior Court, although acknowledging that the referee’s ruling “has a certain logical appeal,” concluded that a jurisdictional prerequisite to any action on a petition by the Commissioners is a determination on the record that the municipal officers were unreasonable in refusing or neglecting to lay out the private way requested. Because the Commissioners made no such finding, the Superior Court held that the Commissioners were without jurisdiction and reversed their decision laying out the requested way.

The Superior Court relied upon the line of authority started by Chief Justice Mellen in State v. Pownal, 10 Me. 24 (1833), and followed in Goodwin v. County Commissioners, 60 Me. 328 (1872), and Pownal v. County Commissioners, 63 Me. 102 (1873), that the commissioners must make an on-the-record determination that the town officials have unreasonably refused to lay out the private way. However, Chief Justice Appleton in Inhabitants of Dresden v. County Commissioners, 62 Me. 365 (1874), decided after Pownal v. County Commissioners (reported in 63 Me. 102) and Goodwin, and Justice, later Chief Justice, Pattangall in Phippsburg v. County Commissioners, 127 Me. 42, 141 A. 95 (1928), both concluded that the determination of unreasonableness need not be found within the four corners of the county commissioners’ return, provided that it is shown to have actually been made once the issue was raised. Chief Justice Appleton in particular teaches us that under the procedure by certiorari for reviewing county commissioner decisions a showing that the county commissioners in fact made the preliminary determination of unreasonableness can be shown by evidence extrinsic to or aliunde the record on the question whether the writ of certiorari will be issued, but that on certiorari, that is, after the writ has been issued and the record is being reviewed, as was the case in Chief Justice Mellen’s opinion in Pownal, the record as certified must alone be searched to find that determination. Thus, in Dresden, the testimony of the commissioners at the time of the action on the petition was admissible to show compliance with the statute.

As amended effective December 31,1967, M.R.Civ.P. 81(c) abolished the writ of certiorari and stated: The simplified procedures of Rule 80B now govern the review of “any action or refusal to act by a governmental agency,” and are intended to serve as the sole means of judicial review in place of all the former extraordinary writs, including certiorari. See M.R.Civ.P. 80B, Advisory Committee’s Note (Dec. 31,1967); 2 Field, McKusick & Wroth, Maine Civil Practice § 80B.1 (2d ed. 1970). Thus, the review of a record on certiorari and the initial determination of whether or not the writ of certiorari should issue are now combined in the single, comprehensive procedure of Rule 80B. The thrust of Dresden and Phippsburg — permitting extrinsic evidence as to the action of the governmental agency being reviewed — carries over today with our Rule 80B.

We agree with the referee to the extent he held that an express recitation of the municipal officers’ unreasonableness is not required in the Commissioners’ return.6 We hold, however, that it is essential to the authority of the County Commissioners to lay out a way that they in fact determine preliminarily that the municipal officers have indeed been unreasonable in neglecting or refusing to act. The reason declared by Chief Justice Mellen in 1833 for requiring this jurisdictional determinatioii remains equally true today. The Selectmen’s neglect or refusal to lay out the way

(Emphasis in original) State v. Pownal, supra at 26. Consequently, we must vacate

the judgment of the Superior Court that set aside the Commissioners’ laying out of the private way over Brown’s land and remand to the Superior Court to take evidence on the very specific question of whether the Commissioners, on October 9, 1972, actually made a preliminary determination that the Selectmen acted unreasonably on November 4,1971, in refusing to lay out the requested private way. The court may receive testimony and other evidence from the 1972 County Commissioners themselves — or, if they are not available, from other sources— as to what they in fact had decided.7

Brown’s contention that former section 3001 authorizes the unconstitutional taking of private property for a nonpublic use was expressly rejected by the Law Court in Browne v. Connor, 138 Me. 63, 21 A.2d 709 (1941). We reaffirm the well-considered opinion written by Justice Thaxter in Browne and conclude that the laying out of a private way here would be constitutional.

In their return the Commissioners, after laying out the private way, awarded to Brown only one dollar “as a full and just compensation and equivalent for all damages . . . sustained.” Pursuant to 23 M.R.S.A. § 2055 (1980) and the decision of Boston & Maine R. Co. v. Commissioners, 78 Me. 169, 3 A. 273 (1886), construing a predecessor provision, an individual aggrieved by the commissioners’ award of damages who files an appeal pursuant to section 2063 to the Superior Court as to the laying out of the way may separately file a notice of appeal on damages within 60 days “after the final decision of the appellate court in favor of such way.”8 Because the validity of the Commissioners’ return is not yet final, the question of damages is still a live one.

It would appear that the damages as fixed by the Commissioners are grossly inadequate. Should the Superior Court determine on remand that the Commissioners in 1972 did make the required preliminary determination of unreasonable refusal on the part of the Selectmen and enter judgment affirming the Commissioners’ layout of the private way, Brown may then file an appeal pursuant to 23 M.R.S.A. § 2058 within 30 days after the Commissioners’ return has become final. After such an appeal is filed, the Superior Court shall proceed to determine appropriate damages suffered by Brown from the laying out of the private way.

Finally, we are constrained to comment upon the inadequacy of the appendix filed by the appellant. He failed to comply with the minimum requirement of M.R.Civ.P. 74C(a) that the appendix include among other things “relevant docket entries in the proceedings below,” and included instead

only the clerk’s table of contents of certain documents on file with her. Absence from the appendix of the essentials required by the rule seriously inconveniences the members of the Law Court in considering an appeal with a record as complex as that in the case at bar.

The entry must be:

Leopold Warchalowski’s appeal denied in part; judgment affirmed in denying claim of easement by necessity or prescription.

Leopold Warchalowski’s appeal sustained in part; judgment as to laying out of private way vacated and case remanded for further proceeding consistent with the opinion herein.

Appeals by other parties dismissed.

The parties are to bear their own costs on appeal.

All concurring.