Solutions?

SOLUTIONS?
Although the Maine laws regarding abandoned and discontinued roads often leave residents and land owners with little remedy, in some cases there are solutions you can try.  Below are some of the problems that arise on Maine roads, along with possible solutions.  Be sure to scan all the way down, as there are a number of possibilities.  LOOK BELOW FOR HEADINGS THAT ARE IN ALL CAPS, UNDERLINED AND BOLDFACE.

DISCLAIMER!  I am not an attorney and cannot give legal advice or interpret law.  Anything you read here is just my opinion, and you should take it as such.  Do your own research and check the laws yourself, making sure to also check the "pocket parts" for any updates in the law, as these may change without notice.

SHOULD I HIRE AN ATTORNEY?
Someone told me recently that hiring an attorney for small problems is like watering small plants: they just get bigger.
In our experience, when two parties hire attorneys to fight each other, usually both parties lose and both attorneys win.  There are situations where you need to hire a good attorney (do your research to find out both their integrity and their experience with the subject matter), but first do everything you can to try to reach an amicable solution.  If you can't do this on your own, a professional mediator can often work wonders.  They are trained in how to get diverse interests to find common ground.

THERE ARE SEVERAL LAND OWNERS SHARING THE USE OF THE ROAD I LIVE ON, BUT THEY DON'T ALL CONTRIBUTE TO MAINTENANCE.  THOSE OF US WHO DO PAY ARE GETTING TIRED OF BEARING THE WHOLE BURDEN.  WHAT CAN WE DO?
Your best bet may be to form a road association.  This can be "informal," (what you and the others who pay probably have now,) or you can file with the State as a non-profit.  But if you want it to be enforceable, probably your best bet is to form a "statutory road association."  As long as there are four or more parcels of land that are benefited by the road, the owners of any three of them can send out notices to all the others, and call a meeting to form the association.  Follow the instructions in 23 MRSA 3101 through 3104 carefully, making sure you do everything according to the book, as leaving out any critical step can make it unenforceable.  For more help in going through the process, get in touch with MARA, the Maine Alliance for Road Associations.

The Maine laws that apply are found in 23 MRSA sections 3101 and following.

CAN WE FORM A ROAD ASSOCIATION ON A PUBLIC EASEMENT?
The short answer is yes.  Under 23 MRSA sections 3101, subsection 2, you can form a road association on a "private way;" and in subsection 1 A, a private way is defined as a public easement.  So as long as four or more persons are benefited by the way and any three of them can agree to form a road association, sections 3101 through 3104 apply.
On the other hand, there have been disputes over whether this ought to be.  A number of years ago, Maine Municipal Association (MMA) advised in their Roads Manual that Towns had no obligation to maintain public easements, and that it appeared owners of abutting land had no right to maintain them.  In 2013, an amendment to section 3101 subsection 1A allowed road associations to be formed on public easements. There were also concerns over who would be liable if a member of the public used the road and suffered injury or property damage due to the condition of the road.  The 2013 amendment also added a clause to subsection 5 of section 3101, allowing road association funds to be used to purchase liability insurance.
There remains the question of whether it is ethical to require that abutters on a public easement bear the cost of keeping a road in repair for the public to use, when the abutters have no control over how the public uses the road.  Some relief may be provided under Title 17 section 3853-D, which deals with damage to a public easement.

THE PUBLIC EASEMENT THAT I DEPEND ON FOR ACCESS WAS DAMAGED DUE TO USE BY ATV'S AND MOTOR VEHICLES.  WHAT REMEDY DO I HAVE?
A fairly new law offers some hope in this situation.  Title 17 section 3853-D makes it a Class E crime to damage a public easement with a motor vehicle, including an ATV.  It remains to be seen whether this law is enforceable.  First there is the problem of trying to catch the person who did the damage, since often they come and go when no one is around to see them.  If it's a recurring problem, trail cameras may help catch them in the act.  There are exemptions for landowners, but it's unclear whether this gives immunity to someone using the whole road to access his property, or only gives him immunity over the portion of road that abuts his land.  It will be interesting to see how this will play out in cases where a logging operation and a resident share a road.  Will a logger be granted immunity if his use destroys a resident's access?

The Maine law that applies is 17 MRSA section 3853-D.

A new law, 23 MRSA section 3029-A, was passed in 2016. It creates a "cause of action," allowing owners of land abutting a public easement to file suit against a person who damages a public easement, and recover damages.  The law also specifies that the prevailing party may recover costs and attorney fees.  Unfortunately, the law does not mandate the recovery of costs and attorney fees.  And there remains the question of whether the person who did the damage can be caught.

