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McTeague v. D.O.T.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 183	
Docket:	Sag-00-195
Argued:	October 5, 2000
Decided:	October 27, 2000




	[¶1]  Patrick McTeague, G. William Higbee, Maurice A. Libner,
Jonathan W. Reitman, James J. MacAdam, and James W. Case, trustees of the
17A Realty Trust (collectively, the trustees), appeal from a judgment in the
Superior Court (Sagadahoc County, Humphrey, J.) vacating the decision of
the State Claims Commission which had determined that just compensation
for the taking of their property was $274,138 and finding instead that just
compensation was $203,500.  On appeal, the trustees contend that the
court erred in determining the amount of the award and in failing to award
them attorney fees.  Because the determination of the amount of the award
is supported by the record, and the refusal to award attorney fees was
proper, we affirm the judgment.
	[¶2]  The trustees own a five-lot subdivision originally consisting of
11.35 acres located on the north side of Route 196 in Topsham, Maine.  The
subdivision was approved in 1987 and is intended for commercial
development.  The trustees improved the property by putting in an access
road, water, sewer, and electricity, at a cost of approximately $300,000. 
	[¶3]  On March 20, 1995, the Maine Department of Transportation
(MDOT), pursuant to its powers of eminent domain, 23 M.R.S.A. § 154
(Supp. 1999), acquired 1.59 acres of the Trust's property for the Topsham
Bypass Project, a new highway connection that required realignment and
improvement of Route 196.  The property taken consisted of .40 acres from
lot 1; 1.05 acres from lot 5; and .14 acres from the entrance road to the
subdivision.  Lot 5 was reduced to .43 acres making it smaller than the
town's minimum lot size requirement.  Therefore, lot 5 was combined with
lot 4.  Lot 1 was reduced to 1.72 acres, but remained a buildable lot under
the town's requirements.  
	[¶4]  The MDOT tendered $150,000 to the trustees as required by
23 M.R.S.A. § 154.  The trustees believed the amount to be inadequate. 
Accordingly, the issue of whether the sum was just compensation was
referred to the State Claims Commission pursuant to 23 M.R.S.A. § 155
(1992).  After a hearing, the Commission determined that damages to the
trustees from the taking were $274,138.  Adding interest and crediting the
$150,000 the State had already tendered, the additional award totalled
$139,619.54.  The MDOT then appealed to the Superior Court pursuant to
23 M.R.S.A. § 157 (1992 & Supp. 1999).
	[¶5]  After a nonjury trial, the Superior Court entered judgment
finding that just compensation was in the amount of $203,500, including
interest.  The court credited the $150,000 the State had tendered,
resulting in an order for further payment of $53,500.  The court also
awarded MDOT its costs for the appeal pursuant to 23 M.R.S.A. § 157.  The
court denied the trustees' request for attorney fees.
	[¶6]  The trustees filed a motion for further findings of fact and a
motion to alter or amend the judgment.  The Superior Court denied both
motions and awarded costs to MDOT in the amount of $1,607.17.  The
trustees appealed to this Court.
	[¶7]  Where property is taken for public use, an owner is entitled to
receive just compensation.  Me. Const., art. I, § 21.{1}  On appeal from the
State Claims Commission, the Superior Court conducts an independent  "de
novo" determination of the just compensation award.  23 M.R.S.A. § 157. 
The trial court's findings as to just compensation pursuant to section 157
will be affirmed unless review of the record demonstrates that (1) there is
no competent evidence in the record to support the findings; or (2) the
findings are based on an improper application of the law to the just
compensation calculation process.  See Merrill Trust Co. v. State, 417 A.2d
435, 440-43 (Me. 1980).  See also Hall v. Board of Environmental
Protection, 528 A.2d 453, 455 (Me. 1987).  When the record includes
differing evidence as to the value of damages, a trial court may make an
independent judgmental approximation of the damages based on all the facts
and circumstances of the case.  See Merrill Trust Co., 417 A.2d at 441.  A
just compensation award based on a judgmental approximation is proper if
"the evidence establishes facts from which the amount of damages may be
determined to a probability."  Id. 
	[¶8]  The measure for just compensation in a partial takings case is
the difference between the fair market value of the property immediately
before the taking and the fair market value of the property remaining
immediately after the taking.  See August Realty, Inc. v. Town of York, 431
A.2d 1289, 1292 (Me. 1981).  The fair market value of the property taken is
determined at the time of the taking.  See Orono-Veazie Water Dist. v.
