Research

HOW TO RESEARCH A MAINE ROAD.

How can you find out the legal status of a road in Maine?  Depending on the road (and the Town in which it lies) that may be a simple process or a very long and complicated one.  You could hire a surveyor or an attorney, pay out of pocket, and hope you can pay them enough for them to take the time to get it right, or you can send me a request and I'll apply what I've learned over the years. Or, you can do much of the research yourself, and get in touch with me to look over what you've found, or to help you through any sticky parts.  Then if you do find it necessary to hire a professional, at least you've saved them a bunch of time. If you want to take on the challenge, here are some steps to try, not necessarily in exact order.  The order you choose to use may be affected by what you already know, how readily you can access each of the resources, where the information trail leads you, etc.  So skim down through the headings before wading through the whole thing, and see which parts seem to be the best starting points for you.  Then take it one step at a time.

Before you go too far, try to avoid stirring up hostility with your neighbors.  If there are already problems brewing, whatever you do, do NOT barge in with ideas they are not going to like, or try to get your way by playing the bully.  You are going to have to get along as neighbors in the future, so try to cultivate good relations to start with.  If anything, ask what THEIR dreams and expectations are for the road.  Really listen, try to understand their point of view, and if they have concerns, see how you can accommodate them.  If you start talking about planning a subdivision where they thought they had a quiet dead end road, or if you threaten to block all access to their property, you’re asking for trouble.  It’s better to keep things as friendly as possible while you try to work out what each landowner’s rights and responsibilities may be.  Once you know the true legal status of the road, get the assistance of a professional Mediator if need be, to help you and your neighbors work out an agreement you can all live with.

Bear in mind that your understanding of a road’s status can change several times as you learn more about it, so don’t be too quick to assume you have it all figured out.  For example, when my husband bought our property in 1971, his deed said the road was discontinued.  The Town showed him paperwork indicating it was discontinued in 1945, 20 years before the discontinuance law changed to retain an easement.  Between 1971 and 1983 the town changed its tune several times, telling loggers that the road was public, but when we asked for assistance with maintenance, calling it our driveway.  In 1983, the Town attorney told the County Commissioners that the road had “ceased to exist” when it was discontinued in 1945. Then in 1984, the Town filed in Superior Court for a declaratory judgment on abandonment pursuant to 23 MRS §3028, claiming the result was a public easement.  The Superior Court determined that the road remained a public easement.  In 1987, the Maine Supreme Court agreed with us that abandonment could not be used to regain a public easement IF the road had been discontinued without easement in 1945.  But then the Court went on to declare that because the 1945 discontinuance specified the road was “to be retained as a private way,” that meant that pursuant to a law which went into effect in 1976, that meant it had been a public easement since 1945.  (In our opinion, there remain questions of whether the 1976 law could be used to authorize a 1945 action, or whether public easements can even exist, Constitutionally.)

On the other end of the scale, I once had a realtor call me to ask about the status of a road that crossed a property she was listing, where a buyer wanted to know if she would have to allow ATV’s to use it.  Within five minutes I was able to tell her that the road had been discontinued by the County in the 1930's, and to give her the book and page number of the discontinuance so she could check to make sure no easement was retained.  I wish they were all that easy!

WARNING:  If your road turns out not to be one of the simple ones, this is not a process to be undertaken by the faint of heart!  It can consume an inordinate amount of time and energy.  On the other hand, if you are bent on getting to the root of the matter, and are not keen on the idea of paying an attorney or even a surveyor to do the research for you (and hoping they get it right,) this IS something you can do yourself if you have enough determination.  If you enjoy playing "History Detective," it can even be fun!  Just take it step by step and see where the trail of clues leads you.  If you get stuck or need help, don’t hesitate to contact me at roadways@juno.com.   (Be sure to put something about roads in the subject line so I know it’s not junk.)  And if you find this so much fun that you’d like to do more of it, I’d love to have another volunteer to help me with this work!

PLEASE NOTE: I HAVE A PC, so I make no guarantees all of these instructions will work on an Apple device.  If anyone wants to tackle writing out instructions for Apple, let me know in the comments and I’ll get in touch with you!

Here are various tactics you can use - details on each below:

1) Get to know the basics of road discontinuance law.  

2) Read your deed.

3) Ask your town what information they have on the road.

4) Check with the DOT via their mapviewer site.

5) See how the road shows on old maps.

6) Research town records yourself.

7) Find out which statute applied on the date on which the road was discontinued.

8) Check with the Registry of Deeds.

9) Research “Lost” county roads.

10) Be a “history detective.”

1) GET TO KNOW THE LAW.  Before you start your research, we strongly suggest you get familiar with at least the basics of Maine road law.  For the laws themselves, or for an explanation of the laws, go to the relevant tabs on this website. (Remember I am not an attorney, so this should not be taken as interpretation of law - this is just my personal opinion based on my research and personal experience.  Take it or leave it for what it's worth.)  You will at least want to know the difference between discontinued, abandoned, closed, and public easement - and perhaps also private way and private road.  In doing your research you will need to note the exact terminology that was used, as well as the exact date of any action taken. 

