Maine law concerning discontinued roads can be confusing and even self-contradictory. While public maintenance ceases, generally public use continues. The discontinuance law has been amended twice in recent years, so be sure to read this all the way to the end for the latest update.
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 July 29, 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. (Or was it?)
Unfortunately, the lack of legal authority 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In 2015, 23 MRSA 3026 was repealed and replaced by 23 MRSA 3026-A. The new version was an attempt to clarify the process for discontinuing roads, with the hope that it would increase the chances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.)
As of Oct 1, 2018, the discontinuance law was amended again. This time, a new concept was introduced in an attempt to address the problem of continued public use of a road that is no longer maintained by the public. It had been suggested repeatedly by various parties that the road should become a private road upon discontinuance, so that no one would be either legally land locked (by the extinguishment of the road,) or physically land locked (due to destruction of the road by public use in the absence of public maintenance.)
The trouble is, most roads laid out before Dec 31, 1976, were not taken "in fee simple absolute," (i.e. ownership of the strip of land,) but were merely taken as easements over the land. The land under the road still belonged to the abutting landowners, but their rights to use that land were suspended while the road existed. One the road was discontinued, however, the rights of the landowner were revived and the land was his to use however he saw fit. Therefore, the land could not be taken from its owner and granted to his neighbor for access, because that would be an unconstitutional taking of private land for someone else's private use. To satisfy the Constitution, an easement can be retained only if it's public.
The 2018 amendment seeks to get around this problem by giving the landowners a choice. If they decide to voluntarily grant each other private easements in common, then only their neighbors will have use of the road. They can form a road association to share in the maintenance, and those who use the road will be responsible for any damage resulting from their use. But if the landowners choose not to grant each other easements, then the public will have no choice but to retain a public easement so as not to leave anyone legally land locked. In that case, the general public will have the right to use the road by foot or motor vehicle 24 hours a day, 365 days a year, and will have no obligation to provide maintenance. The choice is up to the landowners.
It remains to be seen how this will work out in practice. As of this writing, I know of at least one road where this process was used to extinguish a public easement on a road that had already been discontinued. I know of at least three other towns where this option is being considered or is in progress.
Bottom line - up until Oct 1, 2018, the discontinuance of a town way after September 3, 1965, or a county way after July 29, 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. After Oct 1, 2018, a public easement is retained unless the landowners have voluntarily granted each other private easements. So where does your road fit in?
To read the Maine laws on discontinuance, go to the Discontinuance page.
(c) Roberta Manter, 2016; updated 2022
Bottom line - up until Oct 1, 2018, the discontinuance of a town way after September 3, 1965, or a county way after July 29, 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. After Oct 1, 2018, a public easement is retained unless the landowners have voluntarily granted each other private easements. So where does your road fit in?
To read the Maine laws on discontinuance, go to the Discontinuance page.
(c) Roberta Manter, 2016; updated 2022
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.
ReplyDeleteMPH 207-474-6080
Elizabeth -
ReplyDeleteWelcome 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
Hello Roberta, I live on the jewel Road in dixmont Maine. I requested formal responses from the town years ago when I put tons of money in it when I built my off-grid house way out here in the woods. I picked this piece of land specifically because of how long ago the road was discontinued. I own on both sides of the road. And I have lived here four seasons for 21 years now. I went and did research in the registry of deeds and nowhere do I find the language of a public easement retained and this road was discontinued prior to September 3rd 1965. There is one person who had a hunting camp beyond me who only came down in the summer he never maintained the road he never plowed it. What I did notice was after I put tons of money in the road from my passage to get in and out for work that he started using the road more. Two or three years ago he and his wife decided to turn that camp into a permanent residence. Now he's doing things to the road putting gravel in it using his tractor on it but more often than not he's making the road worse and not better. Now he's trying to force us to put all kinds of money in the road. What I have learned through the years is that if you're going to make any changes to the road you do it between April and July and then you leave it to pack down so that it freezes that way. There is nothing on my deeds that gives him a right-of-way through he has no easement. He can have discussions with the neighbor up on the other side that would bring him out the other way what options do I have? Because I think I have rights owning on both sides of a discontinued Road prior to September 3rd 1965 and I sent certified letters to the town and to him to the snowmobile club the four wheeler Club years ago requesting that documentation of proof of public way or easement and that was never provided. Can you help? Please email me at conscious possibilities 2006@gmail.com
DeleteThere 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.
ReplyDeleteThere 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.
ReplyDeletewe 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."
ReplyDeleteThen 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?
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.
ReplyDeleteWe have a camp on "The Old Ice Road" in Waterford that is refereed to as a boundary in the deeds of the abutters. It was where people came to harvest ice. It has not been maintained by the town and they have changed the name of the road to Outlet lane. We are having some issues with a neighbor claiming part of the "Ice Road" as theirs, parking vehicles on our property and causing a lot of damage to the road due to plowing in the winter and driving fast through the mud holes. Is the "Old Ice Road" discontinued? if so who owns it and who is responsible for the maintenance?
ReplyDeleteWelcome to Maine ROADWays! Google Earth doesn't show either Old Ice Road or Outlet Lane. If you send me an email with a description of the location of the road so I can find it on google Earth, I'll see what I can find out about it. Do you know if it ever was a town road, or if it was originally a private road? My email address is roadways@juno.com Hope to hear from you!
DeleteI bought a camp on Pleasant Pond Road in Atkinson in 2018, on what I was told is an unmaintained town road. This July, Atkinson joined the unincorporated counties of Maine. How does that impact or change the status of this road? Could you please explain the “unmaintained town road” theory to me, as I am from the urban sprawl of Philadelphia, Pa., and never experienced this phenomenon. Also the primary road to my camp is Maple Road, and every time they do maintenance the entrance/exit incline of Pleasant Pond Road becomes steeper, and is currently close to unusable. The 2nd question is - do I have any grounds to get the junctions of these roads corrected by the county?
ReplyDeleteWelcome to Maine ROADWays! You are not alone in your confusion about the “unmaintained town road” phenomenon. To put it bluntly, whoever called it that is also is confused, along with a great many other people in Maine who believe that such a thing properly exists. I’m afraid what I have to tell you may be confusing, but take it one piece at a time and you’ll end up with a better understanding of Maine road law than most attorneys, judges, and legislators! This blog won’t accept it all in one chunk, so I’ll have to send it in several sections.
ReplyDeleteUnder Maine law, 23 MRSA 3651, “Highways, town ways and streets legally established shall be opened and kept in repair so as to be safe and convenient for travelers with motor vehicles. In default thereof, those liable may be indicted, convicted and a reasonable fine imposed therefor.” So if it’s actually a town road, the town should have been maintaining it.
That being said, there are several ways a Town can be relieved of its responsibility to maintain a road, but the result (when it’s done properly) is no longer a “town road.” Here is where it gets confusing, because the laws have changed so many times you really need to know the date on which an action was taken before you can be sure of the result.
