Thursday, March 17, 2016

 ABANDONED OR DISCONTINUED ROADS CAUSE MAINTENANCE & ACCESS ISSUES

Is an abandoned or discontinued road causing access or maintenance problems?  Not sure if it’s discontinued? Seeking remedies? Then this is the place for you. 

WELCOME TO MAINE ROADWAYS! We are here as a gathering place and information resource for Maine residents and landowners who must deal with roads that are discontinued, abandoned, and/or have been designated "public easements." These roads often are used freely by the public, but are kept in repair at the expense of the owners of abutting land, who often have little recourse when public use destroys their access. 

Researching a road?  There are many resources you can use to determine the actual legal status of a road.  For suggestions as to how to go about it, go to our Research page.

Looking for the applicable Maine law?  Maine laws related to discontinued and abandoned roads are scattered through several Titles.  You'll find most of the relevant ones here.  For an index of road laws, go to our Statutes page.  From there you can probably find whichever law you're looking for.  For explanations of how those laws apply, go to the pages on Discontinued Rd, Abandoned Rd, or Public Easements.   

Looking for remedies for road problems? Try the Solutions page.  Scroll down for a variety of possible solutions, depending on what specific problem you are having.

Need tips on road maintenance? You'll find them on the Maintenance Tips page.

Want to see what other discontinued roads look like?  You'll find plenty of examples on the Photos page.

Need some comic relief?  Check our Contests page.  Might as well have a bit of fun while we're at it!  To see other people's entries go to the Contest Entries page.

DISCLAIMER: We are not lawyers, and cannot give legal advice or interpret law, but we have decades of experience and can tell you where to find relevant laws, help you understand possible remedies, show you how to research the legal status of a road, and generally commiserate! Our hope is that by banding together we can get legislation passed which will put an end to the injustices caused by these roads.

For updates, photos, and more, check out our facebook page, Maine ROADWays.


Maine ROADWays' Motto is, "Build a better public easement and the world will BEAT the pathway to your door!"


11 comments:

  1. This organization has been instrumental in providing me with some direction when I had never encountered such a thing as a discontinued road. Everyone should learn how to access the tools needed to find out about one's property rights, deed research, laws, etc. Wonderful organization!

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  2. We live in Hartford and Cary Hill Rd runs through our property and then alongside our property line. Our neighbor thinks his land butts against our and all of the road is his. I think our property lines are back from the center of Cary Hill equidistant from each other and no one owns it. I went to Registry of deeds and looked at description of all discontinued roads but couldn't find any that sounded like Cary. In his deed it says Hollis Rd. Any other suggestions?

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    1. Welcome to Maine ROADWays! Unfortunately I will be out of town for the next couple of days, but will get back to you when I'm back. My husband will be here, but he doesn't type! In the mean time, Here are some things you can look into. Go to the Registry of Deeds website (there is a link in my links column) and trace your deed and your neighbor's deed back to see how the land was divided. Does his deed say he owns the full width of the road? Do any of the deeds even mention the road? If you can trace the deeds back far enough, can you find if the land divided on your side of the road before the road was laid out? Generally when a road is discontinued, the land either reverts to the owners on each side to the center line, or becomes a "public easement," depending on the date of the discontinuance or abandonment. The exception would be if the road was taken entirely from the property on one side initially. I will look into it more and get back to you in a few days. You might also want to look at the Maine ROADWays facebook page. You don't need to have a facebook account to view it, but if you do have an account, you can send me a message from there and I can private message you back. You can also email me with more detail at roadways@juno.com.

