Abandoned Rd

THE ABANDONMENT LAW HAS CHANGED!

What is the new law on abandonment?  How has the abandonment law changed?  (Scroll down for an explanation of the old version.)

As of October of 2021, 23 MRS Section 3028 is repealed, and is replaced by section 3028-A.  While it still has its problems, the new version has several improvements.  All in all, I have very mixed feelings about this new version.

DUE PROCESS - NOTICE AND HEARING:  The old version required virtually no due process.  The determination of abandonment could be made by the Selectmen alone, without any hearing or notice to the abutters. It was assumed that if a road had been neglected for 30 years and no one had complained to get the town to repair the road, then relieving the town of its maintenance responsibility was simply recognizing the status quo, and no one would be injured thereby; therefore no due process was necessary.  (Scroll to the end for more on this.)

The new version of abandonment requires notifying all "affected" property owners of the proposed abandonment.  That includes not only the owners of land abutting the way, but also the owners of land for which the road is the only access route (even if they have no frontage on the road.)  We know of several situations where this is the case, either because there is a side road or a private easement off of the road in question, or because the road crosses a town line.  So to go from no notice at all to notice of all affected property owners is a huge plus.

The new version also requires that a hearing be held, but only if requested within ten days by at least 25% of the affected property owners.  We see this as a problem.  While it's certainly an improvement over NO hearing, it may still be out of reach for many.  For example if there is one resident and four wood lots, or if some of the land is owned by people who live in another state, it may be difficult for the resident to get anyone else to join in the request for a hearing within the ten day limit.  And as we have seen in many cases, it can take several weeks for a person who is suddenly faced with the prospect of abandonment to gather the evidence needed to refute the claim.  (I can often speed this process up, but only if the abutter finds me in time.)

DUE PROCESS - APPEAL:  Under the old version, the only appeal was through a Declaratory Judgment Action in Superior Court.  That can be an expensive endeavor, and can even cost more than the value of the property of a person who objects.  The landowner is faced with a choice between pouring money into a lawsuit with no guarantee of the outcome, or pouring money into road maintenance and at least having something to show for it.  As for the town, it could be an awful temptation to claim a road abandoned when it really didn't qualify, knowing that there was a good chance no one would have the funds to appeal, and that until it was appealed, the determination of the Selectmen was binding.  

The new version provides for an appeal to the town's Board of Appeals, if it has one that is authorized to address such matters, or otherwise to the County Commissioners.  This is a great improvement as it at least gives an affordable venue, and was one of our main reasons for supporting this bill; however, we're disappointed that the appeal must be filed in writing within ten days of the determination of abandonment.  That's an easy deadline to miss.

In the past, if a person tried to get the County Commissioners to force a town to provide needed road maintenance under 23 MRS 3652, all the Town had to do was claim the road abandoned, and the County had no further jurisdiction to even address whether that claim was valid or not.  It made an easy way for a town to escape its responsibility, and left the abutter with little recourse.  Now abutters will have the possibility of getting the matter examined by a different set of eyes.

RECORDING:  Up until 2015, there was no requirement that a determination of abandonment be recorded anywhere.  That made it extremely difficult to find out if a road had actually been declared abandoned or not.  In 2015, the law was amended to require filing their Determination with the Registry of Deeds and with the DOT.  There was a loophole, however: the lack of such filing was not to be taken as evidence that the road was not abandoned.

The new version of the law requires filing with both the Registry of Deeds and the DOT.  There is no loophole.  While this will not make it any easier to find records of abandonments that took place prior to 2015, it should make it easier to find future abandonments.

STATUS OF ROAD AFTER ABANDONMENT:  The old version of the law simply said, "A way that has been abandoned under this section is relegated to the same status as it would have had after a discontinuance pursuant to section 3026...."   (Scroll down that link for the original 3026.)  Unless a person then looked up section 3026, they might be unaware that the abandonment resulted in the road automatically becoming a public easement.  To make things still more confusing, section 3026 was repealed in 2015 and replaced by section 3026-A, yet the reference in section 3028 to section 3026 remained.  Finding a copy of the repealed law simply adds to the difficulty of figuring out the status of an abandoned road.

The new version allows the Selectmen to determine whether or not a public easement will be retained, and makes it clear that use of the public easement is limited to foot or motor vehicle as defined in 29-A MRS 101 subsection 42.  This will exclude ATV's and log skidders, two of the uses that have the potential to cause the most damage.  It also gives abutters the "right" to create private easements.

What I find troubling here is that it doesn't seem to require the retention of a public easement if the abutters cannot agree to grant each other private easements.  That could leave properties legally land locked, with no requirement to compensate landowners for loss of access. 

It took years to get the legislature to agree to the 2017 amendment to section 3026-A (discontinuance) that creates a path for the possible extinguishment of the public easement on roads that are formally discontinued, and also has the potential to be used to extinguish the public easement that remains after statutory abandonment.  The reason it took so long to get this passed into law, and the reason the process is so complex, is that most old roads were not taken "in fee simple." That is, the property was not actually purchased, but the road was taken merely as an easement over the land.  The land under the road still belongs to the abutters, but their right to use that land is suspended while the road exists.  