If a road was “discontinued” by a vote of the townspeople before Sept 3, 1965, then in most cases it ceased to be a road, reverting to private property to the center line. But that often left people with land that was legally land locked, so it was not an uncommon practice to “retain a private way” to assure that abutters would still have access. There was nothing in the law that allowed towns to do this, but they often did it anyway, and the Courts will now uphold it because no one objected at the time. It did serve the purpose of avoiding an unconstitutional “taking” of land value by depriving it of all access; however, the Courts saw this as taking land that should have reverted to the abutters and granting it to their neighbors as a private access. That would be a taking of private property for private use, which is also unconstitutional.
To solve this dilemma, over the years they gradually re-defined the term “private way,” saying that the creation of a private way was really intended to serve a public purpose (i.e. public access to land,) which the Constitution would allow. Then in 1965, to reduce confusion, (?????) they changed the term “private way” to “public easement.” At the same time, they changed the discontinuance law to say that when a road was discontinued, a public easement automatically remains unless otherwise specified. A public easement gives the public an unrestricted right of access by foot or motor vehicle, but the public is no longer responsible for maintenance. They failed to consider the fact that a public road with no public maintenance won’t just magically remain passable indefinitely.
The other way a town can relinquish its obligation to maintain a road is through abandonment, and once again, there are two rules that apply. A road could be abandoned through common law after 20 years of non-use, or after 1976 it could be abandoned by statute after 30 years of not being maintained at public expense. Common law abandonment resulted in the road reverting to private property; statutory abandonment results in a public easement.
ReplyDeleteSo the possibilities are:
pre-1965 discontinuance with no remaining easement
common law abandonment after 20 years non-use, with no remaining easement
pre-1965 discontinuance with a private way specifically requested
post-1965 discontinuance with a public easement retained
statutory abandonment after 30 years neglect, with a public easement retained
unauthorized neglect of a town road that has not been discontinued.
In light of the characterization as an “unmaintained town road,” it’s possible that either your road was properly discontinued after 1965, or properly abandoned after 1976, leaving a public easement. But it’s also quite possible that the Town simply ceased maintenance because no one lived there. If that’s the case, then it truly is an “unmaintained town road,” which is illegal under 23 MRSA 3651.
The first thing to do is to find out if the road was ever formally discontinued or abandoned. Try asking your Town Officials (or former town officials) and see if anyone happens to know when or if that was done. But take that as a starting place to give you an approximate date, not as the final word. Lots of people “know” things that are not exactly true (for example, “It’s an unmaintained town road.”) The only way to be sure is to go through Town Reports and find if there was ever a vote to discontinue the road, and if you find it, then you need to find the result of the vote. The State Library in Augusta is supposed to have copies of all Town Reports. (It doesn’t always.) If it does, I can go looking and see what I can find, (I don’t charge for this service,) but it would be helpful if someone knows approximately how long it’s been since the Town maintained the road.
If there is no record of discontinuance or abandonment, this suddenly becomes more interesting due to the changeover from town to county authority. Depending on what we find out, the county may be responsible for at least grading Pleasant Pond Road if it’s still legally a road. If it really is a public easement, on the other hand, you may be on your own as far as maintaining the road is concerned. That gets sticky because if it’s public, private individuals cannot Constitutionally be compelled to maintain it for public use at private expense, but the public isn’t going to maintain it for you. If there is more than one land owner, you can try to get cooperation from the others, or at least get their permission before they get irate at you for doing something they don’t approve of. If there are four or more land owners, the law says you may be able to form a road association and get everyone to chip in - but again, the law is at odds with the Constitution. But we can worry about that after you determine the legal status of the road.
ReplyDeleteFixing the intersection should be less of a problem. Since there is no Town, you would need to write a petition directly to the County Commissioners, telling them that the road is in need of maintenance pursuant to 23 MRSA section 2051, Powers of Commissioners. Your petition needs to be signed by “responsible persons.” It doesn’t define who that is, but presumably it would just need to be at least two adults who are familiar with the road and who are not just making a frivolous complaint. Your petition should describe the problem at the entrance to the road, pointing out that it is unsafe, that the county is responsible at least for Maple Road, and that the intersection falls within the bounds of Maple Road. It is a hazard for traffic on Maple Road to have vehicles entering from Pleasant Pond Road under the current conditions. (If we find that Pleasant Pond Road has never been legally discontinued, you can also ask the county to grade it.)
Years ago, we had to get the county involved in a similar situation on our road. The Town had raised the grade of the main road, leaving our road with an entrance so steep you literally could not see traffic coming. One day I almost drove into the side of a pickup truck because I stopped and looked, but couldn’t see the truck over the nose of my own car. We asked the town to fix it, and they refused, saying our road was a public easement and therefore not their responsibility. So we petitioned the county, and after coming out and viewing the situation, they agreed that the intersection was within the bounds of the main road, and that the Town needed to give us a safe entrance onto their road. In order to make a level landing where we could stop and view oncoming traffic, they ended up having to raise the grade of our road for quite a ways back. They weren’t thrilled, but the County gave them the edict, and they had to do it.
I know this is an awful lot to digest all at once. Please let me know what you think of it, and feel free to ask more questions. Also let me know if you want me to dig through Town Reports. If you want to continue the conversation in private, you can email me at roadways@juno.com .
Thank you for this information. We live on North Road in Bridgton. The town tells us that road mainenance is discontinued on our part of North Road (There is a paved part that is not discontinued) but that public access is maintained. I have searched in the CCROD for a notice of disontinuence, but have not found any. Bridgton seems to be very lacks in providing public access to records of town meetings where a vote on this topic might occur. We are a 14 member statutory road association trying to maintain over 6000 feet of road. MY QUESTIONS ARE: Do you think LD1177/SP414 will be taken up again by the legislature? I looked for a registry entry for this under Date and "Misc". How else can I search for such an entry? Finally does section 3028 contradict requirements in 3026 ?