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  3. Here's what I've been able to find out so far: I have a contact in Hartford who says that road was abandoned by the Town a long time ago. The question is, how long? I went to historicaerials.com, and their 1958 topo map shows it as still being a through road. However, I have found that the topo maps don't always have up to date info, so then I looked at their aerial photos. The earliest they have of that area is 1963, and the abandoned section of road seems to be pretty much gone by then, which makes me think it already had not been used for a very long time as of 1963, so probably it was not actually a passable road in 1958. Now here's where it gets tricky. Statutory abandonment requires 30 years of not being kept in repair by the Town. A road that has been abandoned pursuant to statute remains a public easement, that is, it remains open to public use but the public no longer provides maintenance. Common law abandonment, on the other hand, requires only 20 years, but depends on lack of use rather than lack of maintenance. A road that has been abandoned by common law ceases to exist as a road, with the property returning to the land from which it was taken. Courts have declared that in either case, abandonment does not occur until the END of the period of abandonment, not the beginning. According to 23 MRSA section 3028, the earliest a road could be abandoned under that statute would be 1976, which would mean it had to have been unmaintained since 1946. Maine Municipal Association (MMA) interprets the law as intending that any road abandoned after 1965 became a public easement due to the fact that section 3028 refers to section 3026, which retained public easements on roads formally DISCONTINUED after 1965. I disagree, because I don't see how you can apply section 3028 for ten years before that law came into existence. (But I am not an attorney and am not allowed to interpret law, so this is just my opinion.) The way I see it, a road that was not used from as late as 1955 to 1975 would have been abandoned by common law, with no easement retained. (I think it's safe to say the road had been unused for at least that long.) By MMA's figuring, the latest a road could be abandoned without easement would be from 1945 to 1965. That will be harder to prove. But assuming the road was abandoned by common law and not statutory law, the next question is whose land was the road taken from originally? Unless it was all taken from the land on one side of the road, the land would revert to the owners on each side to the center line. That's where the deed research is important. You could also try going back through town warrants to try to find the original layout of the road. That record may or may not exist, but if you can find it, it should pinpoint whose land the road was taken from. If it ran through one person's land, which was later divided at the road, then you would have to examine the deeds to see if the land was specifically sold to one edge of the road, with the land on the other side retaining the land under the full width of the road.

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  4. There is one other possibility, which is that the other landowner is claiming a right by adverse possession or prescription. These claims both require a twenty year period during which the claimant has put the land to his own use, in conflict with the purposes of the actual owner of the land. A claim of adverse possession requires that the true owner of the land has to have tried to prevent the other person from using it, but been unsuccessful. A claim of prescription requires that the true owner has to have acquiesced to the other person's use, or that the use was "so open, notorious and uninterrupted that acquiescence will be presumed." The one loophole is that if the owner of the land actually gave the other person PERMISSION to use it, then it becomes permissive use and the user can never acquire a right because his use is not adverse to the purposes of the owner. If you can find evidence to support your claim to own to the center line, you would probably then have to file a "quiet title" suit to have the determination made by a court. Fortunately, unless someone is claiming there is still a public easement over the road, a quiet title suit should not be as expensive as when public rights are an issue. Let me know how things go for you. By the way, Maine ROADWays has a list of email addresses of people interested in being notified when there is pending legislation regarding abandoned or discontinued roads. Would you like to be added to the list? We're always looking for people to testify as to how these roads are causing problems. If you'd like to be on the list, send an email to roadways@juno.com, and put "roadways" in the subject line. Hope this helps!

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  5. Morning, I was wondering if you could give me some guidance on direction. We have a camp on the Hangtown rd in The Forks Plantation. Just recently we've had some of our neighbors move into their places on a full time basis. Our rd, The Hangtown rd is also used for the main ITS snowmobile trail, Local ATV trail, occasional winter logging and access for vehicles to get to the Appalachian Trail crossing. With all this traffic over the last 5-8 years the road has gotten pretty bad. We have taken it upon ourselves to higher a local excavation company to come in and grade and crown the road for proper drainage and vehicle travel and winter plowing. We did this at our sole expense but not prior to asking all of our neighbors if they were ok with us doing this, which they were all excited. Well, the old timer that lives at the start of the Hangtown rd (starts in Caratunk and within a few hundred feet crosses into The Forks Plantation) has confronted me and said that he owns the road and that I had no authority to fix the road up. He states the nor the town, county or state claim ownership to the road so it reverts to him. I've been told this road has existed for over a 100 years He is now threatening to put up a gate or a rock in the middle of the road. After looking at some of the tips you've provided in your site I cannot determine if the road was abandoned or discontinued. I have a few calls into the town selectman to see if they can give me any information. I'm a Realtor in Southern Maine and have see times of Adverse Possession being awarded and now understand the Public Easement as well. Any info or guidance you can give would be much appreciated. Thank again.

