Johnson v. Town of Dedham

490 A.2d 1187, 1985 Me. LEXIS 689
CourtSupreme Judicial Court of Maine
DecidedApril 9, 1985
StatusPublished
Cited by14 cases

This text of 490 A.2d 1187 (Johnson v. Town of Dedham) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Town of Dedham, 490 A.2d 1187, 1985 Me. LEXIS 689 (Me. 1985).

Opinion

ROBERTS, Justice.

The Town of Dedham appeals from a Superior Court judgment which vested Philip D. Johnson with fee simple title to four parcels of land that Dedham claims it acquired through tax liens recorded between 1948 and 1950. The parcels are located in the Lucerne-in-Maine Village Corporation which is situated within the Town of Dedham. On appeal, Dedham contends that the Superior Court erroneously concluded that (1) Johnson’s action was not time-barred by 14 M.R.S.A. § 801 (1980), 14 M.R.S.A. § 816 (1980), or by the doctrine of laches; (2) a specific finding that Johnson, and those through whom he claimed, possessed the land for at least four years was unnecessary; (3) Dedham’s tax liens were invalid because they inadequately described the subject real estate; (4) one of the tax liens was invalid because it related to two separate and non-contiguous parcels; and (5) a tax lien recorded by Lucerne prior to a lien recorded by Dedham vested title to that property in Lucerne, thereby enabling Lucerne to convey a fee interest to John *1189 son. The parties stipulated that Johnson has record title to all of the property in question subject to the effect, if any, of the Dedham tax liens. We affirm the judgment of the Superior Court.

I.

Dedham contends that Johnson’s action is barred by 14 M.R.S.A. § 801 (1980), 14 M.R.S.A. § 816 (1980), and by the doctrine of laches. Title by adverse possession may be established either under the common law or pursuant to statutory provisions. See John Wallingford Fruit House Inc. v. MacPherson, 386 A.2d 332, 333 (Me.1978). Possession that is sufficient to convey title by adverse possession must be “actual, open, notorious, hostile, under claim of right, continuous, and exclusive for a period of at least twenty years.” Glover v. Graham, 459 A.2d 1080, 1084 n. 7 (Me.1983) (citing McMullen v. Dowley, 418 A.2d 1147, 1152 (Me.1980)).

Section 801 is a twenty-year statute drafted.in terms of an absolute statute of limitations which we have interpreted to be subject to the general elements of adverse possession. Inhabitants of School District No. 4 v. Benson, 31 Me. 381 (1850). Section 816 provides a statutory standard for uncultivated lands situated in incorporated places where the adverse possessor for twenty years (1) claims the land under a recorded deed; (2) pays all taxes assessed on the land; and (3) holds such exclusive, peaceable, continuous and adverse possession of the land as comports with ordinary management of such uncultivated lands in this state.

The practical effect of Dedham’s contention is that a municipality claiming title under an invalid tax lien can acquire the land from the true owner unless that owner commences a lawsuit within twenty years after imposition of an invalid lien. However, an action brought under section 801 accrues when a person is disseized. 14 M.R.S.A. § 803(1) (1980). Because Dedham exercised no acts of possession over the land and because an invalid tax lien cannot operate to disseize a landowner, the limitations period under sections 801 and 816 had not yet begun.

Laches is negligence or an omission seasonably to assert a right. Stewart v. Grant, 126 Me. 195, 201, 137 A. 63, 66 (1927). It is “an omission to assert a right for an unreasonable and unexplained length of time and under circumstances prejudicial to the adverse party.” A.H. Benoit & Co. v. Johnson, 160 Me. 201, 207, 202 A.2d 1, 5 (1964). There is no indication in the record that Dedham has been subjected to prejudicial circumstances by Johnson’s failure to obtain what is, in effect, a judicial declaration that Dedham’s tax liens are invalid. In fact, the doctrine could be asserted more properly against Dedham for its failure to establish possession of and title to the property since the last period of redemption expired in 1952.

II.

Dedham argues in the alternative that the Superior Court erred in failing to require that Johnson prove uninterrupted possession of the land by himself or those under whom he claims for at least four years as required by 14 M.R.S.A. § 6651 (1980). Because Dedham first raised this issue in its brief filed with the Law Court, we decline to decide the question. We have no reason to depart from the “well-settled rule of sound appellate practice ... that a party who seeks to raise an issue for the first time on appeal ... will be denied appellate review....” Emerson v. Ham, 411 A.2d 687, 690 (Me.1980) (citing Mandarelli v. McGovern, 393 A.2d 533, 536 (Me.1978)).

Although we are not required to address this issue, we note that the record reveals sufficient evidence of Johnson’s possession to satisfy the statutory requirement. Section 6658 of title 14 provides that if the disputed real estate is wild land, the proof must be of “such open, exclusive, peaceable, continuous and adverse possession thereof as comports with the ordinary *1190 management of wild lands in this State....” Johnson’s testimony that he had cut wood and permitted others to pick berries and clear trees blown down along the boundary of the three parcels described in his complaint 1 demonstrates behavior consistent with ordinary management of wild lands.

III.

Dedham maintains that the Superior Court erred in concluding that the tax liens allegedly pertaining to two of the four parcels of property were invalid because they inadequately described the property. Liens to secure the payment of real estate taxes are authorized by 36 M.R.S.A. § 552 (1978) “provided ... there shall be a description of the real estate taxed sufficiently accurate to identify it.” Id. Furthermore, the notice of a tax lien and the tax lien certificate must contain a description of the real estate. 36 M.R.S.A. § 942 (1978), amended by 36 M.R.S.A. § 942 (Supp.1984) (amendments not relevant to this action).

Dedham claims to have acquired title to a 275 acre parcel by virtue of two tax liens. The first tax lien described the property as “275 acres more or less in Temple Survey (formerly Lucerne-in-Maine Community Association) Mann Lot.” The second lien describes the property as “275 acres more or less, in Temple Survey (Formerly Lucerne-in-Maine Community Association) Mann Lot. See Han. Registry of Deeds, Book 649, Pg. 143.”

The “Temple Survey” is not in existence either in the Hancock County Registry of Deeds or in the Dedham Town Office. The “Mann Lot” is located on a current survey known as the Hagan Plan, but it is not the property intended to be described in the liens.

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Bluebook (online)
490 A.2d 1187, 1985 Me. LEXIS 689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-town-of-dedham-me-1985.