ReplyDeleteWelcome to Maine ROADWays! I am actually somewhat familiar with your road already. Were you searching the Registry of Deeds in person or online? I'd try doing an online search for all documents, using the Town of Bridgton as both Grantor and Grantee, but I doubt if you'll find anything. There's a good chance that road was discontinued before 1959, when 23 MRSA section 3024 first required recording discontinuances with the Registry of Deeds. If you go to historicaerials.com and look at their topo maps, in 1945 the road shows as a double solid line, but in 1949 it turns to a double dotted line where it turns west. My guess is that indicates it was probably discontinued sometime before 1949. As for Town Meeting records, I find it's often easier to search at the Maine State Library in Augusta, which is not far from me. I can do that search for you if you like. Towns are supposed to send the State Libary copies of all town reports. Not all towns do, but they have a pretty complete collection for most towns. Most Town Reports list the Warrant Articles but not the results of the votes. However, if you can go to the Town with a copy of the article and the date, they are usually much more willing to look up the results of the vote than if you ask them to search through years of records to see if something exists. As far as legislation is concerned, you won't see L.D. 1177 coming up again with the same wording because there was too much opposition to it; however, you can count on the fact that some similar legislation will continue to be presented until something changes for the better for abandoned and discontinued roads. As for section 3026 and 3028, Abandonment was never intended to apply to roads that are still in use or still have residents on them. IF it were used as intended, it would address a valid concern of towns - how to get rid of responsibility to rebuild roads long since forgotten. But because it keeps a public easement over the road, it opens up a whole can of worms regarding private maintenance of public roads. Also, many towns have applied it to roads that bear little resemblance to what the legislators intended when they passed section 3028. When the statute was amended to make the decision of the Selectmen binding (with no requirement for notice or hearing,) it made it altogether too tempting for towns to declare a road abandoned after just a few years of neglect, knowing that no one would be likely to have the funds to take them to Court to dispute it. Section 3026, on the other hand, can legally be used to discontinue roads that are still being maintained by the Town. But in order to do so they have to go through a detailed process. A couple of years ago, section 3026 was replaced by section 3026-A, which sets the steps out clearly and in order, and also adds some new requirements. Even before the update, 3026 required notice, hearing, and compensation for lost property value. None of this is required under section 3028, the assumption being that if no one has needed the road for thirty years, no one will miss it if it's gone, and therefore no one is damaged by the abandonment. There are two major problems with this assumption. First, in the absence of notice and hearing, there is the very real possibility that there are people who do still need the road and who will indeed be damaged by the town's refusal of all responsibility. Second, the announcement that a "public easement" remains invites public use that may not have been occurring previously, and which will indeed damage the access to abutting properties. If you send me an email at roadways@juno.com I can go into more particulars about your road in private.
ReplyDeleteI live on the river rd in sebec, the town discontinued it less than 10 years ago about the time I started working on the property. I have had to do all maintenance and plowing. It's nearly impassable while wet and at least once a week I need to tell people to stop using it as a mud run. I can't afford to have the culverts replaced or to build up 1500 feet of road. I put "dead end private drive" signs up but that doesn't keep anyone off it. The town barricaded it off right after my house to slow traffic but people still come tear it up. Every time I have gone to the town they just tell me to deal with it
ReplyDeleteSee my reply below - I mistakenly posted it as a comment and not as a reply, so I want to make sure you see it.
DeleteI hear your frustration! If it was discontinued that recently, then unless the warrant article for discontinuance specifically said no right of way would be retained, then it is now retained as a public easement. That means you cannot stop others from using it, but the public has no obligation to provide any maintenance. We've been fighting that in the legislature for years, but progress has been frustratingly slow. However, there is one law that was passed a few years ago that may give you some recourse. Under Title 17, section 3853-D, it is now a Class E crime to damage a public easement with a motor vehicle (including ATV's) Here's a link: http://legislature.maine.gov/legis/statutes/17/title17sec3853-D.html If you can actually get a video of the guilty party, and then present both the video and a copy of the law to law enforcement, you MIGHT get some relief. If the Sheriff or State Police won't pursue it, try the Warden Service. They are more familiar with this law, and have an interest in preserving good land owner relations. Also check out the Maintenance Tips page of this website for some inexpensive ways to improve the road. There is also a sign you can post that may help - I'll look it up and see if I can post a link.
ReplyDeleteHere's a link to a picture of the sign I referred to, as posted on my facebook page. https://www.facebook.com/588714017873781/photos/a.2380212235390608/2381480825263749/?type=3&theater The comment on the photo tells where you should be able to get the sign. Only I couldn't find it on their site, so I have sent them an email asking for a link to it.
DeleteI live in Canaan ME. My property line is the town line between Canaan n Skowhegan it has been maintained by the land owners for over 25 yrs. Both sides of the roads are owned by the same person. Do we have the right to block traffic from going across said road. Neither towns want to maintain the road so it all falls on us. The roadiroad question is the Moore's Mill Rd. What can we do to limit traffic to our property?
ReplyDeleteIn order to answer your question, I need more information. You can contact me in private at roadways@juno.com if you don't want to post more detail here. You say one person owns both sides of the road, but is that for the entire length of the road to the town line, or just a portion of it? If you were to block the road, would it leave any property land locked? I've looked up the tax maps for your town, and it looks like there may be properties in Canaan that would only be accessible through Skowhegan, and that may or may not be a problem, depending on how the landowners feel about it. Does the traffic you want to block consist of abutting land owners, or just other members of the public driving through? You may have a few options, depending on how cooperative your town and the other abutters are. I’ll have to post these separately because this site limits how much I can post at once.
DeleteOption 1: IF blocking the road would not be a problem for any other land owners, there's a better chance of being able to close it off, at least for the section where one owner owns both sides. You would have to ask the Selectmen to officially discontinue that portion of road, and specify discontinuance with NO PUBLIC EASEMENT retained. They would then have to follow the procedure in 23 MRSA 3026-A, which was amended again after I wrote this page. See the page on Discontinuance, 23 MRSA 3026-A for the latest version. If the Selectmen are reluctant to discontinue it, there is a process by which you can demand that they repair it, using 23 MRSA 3651 and 3652. There are some tricks to doing that correctly, so let me know if you need to go that route, and I'll walk you through it. Chances are, the threat of having to repair it will be enough to get the Selectmen to consider how to get rid of the road. If the selectmen agree to discontinue it, they would have to notify all of the abutting land owners, but if the only section being discontinued is the section where one person owns both sides, that would be easy. The problem comes if that leaves residents or land owners in your town with no access except through Skowhegan. If they already only use the Skowhegan end of the road, that may not be a problem. But if there is any abutting land owner in Canaan who wants to be able to use the Cannan end of the road, you may have to work out how to give them private easements. Otherwise, the Town may have no choice but to keep a public easement, which doesn't solve your problem. But if there is no land owner who objects to being able to use only the Skowhegan end of the road, then after notifying the land owners and going through the other requirements of section 3026-A, the Selectmen would put an article in the Warrant for the next annual town meeting to vote on the discontinuance. Unfortunately, at that point you are more or less at the mercy of the voters. As long as there are not a lot of them who like to use the road, and as long as you can get the voters to sympathize with you, then you would end up with that section of road being private. You could then legally gate it.