In brief, town roads discontinued before Sept 3, 1965 generally did not become public easements, while those discontinued after that date generally did became public easements, although in either case it could be specified otherwise.  (Roads designated as “private ways” before 1976 are now known as public easements.)  Similarly, roads abandoned by statute under 23 MRS §3028 and most roads abandoned under §3028-A remain public easements, while roads abandoned by common law are no longer roads at all, but private property.  To double check that you have the most recent version of the law, use this link:  http://legislature.maine.gov/statutes/search.htm 

2) READ YOUR DEED CAREFULLY FROM BEGINNING TO END.  If you don’t have a copy, you can look it up on the Registry of Deeds website. (More on this below.)  Does the deed say anything about the road?  If it does, don’t take its wording as necessarily the truth, but it will at least give you a place to start.  (The road our house is on is referred to as “discontinued” on our deed, but the Court ruled it’s a public easement.  We’ve seen other roads where one deed referred to a county road and another called the same road a discontinued town road, or where the road had different names on different deeds.)  

If your deed specifically grants you an easement over the former road, that should preserve your right of access.  But be careful.  If the easement was granted over all of the land you have to cross to get to your property, by the owner of all of that land, that’s great.  But I’ve seen situations where the Grantor did not own all of the land over which the Grantee would have to pass to get to their property, and therefore they had no power to grant the easement.  I’ve seen other situations where the easement granted access to a property from a discontinued road but did not grant access over the discontinued road itself.

Also, beware of Exceptions.  A deed may except out of the grant some right that is retained for someone else.  It may say, “Excepting and reserving a right of way...” which means someone else has the right to use it, or it may say, “Also conveying to these Grantees, their heirs and assigns, a right of way...” which means you have a right to use it, perhaps in common with others.  For example, it may reserve a right for the Grantor to use it for access to other land they still own.  If it says an “exclusive right of way,” it means that no one can use it except the person to whom it is granted, or the owner of the property to which the grant is attached.

3)  ASK YOUR TOWN OFFICE WHAT INFORMATION THEY HAVE ON THE ROAD’S LEGAL STATUS.  If they simply tell you verbally, or even in a letter, that’s not good enough.  It’s amazing how much some people “know” that isn’t true.  One pitfall to watch out for is if some town official tells you the road is not currently being maintained because no one lives there, but if someone moves in, maintenance will be resumed.  Depending on the actual legal status of the road, that may not be as simple or reliable as it sounds.  If the town simply has neglected its duty for a few years, and the road has never been abandoned or discontinued, they may have to resume maintenance.  If they don’t, you can go through the process in 23 MRS §3651 et seq to force them to repair the road.  But if the town no longer is responsible for the road due to a discontinuance or abandonment, getting the town to resume maintenance is unlikely.

If the Town claims the road is discontinued, you need to have actual documents, i.e. an Article from the Town Warrant, complete with the result of the vote.  The vote is important, since the mere fact an action was on the warrant does not necessarily mean it was approved.  (I recently ran across a case where a road had been listed as having been discontinued in a certain year, and everyone had assumed for years that it was discontinued, only it turned out the vote was NOT to discontinue.  The Town has not maintained the road for decades under the assumption that it was discontinued, so it would now qualify for abandonment; however, the Town has refused to declare the road abandoned, leaving its status in limbo.)  The date of the discontinuance and the exact wording determine whether or not any easement remains.

If the Town claims the road is abandoned, you need to see documentation of that determination by the Selectmen.  That documentation should state the grounds on which the Selectmen determined the road to be abandoned; i.e. was it abandoned by common law due to not being used for twenty years, or was it abandoned by statute under 23 MRS §3028 or 3028-A due to not being kept passable for motor vehicles at public expense for thirty or more years?  If by common law, it is no longer a road and provides no access (unless someone has established a prescriptive right.)  But common law should only apply where the road has obviously been unused for some time, being all grown up to trees.  If by statute, it is a public easement.  If they simply voted to declare it abandoned and didn’t say anything else, that’s a problem as it provides no basis of proof, and leaves the remaining status of the road in question. Challenging either determination requires filing in Superior Court for a Declaratory Judgment action.

Some towns have the information about road status readily at hand.  If they do, that’s great!  Some will willingly go digging for it, or will allow you to dig for it yourself - also great.  Others will want to charge you by the hour for the research, or will refuse to even look for it unless you send them a written Freedom of Access Act request.  Filing an FOAA request won’t win you any brownie points.  Some towns actually get hostile over such requests.  And it’s surprising how many Maine towns have lost records due to fire or other disaster.  (There may still be other ways to find it - more on that below.)

4) CHECK WITH THE DOT.  Go to the Maine DOT’s map viewer site to see if it gives any information on your road.  Here’s a link:  https://www.maine.gov/mdot/mapviewer/   If you have slow internet like mine, it can take a while to load, so be patient - it can get confused if you try to ask it for a town too soon.  Once it’s ready, type in the name of your town in the search box at the upper left.  It will give you a drop down menu.  Make sure to choose the option that is just the name of your town, not of a road or bridge by that name.  

