WHAT IS AN ABANDONED ROAD? IS IT STILL A ROAD? WHO OWNS IT?
In Maine, there are two ways a road can be abandoned: by common law, or by statute. It is generally explained that the difference between the two is that common law rests on lack of use, while statutory abandonment rests on lack of maintenance. But that's not the whole story - not by a long shot!
Statutory abandonment: It's true that in order for a road to qualify for statutory abandonment under Title 23 section 3028, it must first be shown that it has NOT BEEN KEPT IN REPAIR at the expense of the municipality or county for thirty years; however, the presumption of abandonment can then 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."
Common law abandonment: In order to qualify for common law abandonment on the other hand, the only requirement is a twenty year period of NON-USE. But it's hard to imagine that a town or county would continue to expend funds to repair a road which was not being used, and chances are if the road is passable, people will use it. More likely if the road is no longer being used, it's because it has been neglected to the point where it's no longer conveniently passable.
Similar requirements: So actually, generally neither common law nor statutory abandonment occurs unless there is a lack of BOTH use and maintenance. We do know of one unusual case in which a road was found to have been used for twenty years by the public, but neither maintained by the public nor considered or used by the municipality or county as if it were a public way. The law requires that for a rebuttal of the presumption of abandonment, the road had to have been considered a public road both by the public AND by the municipality or county. Therefore the Court declared that it did not qualify for common law abandonment, (because it was still in use by the public,) but that it was nevertheless abandoned by statute because the municipality didn't consider it to be a public road! But generally, evidence of either public use or public maintenance will rebut a presumption of abandonment.
Different results: The main difference in requirements is that common law requires only a twenty year period, while statute requires a thirty year period. A more important distinction is the result: common law extinguishes the easement, giving the land back to the abutting properties. Section 3028, on the other hand, defines the result by reference to Section 3026-A, discontinuance, which means that the way automatically becomes a public easement as defined in Section 3021.
To read the law itself, see the Abandonment - Title 23 page. Note that the law was amended in 2016, adding a paragraph that requires a town to file a notice with the Registry of Deeds and with the DOT when it determines a road to be abandoned under this statute.
There are a number of problems with Maine's abandoned roads statute, Title 23 section 3028. Here is a look at a few of them.
1) Statutory abandonment requires a 30 year period of abandonment, while common law requires only a 20 year period. Since IT’S IMPOSSIBLE TO REACH THE 30 YEAR MARK WITHOUT FIRST PASSING THE 20 YEAR MARK, it would seem that by the time statutory abandonment can be claimed, a road would already have qualified for common law abandonment. This is problematic because in order to qualify for statutory abandonment, it must be "A TOWN OR COUNTY WAY" that has not been kept passable at public expense for 30 years. But under common law, the land is given back to the abutting property owners and becomes their private property. It is no longer a road. So if at the 20 year mark it ceases to be a road, how can it be a town or county way at the 30 year mark in order to qualify for statutory abandonment? There is disagreement between the Courts as to whether a town road can still be abandoned under common law now that statutory abandonment is available.
2) When a road is abandoned under section 3028, it automatically becomes a public easement. If, having passed the 20 year mark (especially before the passage of section 3028 in 1976,) the road was already abandoned by common law, the LAND HAS BEEN PRIVATE PROPERTY FOR 10 YEARS BEFORE IT COULD QUALIFY FOR STATUTORY ABANDONMENT. Making it into a PUBLIC easement would then be a taking of private property for public use without due process or just compensation, which is unconstitutional.
3) The Courts have determined that it is UNCONSTITUTIONAL TO LAY OUT A PUBLIC EASEMENT WITHOUT FIRST PROVING that there is an ACTUAL AND FACTUAL PUBLIC NEED for it. But in order for a road to survive the rebuttal of abandoned under section 3028, it must be determined that the municipality or county and the public have NOT considered or used the way as if it were a public way for at least 30 years. Doesn't that show there has been NO PUBLIC NEED FOR THE ROAD FOR 30 YEARS? Therefore the retention of a public easement under section 3028 is unconstitutional.
4) On the other hand, if the public wants TO ESTABLISH A PUBLIC EASEMENT without violating the constitution, it must show that there is an ACTUAL AND FACTUAL PUBLIC NEED for the road. But if there is still a public need for the road, why are they trying to abandon it?
5) Section 3028 specifies that, “A PRESUMPTION OF 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.” So consider this: Courts have declared that abandonment does not take place until the END of the thirty year period. In fact, a road is not eligible for abandonment under section 3028 unless it is still legally a public road. So it must follow that in order to make a claim of abandonment under section 3028, a town or county and the public must still CONSIDER the way to be a public way, and that is all that is needed to rebut the presumption of abandonment!
