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Shadan v. Town of Skowhegan
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Maine Supreme Judicial Court						Reporter of Decisions
Decision:	1997 ME 187
Docket:	Som-96-646
Submitted
on Briefs:	May 16, 1997
Decided:	August 11, 1997

Panel:	WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.




PHILIP SHADAN v. TOWN OF SKOWHEGAN, et al.


LIPEZ, J.

	[¶1]  Philip Shadan appeals from the judgment entered in the
Superior Court (Somerset County, Alexander, J.) following the court's
determination that Shadan had no right of way over an abandoned road that
passed by his property and that he was not entitled to relief on his illegal
zoning and taking claims against the Town of Skowhegan.  We affirm the
judgment.
I.
	[¶2]  Philip Shadan owns two parcels of land in the Oak Pond Stream
Subdivision in Skowhegan.  Shadan's land is abutted by the Richardson Road,
so-called, an ancient road that runs adjacent to his property and through the
land of his neighbors, the Bowzers.  Soon after purchasing his land Shadan
began using the Richardson Road to access his property.  Although the
Bowzers initially gave him permission to use the road, they eventually
erected a barrier across the road to prevent Shadan from using it and
complained to the police when Shadan drove around the barrier in order to
access the road.  In 1995 Shadan sought a declaratory judgment that the
Richardson Road is a town way, a public easement, or an easement by
necessity.   In a separate action he also sought a declaratory judgment that
the Town of Skowhegan had unlawfully imposed a land use restriction on his
property.  The two actions were consolidated by order of the court.  After a
two day hearing, the court ruled that Shadan "has failed to establish any
right-of-way across" the Richardson Road.  The court also decided in favor of
the Town of Skowhegan on Shadan's land use restriction claim.  From the
judgment entered accordingly, this appeal followed.{1}
II. Common Law Abandonment
	[¶3]  Shadan urges us to conclude that the Richardson Road is a town
way.  We affirm the court's conclusion that even if the Richardson Road were
once a town way, it has been abandoned by operation of the common law of
abandonment.{2}  It is therefore unnecessary to decide whether the Town
ever accepted the portion of the Richardson Road that abuts Shadan's
property.
	[¶4]  The common law of abandonment recognizes that rights in
public ways may be lost through neglect.  Under the doctrine of common law
abandonment, "a presumption of a 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, 1046 (Me. 1992).{3}  This presumption,
once raised, may be rebutted by evidence of a contrary intent on the part of
the public.  We will not disturb the trial court's determination that Shadan
failed to meet his burden of rebutting the presumption of abandonment
unless the evidence compelled the court to find in Shadan's favor.  Id. at
1047.
	[¶5]  Donald Whitten of the Maine Department of Transportation
testified that MDOT records indicated that the last expenditure of funds by
the Town of Skowhegan on improvements to the Richardson Road was in
1940.{4}  Whitten further testified that MDOT records showed that by 1966
the Richardson Road had become impassable.  Several former owners of land
abutting the Richardson Road testified that the road was passable until the
mid 1940s and that the Town had plowed the road until 1950, when the
last house on the Richardson Road burned.  Even if the Town had plowed
the road after 1950, such evidence would be insufficient to rebut the
presumption of abandonment.  Whalen v. Town of Livermore, 588 A.2d 319,
321 (Me. 1991), cert. denied, 502 U.S. 959 (1991).  Because of the  twenty
year period of non-use of the Richardson Road beginning in 1950, the town
abandoned the road in 1970.  Shadan failed to meet his burden of
persuasion, and the court did not err by ruling that if the Richardson Road
were ever a town way it was subject to common law abandonment by 1970.
Public Prescriptive Easement
	[¶6]  Shadan contends that the court erred by determining that
members of the public did not possess a prescriptive easement over the
Richardson Road.

[T]he party asserting an easement by prescription must prove
continuous use for at least 20 years under a claim of right
adverse to the owner, with his knowledge and acquiescence, or
a use so open, notorious, visible, and uninterrupted that
knowledge and acquiescence will be presumed.  Acquiescence
by the owner to the use is essential, and, in this regard, the
acquisition of an easement by prescription differs from the
acquisition of title by adverse possession.

