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.  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.

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, 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.

1) Get to know the law. Before you start your research, we strongly suggest you get as familiar with Maine road law as possible.  For the laws themselves, go HERE, and for an explanation of the laws, go to the appropriate tabs.  You will at least want to know the difference between discontinued, abandoned, closed, and public easement.  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.  Town roads discontinued before 1965 generally did not become public easements, while those discontinued after 1965 became public easements unless specified otherwise.

2) Read your deed carefully from beginning to end.  Does it 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 discontinued county road and another called the same road a discontinued town road, or where the road had different names on different deeds.)  You can research deeds on the Registry of Deeds website. (More on this below.)

3) Check with the DOT.  Go to the Maine DOT’s map viewer site to see if it gives any information on your road.  If it’s discontinued, chances are it will say there is no data available.  But sometimes towns forget to take a road off of their listing and continue to collect state funding for a road they no longer maintain.  On the map viewer page, type in the name of your town. Then scroll down and hit the button to submit it. It can take a while to build the map, so be patient.  Then in the right hand column click on Data - Roads - Jurisdiction roads.  Wait again.  Then you can zoom in by using the slider at the left, and move the map around by clicking and dragging.  Don’t try to zoom all the way in - a few clicks from the top is best.  Once you have located your road, click on it and wait for it to tell you if it has any info.  Read the details in the left-hand column.

4) 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.  You need to have actual documents, i.e. an article from the Town Warrant (complete with the result of the vote - that's important, since the mere fact an action was on the warrant does not necessarily mean it was approved.).  If the road was officially abandoned, there should be record of a vote by the Selectmen.  Be careful, because in many cases the same road was discontinued more than once, under different rules.

5) Research the Registry of Deeds.  Check with your County Registry of Deeds.  You should be able to do this online.  Each county's site works a bit differently, so you may have to experiment a bit to be able to actually read and print deeds.  You may have to use a different browser, and you will probably have to temporarily allow pop-ups.  If the road was discontinued after September 12, 1959, there should be a certificate of discontinuance on file, probably filed under miscellaneous.  But many towns never filed.  If it wasn't filed, the Town will have to prove that all owners of abutting land were notified 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.

But if the discontinuance occurred more than 30 years ago, the Town may then just claim statutory abandonment, which would leave you with a public easement.  If the discontinuance occurred more than 20 years ago, the Town may try to claim common law abandonment, which could leave you land locked.  Courts disagree on whether town roads can still be abandoned by common law now that statutory abandonment is available.  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.

6) Researching County Roads.  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. But that by itself will not 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.

The Registries of Deeds have a printout from the DOT that lists discontinued county roads of which they have record.  (You will have to actually go there to view it.)

The DOT printout unfortunately does not always give road names, so then the trick is to figure out whether one of the discontinued roads in your town might have been yours.  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.  The second two digits refer to the volume of county commissioners’ records in which the road layout was recorded.  The final set of digits gives 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 other 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. The DOT listing is organized by town, so bear in mind that town lines also sometimes changed.

You may be able to match the code numbers to some other piece of documentation (a town map, for example,) so as to identify which road is yours.  (Don’t use the numbers on the DOT map viewer site, which look similar but are not related.)  If the road you are researching happens to be in Androscoggin County, they have posted online a wonderful set of maps from a 1977 road study, which label each county road in Androscoggin County with the code numbers for locating the layout of that road.  For other counties you may have to go to the Department of Transportation, Division of Rights of Way, in Augusta to see maps.

If you can’t find which numbers identify your road, call the DOT Division of Rights of Way.  Give them the name and location of your road and ask if they have any county layout code numbers for it.  They may know the location of each road layout recorded in your town, but there are often some roads they have not been able to positively identify.  If they can’t identify yours, you may have to look up the layout for each of the unidentified roads that the DOT lists in your town, and see if you can tell from old land marks which road was which.

If the landmarks don’t nail it down, the next option is to take a ruler and protractor and draw a map from the description in the road layout, which tells how many rods at what degree reading.  (A rod is 16 1/2 feet.) The DOT has already done this for some roads, so ask first.  If not, look at the general direction in which each road layout runs and see if any of them looks like it could be your road.  Next, find out what scale is used on a map of your town.  Plot out the description as accurately as you can to that scale using a ruler and protractor, then trace it onto a transparent sheet.  Lay the transparency over the map, orient it to north, and then slide it around and see if it matches anything.  If you’re lucky, it will fit your road like a glove.  If not...

Once you have (hopefully) identified the code numbers for the layout of your road, the rest is relatively simple.  Look up the appropriate town in the DOT printout that lists discontinued county roads, and see if that set of code numbers appears in the "Remarks" column as a discontinued road. If it does, look back to the columns that indicate the county, volume, page number, and year in the county commissioners records on which the discontinuance of the road was recorded.  You should then be able to find the record easily by looking in the correct volume, although if the county lines have changed, your county may or may not have copies of the books from the county you need.  If they don't you will have to go to the appropriate county.

Once you find the record of discontinuance in the Coutny Commissioners' records, read the wording carefully.  You want to find out exactly what was requested, what was granted, and whether or not it was all done according to whatever law applied on that date.  Again, if there are any irregularities, the Town may simply get around it by claiming that the road is by now abandoned anyway.  If you try to fight irregularities in Court, most likely they will tell you that the appeals period has long since expired, and you’re stuck with it.  Still, knowing exactly what was done will help you understand the original intent of the order, and may help you in any negotiations with the Town or with other land owners.

7) Researching Town Roads.  If your road was a town road and the town cannot show you any record of discontinuance but has not been maintaining it, your next move would be to ask to go through the records of Town Meetings. You can skim down through a lot - just look for warrant articles having to do with roads.  Bear in mind that roads often changed names over the years, so unless you know where a road is, make note of any discontinuance you find so you can research it further if needed.

You might even do the Town a favor by coming up with a list of every road discontinuance it has on record!  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, claiming 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, and some towns relied on unskilled volunteer labor for the task.  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 visible landmarks on which to base such a survey, in at least one case it was claimed that a house was built in the middle of what was now declared to be a public road.

8) Often, town records have been lost due to fire or other disaster.  Check the Maine State Library in Augusta.  They have copies of a LOT of old Town Reports.  The only problem here is that usually there is no indication of how the vote went - only of what articles were presented.  You can also check the Maine State Archives (in the same building as the Library), although the information they have is spotty.  Still, you might get lucky and find something there that isn't available anywhere else.

9) 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.  Often the description was, “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, 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 left.  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.  There are also some wonderful map collections online that may yield clues.  Try the Osher Map Library, the Historic Map Works, the Maine Office of GIS, Historic Aerials, and the U.S. Geodetic Survey.

(c) Roberta Manter 2016

No comments:

Post a Comment