Option 2: If you go to the Selectmen to ask them to discontinue the road, they may claim it's abandoned. If the Town has no record of having done significant maintenance on the road for 30 or more consecutive years, then it's eligible for statutory abandonment under 23 MRSA 3028. The Selectmen may see that as the easy way out, because all it takes is for the Selectmen to declare it presumed abandoned and notify the DOT and the Registry of Deeds, and their decision is binding until challenged in Court. (That applies even if it's only been twenty years, not thirty.) The trouble is, statutory abandonment leaves a public easement, which again does not solve your problem. There is a bill to amend section 3028 that was about to pass in the legislature when everything went on hold due to COVID-19, and which should pass readily once the legislature re-convenes (whenever that is.) It had already passed three of the required four votes, so there's a high likelihood that it will pass, and will then go into effect 90 days after the close of the next legislative session. If you can wait that long before rocking the boat, it would be to your advantage. The amendment to section 3028 would allow the decision of the Selectmen to be appealed to the Town's Board of Appeals, if it has one, or otherwise to the County Commissioners. Under the current law, the only way to get the decision of the selectmen overturned is through appeal to Superior Court, which can get frightfully expensive. Also, the amendment would say that the public easement that's retained is for use by foot or motor vehicle only. Currently, it's sort of a free-for-all, with abandoned roads being used by everything from ATV's to log skidders.
DeleteOption 3: A third possibility is that the Town could claim the road abandoned by common law because it has not been USED for 20 or more consecutive years. That's a lot harder to prove than 30 years with no public maintenance. In fact, your own desire to block traffic implies that the road is still being used. That's too bad, because common law abandonment results in the road reverting to private property.
DeleteOption 4: There is one other possible remedy if the Town does declare the road abandoned by statute, or discontinues it but keeps the public easement. In recent years, the legislature has passed a couple of bills to help mitigate the damage to public easements. One says that it's a Class E crime to damage a public easement with a motor vehicle. Another gives land owners a right to sue a person who damages a public easement. The difficult part is catching the person who did the damage, and then proving that the damage was their fault. You pretty much have to post trail cameras, and document the condition of the road before and after the damage was done. Inland Fisheries has been working to prosecute these cases, which is a good thing because other law enforcement agencies are likely to tell you "it's a civil matter" and they won't get involved. If the road is a public easement, you cannot post it to try to discourage traffic, because that's considered obstructing a public way - even if your signs merely lead someone to believe they shouldn't be using the road. One thing you COULD do that might help is to post signs saying, "CAUTION: Damaging a public easement with a motor vehicle is a Class E crime." That might make people think twice about how and when they use the road. That sign should not be considered obstructing the road because it's simply a statement of fact. For that matter, even if the road is NOT officially a public easement, posting the sign would still simply be a statement of fact, because that is what the law says. If anyone challenges you because it isn't a currently public easement, you can point out that you never said it was. Your sign simply informs them of a law that is on the books in Maine. If you go to the Maine ROADWays public facebook page and look at the Photo Album "Signs of the Times," you can see a sample sign. (If you don't have a facebook account, just google Maine ROADWays and the facebook page will show up.) Anyway, if you send me an email at roadways@juno.com, and let me know more about abutting land owners on the road, I can probably clarify what your options are. n Hope to hear from you!
The town of West Newfield is attempting to "Discontinue" a section of Jones Road. Around 100 seasonal land owners (and a dozen full time residents) show this section of road in their deeds as a right of way.
ReplyDeleteDoes the town need to revise the deeds?
Per the above article it appears that there is not a requirement for someone to be a responsible party to maintain the road. I just want to clarify that this is correct?
If the road is not maintained, Emergency Responders will be required to take an alternate route that will add additional miles and time to their response. This appears to be a major safety issue for all 100 families. Does this issue come into play with the discontinuance designation?
Any comments, feedback or advice you can provide would be much appreciated.
Thank you
I'm looking at Google Earth and having trouble figuring out exactly what's going on here. It looks like there is one house at either end of Jones Road, and that the middle is probably not passable by emergency vehicles, at least not at a speed that would get them there any sooner than going the long way around. The Maine Gazetteer doesn't show Jones Road at all. Can you tell me where the 100 land owners are that have Jones Road in their deeds? I'm wondering if perhaps this is a "paper street," that is, a road that was laid out as part of a subdivision plan, but never actually accepted and maintained by the Town. Or, does Google Earth have the wrong section of road labeled as Jones Road? According to Google Earth, Jones Road doesn't go all the way to Libby Rd, but is connected to it by a section of Whitehouse Road. Or does Jones Road go all the way to Libby road? If the "section of Jones Road" they are looking to discontinue is between the camp on the east and the house on the west, there's not much there to discontinue - although looking at the tax map, it looks like there are a couple of large tracts of land that have no other access. But if Jones Road goes all the way to Libby Road and that's the section they want to discontinue, that would be a serious problem. If you have details for me that you don't want made public, you can email me at roadways@juno.com .
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ReplyDeleteI'm wondering if you can help determine the status of a road in Hebron. The beginning of the road is still in use but there a bridge that is gone and the remainder of the road to the Buckfield line has not been maintained. When property abutting the road was surveyed they were unable to establish the status of the road. Thank you
ReplyDeleteI can't tell from your description which road you're referring to, as I can see more than one old road from Hebron to Buckfield that crossed the brook. If you send me an email at roadways@juno.com with more information, I'll see what I can find out about it. Does the road have a name? Or can you describe its location well enough that I can find it on Google Earth?
DeleteI'm wondering if you can help determine the status of a road in Hebron. The beginning of the road is still in use but there a bridge that is gone and the remainder of the road to the Buckfield line has not been maintained. When property abutting the road was surveyed they were unable to establish the status of the road. Thank you
ReplyDeleteNot sure why this got posted twice. See my answer above. :-)
DeleteMy brother bought property on dow brook road, in peru maine ,when he bought it his deed said he had a right of way ,he has owned his land since 2000 and built a house on it and used and maintained the road since he's owned the land ,now another land owner is saying he owns the road and is seeking money to use it,and hasn't shown proof of ownership
ReplyDeleteWelcome to Maine ROADWays. The Maine DOT public mapviewer indicates that Dow Brook Road was laid out as a county road in 1844. It doesn't list it as having been discontinued by the county, but there are a number of records of discontinuances in Peru that the DOT was unable to identify which road they applied to. I do know that the road originally continued into Rumford, and that part of it in Rumford was discontinued. If the road was discontinued by the county, most likely no easement was retained, which would explain why a right of way had to be deeded to provide access to your brother's land. I can contact the DOT and see if any of the discontinuances marked "not located" can be identified as Dow Brook Road. In order to figure out what's going on, I'd need more information - specifically, which map and lot number your brother owns, and which map and lot number the other landowner owns. You can send me an email at roadways@juno.com with whatever more information you can give me, and I'll see what I can find out. It's possible a predecessor of the owner of the other land granted a right of way to your brother's predecessor, and the owner of the other land doesn't know it. I've seen this happen before, especially in cases where an owner died and the estate sold their land based on the deed that owner had received, but failed to search diligently to discover that they had granted an easement over their land on a separate deed. Anyway, if you send more information to my email address I'll see what I can figure out. (I do not charge for this service.)
DeleteI live in Stetson. When I moved in the town had an ordinance that if 5 or more houses were on a discontinued road they would maintain the road. When the 5th house moved in they split the road, calling it two separate roads so no maintenance was required. I have done a title search and there are no records of discontinuance. The town claims they have no obligation to prove anything. I am supposed to take their word. Is there any way I can demand proof and if no proof is available is there anything I can do about it?