A map should come up with your town highlighted in blue.  To get rid of the blue, click outside your town.  Then you can zoom in by using the (+) or (-) signs at the left, and move the map around by clicking and dragging.  Don’t try to zoom all the way in - a few clicks are usually best, but it will give you more detail as you zoom in.  Small roads often do not appear at all until you get closer.  (I find it helpful to bring up Google Earth and search for the name of the road there to get my bearings, then toggle back to the DOT mapviewer to zoom in on the right part of town.)  

Then at the top right, click on LAYERS.  On the right below that, click on ADD.  Where it says Search for Layers, Type in RIG, then click on the + sign to add the two options it brings up having to do with rights of way.  Then click Done, and click on Layers to close the box.  It will then indicate county roads and former county roads in green.  Town maintained ways generally show up on the mapviewer in blue.  Private roads generally show up in gray, and the DOT may show a name for the road but say “No features found.”  

Bear in mind that this indicates which roads are or are not maintained by the town, which is not always an accurate indication of whether the way actually is or ever was a town way.  Usually it’s correct, but sometimes what shows as a private road is actually a discontinued town way (with or without a public easement remaining,) and occasionally it turns out that a town has been mistakenly maintaining a road that never was a town way.

Once you have located your road, click on it and a box will pop up in the left-hand column.  (Tip: make sure the mapviewer drops a pin where you clicked.  If it doesn’t, it didn’t register your request - possibly because you didn’t accurately place your cursor on the road.  Try again.)  If the road was never a county road but is maintained by the town, the box on the left will offer you options to “Show Road Info” or to show “Jurisdiction.”  Clicking on these tabs can tell you the length of the road, the starting and ending points, the mileage to the point where you clicked on it, whether it’s a Townway, and whether it’s maintained seasonally or year round.  

Often the information is divided into little segments of road and not the whole thing, so pay attention to what is highlighted on the map.  You may have to move down the road section by section to get the full picture.  This information is obtained from the towns, which are supposed to update it from time to time - but many towns are not great at reporting changes.  (If they are telling the DOT they maintain your section of road but they do not, that is grounds for invoking 23 MRS 3651 and 3652 to force maintenance, and it should also prohibit a claim of statutory abandonment.)  If a road is discontinued, or is a private road, chances are it will say there is no data available. 

If it was ever a county road, (again, shown in green,) the box on the left will give you the County Road Layout.  Click on that, and it will give you one or more code numbers.  Click on each code and it will translate it for you - the first two digits indicate the county, (numbered in alphabetical order from Androscoggin to York,) the next two tell you which volume of the County Commissioners’ Record Books the record appears in, and the last three digits give you the page number on which the record begins.  It will also tell you the year in which the county road was laid out, and the width in rods.  (Each rod is 16 ½ feet, so a four rod road is 66 feet wide.  A three rod road is 49 1/2 feet.)  

If there is a D at the end of one of the code numbers, that indicates that the road was discontinued by the County, recorded on that book and page.   Sometimes it will say “Status Unknown,” which likely means the Town does not report to the DOT that it provides maintenance for that road.  If it was laid out as a county road, it may mean that the DOT doesn’t know if the Town has discontinued the road or not, or it may mean that they know the County discontinued part of the road but they’re not sure which part.  (I.e. it was discontinued “from the main road to the oak tree by Smith’s barn” - but the DOT doesn’t know where Smith lived, and the tree is probably gone anyway.)  

If the road was discontinued, you will need to see the actual wording of the discontinuance order.  If you find your road was discontinued by the County (which would be before July 29, 1976,)  There are two ways you can obtain that record.  One is to take the code numbers to your County Registry of Deeds and ask them for that book and page number in the Records of County Commissioners’ Meetings.  You should be able to make your request by phone and have them mail or email the pages you need.  They will charge you per page for copies.  You will want to obtain not only the page number listed, but the several pages following.  The record will start with a Petition to Discontinue.  Then there will be a record of Notice of Hearing, then record of the Hearing itself, and finally a record of what the County Commissioners decided.  That last part is most important, so be sure to ask for the entire record having to do with that discontinuance request.

The other option is to obtain the record from the Department of Transportation’s Division of Rights of Way.  They will email you a copy for free.  (I would give you the email address of the person to contact, but that person has changed a few times in recent years.) 

In most cases, the discontinuance by a County resulted in the road ceasing to exist, with the properties reverting to the abutting property owners, usually to the center line.  Any right to use it as property access would only be if someone established a prescriptive right though twenty years’ continuous use by successive landowners after the road was discontinued.  Proving that such a right exists requires going to Court.  But sometimes the County reserved a “private way,” or said that the road was to be “closed subject to gates and bars.”  The Courts have taken these phrases to mean that the road is now a “pubic easement,” which means that the public (including the abutting landowners) still has a public right of access, but the public is no longer responsible for maintaining the road in actually usable condition.

After July 29, 1976, all county ways in organized townships became town ways, so it would have been up to each town to decide to discontinue a former county road, and that would not appear in the county records.

5) SEE HOW THE ROAD SHOWS ON OLD MAPS.  If you have no idea as to the date on which a road was discontinued, often you can get clues as to the road’s history by looking at old maps and aerial photos.  This can help narrow your search for the discontinuance record.  There are a number of websites that are good sources.  You can start with Google Earth by clicking on the icon that looks like a clock.  A time line will pop up that allows you to look at earlier images by clicking back through them.  In particular, look for images that were taken at a season when the leaves were off the trees, as that will give you a better view of the condition of the road.