6) A major justification for keeping a public easement when a road is abandoned is that it SUPPOSEDLY AVOIDS LEAVING ABUTTING PROPERTIES LAND LOCKED, and therefore excuses towns from compensating land owners for loss of access. Unfortunately, as I like to put it, "Build a better public easement and the world will BEAT the pathway to your door." In other words, as soon as the land owner repairs the road so as to have reasonable access to his property, the public finds it attractive to use the road and wear it out.
|Once this road was made passable, a logging operation used it to harvest their wood lot, leaving it impassable for other abutting landowners - including the resident who had repaired it for access to his home.|
It only took a few years before the matter landed in court. In Jordan v. the Town of Canton, the Court declared that the fact that the road was still legally a public road was meaningless. What mattered was the actual result, which was that in the absence of public maintenance, public use and "the rigors of Maine weather" would inevitably destroy the road. The Court further said that access is a property right attached to the land, and that the destruction of that access constitutes a "taking," which requires both due process and just compensation. Section 2068 provided neither, and so was unconstitutional.
So section 2068 was repealed, but it was replaced just a few years later with the abandonment statute, section 3028, which retains a public easement over a road the public no longer keeps in repair. The way I see it, the fact that the road is still legally a public road is meaningless. What matters is the actual result, which is that in the absence of public maintenance, public use and "the rigors of Maine weather" will inevitably destroy the road. (Where have we heard this before?)
The abandonment statute was supposed to resolve the problem of due process by allowing anyone to bring a declaratory judgment action, but a later amendment made the decision of municipal officers binding unless or until someone has enough money to challenge their decision in court. Rising Court costs have put this option out of reach for most people, (recent cases have incurred attorney fees of $60,000 to $100,000) so this amendment effectively removed due process.
Besides, the matter of just compensation was never resolved. Indeed, it would be impossible to make a one-time just compensation for the loss of access, because every time the abutter rebuilds the road and a member of the public damages it, property access has been "taken" again. I see little difference between the outcome of statutory abandonment and the outcome of the "limited user highway," which was declared unconstitutional.
7) Another justification for keeping a public easement over an abandoned road (and the one which appears in the legislative discourse when 3028 was originally passed) is the desire to preserve RECREATIONAL ACCESS over old roads, so they could be used for hiking, snowmobiling, etc. Here is a case where a picture is worth a thousand words. If this road was retained as a snowmobile trail, how do you explain its use by 100,000 lb log trucks?
|Log truck with tag trailer hauling out over a public easement.|
8) Why can't the problem of land-locked properties be addressed through claims of ADVERSE POSSESSION or PRESCRIPTION? Maine Courts have consistently held that these claims cannot be made in cases where the claimant had used the road during a period when it was still a public road.
These claims require a person to use a piece of land for a purpose adverse to (or in conflict with) the purpose to which the owner would put the land, for an extended period of time, usually twenty years. (Use by other people can be "tacked" together to span enough years.) Adverse possession requires that the owner of the land must try to stop the adverse use, but be unsuccessful. Prescription requires that the owner of the land must have known about the use, but acquiesced to it. If the claimant's use has been "open, notorious, and unobstructed," then acquiescence will be presumed. If the owner actually gives permission to use the land, however, then it becomes PERMISSIVE use, and the claim will fail because the use was not adverse to the purposes of the owner of the land.
In the case of a road which is discontinued, it's fairly obvious that no one could claim adverse possession on the grounds that they drove the road for twenty years while it was still a public road, before a vote to discontinue the road took place. But what about when a road is abandoned? So far, courts have said that statutory abandonment does not occur until the END of the requisite 30 year period, so no one can claim that their use of the road during that time was adverse. I question this reasoning.
It must be remembered that a claim of abandonment under section 3028 "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." Therefore, it must follow that if a claim of adverse possession is to be denied because people who used the road did so while the road was still considered a public way, then that would rebut the presumption of abandonment.
The only way the presumption of abandonment will stand is if those who used the road did so while the road was NOT considered a public way. I contend that abandonment actually occurs at the point where the municipality or county does not perform a needed repair to the road. At that moment, they have either knowingly or neglectfully ceased to consider the road to be their responsibility. After that time, a person who claims that they have a right to use the road as a public road actually is acting in conflict with the public's intent to abandon the road, and therefore their use is adverse!
Thus I would argue that a town or county cannot claim that a road which continued to be used was not used as if it were a public way, (so as to avoid rebuttal of the presumption of abandonment,) and at the same time, claim that the road remained a public way while waiting for the completion of the abandonment period (so as to prohibit a claim of adverse possession). Or, to state it in the reverse, a town or county cannot claim that a person used the way as if it were a public way (so as to prohibit a claim of adverse possession,) and still succeed in avoiding a rebuttal of the presumption of abandonment.