Town of Manchester v. Augusta Country Club, 477 A.2d 1124, 1130 (Me.
1984) (citations omitted).  "Acquiescence implies 'passive assent or
submission to the use, as distinguished from the granting of a license or
permission given with the intention that the licensee's use may continue
only as long as the owner continues to consent to it.'"  Id.  (quoting Pace v.
Carter, 390 A.2d 505, 507 (Me. 1978)).
	[¶7]  Shadan cites evidence that abutting landowners historically used
the road to access their property, and he cites further evidence of
recreational use of the road by members of the public.  Shadan has failed to
rebut the presumption that such recreational use was with the permission of
abutting landowners.  S.D. Warren Co. v. Michael Vernon, 1997 ME 161,
¶ 17, - A.2d - ("Use of the road by the public for hunting or recreation is
presumed permissive."); See Augusta Country Club, 477 A.2d at 1130.  The
use of the road up to the 1950s by abutting landowners to access their own
land also does not help Shadan's case.  "The test of a public use is not the
frequency of the use, or the number using the way, but its use by people who
are not separable from the public generally." Inhabitants of the Town of
Kennebunkport v. Forrester, 391 A.2d 831, 833 n.2 (Me. 1978).  Evidence
of the use of the road by abutting landowners is insufficient to establish the
existence of a public prescriptive easement because "their travel does not
constitute use by people who are 'not separable from the public generally.'"
S.D. Warren, 1997 ME at ¶ 17 (quoting Forrester, 391 A.2d at 833 n.2).{5}
Easement by Necessity
	[¶8]  Shadan challenges the court's determination that he has no
easement by necessity over the Richardson Road.  An easement by necessity
may be created when a grantor divides a parcel of land into smaller parcels
and conveys a lot that is "landlocked" by the grantor's surrounding land and
cannot be accessed from a road or highway.  "Because of the strict necessity
of having access to the landlocked parcel, an easement over the grantor's
remaining land benefitting the landlocked lot is implied as a matter of
law . . . ."  Morrell v. Rice, 622 A.2d 1156, 1158 (Me. 1993).  
	[¶9]  There is no evidence in the record that at the time Shadan
alleges his parcel and adjacent parcels were severed by a common owner
the "use of the retained parcel [was] strictly necessary to the enjoyment of
the conveyed land."  Taylor v. Nutter, 687 A.2d 632, 636 (Me. 1996).  In
addition, Shadan did not offer any evidence that, either at the time of his
purchase of the land or at any time since, he has not had alternative means
of access to his land.  The court found that Shadan had access to his land
over the Lambert Road, even though that road was in poor condition, and
the record supports the court's finding.  See Amodeo v. Francis, 681 A.2d
462, 465 (Me. 1996). 
III.
	[¶10]  We turn now to Shadan's zoning and constitutional taking claim
against the Town of Skowhegan set forth in his other declaratory judgment
action.  We first address Shadan's contention that the court deprived him of
the opportunity to be heard on this claim.  
	[¶11]  The court (Kravchuk, J.) consolidated Shadan's complaints
against the Bowzers and the Town and ordered the complaint against the
Town stayed until after a hearing on the complaint against the Bowzers.  At
the trial, the court (Alexander, J.) stated at the close of the evidence on the
status of the Richardson Road that it would consider the claims against the
Town on documentary submissions from the parties.  When Shadan asked
the court if he would have the opportunity to present testimonial evidence
on his claims against the Town, the court responded that it would treat the
constitutional claims "like a motion for summary judgment on the available
documents, if you will, by the town.  If it was denied, then you'd have the
ability to present evidence on it . . . if it's okay if we do it that way."   Shadan
did not object to this procedural course.  His objection to this procedure on
appeal is untimely.  
	[¶12] In considering the merits of Shadan's claim against the Town,
we first examine the relevant factual background.  In 1983 the developer of
the subdivision in which Shadan's land is located submitted the proposal to
the Skowhegan Planning Board as "seasonal lots . . . not for residential
housing."  The Planning Board approved the proposed subdivision with the
condition that "[e]ach owner shall be responsible for his share of the
expense for the general maintenance, repair and upkeep of the right-of-
way . . . ."  The subdivision plat indicates that it is "approved for recording
purposes subject to the conditions set forth below."  Those conditions read: 
"Lots shall be restricted for seasonal use only and shall not be further
divided.  Access way to be maintained by lot owners and shall not become
subject to town maintenance."
	[¶13]  The subdivision developer deeded several lots to Shadan's
predecessor in title.  The deed referred to the conditions listed on the
subdivision plat:

This deed is given subject to the conditions of the Planning
Board of the Town of Skowhegan set forth on said Final Plan of
the Oak Pond Stream Subdivision recorded in the Somerset
County Registry of Deeds in Plan File B-83-078, as follows:
. . .
2.  Lots shall be restricted for seasonal use only and shall not be
further divided . . . .

