Discontinued Rd

WHAT IS A DISCONTINUED ROAD?  WHO CAN USE IT? WHO MAINTAINS IT?

Maine law concerning discontinued roads can be confusing and even self-contradictory. While public maintenance ceases, generally public use continues.

In Maine, if a town way was discontinued after September 3,1965, it automatically became a public easement unless otherwise specified. A public easement is a road over which, according to the Maine Supreme Court, the public has an "unfettered right of access," but for which no one has any maintenance responsibility.  So actually the public road was not discontinued - only public upkeep of the road was discontinued. There was no such provision in the law concerning discontinuance of county ways, but as of 1976 all county ways in organized townships became town ways, so the same law applies to them after that date. Maine Municipal Association says that prior to September 3,1965, a public easement was only retained if the wording of the discontinuance so specified. This ignores the fact that before 1965, there was no statute which authorized retention of an easement when a way was discontinued. In fact, early court decisions show that when a road was discontinued it ceased to exist at all; it was no longer even a private access.

Unfortunately, this fact did not stop some towns and counties from attempting to reserve a right of way, and in recent years some courts have held these attempts to be valid in spite of the lack of legal grounds. The practice has been justified on the grounds that County Commissioners had the authority to take an "alternative action."  The catch is, "alternative action" was not supposed to give the Commissioners the authority to take actions that were outside their specific authority.  Rather, the alternative action had to be selected from alternatives that were both within their authority and that were clearly expressed in the required notices.  Otherwise, interested parties would have no warning of the action that was about to take place.  Thus the notice would fail to satisfy due process. The Courts have not always taken this into consideration.

In 2015, 23 MRSA 3026 was repealed and replaced by 23 MRSA 3026-A.  The  new version was an attempt to clarify the process for discontinuing roads, with the hope that it would increase the chances of municipalities getting it right.  In the past, many problems have resulted from confusion as to exactly what was required, and sometimes critical steps were overlooked, so that due process was not fully satisfied. This often led to bitter disputes when the deficiencies were discovered, usually too late to correct them.

While most of the new version simply sets forth the same steps in a more logical order, there is one major difference.  Subsection 5 of the new law requires that a notice of discontinuance be filed with the Registry of Deeds and with the DOT.  This paragraph was added in the hope that it would make information about the status of roads easier to find.  In theory, now when a person goes to buy a piece of land, a title search will alert him if the road which provides access was discontinued after 2015.  Unfortunately, discontinuance prior to that date still may be hard to find.  An attempt to require towns to research and document the status of roads discontinued before 2015 was rejected by the legislature as being an "unfunded mandate."

Oddly enough, subsection 5 is not a new idea.  There was already a law on the books - 23 MRSA section 3024 (which has not been repealed) - that requires notices of discontinuance be filed with the Registry of Deeds.  But more often than not, this law has been entirely overlooked, perhaps because it comes before section 3026.  (Who looks before a statute for further detail?)  To confuse matters further, the grammar of section 3024 renders the law practically incomprehensible.  It says,

"No taking of property or interests therein by a municipality, or the discontinuance of a town way except by abandonment, after September 12, 1959, shall be valid against owners of record or abutting landowners who have not received actual notice, unless there is recorded in the registry of deeds for the county where the land lies either a deed, or a certificate attested by the municipal clerk, describing the property and stating the final action of the municipality with respect to it."  23 MRSA 3024

If you take this language literally, it means that: 
1) If the town fails to file notice in the registry of deeds, and also fails to notify one of the land owners of the discontinuance, then that discontinuance is valid against all of the other land owners but not against the one who was not notified.  Just how is that going to work?  Will they have to keep the road in repair for him, but leave it unmaintained for everyone else?  

2) If the town does file a notice with the registry of deeds, according to this section the discontinuance is nevertheless valid against a person who did not receive actual notice.  So the town needn't bother giving actual notice to anyone.  That flies against the requirements of due process.