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    1. Asking the selectmen is a good place to start. Was the road ever a town road? If so, was it ever officially discontinued, and if so, when? If not, has the road been officially declared abandoned? If they can't tell you anything, you're going to have to do some digging. Does anyone else have a deeded right to the road? How long have you been using the road for access to your property? How long have the camps been there, and how long have their owners been using the road for access? At the right hand edge of my home page there are a bunch of links to sites that have historic maps, and you may be able to find out from them how long ago the road may have been discontinued. In order to establish either a right by adverse possession or a right by prescription, there has to have been twenty years of continuous use. The difference, as I understand it, is that you can only establish a right by adverse possession if the owner of the land has tried to stop you from using his land, and you have used it anyway in a manner that conflicts with the use to which the owner would have put the land. (For example, if he wanted it as his private driveway, and you wanted to use it as a through road.) A right by prescription, on the other hand, can be gotten when the owner of the land has acquiesced to your use, or when your use has been "so open, notorious and unobstructed that acquiescence will be presumed." In other words, if you have been using it for the last twenty years and he hasn't tried to stop you until now, he may be too late to stop you now. If you have not used it for twenty years but your predecessors in title also used it, you can "tack" the years they used it onto the years you used it in order to reach the twenty year mark. I'll do some poking around and see if I can find anything. You can contact me with more detail at roadways@juno.com.

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    2. So I called one of the selectman yesterday and received the small town greeting. LOL. "We don't have those files and the land was given to the abutters so they own to the middle of the road". So, I'm assuming discontinued or abandoned is out the window at this point. All of the camps on our road have been there since the early 50"s. So the Prescriptive easement would take hold. I also found some verbiage that we all that have the right to the prescriptive easement have the right to maintain the road to 60ft off the center line in both directions or to the "old" property line of the abutters that were granted the land. Do you somewhat agree with my thoughts? What a mess !! I live in southern Maine and try to get away from this by going north to camp and it seems as though its worse in that neck of the woods.

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    3. Doesn't sound like that selectman will be much help, but I'd ask the others, to be sure. I wonder what he meant by, "We don't have those files?" Does he mean the town doesn't have records of past Town meetings? Or that they don't have records of who owns that particular road? Where did you find the verbiage that you all have the right to use and maintain the prescriptive easement? If it's a legitimate document and not just what someone said, that could be the key to solving the problem. We have been told by many people that Maine law prohibits land locking any property, or that it's illegal to sell a landlocked parcel, but no one has been able to show us where that exists in the law. There are certainly Constitutional issues with depriving someone of access to their property, but the existence of a specific law prohibiting it seems to be an urban legend. One reservation I have about the language you found is that most town ways were laid out at 3 rods, or 49 1/2 feet. Most county ways were laid out at 4 rods, or 66 feet. Either way, maintaining the road "60 feet off the center line in both directions" sounds like 120 feet total. That would either be an overstepping of the bounds, or ambiguaous grammar for, "to the width of 60 feet, 30 feet on either side of the center line." How reliable is your source?

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  6. The "Get Maps/Topo View site shows the road as being in existence with buildings along it as early as 1905. Later maps sometimes show it as a double dotted line, sometimes as a single dotted line, sometimes as a Jeep Trail or 4WD, but it always shows as being in existence. On the other hand, it never shows it as a double solid line except for the first bit, and that only on a couple of the maps that I viewed. That makes me think it may never have been a public road, but it has provided the sole access to multiple properties for so long, I think it would be hard for any one person to prove sole ownership. It may require a "quiet title" suit to settle it.

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