ReplyDeleteThe trouble with towns making commitments like that is that town administrations change, and the new people often forget what was promised before, or have a different interpretation of that promise. Our town once told us they would resume maintenance when there were at least three homes on our road. There are now five on our end of the road and even more on the other end, and they have told us they will NEVER resume maintenance!
DeleteA title search will not necessarily find any record of discontinuance. The law did not require filing notice of discontinuance with the registry of Deeds until 1959, and then the law was so ambiguous (and so little known) that few towns complied with it. I have seen a few cases where a post-1959 discontinuance was declared invalid in Court because it was not filed in the Registry of Deeds, but that's a long shot and requires costly court action. You could try submitting in writing a Freedom of Access Act request for proof of the discontinuance. If the road actually was formally discontinued, there should be an Article in a Town Warrant asking for the discontinuance of the road, and you would have to ask them to send you both that AND the result of the vote. I suspect they will not be at all pleased with having to go through all the annual reports looking for it if they don't know what year it was discontinued.
DeleteAnother option would be to go to the State Library in Augusta, where they have a pretty complete collection of Annual Reports from most towns, and see if we can find it. (It would help if the Town could give you even an approximate date of discontinuance.) I live within 35-40 minutes from Augusta and can do this for you if you like - no charge, but it may take me a while to get to it as I have some other towns I'm working my way through currently when I have time. The Library is currently in a temporary location during renovations, so you have to call a few days in advance so they can bring the reports in from storage. If you want to put in an order, once they arrive I could meet you there and show you what to look for.
DeleteAnother option is to try sending the Town a Notice under 23 MRS 3651, claiming that the road is a town way that is not being kept "safe and convenient for the public with motor vehicles." If they don't respond, five day later you can petition the County Commissioners under 23 MRS 3652 to force the Town to perform the necessary maintenance. That will probably induce the Town to claim that the road is either discontinued or abandoned and therefore not within the jurisdiction of the Commissioners. They will then have to submit proof of their claim. Their "easy" way out, if they can't find the discontinuance, would be to claim abandonment. Since the road is still in use, they would have trouble claiming common law abandonment, which requires 20 years of non-use. (They might try to prove there was a 20 year period long ago that qualifies, but that's harder to either prove or disprove.) But they could probably make a valid claim for statutory abandonment, which is based on thirty years without public maintenance. The law on statutory abandonment changed last fall, and now requires notifying all owners of affected property. Then you have just ten days within which to get 25% of those owners to ask for a hearing. So BEFORE you start the process under section 3651, you will want to get your ducks in a row by making sure you have enough property owners ready and willing to petition for a hearing, and that you already have in hand the proof you will need to present that the road does not qualify for abandonment. (This would include any proof that the Town HAS performed maintenance during the last 30 years, or that it has gotten Local Road Assistance Program (LRAP) funding based on your road's mileage during at least 84 months of the claimed thirty year period. If nothing else, the Town's stated intent to resume maintenance if there were 5 or more houses indicates that the Town still considered it a public way.) If the Selectmen still determine the road to be abandoned, you have ten days in which to appeal to the town's Board of Appeals, if it has one, or if it doesn't, to appeal to the County Commissioners. The whole process is quite do-able if you know what to do when, but there are a number of places where you could miss a detail if you're not careful. Please send me an email with details about where the road is, and so I can talk you through your various options. My email is roadways@juno.com
DeleteHello, I have a question for you you about a discontinuation of a section of road. The discontinuation occurred in 1979. I have done some research and are wondering what the options legally as to the road. The town admits that there was no notice of discontinuation sent to the country registry of deeds. The road goes past my house. There are no utilities on this section of road. However, it has been used by atvs and vehicles passing though. Goggle will actually send people this way) the town is going to claim it’s been abandoned for for than 30 year.
ReplyDeleteIt sounds like you have done your homework - you know when the road was discontinued, and that the discontinuance was not done properly because the town failed to file it with the Registry of Deeds. If a notice of the discontinuance had been filed, since it took place after 1965, a public easement would have been retained unless the Warrant Article asking for a vote to discontinue had specified that no easement would be retained. If the Selectmen now intend to correct their error by claiming the road has been abandoned under 23 MRS 3028-A, (the newly revised version of the abandonment statute,) the Selectmen can determine whether or not a public easement will be retained. Under the new law, the Selectmen must notify the owners of all properties whose access depends on the road, and those owners have just ten days in which to ask for a hearing. A hearing must be granted only if 25% of the landowners ask for a hearing within that ten day window, so there isn't much time to organize, especially if there are a lot of landowners involved. If you do not request a hearing, then you cannot appeal whatever the Selectmen decide (including whether or not to retain a public easement.) If no easement is retained, there is the potential for properties to be land locked. This is a flaw in the law - it should have been made clear that no property can be deprived of access. On the other hand, if the Selectmen DO retain a public easement, then landowners cannot stop the public from using the road, and it sounds like that could be a problem. The new law DOES specify that ATV's are not allowed to use the public easement, so that should help minimize damage to the road.
Delete(It remains to be seen if this can be enforced.) But the road would remain open to use by 4wd vehicles and anyone following their GPS.
However, there is a possible solution that doesn't require as immediate an action as the matter of requesting a hearing. 23 MRS 3026-A provides a method of extinguishing a public easement, on the condition that the abutting landowners voluntarily agree to grant each other shared private access. I could go into more specific detail if I knew which road and which town this is in. If you send me that information via email at roadways@juno.com, I will look into it. (I do not charge for this service, and I do not share specific road information with the public - but the more roads and towns I can count, the more clout I have with the legislature.) If you have not already done so, I suggest you check out the Maine ROADWays facebook page. It's a public page, so you don't need to have a facebook page to access it - just Google "discontinued roads Maine" and look for a link to the facebook page. Hope to hear from you!
Sent you all sorts of information released by town
ReplyDelete
DeleteThank you for that information. It does appear that the Town complied with the statute, which would have made the road a public easement - unless they failed to file a Notice with the Registry of Deeds. It sounds as if they believe they did, but now can't find it. I'll have a look and see if I can come up with it.
Meanwhile, there are a couple of ways you could go with this that might be helpful. You could assume the Notice does exist but is just hard to find. If the road is assumed to be a public easement, you could post a sign warning that it's a Class E Crime to damage a public easement with a motor vehicle or ATV. That MIGHT make ATV'ers think twice. Enforcement is more difficult, as you pretty much have to take pictures of the road when it's in good shape, then catch them on a trail camera showing them damaging the road. Inland Fisheries' Landowner Relations Program is supposed to help make sure recreational users do not damage private land, resulting in landowners refusing access. But so far I have not seen them do as much for landowners as they have for the ATV'ers. I have spoken to one of their Wardens, who was under the impression that section 23 MRS section 3021 opens all public easements to all public use, including ATV's. I pointed out to him that section 3022 further defines the public use allowed on public easements as being "limited to rights of access by foot or motor vehicle as defined in Title 29-A, section 101, subsection 42." That definition of motor vehicle specifically excludes ATV's. I have not heard whether that has changed his response to complaints of ATV's on public easements or not. You could try getting in touch (with a copy of section 3022 in hand) and see if you get anywhere.
