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Gustavus Adolphus College v. D.O.T.
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Decision:1998 ME 173 
on Briefs:April 16, 1998
Decided:	July 14, 1998




	[¶1]  Gustavus Adolphus College (the College) appeals from a judgment
of the Superior Court (Cumberland County, Brennan, J.) granting a motion to
dismiss the College's complaint appealing an award of the State Claims
Commission (the Commission).  On appeal the College contends that the
court erred in concluding that its failure to give notice to the Commission of
its intention to appeal the award, pursuant to 23 M.R.S.A. §156 (1992 &
Supp. 1997), required the dismissal of its complaint.     Finding no error, we
affirm the judgment.
	[¶2]  The relevant facts may be summarized as follows: The
Department of Transportation (DOT) offered the College a total of $15,000
as just compensation for two pieces of the College's property taken for
public purposes by right of eminent domain.  The College requested that the
matter be referred to the Commission pursuant to 23 M.R.S.A. § 154 (1992
& Supp. 1997).  After a hearing, the Commission awarded no additional
compensation and sent a copy of its decision to the College.  By letter of
transmittal, the Commission informed the College of its right to appeal and
stated that 23 M.R.S.A. § 157, a copy of which was attached to the letter,
"describes the procedure to be followed on appeals." Also included with the
letter was a copy of 23 M.R.S.A. § 156 that imposes an additional
requirement that, within 30 days, a party "designate to the Commission the
award or awards from which an appeal will be taken to Superior Court." The
College appealed, filing a complaint in the Superior Court and serving it on
DOT in accordance with section 157.  DOT then moved to dismiss on the
basis that the College had failed to designate to the Commission its intention
to appeal in accordance with section 156.  The Court dismissed the
College's complaint holding that section 156 "requires that the plaintiff
serve the complaint ('designate to the commission the award or awards
from which an appeal will be taken to Superior Court', § 156) within the
same 30-day period."  The College now appeals from the judgment of the
	[¶3]  The Maine Constitution forbids the taking of private property for
public use without an award of just compensation. Me. Const. art. 1, § 21
(Supp. 1997).  A proceeding to assess the amount of just compensation,
however, is not a 'civil suit' and there is no constitutional right to a trial by
jury.  See Kennebec Water District v. Waterville, 96 Me. 234, 249, 52 A.2d
774 (1902). In the absence of any constitutional limitations, the Legislature
may prescribe the terms, conditions and methods for the evaluation of just
compensation for the taking of private property.  Id. at 246.
	[¶4]   In the circumstances of the present case, DOT is authorized to
take private property and hold it as part of a State highway system.  23
M.R.S.A. §153-B (Supp. 1997).  If a dispute arises concerning an offer of just
compensation proposed by DOT, a landowner may have the matter referred
to the Commission{1} for an assessment of the damage.  23 M.R.S.A. §
154(3)(F) (Supp. 1997).  
	[¶5] Although the College followed the appeal procedure set forth in
section 157 and served a complaint on DOT, it failed to give any notice to
the Commission of its intention to appeal.  The College now argues that (1)
notice is not required; (2) the Commission misled it by referring only to
section 157 in its notice of award; and (3) compliance is impossible because
section 156 is ambiguous. 
	[¶6]  We find no basis for ignoring the plain requirement of notice set
forth in section 156.  The letter the Commission sent to the College
describing the appeal process is not required by statute.  Cf. Seider v. Bd. of
Exam'rs of Psychology, 1998 ME 78, ¶ 5,     A.2d      ,      , (statutorily
required notice of right of appeal given mandatory effect).  Even though the
letter referred only to section 157, a copy of the relevant portion of section
156 was included.  With regard to the ambiguity of the term "designate," it
is undisputed that the College failed to provide any form of notice to the
Commission.  We have no occasion to define the term "designate" precisely,
but we reject the court's conclusion that it is synonymous with "serve." 
"Service" has a specific and distinct legal meaning that is defined in the
statute:  "Service as required by this section [§156] must be made in the
manner prescribed by Rule 5 of the Maine Rules of Civil Procedure." 23
M.R.S.A. § 156.  The Legislature's failure to specify "service" in the context
of notifying the Commission indicates that formal service as prescribed in
the Rules of Civil Procedure is not required.  Certainly, any form of timely
written notice would serve the evident statutory purpose of insuring proper
distribution and payment of the award.
	 The entry is:
					Judgment affirmed.

Attorney for plaintiffs: Richard G. Cervizzi, Esq. P O Box 836 Scarborough, ME 04070-0836 Attorney for defendant: Eugene W. Murray, Esq. Legal Division Department of Transportation 16 State House Station Augusta, ME 04333-0016
FOOTNOTES******************************** {1} Section 151 establishes the State Claims Commission as a neutral organization to evaluate and determine "the fair market value of property taken in condemnation proceedings. . .." 23 M.R.S.A. § 152 (1992).