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.
Given that a subdivision is approved by a town and the plan filed with the registry, so the subdivision ways become private ways with a public easement?
ReplyDeleteNo. There would be no public easement. Approval of the subdivision plan simply gives the developer permission to build the roads. If the developer builds the roads to whatever standard the town requires, then they MAY be offered to the town for acceptance as public roads through the process of "Dedication and acceptance," under 23 MRSA 3025. Here is a link: http://legislature.maine.gov/legis/statutes/23/title23sec3025.html
ReplyDeleteBasically, that requires that the owner of the land must voluntarily offer the road to the town, and the town's legislative body can then vote whether or not to accept the road. If they vote to accept it, it then becomes a town way; it is then fully owned by the town, and the town has the responsibility to keep it in repair for the public's use. It is no longer a private road. But if the subdivision plan is approved but the roads are not accepted by the town, they are known as "proposed unaccepted ways." Whether it is built to town road standard or not, it remains a private road. The general public has no more right to use it than they do to use any private property, and the town has no obligation to provide any maintenance. If the subdivision plan is approved but the road is never built, it then becomes a "paper street." (See the link in the sidebar on this page for the laws on paper streets.) It then remains private, but the town has 20 years in which to decide to accept it as a public road. That option can be renewed by a vote before the 20 years expires. So where do public easements come in? It used to be common practice for towns to plow private roads for their citizens as a courtesy. But then the Maine Supreme Court rendered an Opinion in which it declared it unconstitutional to use public funds on private roads. On the advice of Maine Municipal Association, many towns abruptly stopped plowing all their private roads, leaving citizens scrambling to make other arrangements so as not to get snowed in. But there is a statute (23 MRSA 3105-A) that allows towns to authorize their Selectmen to use town equipment on "private ways" (now known as "public easements" pursuant to 23 MRSA 3021) when it is in the best interest of the public for fire and police protection. Many towns saw this as a loophole. By accepting private roads as public easements, they saw that as making it legal to use town equipment to plow private roads. Unfortunately, simply calling a private road a "public easement" doesn't actually make it one. In my inexpert opinion, it would have to go through the process of dedication and acceptance to convert it from a private road to a public easement, and it would then be open to unrestricted public use - but the public would not be OBLIGATED to provide any maintenance. As far as I know, this issue has yet to be addressed by the Maine Supreme Court; but if you read the Opinion that stopped towns from plowing private roads, it seems unlikely that the Court would approve of this loophole. Here's a link to the Opinion, which had to do with proposed legislation to allow town plowing of private roads: https://www.leagle.com/decision/19891112560a2d55211107
What are the requirements of a public easement? Are there laws to protect the road or land owners on the public easement? For example: one landowner blocking part of the road or narrowing the road
ReplyDeleteAccording to the Maine Supreme Court in Fayette v Manter, the public has an "unfettered right of access" over a public easement. According to 23 MRS 3022, "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." (That definition excludes snowmobiles, ATV's and motorized wheelchairs.) But getting anyone to enforce removing obstructions is another matter. There are laws that apply if someone damages a public easement with a motor vehicle ( 17 MRS 3853-D), or damages it in such a way as to impede a property owner's access to his property by motor vehicle (23 MRS 3029-A). But even if those apply in your situation, getting anyone to enforce them can be problematic. It may depend on who has better relations with the local law enforcers - you or the other person. Or it may depend on how familiar they are with the law. If you try to involve law enforcement, I would recommend having a copy of the relevant law in hand to show them. Have you tried approaching the person who is blocking or narrowing the road? These situations can turn volatile in a hurry if not handled carefully, and some people who might be willing to negotiate on a friendly basis will shut you out if you start by threatening too involve law enforcement. If possible, try the friendly approach first. Ask them what concerns have led them to block the road, and see what you can do to address those concerns. It may be that their concern is keeping mud runners out, not other landowners.
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