Another possible tactic would be to argue that unless the town can produce the Notice filed at the Registry of Deeds, the discontinuance is invalid. The result would probably be that the Town would claim the road abandoned. If you had done that last year, the applicable statute would have been 23 MRS 3028, and the result would have been a public easement, just as you would have under the discontinuance. But as of Oct 1, 2021, the new 23 MRS 3028-A is in effect. While this statute also has its flaws, one advantage it does have is that if the Selectmen determine a public easement is retained, the law uses the definition of public easement that excludes use by ATV's. The new law requires that abutters be notified in advance, but only gives ten days for 25% of the abutters to request a hearing. - so it would be wise for you to contact the other landowners now, to see if you can muster enough to get a hearing. If any property would become land locked if there is no public easement retained, then the Selectmen SHOULD retain a public easement, but the law doesn't say so. If no property would be land locked, you should request that no public easement be retained. But if there would be landlocked property, you should ask for a public easement to be retained, but then use 23 MRS 3026-A to get the landowners to agree to grant each other a shared private easement so the public easement can be extinguished. I'll send you an email with more detail.
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ReplyDeleteThis comment has been removed by the author.
DeleteI live on a road that half of the road had been a discontinued town. As it was being used very little only our family. Now 4 houses have been built on the discontinued half of the road. Two businesses Dewey Cedar sawmill lumber and Rockport Granate. Eighteen wheelers go up and down at all hours. Which doesn't bother me. There is also many many private vehicles that go to the sawmill to buy wood. The man who owns the company which is a million dollar company now. Wants my family to pay for road maintenance. How do we get the town to Undiscontiue the road ? Do we as homeowners of the town that pays taxes need to maintain it?? What about the two businesses that use this dirt road to the point it is unpassible ? Please help me understand my rights.
ReplyDeleteIn order to be able to tell you more, I need to know more. Can you email me more details at roadways@juno.com? I would need to know at least the name of the road (if it has one) or its exact location so I can find it on Google Earth. You say it was discontinued. How do you know that, i.e. is that just what someone told you, or do you actually have a copy of the discontinuance? If you've done any research on it, if you could let me know as much as you already know, that will save me doing duplicate research.
DeleteGetting the road "undiscontinued" may be impossible. Many towns are refusing to accept any new roads, and often, those that are accepting roads are requiring that they first be brought up to town road standards by the abutters. That is likely to be impossibly expensive.
Fortunately, there may be other remedies. Depending on the exact date on which the road was discontinued, and the exact wording in the discontinuance order, the road may now be a public easement, or it may be private property. If it's a public easement, there are a couple of laws that can help address damage by others - especially those you can identify, such as the businesses. If it's private, there may be questions as to who has any rights to use it. If a person has used the road without interruption for twenty years or more, or if they can "tack" their use to use by their predecessors to reach the twenty year mark, they may have prescriptive rights to continue using it. It sounds like the business owner wants you to be part of a "road association" to share in road maintenance costs. Depending on how the road association is formed, there may be rules that apply.
So please send me more information at roadways@juno.com and I'll see what I can dig up for you.
Hi, I own land in Norway that was previously accessible by way of a discontinued road that is known as either "Old Yagger Road" or "Sodom - Yagger Road". The neighbors who own the abutting property on either side of the road where it connects to the maintained town road have now blocked this access and posted No Trespassing signs. This road was discontinued in 1975 and I have the town records so show this and confirmed that there is no mention of extinguishing the public easement, but I have been unable to find any record of this being recorded in the county registry. The neighbors claim that there was no legal discontinuance because this is not registered with the county as required by 23 MRSA 3024. I don't know if it matters but I also have a copy of public notice from 1968 identifying this road and several others as Limited Use Pursuant to MRSA Section 2068. There was also a vote to discontinue this road in 1951 that was not approved. My property is not land locked without this access. I have direct access to a public road from the other end of the property, but it is more than a mile of steep and difficult terrain to get the better, flatter and generally more usable land that was previously accessed by a short drive along the road that is now blocked. I would appreciate any suggestions and information on how I might be able to regain the access that is currently blocked. Thanks.
ReplyDeleteOh, my! These cases often take a lot of twists and turns before the true status of a road is determined, but I think yours breaks the record for the number of different possibilities that have been tried. Could you please email me so I can let you know what I've found? I'd love to be able to post it here, but want your permission first before publishing details. You can email me at roadways@juno.com and I'll get back to you.
DeleteHi, I am looking to buy a " land only " lot on a discontinued portion of Bowles Rd. in Livermore ME . The land is being offered as cash only deal, because, I will write this as the title company stated " In conducting the title search the title attorney determined that the Town did not properly discontinue the road back in 1933, having not recorded proper documentation within the registry of deeds. It was the determination of the title company that the owners do not have a legal right of way to access their property and the title company firmly stated that they could not insure access as part of their policy. The title company took the position that a legal right of way should be drafted amongst the abutting property owners of the discontinued road portion in order to clearly define the rights of the property owners to access their property". If all abutting property owners sign a document, agreeing to ROW, what happens next? How long might this take? What would this section of road then be considered? Thank You
ReplyDeleteYour title company has it half right. The part they have wrong is that in 1933, towns were not required to file any record of the discontinuance of a road with the Registry of Deeds. That was not required until 1959. (See 23 MRS 3024.) They are correct in that if a road was discontinued after 1959 and the town failed to file it with the Registry of Deeds, the discontinuance would be defective.
DeleteSince that law doesn't apply, the 1933 discontinuance is probably valid. The next question to ask is whether the Warrant Article by which the road was discontinued said anything about retaining a "private way." If it did, then that would make the road what is now known as a "public easement," and not only the property owners but the general public would have the right to use the road. But the public would have no obligation to do any maintenance whatsoever, including repairing the damage that results from public use.
What is more likely is that the Article for Discontinuance said nothing about retaining any sort of easement. If that is the case, properties abutting the road are most likely legally land locked. The land formerly occupied by the road would have been returned to the abutting landowners from whom it was taken, and is now their private property, breaking what was once a road into a patchwork of pieces of private land. In short, there is no legal access to the abutting properties.
It's possible that abutters on that section of road have established a valid claim to an "easement by prescription." In order to do so, each landowner would have to be able to prove that he and/or his predecessors-in-title combined have used the road for twenty or more years without interruption, adverse to the owners of the land they cross, without their permission, but with their acquiescence. Or their use has to have been "so open, notorious and uninterrupted that acquiescence will be presumed." If a landowner gave permission for others to cross, that would make it "permissive use," not adverse use, and that permission can be withdrawn at any time, leaving others without access. Nailing down a prescriptive easement requires going to Court, which can be prohibitively expensive.