To go back farther in time, one of my favorite sites is historicaerials.com, which has both aerial photos and an excellent collection of topo maps.  On the introductory page, click on “view images.”  Then wait while the site loads an image of its own choosing before entering your desired location in the search box.  (If you try to ask it too soon, it will just ignore your request and take you where it wants to go.)  

Once it is ready, you can type in just the town and state, or you can include the specific address.  You can then use the + and - to move in or out, or you can click and drag to move the map around.  Once you have zeroed in on your location, click on Topo maps in the left-hand column, and it will give you a list of the dates it has available.  (Notice that there is a scroll bar on this list.  Sometimes there are more even earlier dates available if you scroll down.)  

Move from one date to another, noting if at some point the road was indicated as two solid lines, but later turns to two dotted lines, and still later to a single dotted line.  It may eventually be designated as a Jeep trail, or parts of the road may disappear entirely.  These may give a hint as to the date on which the town stopped maintaining a road, but bear in mind that maps often lag several years or even several decades behind reality.  Also pay attention to where there are black squares indicating buildings, or where there may be other landmarks such as a school, church, cemetery, or some named feature such as a brook, hill, mill, or crossroad.  These details may be useful if you find a discontinuance that refers to any such landmarks to identify a discontinued section of road.

Sometimes you can find maps of other dates on other websites.  Good sources include the UNH map library, Get Topo Maps, and the Osher Map Library.  Sometimes if you just do a Google search for historic maps of your town, you can find some really old ones.  Also check with your town historical society if there is one, as they may even have old maps with the owners of each lot written in.  These can be particularly helpful if a discontinuance is dated near the date of the map, and refers to the names of the residents.  Some deeds refer to the original land grant blocks by range and lot number, so if you can find a map of those divisions, that can be really helpful.  The Registry of Deeds or your town Historical Society may be able to help you find a map that shows that division.

6) RESEARCH TOWN RECORDS YOURSELF.  If getting records from the Town proves difficult, whether due to records having been lost or due to reluctance of town officials to search, your best bet may be to go to your local library or historical society and ask if they have a collection of Annual Reports for your town that you can look through.  If not, the State Library in Augusta has a pretty complete collection, if you don’t live too far away, or you can ask me to do the research for you.  (As of this writing, I do not charge for this service.)  Towns are supposed to send a copy of their Annual Report to the State Library every year, but some towns have been more consistent with that than others.  Be sure to call the Reference Desk a few days in advance, as they will likely have to pull them out of remote storage.  The records for a few towns can be found online at https://digitalmaine.com/ so it’s worth checking there.

Going through annual reports can be a bit of a laborious process if you don’t have some clue as to the approximate date on which it may have been discontinued, so unless you know where to start you’ll probably want to try some of the other options before returning to this one.  But if you do end up searching in Annual Reports, remember that you don’t have to read every one from cover to cover.  You might flip through quickly to see if there is a road map or inventory, or if there is mention of your road in the Road Commissioner’s Report, but you’re most likely to find what you’re looking for in the Annual Meeting Warrant so I recommend concentrating your efforts there.  If you have an alleged or approximate date of discontinuance, you can start there and then search in a widening arc in both directions.

Skim down through the Warrant Articles, looking for the key words or phrases in each one.  You can skip over anything that has to do with salaries, schools, library, property tax, fire department, snowmobile club, etc and even general provisions for road maintenance or winter roads.  But if you see anything that has to do with the discontinuance of a road, even if it’s not your road, or doesn’t appear to be, I recommend you note it down anyway.  Roads often changed names, so you may find out later that your road was discontinued under another name.  Also note down which years you have looked at, and whether there are any gaps where the Library has no Annual Report, or where the Annual Report does not contain any Warrant.  A few towns also include warrants for Special Town Meetings in the Annual Reports, and a very few include the results of the votes on the previous year's Warrant, so be on the lookout for those possibilities.

If you keep good notes, you may end up being the “go to” person when someone else in town needs to know when their road was discontinued. You might even do the Town a favor by coming up with a list of every road layout, winter closing, alteration, or discontinuance that it has on record!  (Even some subset of that could be helpful.)  Be sure to ask first, to find out if this has already been done.  More and more towns are finding it pays to do this research to head off problems before they explode.  MMA has resisted attempts to make it mandatory on the grounds that it would be an "unfunded mandate,"  but our town did it all with volunteer labor.  It was the most fun I have ever had serving on a committee - like playing "History Detectives!"

One caution, however; Vermont embarked on a project to identify every road that had ever existed in the State, and some towns relied on unskilled volunteer labor for the task.  They went out through the woods, looking for old stone walls or other evidence of where a road might have been.  In some cases they claimed public ownership of long-forgotten roads with little proof that they had in fact ever existed as public roads in the location claimed.  With no survey, and with no documentation of the layout of a road, in at least one case it was claimed that what was now declared to be a public road went through the middle of a house.