The contract for the sale of land to Shadan included the following provision: 
"Buyer shall keep, preserve and maintain said property in good condition,
shall not commit or permit waste of said property and shall comply with all
ordinances, regulations and conditions relating to or affecting said
property."  After Shadan purchased his land, he built a house and used it as
his full year residence.	 In March 1995, the planning board denied Shadan's
petition for a variance from the seasonal use restriction on his land.  The
Town refused to grant the variance on the ground that "[t]he road is not
adequate for year round use."{6}  The Town's Land Use Board of Appeals
affirmed the denial of the variance.
Zoning Claim
	[¶14]  Shadan asserts that the seasonal use restriction in force on the
Oak Pond Stream Subdivision is a "de facto zoning" of his land because the
Town has limited the uses to which he is entitled to put his land.  In
support of that contention, he points out that the Town is attempting to
enforce the seasonal use restriction by instituting a procedure pursuant to
M.R. Civ. P. 80K to evict him from his property.{7}  
	[¶15]  The Planning Board was authorized to grant approval of a
subdivision "upon such terms and conditions as it may deem advisable . . .  to
satisfy any other regulations adopted by the reviewing authority, and to
protect and preserve the public's health, safety and general welfare."  30
M.R.S.A. § 4956 (2) (D) (1978) (repealed, Laws 1987, c. 737, § A, 1; Laws
1989, c. 878, § C-25, eff. April 20, 1990.)  The Town's Subdivision
Standards, adopted in 1982, authorize the Board to "impose further
conditions" on a proposed subdivision before approving the application.  See
Mutton Hill Estates, Inc. v. Town of Oakland, 488 A.2d 151, 154-55 n.8 (Me.
1985).  The developer of the Oak Pond Stream Subdivision proposed
restricting the subdivision to seasonal use, and the Board approved that
restriction and continues to enforce it because of the poor condition of road
access to the subdivision.  Regulation of a subdivision is not zoning.  Rather,
such regulation protects the public health, safety, and welfare through the
imposition of reasonable site-specific restrictions that ensure municipal
control by "flexible and practical means."  In re Belgrade Shores, Inc., 371
A.2d 413, 415 (Me. 1977).
Constitutional Taking Claim
	[¶16]  Shadan contends that the Town has placed such a serious
impediment on the use and enjoyment of his land as to constitute a taking in
violation of his constitutional rights.  We disagree.  "We have previously
noted in the zoning variance context that 'the issue is whether strict
compliance with the terms of the Ordinance would result in the practical
loss of substantial beneficial use of the land.'  Leadbetter v. Ferris, 485 A.2d
225, 227-28 (Me. 1984).  This principle is equally applicable in the case of a
subdivision variance request."  Your Home, Inc. v. Town of Windham, 528
A.2d 468, 471 (Me. 1987).  We have never determined that a property
owner is immune from reasonable restrictions on enjoyment of land.  See id.
("Your Home is not entitled to a maximum return on its investment in the
property; rather, it is entitled to some reasonable use.")  Shadan still has
enjoyment of his land on a seasonal basis.  The Town has not unlawfully
taken Shadan's property.  "No taking exists unless the property has been
rendered substantially useless."  Sibley v. Inhabitants of the Town of Wells,
462 A.2d 27, 31 (Me. 1983).
	The entry is:
				Judgment affirmed.

Attorney for plaintiff: Jeffrey P. Towne, Esq. 179 Main Street Waterville, Me 04901 Attorneys for defendants: John W. Youney, Esq. Merrill, Hyde, Fortier, & Youney P.A. P O Box 3100 Skowhegan, Me 04976 (for Jeff & Judy Bowzer) Richard S. Sterns, Esq. P O Box 442 Skowhwegan, ME 04976 (for Town of Skowhegan)
FOOTNOTES******************************** {1} The court ruled in favor of Shadan on his trespass claim against the Bowzers and in favor of the Bowzers on their trespass and related claims against Shadan. The court awarded damages to the parties of one dollar. These claims are not at issue in this appeal. {2} There is ambiguity in the record as to the issue of the Town's acceptance of the road. In 1852 the Town of Skowhegan voted to "accept the road as laid out to Silas Richardson's west line," known as the Richardson Road. Despite the vote to accept the road, the town selectmen refused to lay out and accept a portion of the Richardson Road 112 rods and 17 links in length because of a potential claim for damages by the owner of the land underlying the road. A number of townspeople petitioned the Somerset County Commissioners to order the Town to accept the entire Richardson Road pursuant to R.S. ch. 25, § 34 (1841), which provided: The Commissioners may . . . approve and allow of the way, as laid out or altered by the selectmen, and direct the said laying out . . . and acceptance, to be recorded by the clerk of such town; which shall have the like effect, as if accepted by the town and recorded. The Commissioners ordered the Town to lay out and accept the 112 rod and 17 link portion of the Richardson Road that it had refused to accept. The record does not indicate what action the Town took subsequent to the decision of the County Commiss