3) Discontinuances that took place before September 12, 1959, were exempt from the filing requirement because the law had not yet been written, so there is still the likelihood that a person buying a piece of land might unknowingly acquire land with no access.

4) Section 3024 exempted abandoned roads.  At the time it was written, abandonment could only be through common law, which retained no access.  But when statutory abandonment became available with the passage of section 3028 in 1976, no one bothered to update section 3024 to require filing of notice of the action.

What section 3024 intended to say was that unless a municipality filed notice of the discontinuance of a road with the registry of deeds, the discontinuance was invalid (unless it occurred before September 12, 1959.)

Bottom line - the discontinuance of a town way after September 3, 1965, or a county way after 1976 resulted in a public easement unless otherwise specified; before those dates, there should have been no public easement retained, but the wording of the discontinuance may leave that question open to dispute. So where does your road fit in?

To read the Maine laws on discontinuance, go to the Discontinuance page.


(c) Roberta Manter, 2016

6 comments:

  1. We built on what was stated to be a Discontinued Town Road in Skowhegan, in 1989. At that time we were the second home on the discontinued section, and had to rebuild the road to our driveway, as it was passable only when very dry. Since then, two more homes have been built on our section, and we have upgraded the road so that now it is of a quality equal to or greater than that of the town-maintained section. All these years we have borne all the costs of plowing and maintaining the section of the road beyond the town-maintained line. What can we four homeowners do to get the town to resume maintenance of our section? Thank you.
    MPH 207-474-6080

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  2. Elizabeth -
    Welcome to Maine ROADWays! Sorry it took me a few days to get back to you.
    Unfortunately, the current cost of road maintenance has made many towns adopt a policy of not accepting any new roads, nor resuming maintenance on discontinued town or county roads. Other towns haven't totally prohibited accepting public maintenance responsibility, but have made the conditions so exorbitant that it pretty much assures they will not have to take on any more roads.
    One of the frustrating issues is when a Town grants (or as we like to say, sells) building permits to allow new houses on roads the town doesn't maintain. Often, this means that a person who has been maintaining a road for his own use suddenly finds that several other people are expecting him to keep the road passable for their use as well.
    So, what can you do about it? First of all, do you know whether or not there is a public easement on your road? Do you know the date on which it was discontinued, and do you have a copy of the discontinuance? If you can tell me the name of the road and/or describe exactly where it is located, I may be able to find out more about it.
    Current Maine law allows formation of a "statutory road association" pursuant to 23 MRSA sections 3101 through 3104 if there are four or more owners of property on a road and if any three or more of those owners can agree to call a meeting for that purpose. The law allows this whether the road is private or is a public easement. We personally have serious objections to forming a road association on our road because it is a public easement, and is a through road, and the public still uses it. Therefore if we formed a road association, we would be forcing private individuals to maintain a public road for the public's use at private expense, which is unconstitutional. But if your road is private, that won't be an issue for you. Even if your road is a public easement, if it is NOT a though road and is not used significantly by the public, you may not have much of a problem with it. That is your choice.
    At any rate, a statutory road association provides a method by which each owner of land that is benefited by a road can be compelled to contribute his fair share of the cost of maintenance. This at least means that the expense will be divided up, and not borne by you alone. (Unfortunately, if the public has use of the road, they won't be likely to contribute but will use the road for free.)
    New legislation passed last session adds a requirement to the discontinuance process. Each land owner must now be notified of the possibility of all landowners getting together and voluntarily granting each other deeded rights of access over the road. If this effort is successful, the public easement can be discontinued. While the law specifically applies to new discontinuances, it could also be used to extinguish the public easement on a road that was discontinued and kept as a public easement years ago. I know this isn't the solution you were hoping for, but if you cannot get the Town to resume maintenance, the Town should not expect to be able to keep using the road and wearing it out.