If you DO find an article asking for the discontinuance of your road, you then need to note both the article number and the date. Notice that the date of the Report and the date of the Annual Meeting Warrant are often off by a year, so record both. Or write the date on a slip of paper, place it on the page, and snap a photo. It’s good to do a test to make sure your photos will be legible once enlarged. (The Registries of Deeds won't let you take photos, but the State Library will.  They will even let you bring in a hand-held scanner such as a "Magic Wand," which is great for copying records out of old books that won't lie flat.) 

Next, go to your town and ask for the record of the RESULT of the vote on that article, since the Library usually won’t have that information.  That should be much easier for the Town to find since you can now tell them what year or two to look for, so they shouldn’t object too much.

If the record of the result has been lost, as it was for a 1904 Article to discontinue the road I live on, unfortunately you cannot assume the result of the vote was either yes or no unless there are other clues - for example, a warrant article the following year asking for an appropriation of funds to rebuild the road, and records the year after that of the funds so raised having been actually used to rebuild the road.

The exact wording and the date on which the vote was taken are critical.  BEFORE September 3, 1965, if a town road was discontinued it ceased to exist as a road unless the article for discontinuance specifically reserved an easement or “private way” (now known as a “public easement.”) Some Superior Courts have even taken the words “closed, subject to gates and bars,” to refer to a public easement, even without the words “private way,” although to my knowledge the Maine Supreme Court has yet to weigh in on that interpretation.  Other Courts have taken “closed” to mean a temporary suspension of maintenance.  If maintenance was never resumed, after 30 years the road would be eligible for statutory abandonment.  AFTER September 3, 1965, if a road was discontinued a public easement was automatically retained unless the article for discontinuance specified NO easement.  (From 1965 to 1976 it was known as a private way, but 1976 law changed the terminology to public easement.)  In light of Jordan v Canton, we question whether public easements are Constitutional - but that question has yet to be addressed by the Court.

Sometimes an Article will ask the town to vote whether to direct the Selectmen to petition the County Commissioners to discontinue a section of County road.  If the vote was in the affirmative, you will then have to go to county records to see if the Selectmen followed through, and if so, what the Commissioners decided.

7) THE DATE ON WHICH A ROAD WAS DISCONTINUED OR ABANDONED CAN BE CRITICAL when it comes to figuring out exactly what remains, as noted above.   The question of which law was in effect at the time of the discontinuance may even determine if the action was even taken legally, because the statutes have been amended so many times. So how can you know for sure which version of a statute was in place at the time a decision was made regarding the status of your road? Well, you could just ask me to figure it out for you. I enjoy a good game of "History Detectives," so long as I don't get too many of them at once. But if you want to have the satisfaction of doing it yourself, you can research the statutes online. Here's how:

HOW TO TRACE THE HISTORY OF A STATUTE

1) Go to http://legislature.maine.gov/statutes/search.htm  and search for the statute you want to trace back.

2) Once you have brought up the statute you want, scroll to the bottom of the page (or the bottom of each section that has been amended) and note down the year it was amended, and the chapter and section number of the amendment.

3) Open another tab.  (This will allow you to refer back to the statute easily.)  Go to http://lldc.mainelegislature.org/Open/Laws/ 

4) Scroll down and click on the year of the amendment you’re looking for.

5) On the new list that pops up, scroll down and click on the chapter number shown with that date in the Section History

6) Scroll down to the section indicated for that date and chapter in the Section History, then look for the statute number.   Boldfaced or underlined passages are what was added.  Passages that were deleted are struck through.  The date on which the amendment became effective is listed either at the bottom of each chapter, or on the title page of the chapter. 

Sometimes you come to a dead end, even when you know there was an earlier version of the statute that was repealed and replaced by a new section.  Often, if you call the Reference Desk Librarian at the State Law Library (not to be confused with the State Library) they can find the trail on the other side of the gap, and will email you the full record.  (Librarians generally are friendly and amazingly helpful!)

When it comes to the most recent changes, I've noticed that there may be quite a time lag between when a new statute becomes effective and when it appears in a search on the statute search site. The left hand column on the statute search page gives the date it was last updated.  Current statutes that do not appear on the statute search site yet can be found here: http://legislature.maine.gov/ros/LOM/LOMDirectory.htm  and click on Session Laws to Present.  If you know any words that are or may be in the title of the statute for which you are looking, you can hold the Ctrl key and press F to give you a search box.  Type in a word and it will tell you how many times it appears, and you can search through them all by clicking on the down arrow in the search box.  

This method of searching for text comes in handy for a lot of sites, although it doesn’t work for all.  Bear in mind that on some sites the search may be case sensitive, so if you’re looking for a word that has an initial capital in the name of the statute, it may not find it if you type it in all lower case.  Also, if you type in “Abandonment” and the statute has “Abandoned” in the title, it won’t find it.  But if you type in “Abandon” with no space after it, some sites will find all three.  Others will only find “Abandon.”  So you will need to play with the search a bit to find out what it will do on a particular site.

8) CHECK WITH YOUR COUNTY REGISTRY OF DEEDS.  There are various situations in which this may be helpful, especially if you have exhausted the other possibilities.  You should be able to do your research online.  Do not expect the staff at the Registry to do the research for you; however, they can be very helpful by instructing you over the phone or in person as to how to do your own research.

