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In 2015, 23 MRSA 3026 was repealed and replaced by 23 MRSA 3026-A. The new version was an attempt to clarify the process for discontinuing roads, with the hope that it would increase the chances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