Penobscot County Water Co., 348 A.2d 249, 253, 255 (Me. 1975). 
	[¶9]  The court examined comparable sales of other property and
found some of these sales to be relevant in assessing the value of the
trustees' property.  The court properly adjusted the comparable sales
according to such variables as the date of sale, size, proximity, deed
restrictions, and geographic influences as well as changes in the economy
and market conditions.  As factfinder, the court was not obligated to fix the
value of the trustees' property at a number close to those of the comparable
sales, but was permitted to use them to inform its decision.  See, e.g.,
Merrill Trust Co., 417 A.2d at 439-40.  The court's conclusion as to value
may differ from the competing experts' estimates so long as it is supported
by the evidence.  See id. at 440, 441.  
	[¶10]  In calculating damages, the court did not improperly discount
the increased value to the trustees' property, due to the bypass project, in
determining the award.  Pursuant to 23 M.R.S.A. § 154-A (1992), any
decrease or increase in the fair market value prior to the date of valuation
caused by the public improvement for which such property is acquired, or
by the likelihood that the property would be acquired for such
improvement, must be disregarded in determining just compensation for
the property.  Here, the court discounted only the amount of a post-taking
comparable sale to properly adjust for the increase in value from the project. 
No improper discounting was made in valuing the trustees' property itself. 
Therefore, the court had competent evidence to support its finding as to the
value of the property taken, and its award of just compensation was not
error.  Having adequately stated the factual basis for its conclusions in its
decision, the trial court also did not err in denying the trustees' request for
further findings.  See Kleinschmidt v. Morrow, 642 A.2d 161, 164 (Me.
	[¶11]  Attorney fees are awarded only when there is a contractual
relationship allowing for the award of such fees or where there is explicit
statutory authorization.  See Mancini v. Scott, 2000 ME 19, ¶ 10, 744 A.2d
1057, 1061.  See also Goodwin v. School Admin. Dist. No. 35, 1998 ME 263,
¶ 13, 721 A.2d 642, 646 ("a statutory right to recover attorney's fees will be
found only in the clearest kind of legislative language") (quoting Vance v.
Speakman, 409 A.2d 1307, 1311 (Me. 1979)).  No contractual relationship
existed here, so our analysis focuses on whether section 157 explicitly
authorizes the trustees to receive attorney fees.
	[¶12]  The trial court found just compensation for the trustees in the
amount of $203,500, which was less than the $274,138 they had received
before the State Claims Commission.  Both of these awards were more than
the $150,000 that was initially offered by the MDOT.   
	[¶13]  Paragraph two of 23 M.R.S.A. § 157 addresses the awarding of
attorney fees, stating "if the department appeals and if the department does
not prevail, interest where such is due and costs shall be paid by the
department and the owner or owners shall be reimbursed by the
department for a reasonable attorney's fee."  (Emphasis added.)  The award
of attorney fees therefore depends upon who must be considered the
"prevailing party" under section 157.  Specifically, if the award by the State
Claims Commission is reduced upon appeal, but is still larger than the initial
offer, the issue is whether the MDOT or the owner should be considered to
have prevailed.
	[¶14]  Section 157 addresses only appeals from the State Claims
Commission to the Superior Court.  Taken in that context, the MDOT would
not prevail on its appeal from a State Claims Commission award where the
Superior Court either (1) did not reduce the State Claims Commission
award; or (2) increased the State Claims Commission award, as the court
would be authorized to do on a de novo appeal.  Here, the Superior Court, on
the MDOT's appeal, reduced the State Claims Commission award, making
the MDOT the prevailing party on the appeal. 
	[¶15]  Consequently, applying the requisite narrow interpretation of
the attorney fees authorization in 23 M.R.S.A. § 157, the trustees are not
entitled to attorney fees.  See Mancini, 2000 ME 19, ¶ 10, 744 A.2d at
	The entry is:
			Judgment affirmed.
Attorneys for plaintiffs: Nicholas Bull, Esq., (orally) F. Jay Meyer, Esq. Thompson, Bull, Furey, Bass & MacColl, LLC, P.A. P O Box 447 Portland, ME 04112-0447 Attorneys for defendant: Michael R. Bosse, Esq., (orally) Rebecca H. Farnum, Esq. Thompson & Bowie P O Box 4630 Portland, ME 04112-4630
FOOTNOTES******************************** {1} . Section 21 reads as follows: Section 21. Private property shall not be taken for public uses without just compensation; nor unless the public exigencies require it. Me. Const., art I, § 21.