Eminent Domain
(from Maine Townsman, "Legal Notes," August 1992)
by Ellerbe Cole

This Maine Municipal Association publication is presented for "Classroom Use Only."  Its intended use is to stimulate and aid in discussion and role playing within a classroom setting.

The Maine Constitution, Art. I, Sec. 21 provides: "Private property shall not be taken for public uses without just compensation; nor unless the public exigencies require it." A number of state laws authorize eminent domain. They are summarized in this note. Mention is also made of some repealed eminent domain laws.

Before setting out the statutes, several points merit mention. First, in most circumstances a municipality should seek to purchase the land or interest in land by agreement with the landowner(s) before exercising the power of eminent domain. (23 MRSA Section 3023 requires efforts at negotiated purchase and sale unless the municipal officers determine that "public exigency requires the immediate taking" of the property interest concerned.) Second, the statutes should be reviewed carefully, to ensure that any limitations on the particular power exercised are understood. Third, a municipality embarking on an eminent domain taking should consider engaging legal counsel to assist the town in the process and to ensure that all parties with an interest in the real estate that is to be taken are identified. Fourth, the services of a competent real estate appraiser should be engaged. The appraiser should be willing to defend her appraisal in court if necessary (and should be prepared to point out deficiencies in any appraisal done for the landowner); and, preferably, the appraiser should be experienced in such courtroom "Battles of the experts." Fifth, a condemnation order must be filed with the municipal clerk, and necessary monies must be appropriated. Moreover, in municipalities where the town meeting has the legislative power of appropriation, the voters must, at a properly called meeting, approve an article generally describing the property interest to be taken and stating the amount of the damages to be paid. The town meeting may not amend the article except to increase the amount of damages to be awarded. (This is the rare exception to the general rule of town meeting procedure that an article stating a specific amount cannot be amended to increase the amount.) These procedural ground rules concerning condemnation orders and town meeting (and there are other rules, which should be reviewed) are set out in 23 MRSA Section 3023, which is usually invoked as the source of procedures by the subject-matter-specific statutes listed below. In each case, however, check the subject-matter-specific statute to see if it includes any variations on the basic procedure.

Here are the general statute giving eminent domain powers to municipalities, and some related statutes setting out the procedure for takings under the general statute.

30A MRSA Section 3101: This is the general eminent domain statute. It should be used when no other, more subject-matter-specific statute is available (they are listed below). Note that it includes limitations which generally do not apply to the other statutes. The principal limitation is that eminent domain power may not be exercised under this statute if at the time of the taking the owner or the owner's family resides in a dwelling house located on the land. The other limitation is that, with one exception, land taken under this statute may not be used for any purpose other than the purposes for which it was originally taken (The exception is that land taken for a public park may, on the majority vote of the municipal legislative body, be conveyed to the Federal Government to become part of a national park ). Section 3101 takings are expressly to be accomplished by the procedures for the taking of land or interests in land for a town way. These are set out in 23 MRSA Sections 3021 et seq.

23 MRSA Section 3024: Recording of eminent domain proceedings. This statute provides that no municipal taking shall be valid against owners of record or abutters who have not received actual notice, unless there is recorded in the registry of deeds for the county where the land lies either a deed, or a certificate attested by the municipal clerk, describing the property and stating the final action of the municipality with respect to it. (This was formerly 23 MRSA Section 3503.) 33 MRSA Section 654 authorizes the register of deeds to accept for filing Certified copies of the proceedings of any. . . municipal body . . . through or by which the right of eminent domain "is exercised" to affect the title to real estate as this statute certainly governs takings for town ways or public easements, and takings under 30A MRSA Section 3101, as well as takings under any other statutes that specifically refer to chapter 304 of Title 23. It may apply more broadly, to any taking Consultation with MMA Legal Services staff or another attorney is advised on this point.

23 MRSA Section 3029: Damages and appeals. This statute provides that damages (the compensation to be paid for a taking) shall be determined using the methods of 23 MRSA Sections 154 through 154E. It also authorizes appeals by any person aggrieved either by the determination of the amount of damages for a taking or by the action or nonaction of municipal officers or a municipal legislative body, and it sets or incorporates by reference the deadlines for filing the two kinds of appeals allowed. Like 23 MRSA Sections 3021 and 3024, this statute would apply to any taking under 30A MRSA Section 3101, and may apply to takings under some of the other statutes mentioned below.

Here, with only a few, brief comments, are the subject-matter-specific statutes authorizing eminent domain:

13 MRSA Sections1181-1184: Cemeteries

20A MRSA Sections 16101-16105: Schools.