Each county's website works a bit differently, so you may have to experiment a bit to be able to actually read and print deeds.  Don't be afraid to click on the various icons or options to see what they will do for you.  In order to print or download a copy of a deed, you may have to create a username and password; however, you do not have to open an account.  Under Maine law you can print or download up to 500 deeds per year for free, and if you go over that, it only costs 50 cents per page. 

If the site isn’t working properly for you, you may have to use a different browser, or you may have to temporarily allow pop-ups.  Also, make sure you are using the proper search terms.  I’ve been known to switch to the Plan book, then later wonder why I can’t find a deed that I know exists.  Ooops - I need to switch back from “Recorded Land Plans” to “Recorded Land,” or I have it on “Document Search” when what I want is “Volume Search” or “Name Search.”

Some counties have all their records digitized, while others may have them only back to a certain date.  But you may be able to go back farther if you have the book and page numbers.  Some sites allow you to search the old index books in specified date ranges by name, or search Early Books by document number or book and page number.

So, where is a deed search helpful?  First, if your deed says nothing about the road, you may want to check the deeds to other properties along the road.  If any deed refers to a description in an earlier deed, it may well be worth following the chain of title back, as an earlier description may include critical information.  

If you don't know the names of the other landowners, many towns have their Tax Maps and Tax Commitment Books online.  Use the tax map to find the lot numbers, then go to the Commitment book to find the names of the owners.  Some towns give you a choice of an alphabetical listing or a listing in numerical order by map and lot number.  This is one place where that Ctrl-F search can be a big help.  It can help you find a name if the only listing offered is by map and lot, or help you find a map and lot number if the only listing offered is by name.  Or you may be able to search for the name of the road and get everyone who owns land on it!  

Once you find the owner you are looking for, the Commitment book will often give you the book and page number of their deed, which gives you a starting point for tracing their chain of title.  But it may also be helpful to search for all documents in your town that are listed under each landowner's name.  Sometimes you will find that they granted someone else an easement over the course of a discontinued road.  But bear in mind that they could only grant what they owned, i.e. if the road was discontinued without easement, they would most likely own to the center line where the former road abutted property they owned at the time they granted the easement, but not where it abutted anyone else's property.

If any deed gives reference to a Plan, and it tells the book and page number on which the Plan was filed, check and see if the Plan sheds any light on the road’s status.  Sometimes this information is not entirely accurate either, but other times it will tell you the source of its information about the road.  I found one case where a Survey Plan referred to a section of road as being discontinued.  Fortunately, it gave a book and page number reference for the discontinuance, because when I looked it up, it turned out to be a different section of the road than was indicated on the survey.  (It clearly described the discontinued section as being west of a certain road, and the survey was of property abutting a section east of that road.  Old maps and aerials confirmed that the section west of the road had disappeared long ago.  The section to the east had not been regularly maintained, but was still in use as access to town-owned land.) 

Sometimes a deed will mention a Plan but will not give a book and page number, or will say, “to be filed.”  In such cases you can try searching for the Plan under whatever name it might have been filed under, or searching in the approximate date range in which it might have been filed.  But there is no guarantee that anyone did in fact follow through and file the Plan. If the Plan is recent enough that the Surveyor is still in business, you may be able to get more information from them.

What do you do if you find a discontinuance you think may be your road, but it is described in terms of names of landowners who were there at the time of the discontinuance?  How can you identify the end points of the discontinued section, or even determine if it is in fact your road?  One method is to trace your chain of title and those of your neighbors backwards until you get to those who owned the land on or before the date of the discontinuance, and see if the names mentioned in the discontinuance show up.  

Alternatively, you may be able to find the landowners’ names by searching for them as Grantee before the date when they are mentioned in the discontinuance, or as Grantor after the date when they are mentioned.  Or to be safe, search for both Grantor and Grantee, in case the discontinuance was described in terms of who used to live there.  But then the challenge is to figure out where their land is, and whether you are even on the right road.  Sometimes that will require looking up the names of anyone listed as an owner of abutting land, or tracing the chain of title forward to the current owner.  

You need to be sure the person didn’t move across town, or leave their home to their descendant with the same name.  The same name or similar names often pop up all over town, particularly if you go back to the original land grants.  Sometimes you can confirm which part of town a person actually lived in on a particular date if you can find lists of whose children attended which one-room schoolhouse.  And sometimes you can confirm who was descended from whom through genealogy sites, or through grave stones or cemetery records.

Sometimes a deed will refer to lot and range numbers.  These refer to the original land grant blocks into which the land was divided when the Town was established.  As mentioned earlier, the Registry of Deeds or your town Historical Society may be able to help you find a map that shows that division.

Another good reason for checking with the Registry of Deeds is 23 MRS 3024.  Under that statute, if the road was discontinued after September 12, 1959, there should (in theory) be a Certificate of Discontinuance on file in the Registry of Deeds, probably filed under the name of the Town as a “miscellaneous” document.  But many towns never filed.  (I think this is partly due to the fact that the requirement comes before the statute that tells how to discontinue a road, and partly due to extremely ambiguous language of the statute.)  If no certificate of discontinuance was filed, the Town could be challenged to prove that all owners of land abutting the road were given actual notice of the discontinuance. If the road was discontinued after that date and neither record exists, you may be able to dispute the validity of the discontinuance.  (Getting the Town to admit it made a mistake can be a more difficult prospect!)