The process for establishing a right of way by agreement of the abutters begins with obtaining a copy of the Warrant Article that discontinued the road, including the result of the vote on that article. If the language of the Article is valid, and if the vote was to discontinue and says nothing about retaining an easement, then the next step is to try to convince the other landowners that establishing a shared private easement is a good idea. That's a delicate proposition. If you try to bully your way in and demand a right of way so you can subdivide and develop your property, you'll get the door slammed in your face, or worse. The best policy is to keep it as friendly and non-threatening as possible. Talk to the other landowners. ASK what their concerns are, and really listen to their answers. Then see what you can do to alleviate any worries they may have about your intentions for the road. If need be, call in a professional mediator. It only takes one landowner who doesn't want his privacy disturbed to refuse to grant a shared right of way. And even if people seem friendly to start, that's no guarantee they won't change their mind later and decide to block your access. You really need to have it in writing and filed with the Registry of Deeds.
DeleteTo answer your questions directly, if all abutting property owners sign a document agreeing to a right of way, it needs to be filed in the Registry of Deeds. But you would want to have an attorney experienced in such things draw up the document. It should specify that each of the grantors also retains access for themselves, and it should include details such as the width of the right of way, who is responsible for maintaining it, whether there are any limits on it use, (i.e. is subdivision allowed?), whether there is a right for utilities, etc. Getting all of the abutters to sign can take time. If there are only a few and they are all agreeable, great! But if there is one who won't sign, there may be little you can do to change him mind. If you do get everyone to sign, then depending on the language of the deed, the road would then be considered a shared private right of way or perhaps a private road.
In short, I would be really uneasy about buying a piece of land on a discontinued road that does not have clearly defined access rights already established in writing.
The answer to your question would depend on when and how the road was discontinued. If it was discontinued before Sept 3, 1965, then unless the warrant article on which it was voted discontinued specified that a "private way" was retained, then it returned to private property and there is no public right to use the road. If it was discontinued after that date, then a public easement was automatically retained unless the warrant article specified that there would be no public easement retained. A public easement would give the public an "unfettered right of access" over the road. There's also a chance that if no easement was retained, the public may have established a public prescriptive easement through at least 20 years of public use without interruption - but that's a long shot, and proving it would require going to Court. Unfortunately, you are unlikely to get law enforcement to do anything about it in any case. They will say it is a civil matter and will have to go to Court to determine the status of the road before they can enforce it either way.
ReplyDeleteThe first thing I would do is to ask your Town if they know the exact date on which the road was discontinued, and then ask them for a copy of both the Warrant Article (with the date) AND the result of the vote on that article. Some towns have that information readily available and will gladly provide it for you. Other towns are not so helpful. If they don't know when the road was discontinued, finding the record can take some time, and they may not be willing to look for it. If they are unwilling or unable to answer your request, it may be possible to search through Town Reports at the State Library in Augusta. The Library would most likely not have the result of the vote, but if the warrant article can be found you could then give the Town the date, and then looking for the result of the vote would not be such a burdensome request.
Another thing you could try would be to find out what the real estate disclosure said when the land was sold recently. Since 2017, the sale of real estate has required a disclosure if the access to property is not maintained by the public, and if not, the seller must disclose who does maintain it, if known. Unfortunately this law has not worked as well as we had hoped. While it does alert the buyer if the road is not maintained by the public, it doesn't always make it clear what rights and responsibilities the landowner has, and sometimes the information conveyed is not even accurate. They may say it's a private road with maintenance shared by the abutters, when in fact there is no road because it was discontinued before 1965, or the purchaser may believe that it is his private property which he has a right to block, when in fact it was discontinued after 1965 and a public easement remains. To add to the confusion, a law passed in 2021 says that if a road is private, and if there is no existing road association or road maintenance agreement, it is presumed that the landowners share equally in the cost of maintenance. This has caused more problems because the seller may say the road is private with shared maintenance when in fact it's a discontinued road, with or without a public easement.
So the bottom line is, start by asking the Town what they can tell you about the road's status, and also see if the realtor who handled the sale can give you a copy of the real estate disclosure. Let me know what you find out (if anything) via email at roadways@juno.com and I'll help you figure it out from there. If need be I can try searching the Town Reports at the State Library, or meet you there and show you how to search for it yourself. Again, email me with any more information or questions you may have.
sorry to bother you with a bit of a dumb question, but what would a roadway that was built over and/or removed classify as discontinued. (Ex. Schencks Rd in Machias or Kimball Loop in Machias)
ReplyDeleteNot a dumb question at all, but a rather interesting one! Historic aerial photos on Google Earth show that in 2014, Schencks Rd was a road in a trailer park. The Maine DOT public mapviewer site indicates it was a private road. But the 2019 aerial view shows the road and trailer park gone, and a Dollar General in its place.
DeleteIf it had been a public road, it would need to have had a formal discontinuance. But since it was a private road, not a town or county way or a state highway, I believe there was nothing stopping the owner of the trailer park from closing the park and selling the land to be used for another purpose.
As for Kimball Loop, according to the DOT mapviewer, its jurisdiction is “other.” That is, it doesn’t classify as a private road, but it also is not a town way, county way, or state highway. It appears it belongs to the University, and is their responsibility. The 2014 aerial view shows a building with a road that loops all the way around it. In the 2019 aerial view, the building is gone. Part of the road is still there, but the part that looped back has been grassed over. Again, since it was not a town or county way or a state highway, no discontinuance was necessary. The University could do what they pleased with it.
So in functionality, I would say that both roads are discontinued, but no formal statutory discontinuance was necessary because those were not publicly owned and maintained roads. Does that answer your question?
Thank you very much. As another question, when looking at various old aerial photos from the '90s, I noticed that there was also a trailer park where the Napa in Machias (312 Dublin St) is now located. Is there any way to find the name of the road that used to go through the trailer park? I only found Schencks Rd because they never removed the street sign.
DeleteMay I ask what your interest is? Are you a town official? Town historian? Just curious? Or trying to locate where someone lived? There are a bunch of resources you could try. First, look in town records. It seems there should have been some sort of permitting or planning board approval. Next, you could go online to your county's Registry of Deeds, look up the current owner, and trace the deeds backwards until you reach the owner of the trailer park. See if the deed descriptions include any mention of the name of the road, or if they mention a subdivision plan. If a subdivision plan was registered, it may show a road name. Another possibility would be to simply ask older local residents if they remember a road name.
DeleteYou could also try older tax maps.
DeleteThanks. And for your information, I am just a curious citizen. (Although I do hope to one day write down all of the more mundane history of the Machias Bay area, though that probably won't go anywhere.)
