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Town of Sedgwick v. Butler
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 280
Docket:	Han-97-727
Submitted
on Briefs:	November 20, 1998
Decided:	December 30, 1998

Panel:CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.



TOWN OF SEDGWICK v. RUSSELL H. BUTLER et al.


DANA, J.

	[¶1]  Russell Butler appeals from a judgment entered in the Superior
Court (Hancock County, Marsano, J.) declaring that the Town of Sedgwick is
the owner in fee simple of a parcel known as the Town landing.  Butler
contends that the Town did not acquire the parcel in fee simple and has
abandoned all rights it may have had in the land pursuant to 23 M.R.S.A.
§ 3028 (1992) and the common law doctrine of abandonment.  We affirm
the judgment.
	[¶2]  In 1790, in accordance with a resolve of the General Court of
Massachusetts, 1786 Mass. Laws & Resolves ch. 130, the Proprietors of
Sedgwick laid out a town plan which reveals a parcel of land, approximately
one acre in size, at the head of Billings Cove and a strip of land three to four
rods wide running from the northwesterly corner of the parcel to what is
today the town road to Byard's Point.  In 1879, thirty-seven citizens of the
Town petitioned the Hancock County Commissioners to establish a road
leading to Billings Cove and to reestablish the boundaries to the landing
designated on the 1790 Town plan.  The commissioners responded to the
petition by establishing a road and reestablishing the Town landing, and
describing their boundaries as follows:
Beginning at a stake on the east side of the road leading to
Byard's point thence South 3° West 16 rods to a stake or stone,
the road to be three rods wide, the line to be the East side of
the road - Thence South 70 1/2° East 23 rods to a stake or
stone, thence South 3° West 6 rods or to the shore, the last two
bounds reestablishing the Town landing.
Attached to this metes and bounds description is a map of the Town landing
and road.
	[¶3]  In 1804, John Byard conveyed the land surrounding the Town
landing to Solomon Billings, explicitly reserving "one acre [and a] half for a
Town landing and road . . . ."  In 1821, Billings conveyed the same parcel
with the same reservation to Amaziah Roberts.  The first deed in the chain
of title to include explicitly the parcel known as the Town landing was a
straw deed from Butler to Rosalind Luning in 1978.
	[¶4]  In 1977, the Town created a tax map for the first time.  On the
map, a parcel consisting of the Town landing and a strip of land leading to
the landing is labeled lot 17A.  Butler's property, labeled lot 17, is shown as
separate from the Town landing.  The Town's first selectman, Neil Davis,
testified that the Town's tax assessment records indicate that the Town
owns lot 17A.  He also testified that Butler's property tax assessment did not
include lot 17A until 1989.  Butler's tax assessment did include lot 17 and
17A for the years 1989 to 1992. Thereafter, the Town adjusted the
assessment to exclude lot 17A.
	[¶5]  Butler contends that the Town did not acquire the parcel in fee
simple and has abandoned all rights to the land.  Because the evidence
supports the court's conclusion that the Town owns the parcel in fee
simple, we disagree. First, the 1790 Town plan, the 1879 Commissioner's
map, and the 1977 tax map indicate that the Town reserved a parcel at the
head of Billings Cove known as the Town landing and a strip of land leading
to the landing.  Second, for almost two centuries, the deeds conveying the
parcel of property surrounding the Town landing explicitly excluded "one
acre [and a] half for a Town landing and road."  The only deed that included
this parcel was the 1978 straw deed conveyed by Butler.  Finally, the Town's
tax assessor testified that the Town's tax assessment records indicate that
the Town owns this parcel.    
	[¶6]  Given that the Town owns the parcel in fee simple, the court was
correct in concluding that the Town could not have abandoned the parcel. 
"[T]he common law rule . . . is that a perfect legal title cannot be lost by
abandonment."  Picken v. Richardson, 146 Me. 29, 36, 77 A.2d 191, 194
(1950).  The doctrines of abandonment, therefore, are inapplicable to the
land in dispute.  Moreover, the common law rule that "one cannot assert a
claim of title by adverse possession against a municipality" precludes any
claim based on adverse possession.  Flower v. Town of Phippsburg, 644 A.2d
1031, 1032 (Me. 1994) (citing Phinney v. Gardner, 121 Me. 44, 48-49, 115
A. 523, 525 (1921)).
	The entry is:
					Judgment affirmed.
                   
Attorney for plaintiff: James E. Patterson, Esq. P O Box 712 Ellsworth, ME 04605 Attorney for defendants: Frank B. Walker, Esq. P O Box 29 Ellsworth, ME 04605