CAN I GET THE TOWN TO FIX MY ROAD?  AS FAR AS I KNOW IT HAS NOT BEEN DISCONTINUED, BUT IT'S IN TERRIBLE SHAPE.
If it's still a public road and not discontinued, the answer may be yes.  You can use 23 MRSA sections 3651 and following.  Basically it involves sending written notice to one of the municipal officers of the Town that the road is "unsafe and inconvenient" for travel.  If the Town does not respond within five days, you then get "any 3 or more responsible persons" to petition the County Commissioners (sections 3652 and 3653.)  The Commissioners will view the road and hold a hearing, and if they agree that the road is in need of repair and that the Town is responsible, they will order the Town to make the necessary repairs.  If the Town does not repair the road, the Commissioners may hire someone else to make the repairs and send the bill to the Town (section 3654.)

Entering the paved Richmond Mill Road (crosswise in foreground) from Young Road (straight behind car.)  This entry used to be so steep you couldn't see approaching traffic over the nose of your vehicle.  The Town refused to fix it because the Young Road is a public easement.  But the County Commissioners agreed with us that the ENTRY to the Young Road lies within the right-of-way bounds of the Town road, and that the angle of entry made it unsafe.  We successfully used sections 3651 and following to force the Town to raise the grade and create a level "landing" within the bounds of Richmond Mill Road.
If your town is hoping to be able to claim your road abandoned so that they don't have to spend money fixing it, you may want to use this remedy quickly before enough years have passed for the town to make that claim.  It takes a thirty year period of non-maintenance for a town to claim abandonment under 23 MRSA section 3028.  ("Isolated acts of maintenance" don't count, whatever that means.)  If they make this claim you will still have access on paper, but the Town will no longer have any obligation to provide maintenance.  Since the road will still be open to public use, your ability to actually use the road for access may soon be destroyed.  If there has been just a twenty year period of non-use, the town may try to claim common law abandonment, in which case the road would become private property and any back lots would then become land locked.  So if it's been a considerable time since the town has done significant maintenance on the road, make sure you read and understand the page on Abandoned Roads before deciding how to proceed.

If there has been a relatively short period of neglect, or if there are rumblings that the Town may be considering discontinuance of the road under 23 MRSA section 3026, then by all means give this remedy a try, and the sooner the better. The Maine laws that apply are found in 23 MRSA section 3651 and following.

IF I DAMAGE MY VEHICLE DUE TO THE CONDITION OF A ROAD, CAN I GET COMPENSATED FOR THE DAMAGE?
If the road is still a town road and not discontinued, you may be able to recover damages from the town, but ONLY IF THE TOWN HAD NOTICE OF THE DEFECT AT LEAST 24 HOURS BEFORE THE INJURY OCCURRED.  Read the law carefully, and pay close attention to the notice requirements - who, how, and when.

The Maine laws that apply are 23 MRSA sections 3655 and 3656, on the lower half of the page on Defective Public Roads.

CAN I GET THE TOWN TO FIX A PRIVATE ROAD OR A PUBLIC EASEMENT?

This is a situation where one word can make a big difference.  A "private road" is a road that is privately owned and maintained.  A Town cannot provide maintenance or snow removal on private roads due to liability issues.  But a "private way" is defined as public easement, and as such, the town can operate its equipment on private ways.  The catch is, they are not obligated to do so.

Towns vary widely in their response to this situation.  Some towns have illegally plowed and/or provided some level of maintenance on private roads for years, and are just beginning to have second thoughts about the policy.  Some have gotten around the issue by taking steps to accept these roads as public easements.  Other towns have discovered their mistake and dropped private roads like a hot potato, leaving residents to their own defenses.  (This is particularly distressing when the discovery is made in the middle of winter, and the town suddenly stops providing snow removal.)

It's a different story for roads that have already been designated public easements, likely after the formal discontinuance or abandonment of the road.  In this case, the answer is that towns can provide maintenance but there is no way to compel them to do so.  The first step is to try to get an article on the annual town warrant to see if the people will vote to allow the use of town equipment on private ways pursuant to 23 MRSA section 3105.  (Note also the definition of private way in section 3101.)  But even if you succeed in getting that article on the warrant, and even if the people vote in favor of the article, there is still no guarantee that the Town will actually do anything.  You may need a second article that specifically directs the Town to take a certain action with regard to your road.  You would probably do well to keep your demands as minimal and as specific as possible.  People don't like seeing their taxes go up, so they are unlikely to vote for anything that looks as if it could cost a substantial amount.  On the other hand, they may be more than willing to give a small amount of assistance to someone who has been a faithful town servant for years.  It's really hard to predict what the outcome will be - all you can do is try it.