DeleteIf you're interested in being a history detective, I'm always looking for volunteers to go through Annual Town Reports for their town or area and note down every Article that asked for the layout, discontinuance, or "closing" of a road, and then look up the result of the vote on each article. I would like to some day have a database where people can go to find out if a road was ever discontinued or not. Is that something you might be interested in doing? If so, I can give you training in how to do it.
DeleteSorry for the late response. I'd love too someday, however as of now I don't think I have the time.
DeleteThat's okay. If you ever find yourself with some time, mostly what I'm looking for is for people to go to their town office, ask for permission to go through their Annual Reports, and skim through the Warrants looking for any articles that ask for the discontinuance or closing of a road. Note the date, warrant article number, and name or description of the road. Keep track of the years you've looked at, and you can pick up and do more some other time. That's the basic objective. No problem if you don't have time right now.
DeleteI am a resident of hartford Main, trying to figure out when a road was discontinued. The road is hermit Lane and I’m trying to figure out the year as I understand after 1965 that discontinued road is still open for public usage. Could you point me in the right direction of how to try to find this information out, I have searched deeds, gone back many many years in many owners, and it’s very unclear.
ReplyDeleteI looked up your road on the DOT mapviewer site, and found that it was laid out as a county way 4 rods wide (66 feet) in 1801, while Hartford was still part of Cumberland County. The DOT does not have a record of the County having discontinued the road, and lists it as "status unknown," probably because they have it on record as a county way but the Town reports that they do not maintain it. The DOT does have a record of one discontinuance that they were unable to identify, listed as "not located," so it's possible that could be your road. But that discontinuance took place in 1895, and your road still shows as a double solid line on TOPO maps through 1958, so that seems unlikely. Maps often lag behind reality, but not usually that far behind. There are seven other county discontinuances in the DOT listing that do not say "not located," but that also do not identify where they are. So it's possible one of those is your road. If you want, I can get those listings from the DOT, or I can give you the code numbers and you can go to your Registry of Deeds and look them up in the County Commissioners' record books and see if any of them could be your road. As of the 1969 topo map, the road shows as a Jeep trail. That's somewhat problematic because as of 1976, all county ways in organized townships became town ways. That means the Town would not have had jurisdiction to discontinue the road until after 1976. It's possible the Town did discontinue it after it came under their jurisdiction. Finding that out would require going through all the Annual Town Meeting Warrants since 1976 to see if there is a Warrant Article asking for the discontinuance of your road. Your town may or may not be willing to allow you to do that yourself, and they may or may not be willing to search the records on your behalf. An alternative is to call the Reference Desk at the Maine State Library in Augusta and ask them to bring in from remote storage the Hartford Annual Reports for 1976 on. It will take them a few days to get them, because the Library is in temporary quarters while their building is being renovated. Once they have brought the records in, you can go there and do your search. I always recommend jotting down the year and article number of ALL discontinuance records you find, partly because roads often changed names, and partly to help create a data base for others. The exact wording of the article is critical. After 1965, if the Article didn't specify no easement, then an easement was automatically retained. If you do find the record of discontinuance of your road, you then need to go to the Town and ask for the result of the vote on that warrant article. They may have voted NOT to discontinue. If we cannot find either a county or town discontinuance, the road probably qualifies for abandonment. Whether or not that retained an easement depends on whether it was abandoned by statute or by common law. I'll save that discussion for another day. If you want to pursue the records of county discontinuance, send me an email at roadways@juno.com and I'll give you the code numbers of the unidentified roads.
DeleteI was planning a very rural roadtrip for my family when I came across some mostly dirt but strangely well-preserved roads, and was wondering about their status, whether they're abandoned, discontinued or just really long private roads. These include St. Regis Rd, Milford, (as well as Stud Mill Rd which it becomes at some point) Sugar Camp Rd, Day Block (Not 100% sure on that name) Holmes Falls Rd, Northfield and Center Field Rd, Northfield (Might be Centerville.) Sorry about my lack of descriptiveness, but I couldn't find a lot on these roads.
ReplyDeleteThank you for your question - it gives me a chance to do a bit of public education. First of all, the purpose of this site is to help people who live on, own land on, and maintain roads that are no longer cared for by the public. You might try contacting the County in which the road lies and see if they can tell you who owns and maintains the road, as my research time is devoted to the needs of residents and landowners. That doesn’t leave me time to research roads for people who just want a place to explore.
DeleteIf you see a road that is “strangely well-preserved,” that means that someone is taking care of it. It is not abandoned by those who need it for access. If the public no longer maintains it, those who do keep it in repair it won’t appreciate use by those who do not contribute to the cost of maintenance - especially if conditions are at all soft and muddy, or dry and dusty. Kicking up dust removes the “fines” from the gravel, and the fines are the glue that holds the road together. Splashing through puddles also removes the fines, as well as digging the puddles deeper so that water cannot escape from the road surface.
I’m not going to spend a bunch of time trying to track down who maintains the roads you mention, but I can tell you that according to the DOT, they are not maintained by the public. Most likely they are paper company roads. Generally, most paper companies don’t mind the public using their roads, as they are built to withstand heavy trucks; HOWEVER, bear in mind that the paper company’s vehicles have the right of way at all times, and they tend to travel FAST. If you come around a blind curve and meet a fully loaded 100,000 lb log truck riding the crown in the center of the road, whatever you need to do to get out of their way is your problem. If you cause their equipment to be damaged, you are responsible for the damage.
Also, paper company roads tend to be surfaced with sharp stones that can easily puncture light duty tires. Be sure to carry at least one full-sized spare, well-inflated. Also spare fuel. (If you’re driving an electric car, better make sure you have a LONG extension cord!) There are NO services on these roads, and that often includes cell phone service. (I remember once passing a hand-printed paper sign tacked to a stump, that said “Cell Phone Booth.” In small print under that, it said, “Cell phone service MAY be available from this spot.”) So don’t count on AAA coming to your rescue if you hit a rock and put a hole in your gas tank, as a friend of mine once did on a paper company road.
What do you mean by a “very rural road trip?” Will you be driving the family car, or a 4wd vehicle pulling a trailer with ATV’s? If you are driving on a discontinued road that’s kept in repair by the people who live on it, please be aware of the depth of tire tracks you leave behind. (Will you come back and rake those out, or leave them to keep water running down the road and eroding it?) If you include roads that are truly abandoned, you may find areas that are not even passable by 4wd. Use by mud runners may have destroyed all reasonable access to abutting lands. Are you planning to hike in, or ride fat tire bikes? Etc. At least if you are on foot or on a bicycle on a paper company road, (and are not wearing head phones,) you will hear a log truck coming in time to jump off into the ditch.
In short, if a road were truly abandoned, it would not be “strangely well preserved.” If a road is discontinued but still passable, someone is taking care of it, and your tax dollars are not paying them to do so. In some cases these roads are now private property. So please be respectful.