But if a defective discontinuance occurred more than 30 years ago, the Town may then just claim statutory abandonment, which in most cases would leave you with a public easement.  If a defective discontinuance occurred more than 20 years ago, the Town may try to claim common law abandonment, which could leave you land locked.  There is also the possibility that the town could claim common law abandonment occurred at some time in the distant past after a 20 year period of non-use.  

There should not be a claim of common law abandonment unless the road is obviously overgrown, as common law rests on at least 20 years of non-use as opposed to mere non-maintenance.  For example, a road may have remained passable because the public continued to use it, keeping it from becoming overgrown, or a landowner may have provided maintenance, and others continued to use the road.  If the only people who used it were owners of abutting land and/or hunters, the Town may try to claim that they don’t count as members of the public.  But in at least one Maine Supreme Court case, Gay v Dube, the Court said that use by the abutters was the public use for which the road had been established, and therefore use by the abutters was public use.  

I believe the Court was correct in this interpretation.  While establishing a public road by user requires more than use by abutting landowners, I think use by anyone should be sufficient to prevent total extinguishment of the easement.  Otherwise, a dead end town road that is used only by those whose property it serves could be claimed extinguished after 20 years, with no right of way reserved, even though the road is still in use as necessary access to abutting properties.  That just doesn’t make sense, especially in light of the fact that the abutters had no private access rights and therefore had to be using it as a public road.

Looking at the opposite side of things, private use cannot create a public prescriptive easement; however, private use can nevertheless establish a private prescriptive easement.  But a prescriptive easement cannot be obtained by use of a road during the period of abandonment, because during that period, the road is still a public road.  Common law abandonment extinguishes not only the public right, but private rights of access as well.  Is it right that lack of public use could deprive landowners of all access, when the private individuals have continued to use the road for access?  Again, that doesn’t make sense.  So I conclude that common law abandonment can only occur where there has be no use of the road by anyone for twenty or more years.

9) RESEARCH “LOST” COUNTY ROADS. 

Each Registry of Deeds has a printout from the DOT that lists just the discontinued county roads of which they have record.  Hancock County was kind enough to put their copy online, so it is no longer necessary to go to a Registry of Deeds to view it.  Here’s a link: 

https://www.hancockcountydeeds.com/pdfs/discontinued-roads-sm.pdf

Assuming you have already checked the DOT mapviewer and your road is not shown as a county road, look in this list for your town and see if any of the discontinued roads are listed as “not located.”  This designation means that the DOT was unable to identify which road the discontinuance applied to, and therefore there’s a possibility it could be your road.

This DOT printout unfortunately does not always give road names, so then the trick is to figure out whether one of the “not located” discontinued roads in your town might have been yours.  As I mentioned in the section on the DOT Mapviewer, each county road was assigned a series of numbers that identify the road. The first two digits refer to the county in which the road was laid out, numbered in alphabetical order from Androscoggin (01) to York (16).  The second two digits refer to the volume of County Commissioners’ records in which the road layout was recorded.  The final three digits give the page number in the volume.

Be careful in interpreting the first two digits, as county lines changed a number of times.  Our road is now in Kennebec County, but when it was laid out in 1791, this location was in Lincoln County Massachusetts!  It went through a few counties before it finally settled in Kennebec.  You may have to do some historic research to find out what counties your road has been in over the years, or where the old county lines ran. The county designation on a discontinuance may narrow down what part of town the “not located” road was in, and enable you to eliminate the possibility of a road being yours.  The DOT listing is organized by town, so bear in mind that town lines also sometimes changed.  If you know your land was formerly in another town, search the records for that town as well.

Once you have found a listing that could be your road, there are two options for obtaining a copy of the discontinuance to try to find out whether or not it’s your road.  See the notes in the section on the DOT for how to obtain the record from the DOT or from the Registry of Deeds.

You may be able to tell from the description that it is NOT your road - for example, if your road runs east-west and the road described runs north-south, or if it’s a short piece of road identified by some landmark that definitely is not in your part of town.  On the other hand, you may find that the description is difficult to place anywhere.  If that’s the case, it’s up to you to decide how much effort you want to put into identifying the road.  If it has names of any property owners, you may be able to figure out where they lived by consulting town histories or historic town maps from around the date of the discontinuance, or you may get lucky and recognize a name from tracing deed histories to properties on your road.  

Now we are getting into advanced skills for the person who is really determined to get to the bottom of their road’s status.  The DOT mapviewer site referred to above is an excellent place to start; however, there are occasional gaps in their records, mostly due to the descriptions of some roads being too vague to identify, or lost to history.  (As I said above, the record may say a road was discontinued “from the main road to the oak tree by Smith’s barn” - but the DOT doesn’t know where Smith lived, and the tree is probably gone anyway.)  Such roads may not show on the mapviewer as being discontinued although they actually were, or they may not even show as ever having been county roads although they actually were.