There is also a provision (23 MRSA section 3106) that may get the town to provide some assistance IF runoff from the road is impacting a Great Pond which has been designated "at risk."

The Maine laws that apply are 23 MRSA sections 3105 and 3106, near the bottom of the page on Road Associations.

THE SELECTMEN OF MY TOWN HAVE DECLARED MY ROAD ABANDONED, BUT I DISAGREE.  IS THERE ANYTHING I CAN DO TO REVERSE THEIR DECISION?
The law that governs abandonment in Maine is 23 MRSA section 3028.  In order for a road to qualify for abandonment, it must not have been kept passable for the use of motor vehicles at public expense for 30 or more consecutive years.  ("Isolated acts of maintenance" don't count, whatever that means.)  Section 3028 states that abandonment may be rebutted "by evidence that manifests a clear intent by the municipality or county and the public to consider or use the way as if it were a public way."  (Recreational use, as for hunting, doesn't count.)  If you think you can gather enough evidence to prove the road is not abandoned, you can ask the Selectmen to reconsider.  Most towns will refuse because they know your only recourse is to go to court for a declaratory judgment, and that's likely to cost you from $60,000 to $100,000.  A Declaratory Judgment is the only method of relief offered under section 3028.

The Maine law that applies is 23 MRSA section 3028.

NOTE: Common law abandonment: There is no statute for common law abandonment.  According to case law, a way can be abandoned by common law if it has not been used for twenty or more consecutive years.  The property then reverts to the owners of abutting land to the center of the way, and the right of way is extinguished.  There is disagreement over whether common law abandonment can still be applied to a town or county way now that section 3028 is available.  See my rather lengthy analysis of the conflict between statutory and common law abandonment on the Abandoned Rd page.

CAN I GET THE TOWN TO PLOW MY ROAD?
There IS a law (23 MRSA section 3105-A) that allows a town to vote to allow use of town equipment on "private ways" to provide emergency access.  The terminology gets a bit confusing here.  Many people think a private way is the same as a private road, that is, a road that is privately owned and maintained, and over which the owner(s) can restrict access.  But section 3101 defines a private way as a public easement, that is, a road that is open to public traffic but for which the public bears no responsibility.

Whether or not section 3105-A will work for you depends largely on what town you live in. Some towns take the compassionate view, that if there is a resident on a road, they should keep the road plowed, even if it is a true private road.  Other towns worry about the liability of using town equipment on private roads.  Some towns have gotten around this by voting to accept public easements over private roads.  Still other towns argue that they are not obligated to plow or repair public easements.

Our town once voted to authorize the use of town equipment on private ways under section 3105-A, then refused to plow the road unless there was an actual emergency.  But if there were an actual emergency it would not be necessary to get a town vote before town equipment could use the road; the emergency gives them that right, so the law must mean something else.  It seems it would be logical to conclude the intent of the law was to keep the road passable so that it would be ready to be used in case of emergency.

We have been told that if there is a fire or medical emergency at our house when the road is buried under two feet of snow, the plow truck will be there right in front of the emergency vehicles.  But when was the last time a plow truck went flying past you with its lights flashing and its siren blaring, or when was the last time you got stuck behind a slow-moving ambulance on its way to help a heart attack victim?  Still, it may be worth asking your town to put an article on the warrant in accordance with section 3105-A and see how they react.

The applicable Maine law is 23 MRSA section 3105, found near the bottom of the page on Road Associations.

CAN I GET THE TOWN TO POST THE ROAD TO RESTRICT HEAVY LOADS?
Town have the authority under Title 29-A section 2395 to post roads "Heavy Loads Limited."  The familiar notice of posted roads often appears in late winter, as the disappearance of frost from under roads leaves them prone to damage from heavy trucks.  Towns do have the authority to post roads to restrict weights, and theoretically they can do so on public easements.  But the Maine Supreme Court has declared that the public has an "unfettered right of access" over public easements.  In theory, that should mean that no restrictions can be placed on them, although that makes little sense in light of the condition of these roads. So whether or not the town will post a public easement for you may depend on how good your rapport is with town officials, as well as whether they are friends with someone who is in the middle of a woods harvesting operation.