    Anyway, if you can send me an email with whatever information you can about your road, I can give you a more definite answer. And if you want to look into setting up a road association, I can connect you to more resources to help you through the process.
    I have sent you an email with a more detailed answer.
    I hope you will keep in touch.
    Roberta Manter, Maine ROADWays

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  3. There is one other long shot you could try. Do you get mail delivery at your house, or do you have to have a P.O. Box or a Kiosk at the end of your road? And IF you get mail delivered at your house, does the Post Office have on file a letter from the person responsible for keeping the road passable, stating he understands if the road becomes unsafe, mail delivery may be withdrawn? If you do get mail delivery at your house, and if there is no such letter, you could try invoking 23 MRSA section 3202, which requires towns to provide equipment for snow removal on all mail routes. I say this is a long shot because even if you fit the prerequisites, getting the Town to obey the law is only a remote possibility. The law dates back to the 1800's, and the archaic language makes it virtually unenforceable. We've been trying to get our town to comply with section 3202 for years, and so far we have found no one, from local authorities to the Governor, who will force them to plow the mail route. But if enough of us bugged the Governor's office about it, maybe he'd step in.

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  4. There probably are some towns that still have a policy of taking over maintenance on a road if enough people live on it, but it doesn't sound as if yours is one of them. I wonder if they notified anyone of the status of the road before issuing them building permits. Why would a town want people to build in a location that could be difficult for the town to access with emergency vehicles? On the other hand, how could a town restrict the use of a person's property by telling them they were not allowed to build on it? AT the very least, it seems the Town should make full disclosure when they issue a building permit on a discontinued road, so those who are planning to build will understand if the Town is never going to resume maintenance.

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  5. we have a road that was discontinued in 1951 and the town specifically said in the public notice"we understand that the town can discontinue a road and designate it as a private road for individuals who would require a right of way to get to pastures, woodlots, etc."

    Then the article vote says " voted to discontinue the road from the Temple Hill road to Old Weeks Place".

    Does this mean that a right of way is retained for the abutters of that road?

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  6. Unfortunately, it is the final vote, not the notice, that determines what was done. Since the vote said only to discontinue, it appears no attempt was made to designate it as a private road. This may be because the town actually had no legal power to designate it as a private road. Many towns around that time were designating discontinued roads as "private ways," but a private way is not the same as a private road. A private way historically was laid out at the request of an owner of private land not yet connected to the public highway system, and the person who requested it was responsible for paying the damages to those whose land was taken for the road. A private way provided PUBLIC access to private property, which the Courts determined was constitutionally allowable in that private land was taken for a public use. The Constitution does not allow for private property to be taken by eminent domain for PRIVATE use, no matter what compensation is offered. A PRIVATE ROAD is a road that is privately owned and maintained, and over which the owner can restrict access. While it would seem to make sense when a public road is discontinued to retain private access to land that would otherwise become land locked, the legislature has balked at making that a law because in most cases (until recent years) when land was taken for a road, all that was taken was a right to cross over the land. The land itself underneath the road still belonged to the original land owners, but their rights to use that land were suspended while the road was in place. If the road was later discontinued, the land reverted to the original land owner, and his rights to use it were revived, "free of the encumbrance of being a road." So if when the public discontinued a road it tried to make it into a private road for access to back land, that would have meant taking the land of one person and giving it to another. Of course, if no right of way was retained, that often left back lots land locked, which is why many towns resorted to keeping a "private way" when a road was discontinued, even though the law didn't actually authorize such action until 1965. The discontinuance process requires compensating land owners for the lost value of land, but often towns simply determined that there was no damage, and unless a land owner immediately appealed that determination, courts will now say it's too late to appeal. There is, however, one loop hole. If you can prove that you and your predecessors-in-title have used the road for at least 20 years with the acquiescence of owners of the land you cross, or in a manner "so open, notorious and uninterrupted that acquiescence will be presumed," you may be able to prove you have a "prescriptive easement." But be careful - if you have actual permission of the other land owners to cross, then your use is not adverse, and permission can be withdrawn at any time, leaving you land locked again. I can give you more information if you send me a private email at roadways@juno.com and tell me exactly where this road is located.

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