If your road as originally laid out ran across a town line and into another town, it may have been a county road.  Sometimes you can “connect the dots” of several pieces of roads that were originally all one road.  It may be possible to look on Google Earth and see faint traces of where the pieces of roads once connected, leading from one town to another.  In other cases, a town line may have moved, making a road then cross a town line even though it was laid out all in one town.  But neither of those circumstances by itself will prove that it was actually a county road.  In order to do that, you will have to find the actual county layout of the road.  If your road is very old, there is also the possibility that it was actually laid out by the county before your town became a town, in which case the requirement to cross a town line would be irrelevant.  Bottom line - proving that a road was a county way requires finding the county layout of the road.

Years ago I obtained a digital copy of the DOT Division of Rights of Way’s listing of County Commissioners’ records concerning roads.  It lists the book and page number in the County records of every listing the DOT was able to find that involved the layout, alteration, or discontinuance of a road.  Some of the roads were identified by the DOT, but others were listed as “not located.”  What I have is merely the index.  The DOT has copies of the actual county records, and attached to each record of the layout of a road is a tracing of the road.  These tracings were made by the DOT in the late 1970's or early 1980's by using a ruler and protractor to create a scale drawing from the description of the road in the layout in terms of distances and compass readings.  Often, the DOT was then able to slide the tracing around on a map with the same scale and match it to the shape and orientation of an existing road.  

Where their records say “not located,” it means that effort was unsuccessful.  But I have occasionally been able to identify one of those roads for them using records that were not readily available to them when those tracings were made, such as historicaerials.com, or by taking time to do deed research to find who owned land where.  If I can definitely locate where the discontinued section of road was, I give the supporting information to the DOT so they can record it.  If you want to give this a try, send me an email detailing what you know so far, and ask if there are any “not located” roads listed in your town.  If so, we can contact the DOT to obtain copies of the records.

10) BE A HISTORY DETECTIVE.  If a road layout or discontinuance appears in the records but no one can identify which road it is, you get to really delve into being a history detective.  Here is a summary of some of the more in-depth techniques touched on above, plus a few more.

Often the description was as vague as, “from the house of John Smith to the old barrel mill.”  The trick then is to identify where these landmarks were at the time.  Sometimes an interview with a long-time resident is all that is needed.  If you need to go back farther, some towns have some wonderful old maps where someone plotted the owner of each parcel of land or each house, and these can be invaluable if the date comes close.  Bear in mind that often a person would move from one part of town to another, or a father and son might have the same name, so dates are important.

To add to the confusion, the name of a road often changed to reflect who currently lived there.  If in doubt, go to the Registry of Deeds and trace the chain of title back to the right date.  You can also trace the chain of title of each property on your road back through time in the hope that someone’s deed will refer to the status of the road - although again, you can’t believe everything you read in a deed.  In particular, look up the Town as Grantor/Grantee, and you may find a list of tax liens. Sometimes when a town ceased to keep a road in repair, many land owners just stopped paying their taxes because they could no longer get to the land.  When the Town took their property for back taxes and later sold it, sometimes they changed the description on the deed to specify that the road had been discontinued.

Other good clues can often be found in town histories, old photos, gravestones, or in listings of which families attended which one-room schoolhouse.  Google Earth has a feature that lets you see old aerial photographs.  Look for the little "turn back the clock" icon at the top of their page.  That may allow you to trace the path of discontinued or abandoned roads that are no longer readily visible on the current view.  Look for an image that was taken when the leaves were off the trees.  There are also some wonderful map collections online that may yield clues.  Here are links to some of my favorites:  

historicaerials.com - this site has both aerial views and old topo maps.

https://web.archive.org/web/20191009142746/  

http://docs.unh.edu/nhtopos/nhtopos.htm  

https://oshermaps.org/browse-maps   https://ngmdb.usgs.gov/topoview/viewer/#15/44.1812/-70.9648    http://www.historicmapworks.com/ 

https://maine.maps.arcgis.com/apps/webappviewer/index.html?id=28e35c8fcf514d2685357b78bdd0b246   

https://www.arcgis.com/apps/webappviewer/index.html?id=b40a0b5283244a18907b9dea05769fb7   

That last one gives LIDAR images, which can show old stone walls, cemeteries, and cellar holes that may not show through the trees in aerial photos.

Historic maps may be useful in narrowing down the date on which a road may have been discontinued.  The road may show on older maps as a double solid line, but at some point change to a double dotted line, then later change to a single dotted line or “Jeep trail.”  The condition of the road may give a clue to when public maintenance ceased.  But bear in mind that maps often lag several years behind reality.  In one case, a road still appeared on maps in the 1950's as a double solid line, be we eventually found the discontinuance - in 1911!

Topo maps may also be helpful in locating landmarks referred to in a discontinuance order.  Recent topo maps are not as detailed, but the older maps showed the locations of buildings, which special symbols for churches and schools.  These maps can also supply evidence of how long a home has existed in a location, which may help prove a prescriptive right.  If there is an old cemetery on the road, the town may be obligated to keep access to it.

Good luck with your research!  If you need help, don’t hesitate to contact me.  And if you discover some useful research method I haven’t mentioned here, please share it!  I always welcome learning new stuff.

© 2023 Roberta Manter