In Bayberry Cove Children's Land Trust v. Town of Steuben, No. Was-17-258 (Feb. 27, 2018), the Maine Supreme Judicial Court considered whether the Town's exercise of eminent domain to take an interest to a road the public had apparently been using for decades (if not centuries) was for public use.
A 2013 survey, however, concluded that a part of the road "strayed outside the the bounds of the right of way as laid out by the Town in 1825, 1887 and 1944." Slip op. at 3. The Trust, which owned the land on which that portion of the road was located, filed a quiet title action. In response, the voters of the Town, in a Town meeting (how very New England of them), rejected the Trust's offer to pay the Town $150,000 in return for "discontinuing the road" (we presume that means discontinuing the public use of the road). Instead, the Town voted to take an interest in the road by eminent domain.
Fast forward to the Maine Supreme Court (under Maine's eminent domain process, the decision to take may be challenged immediately, with a fast-track appeal to the SJC). The court first held that the taking was necessary. Or, as Maine calls it, "public exigency." Slip op. at 6 ("Three subsidiary findings are necessary to support a finding of a public exigency: “the taking was necessary; the property interest was taken only to the extent necessary; and the property is suitable for the particular public use for which it was taken.”).
Applying rational basis review, the court easily concluded the taking was ok:
Here, the Town initiated the eminent domain process in response to legal challenges commenced by the Trust concerning the use and ownership of the road. Additionally, the road’s physical location had changed from the boundaries as laid out in 1825 because of the 1887 extension and the 1944 wash-out. The resulting deviation between the record boundaries and a small portion of the physical location of the traveled area of the road was revealed by the 2013 survey. These circumstances reasonably prompted the Town to lay out new boundaries for a relatively small portion of the road. As a result of the historical changes affecting the road, and consistent with a municipality’s authorization to take property for “highway purposes,” which includes the “alignment” of town ways, see 23 M.R.S. § 3021(1) (2017), the Town decided to align the road’s record boundaries with its actual location on the face of the earth.
Slip op. at 7. The taking was voted upon by the citizens (therefore no bad faith shown), and only was for property needed to align the actual location of the road with the legal description. And "suitability" wasn't really an issue because the property has actually been used as a road for a long, long, time.
The public use challenge threw in an additional question: whether the fact that another private owner -- the Sherwoods -- would benefit from the taking because "it is functionally a 'private driveway' servicing the Sherwood property." Slip op. at 11. The opinion assumed the private benefit to the Sherwoods, but held that any benefit to them was "ancillary" and did not render the taking a non-public taking. More fatal to the Trust's claim was its acknowledgement that the road was a public way:
The Trust contends—despite its recognition that the public has an existing right of access over the road—that the road is not public because it does not lead to a destination where the members of the public are entitled to go. The terminus of the road, however, is a bar at the end of a point of land owned by the Sherwoods. As the Town’s Order of Condemnation recites, the general public uses the road to get to the intertidal area located on the Sherwoods’ land. The nature and extent of the public’s use of the road for this particular purpose does not determine the outcome of this appeal because the public nature of the way itself, which is acknowledged by the Trust, allows members of the public to travel—for its own sake—over the road, irrespective of what those people are entitled to do beyond the end of the road.
Slip op. at 11, n.6.
In short, 190 years of actual public use is a tough hurdle to overcome.
We apologize for the slightly misleading headline, since the court did not address whether a taking in order to short-circuit a lawsuit over who owns what is a public use (perhaps because the parties did not raise it or it would likely not have changed the outcome). If A and B assert competing claims to ownership of Blackacre, and B has the power of eminent domain, is it a public use to just take it and settle ownership?