Public Easements - 23 MRSA 3021

What is Maine law regarding public easements?  
Conflicting public and private interests under these laws can be confusing.  See the Public Easements page for further explanation of the laws.

TITLE 23
§3021. Definitions
As used in this chapter, unless the context clearly indicates otherwise, the following words shall have the following meaning. [1975, c. 711, §8 (NEW).]

1. Highway purposes.  "Highway purposes" means use as a town way and those things incidental to the laying out, construction, improvement, maintenance, change of location, alignment and drainage of town ways, including the securing of materials therefor; provision for the health, welfare and safety of the public using town ways; provision for parking places, rest areas and preservation of scenic beauty along town ways.
[ 1975, c. 711, §8 (NEW) .]
2. Public easement.  "Public easement" means an easement held by a municipality for purposes of public access to land or water not otherwise connected to a public way, and includes all rights enjoyed by the public with respect to private ways created by statute prior to the effective date of this Act. Private ways created pursuant to sections 3001 and 3004 prior to the effective date of this Act are public easements.
[ 1975, c. 711, §8 (NEW) .]

Note: Historically, private ways were often designated to be "subject to gates and bars."  This provision was used either to limit "unwarranted nuisance traffic," or to allow a private way to cross a pasture without necessitating building fences down both sides of the road.  However, Title 23 §3028 subsection 3 can result in removal of those gates when a private way is declared to be a public easement under the paragraph above:
§3028 subsection 3. Removal of obstructions.  If the municipal officers have determined under subsection 2 that the way is a town way or public easement and a court has not ordered otherwise, the municipality or an abutter on the way, acting with the written permission of the municipal officers, may remove any gates, bars or other obstructions in the way.
[ 1991, c. 195, (NEW) .]

§3022. Laying out of town ways and public easements
The municipal officers may, personally or by agency, lay out, alter or widen town ways. They shall give written notice of their intentions posted at least 7 days in 2 public places in the municipality and in the vicinity of the way and shall in the notice describe the proposed way. [1975, c. 711, §8 (NEW).]

The municipal officers may, upon the petition of any person, lay out, alter or widen a town way. [1975, c. 711, §8 (NEW).]

The municipal officers may on petition therefor, personally or by agency, lay out a public easement for any occupant of land or for owners who have cultivated land in the municipality if the land will be connected to a town way or highway after the establishment of the public easement. [1979, c. 127, §153 (RPR).]

After a public easement has been laid out, it may be taken pursuant to section 3023. Notwithstanding any other provision of this chapter, public easements laid out under this section are limited to rights of access by foot or motor vehicle as defined in Title 29-A, section 101, subsection 42. [1995, c. 65, Pt. A, §65 (AMD); 1995, c. 65, Pt. A, §153 (AFF); 1995, c. 65, Pt. C, §15 (AFF).]

SECTION HISTORY
1975, c. 711, §8 (NEW). 1979, c. 127, §153 (AMD). 1995, c. 65, §A65 (AMD). 1995, c. 65, §§A153,C15 (AFF).

§3026. Discontinuance of town ways
1. General procedures.  A municipality may terminate in whole or in part any interests held by it for highway purposes. A municipality may discontinue a town way or public easement after the municipal officers have given best practicable notice to all abutting property owners and the municipal planning board or office and have filed an order of discontinuance with the municipal clerk that specifies the location of the way, the names of abutting property owners and the amount of damages, if any, determined by the municipal officers to be paid to each abutter.
Upon approval of the discontinuance order by the legislative body, and unless otherwise stated in the order, a public easement shall, in the case of town ways, be retained and all remaining interests of the municipality shall pass to the abutting property owners to the center of the way. For purposes of this section, the words "public easement" shall include, without limitation, an easement for public utility facilities necessary to provide service.
[ 1981, c. 683, §1 (NEW) .]
2. Definition of best practicable notice.  "Best practicable notice" means, at minimum, the mailing by the United States Postal Service, postage prepaid, first class, of notice to abutting property owners whose addresses appear in the assessment records of the municipality.
[ 1981, c. 683, §1 (NEW) .]
SECTION HISTORY
1975, c. 711, §8 (NEW). 1977, c. 301, §1 (AMD). 1981, c. 683, §1 (RPR).

See also Abandonment - A public easement may be abandoned, just as a town way can.  But abandonment of a town way generally creates a public easement.

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