On the other hand, it may not be necessary for them to actually post the public easement, as long as that easement can only be accessed over another road that is posted.  Unfortunately, your road may not thaw as quickly as other roads in town, especially if it's narrow and shaded by overhanging trees.  It's possible the posting on wider, sunnier roads will be lifted before your road has finished settling.

Another problem with this remedy is enforcement.  We have found that trucks are routinely allowed to use a road as long as the temperature is below freezing.  But if the temperature has been above freezing the previous day, merely dipping below freezing for a few hours may not be enough to really freeze the road solid again.  A heavy truck may not actually leave tire tracks in the surface under these conditions, but it may compress the underlying soil, causing a depression that will keep water running down the road, leading to erosion.  We have also found that unless law enforcement responds quickly enough to catch them in the act of causing obvious damage, they may not take any action.

The Maine law that applies is 29-A MRSA section 2395.

OTHER PEOPLE ARE USING THIS DISCONTINUED ROAD INDISCRIMINATELY AND ARE CAUSING DAMAGE.  CAN I PUT UP A GATE?
This is where the date and manner of discontinuance become critical.  You will first have to determine who actually owns the right of way and/or has a right to use it, whether through public rights or by deed.  If the road was abandoned by common law, or was a town road that was discontinued by statute prior to 1965, or was a county road discontinued before 1976, most likely it became private property and the answer is a tentative "yes."  But there are exceptions (the road we live on being one of them.)  If the road was a town road that was discontinued by statute after 1965, or a county way that was not discontinued until 1976, when all county ways became town ways, or if it was abandoned after 1976 pursuant to 23 MRSA section 3028, then most likely it remains a public easement.  In that case, if you put up a gate you could be found guilty of Obstructing a Public Way, 17-A MRSA section 505.  That's a class E crime, punishable by up to six months in jail and up to $1,000 fine.  Again, there are exceptions.  When a road is discontinued pursuant to section 3026, a town may vote to extinguish the public easement as well, in which case the land reverts to private property.  On the other hand, there are cases where private access rights exist due to a back lot having been split off from a front lot that had access.  This really is a question that has to be answered on a case by case basis.  You also need to consider the opposing point of view, because...

Then there is the opposing question -

SOMEONE HAS PUT UP A GATE ACROSS THE DISCONTINUED ROAD, BLOCKING MY ACCESS.  WHAT CAN I DO?
First, read the answer to the previous question.
After reading that answer, whether you think the gate is legal or not, you would be wise to first try to determine who put up the gate and why.  If you approach them with tact, and with assurances that you will use the road in a responsible manner and not change its character, perhaps you can convince them to allow you access, even if it means issuing you a key so that others can still be kept out.  If they refuse, and if you are convinced the gate is illegal, you can try calling the Town and see what their view is.  If they refuse to remove the gate (and can't give you a satisfactory reason,) you can try calling the police.  Make sure you have a copy of 17-A MRSA section 505 in hand to show them.  They may tell you "It's a civil matter, you'll have to take it to court," and refuse to do anything.  Here's where it gets dicey.  Going to court can get frightfully expensive.  As one person told me, "Hiring attorneys to address small problems is like watering small plants; they just get bigger."
On the other hand I CAN'T CAUTION YOU ENOUGH -DON'T TRY TO TAKE MATTERS INTO YOUR OWN HANDS!!!!!  Cases like this have been known to result in people getting arrested for trespassing, getting shot at, being threatened with a medieval style ax, or getting beaten to a pulp.  Jail time and monetary fines are also a distinct possibility.

THE LAWS CONCERNING ABANDONED AND DISCONTINUED ROADS APPEAR TO BE CAUSING A LOT OF CONFUSION AND CONFLICT.  WHAT CAN BE DONE TO CHANGE THE LAWS?
Get involved with the legislative process.  For years, Maine ROADWays and MARA (Maine Alliance for Road Associations) have been working with SWOAM (Small Woodland Owners' Association of Maine) to try to get legislative reform, and together we are finally beginning to make small progress.  The effort has slowly gained momentum as we have found allies among realtors, Registers of Deeds, surveyors, Soil and Water Conservation Districts, Lake Associations, sportsmen, and more and more land owners facing problems with these roads. Our hope is that if we get enough voices joining together, we can get the legislature to sit up and take notice. In 2015, the legislature enacted  an amendment to 17 MRSA section 3853-D, making it a class E crime to damage a public easement.  In 2016 they repealed 23 MRSA section 3026 (town road discontinuance) and replaced it with section 3026-A, in the hope of eliminating some of the confusion about the process.  For more detail, go to the page on Discontinued roads.

(c) Roberta Manter 2016

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