23 MRSA Section 2801: Landings.

23 MRSA Section 2802: Parking places.

23 MRSA Sections 3021-3024: Town ways, public easements.

23 MRSA Section 3151: Bridle paths trails.

23 MRSA Section 3251: Ditches, drains and culverts—land or easement for them to divert water away from roads.

30A MRSA Section 3102: Erosion control and navigation.

30A MRSA Section 3252: Trees along ways and water. Note that an issue with this statute is whether the limitations of 30A MRSA Section 3101 (discussed above) apply.

30A MRSA Section 3351: Public dumping grounds.

30A MRSA Section 3402: Sewers and drains (for sewage); compare 23 MRSA Section 3251, listed above.

30A MRSA Section 3510: Transit district eminent domain powers.

30A MRSA Section 4746: Housing authority eminent domain powers.

30A MRSA Section 5108: Urban renewal authority eminent domain powers.

30A MRSA Section 5403: Parking facilities, water and sewer systems, telecommunications systems, airports, and energy facilities under the Revenue Producing Municipal Facilities Act. Note that interests in land can also be taken for parking places under 23 MRSA 2802, listed above.

38 MRSA Sections 1151-1154: Sanitary district eminent domain powers.

Additional notes:

23 MRSA Section 3026: Discontinuance of roads. Note that this requires the payment of money damages, if any are due. Road discontinuance involves procedural steps that are borrowed from the eminent domain laws relating to creation of a public roadway. See discussion in MMA's Municipal Roads Manual.

23 MRSA Section 2103: The "Lost Boundaries" statute. This is the statute that effectively authorizes municipal officers to treat a town way or public easement as a 3-rod road, centered on the center line of the traveled portion of the way, where the true boundaries cannot be ascertained. It provides that where the municipal officers use a portion of the way that is outside the improved (i.e., built or wrought) portion but still within the one and one-half rods on a side of the center line, "they shall award damages to the owner as provided in section 3005." Section 3005 is now 23 MRSA Section 3029, discussed above.

30A MRSA Section 3201: Acquisition of lands for forestation or forest reclamation. This is not an eminent domain statute. It provides only that municipalities may "acquire" (i.e., buy) lands "for forestation or reclaiming and planting forest trees." Where a landowner is unwilling to sell, however, as with any public municipal purpose, a municipality can use 30A MRSA 3101, the general eminent domain statute, discussed above. The advantage of the existence of this statute is that there should be no controversy in such a taking that the taking is for a public purpose—the existence of Section 3201 is tantamount to a legislative declaration that acquisition of lands for forestation or for forest reclamation is for a public purpose.

23 MRSA Sections 3501 and 3502: Land and materials for highway construction. These have been repealed and, in effect, replaced by 23 MRSA Sections 3021-3024. Note that although repealed Sections 3501 or 3502 seemingly made clear that a town could take land for road construction materials (e.g., gravel), that is not clear under the current 3021-3024. For that reason, it is perhaps advisable that 30A MRSA 3101, and not 23 MRSA 3021-3024, be used for obtaining materials (alternatively, use the 2 in conjunction). Of course, the use of Section 3101 will subject the taking to the limitations in that statute.

23 MRSA Sections 2252 and 2303: These statutes authorized eminent domain for toll houses and ferries, respectively. They were repealed in 1981, and apparently have not been replaced by any statute which confers express eminent domain power in this area.

30 MRSA Section 3552: Eminent domain power could be inferred for recreation purposes from this statute. It was repealed before the re-codification of Title 30 into the new Title 30A, and no counterpart is now known. Use 30A MRSA Section 3101 for recreation eminent domain purposes.

30 MRSA Sections 4001-4003: Parks, playgrounds, libraries and buildings for municipal purposes. Like 30 MRSA Section 3552 (immediately above), these were repealed before the re-codification of Title 30 into Title 30A, and no counterpart is now known. Use 30A MRSA Section 3101 for these purposes.

14 MRSA Section 868: Statute of limitations. This statute establishes an outside time limit for commencing a suit for damages caused by a taking. The limit is 3 years after the cause of action for damages occasioned by an eminent domain taking first accrues to a plaintiff. It also limits any claims to compensation to the 3 years preceding the commencement of the action for damages. The statute is an affirmative defense and as such must be raised by a defendant municipality, else it is deemed to have been waived as a defense to an action. This statute appears to apply to all takings. For formal, direct eminent domain takings, much shorter times than this 3-year limit are established by statute or rule of court for appeals.