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Stickney v. City of Saco, attorneys and foonotes

Attorneys for plaintiffs:

Linda C. Russell, Esq., (orally)
Bruce A. McGlauflin, Esq.
Petruccelli & Martin, LLP
P O Box 9733
Portland, ME 04104-5033

Attorneys for defendants:

S. James Levis Jr., Esq., (orally)
Levis & Hull, P.A.
409 Alfred Street
Biddeford, ME 04005
(for William and Tammy Desjardins)

John J. Wall III, Esq., (orally)
Monaghan, Leahy, Hochadel & Libby, LLP
P O Box 7046
Portland, ME 04112-3906
(for City of Saco)
FOOTNOTES******************************** {1} . William Casavant Jr. is Marion Stickney's son-in-law. Collectively, Casavant and Stickney will be referred to as the "plaintiffs." Casavant is a party, on an individual basis, in the action against the DesJardinses. {2} . The plaintiffs provided a copy of Nellie Tasker's will, which was probated in 1954. The DesJardinses claim she died in 1952, but none of the parties established her exact date of death. {3} . Nellie Tasker was apparently unable to care for herself because she suffered from some unidentified mental incapacities. It was unclear from the record whether the incapacity was the consequence of senility or some other mental illness. {4} . The record indicates that George Conley may have been removed from the property prior to his death. Also, though the City acquired the property in 1927, there is evidence showing it continued to send tax statements to Nellie Tasker and, when Nellie Tasker died, to George Conley. The City, therefore, may have lost track of this property until it sold the parcel to the Trakases and probably allowed Nellie Tasker and George Conley to stay on the property by mistake. The record further shows that Nellie Tasker's estate was unaware of the tax deed. Indeed, the land passed, on Nellie Tasker's death, to George Conley pursuant to Nellie Tasker's will as though the City never acquired it. {5} . Because it does not assist in the understanding of the present action, the intermediary owners of these properties will not be further delineated. {6} . The other defendants-the heirs of Rishworth Jordan and Joseph Hill-did not enter an appearance. A default judgment was entered against them. {7} . 42 U.S.C. § 1983 provides in part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 42 U.S.C. § 1983 (2000). {8} . On appeal, the plaintiffs have not challenged the Superior Court's ruling on their prescriptive easement (Count II) and their trespass (Count III) claims against the City. The plaintiffs' failure to brief those claims constitutes their abandonment of the claims on appeal. See Aseptic Packaging Council v. State, 637 A.2d 457, 462-63 (Me. 1994). {9} . According to Fred Fitanides, George Conley had to use the right-of-way because "[h]e had no other way of getting [to the] back [of the barn]." Apparently, the other part of the property was too hilly. {10} . George Conley died sometime in the 1950s. {11} . The DesJardinses also assert that the section upon which Casavant relies, § 772(1) of the Short Form Deeds Act (see infra note 12), was enacted two years after the present suit commenced, and consequently, does not apply to this action. See 1 M.R.S.A. § 302 (1989) (stating, "[a]ctions and proceedings pending at the time of the passage, amendment or repeal of an Act or ordinance are not affected thereby"). The DesJardinses appear to be making this argument for the first time on appeal. "We have repeatedly held that, '[n]o principle is better settled than that a party who raises an issue for the first time on appeal will be deemed to have waived the issue, even if it is one of constitutional law.'" McAfee v. Cole, 637 A.2d 463, 467 (Me. 1994) (quotation omitted). Even if the claim was preserved, it lacks merit. The statute states, in relevant part, "[a] conveyance or reservation of real estate, whether made before or after the effective date of this section, must be construed to convey or reserve an estate in fee simple, unless a different intention clearly appears in the deed." 33 M.R.S.A. § 772 (1) (emphasis added). 33 M.R.S.A. § 772(1) clearly states it is to apply retroactively; 1 M.R.S.A. § 302, therefore, is not controlling. See Reagan v. Racal Mortg., Inc., 1998 ME 188, ¶ 7, 715 A.2d 925, 927-28 (holding "section 302 provides a rule of construction only, and the rule is controlling 'absent clear and unequivocal language to the contrary'"); Terry v. St. Regis Paper Co., 459 A.2d 1106, 1109 (Me. 1983) (reiterating well-established notion that "all statutes will be considered to have a prospective operation only, unless the legislative intent to the contrary is clearly expressed or necessarily implied from the language used"). The DesJardinses also argue that the use of the term "estate" in section 772(1) makes the statute inapplicable to the present situation, which involves an easement. This claim is also unpersuasive and is an overly restrictive interpretation of the statute. Section 772 specifically calls for a liberal construction. 33 M.R.S.A. § 772(5) (stating "[t]his section must be liberally construed to effect the legislative purpose of clarifying title to land currently encumbered by ancient deeds that lacked technical words of inheritance or an habendum clause"). {12} . Section 772 of the Short Forms Deeds Act provides, in full: 1. Words of inheritance; habendum. In a conveyance or reservation of real estate, the terms "heirs," "successors," "assigns" "forever" or other technical words of inheritance, or an habendum clause, are not necessary to convey or reserve an estate in fee. A conveyance or reservation of real estate, whether made before or after the effective date of this section, must be construed to convey or reserve an estate in fee simple, unless a different intention clearly appears in the deed. 2. Preservation of rights. A person claiming an interest in real estate by reason of the omission of technical words of inheritance or the lack of an habendum clause in a deed that conveyed or reserved a property interest before October 7, 1967 may preserve that claim by commencing a civil action for the recovery of that property in the Superior Court or the District Court in the county or division in which the property is located on or before December 31, 2002. 3. Limitation. After December 31, 2002, a person may not commence a civil action for the recovery of property or enter that property under a claim of right based on the absence of an habendum clause or technical words of inheritance in any deed. 4. Construction of laws. This section may not be construed to extend the period for bringing of an action or for the doing of any other required act under any statute of limitations. 5. Liberal construction. This section must be liberally construed to effect the legislative purpose of clarifying title to land currently encumbered by ancient deeds that lacked technical words of inheritance or an habendum clause. 33 M.R.S.A. § 772 (Supp. 2000-2001).

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