For the person whose land will be land locked by the abandonment of a road, it should not be difficult to prove continuous use of the road for the required period because they (or their predecessors-in-title) could not have accessed their property by any other means. The only difficult case, as far as I can see, would be a property which had been accessible by means of two different roads, one of which was discontinued shortly before the other was declared abandoned, making it difficult to prove by what means the property had been accessed. But that thought makes my head spin!
9) Another wrench in the works is that Maine Municipal Association (MMA) has been advising towns that roads abandoned under 23 MRSA 3028 after September 3, 1965 automatically become public easements. They base this argument on the fact that section 3028 says a road which has been abandoned under this statute reverts to the same status it would have had after a discontinuance pursuant to section 3026. Under section 3026, any road discontinued after Sept 3, 1965, automatically became a public easement unless otherwise specified.
The Catch is, section 3028 (abandonment) didn't come into existence until 1976, so how could a road be abandoned under that statute before the law existed?
Let me give you an example of where MMA's argument could cause serious problems. Suppose a town ceased to do any maintenance on a road in 1945, and it was in such bad shape that everyone stopped using it. In 1966, a land owner discovers this "forgotten" road on his property. He asks the town Selectmen about it, and one of them tells him the town abandoned that road and has done nothing to it for twenty years.
Since it is only 1966, no one has any knowledge of section 3028, which won't come into existence for another ten years. So the land owner obtains a building permit, and builds his house right smack in the middle of the former road. He lives there happily for eleven years.
By 1977, there is an entirely new board of Selectmen. Someone new moves into town, discovers the road on an old map, looks up the law, and goes to the Selectmen and says he wants to be able to use the road. The new Selectmen are not aware of what took place ten years ago and have never driven down the road to see that there is a house there. They happily declare the road abandoned under the new section 3028, assuring that it is now a public easement, open to unrestricted public motor vehicular travel.
The new guy in town then tries to drive down the road, discovers the house, and demands that the obstruction be removed. The owner of the house objects, saying this has been his private property since the road was abandoned by common law in 1966. According to MMA, since the road was abandoned after 1965, it is now a public easement pursuant to section 3028. This would accomplish a "taking" of private property without due process or just compensation.
This may sound like an unlikely hypothetical case, but in fact it's not far from the truth. We know of a house trailer that was installed smack in the middle of a road that was not used or kept in repair at public expense after 1945, but in the mid 1980's the Maine Supreme Court declared the road (along with seven others) to be a public easement.
10) Another problem with the abandonment statute is the difficulty of coming up with evidence to support or refute the claim of abandonment. Many types of claims have statutes of limitations, prohibiting making a claim years after an event has taken place. The reasoning behind this prohibition is that with the passage of time it becomes harder to produce evidence. Yet abandonment requires proof of what has happened over the previous thirty years!
During those thirty years, witnesses may have moved away or their memories of events may have faded. They may even have died - which will make it difficult to put them on the witness stand! A Road Commissioner who graded, ditched, and plowed the road on a regular basis for the first ten years of the claimed period of abandonment before retiring at age 65 would be 85 at the time abandonment was claimed. If anyone even knows his new address in Florida, will he be willing or able to make the trip back to testify?
Documents may have been lost. (You'd be surprised how many towns claim they can't produce documents due to a fire at the town office.) In many cases, towns didn't keep detailed records of where their road maintenance funds were spent. Is it just or fair to allow a town to claim they have done no maintenance on a road when it has become impossible to produce the evidence that would have soundly refuted that claim?
11) Yet one more glitch in the system has come to light recently. Maine's Local Roads Assistance Program (LRAP) awards towns state funding for road improvement projects. The amount of funding each town receives is based on the number of miles of roads each town keeps in repair at public expense, either seasonally or year-round. Any time that number of miles changes, the town is supposed to notify the state. A representative from the DOT meets with town officials every few years to go over the map one road at a time and make sure the list is still accurate.
At the time of this writing, Maine ROADWays knows of at least two towns that have claimed statutory abandonment of roads that were counted for LRAP funding purposes for a significant portion of the claimed thirty year period of abandonment. This leads to one of two conclusions. Either the town was falsely claiming to maintain the road so as to obtain extra funding when in fact it was not doing any significant maintenance on the road; or else the town is falsely claiming it has done no significant maintenance on the road for thirty years when in fact it was doing regular maintenance on the road for a good part of that period. This circumstance has yet to be examined by a court.
There are other problems with the abandonment statute, including inconsistencies between the intent of the legislature when the law was passed, and the manner in which the law is now being applied. I may address those issues at a later time. Meanwhile, it seems it must only be a matter of time before a legal challenge of this law will find the cracks in its armor and take it down.
To read the Maine law on Abandonment, go to the Abandonment - Title 23 page.
(c) Roberta Manter 2016