Therefore if the public rights are discontinued, the land has to be returned to its owners, and cannot be granted to their neighbors for private access.  That would be a taking of private property for private use, which is unconstitutional.  The key to making private easements possible after a discontinuance is that it has to be voluntary.  The landowners have to decide it's in their own best interest to have only a private easement crossing their land instead of a public easement, and if they cannot come to agreements within one year, the public easement must remain in order to prevent landlocking.

Unfortunately I see nothing in the new abandonment statute that guarantees continuance of the public easement if private easements cannot be established.  Also, there is no time frame for abutters to try to come to agreements to provide each other with access.  They are simply informed that they have a right to do so - but they have no such obligation, and if the public easement is extinguished, there is little incentive to give up exclusive ownership of their land.  I fear this may result in properties being deprived of all reasonable access.

COMMON LAW ABANDONMENT:  Under the old law, it was unclear whether a road could still be abandoned by common law once the passage of section 3028 in 1976 provided a statutory framework for abandonment.  The new law specifies that, "This section does not alter the ability of a town way to be abandoned under the common law presumption of abandonment."  I find this troubling because it gives towns a way to evade all the protections that were just added in section 3028-A.  Moreover, it would increase the likelihood of properties becoming legally land locked due to abandonment.

There are distinctions between the two paths for abandonment.  Common law abandonment is based on twenty years of non-use, and results in the entire extinguishment of the easement.  The land reverts to the abutters as their private property.  Statutory abandonment under the old 3028 is based on thirty years of lack of regular public maintenance, and results in a public easement being retained.

While there were some court decisions that granted common law abandonments after 1976, there remained the question of how a road could reach the thirty year mark required for statutory abandonment without first reaching the twenty year mark required for common law abandonment.  That is, a road that was not used for twenty years might be assumed by the abutters to have been extinguished.  But ten years later, the Selectmen could discover that the town had not maintained the road for thirty years, and claim it abandoned under section 3028.  That would re-open it as a public easement, taking land that had been considered private for ten years.  

There was a clause in section 3028 that said, "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."  In other words, a claim of statutory abandonment should not have been viable if the road were still in use; rather, the road would have to have been unused for statutory abandonment as well as for common law.  That would lead to the conclusion that common law would kick in first.  The catch is in the phrase, "municipality or county AND the public."  That is, if the public continued to use the road but the municipality no longer considered it public, statutory abandonment would stand.

But can a town actually claim it no longer considered the way to be a public way?  First, section 3028 began, "It is prima facie evidence that a town or county way..."  In other words, a town can only claim abandonment of a road which is, by record, still a town way.  Second, the Courts have said that a person cannot claim a prescriptive easement over an abandoned road based on their use of the road for twenty years during the period of abandonment, because the road is not abandoned until the end of the thirty year period of abandonment.  Therefore their use is not "adverse," as required to qualify as prescriptive use.  So how can a town claim that it did not consider the way to be a public way during the period of abandonment?

Well, then how does one prove common law abandonment?  My view has been that a road is its own best witness of common law abandonment.  If it has twenty year old trees growing in the middle of it, or if it is so badly washed out or grown up with brush that it's obvious no one has been using it for a very long time, chances are it qualifies for common law abandonment.  And if no one has needed to use it for so long that it has gotten into that condition, there is probably no need to retain an easement.

My concern with the new section 3028-A is that appears to allow a town to just claim common law abandonment instead of following the statute, and there are no guidelines given as to what qualifies a road for common law abandonment.  In the past, nailing down whether a road qualifies or not has required court action.  It was the prohibitive expense of court action that made us press for a less costly appeal of statutory abandonment.  Now we have added to that the danger that a town or even one landowner will claim a road abandoned by common law and refuse all access to other landowners.  There will then be little recourse for those whose land is therefore land locked until they can prove otherwise.

NO DUE PROCESS NEEDED?  REALLY?  There are several problems with the assumption that no one was injured by a declaration of abandonment under the old version of the law.  First, in many cases the abutters HAD complained, repeatedly, and in writing, because they were indeed being injured by the town's neglect of the road.  But abutters are seldom aware of 23 MRS 3651 and 3652, which require towns to keep their roads "safe and convenient for the public with motor vehicles," and which provide a path for getting the County Commissioners to force a town to fulfill that obligation.  Unless an abutter was lucky enough to discover that path, their complaints were likely to fall on deaf ears.

Second, roads that have been neglected by a town are not necessarily grown up to trees and no longer passable.  Often, one or more of the abutters has been keeping the road passable so as to have access to their property.  It may not be at all obvious to the casual observer or land purchaser that the maintenance has been done at private expense.  New laws passed in 2017 and 2019, 33 MRS 173 paragraph 6 and 33 MRS 193 paragraph 3, now require disclosures in the sale of real estate if the access is not kept in repair at public expense.  But even this is proving flawed in that a seller can simply say, "unknown."  

There are also cases where the seller passes along the information that was given to them, but it turns out that information was wrong.  And then there are cases where the seller may give accurate information about the legal status of the road abutting the land in question, but fail to disclose that you can't get to that road without traversing another road that was discontinued, or a road for which the legal status is unclear.  (I'm not making this up - I've seen that happen!)

Third, the assumption that no one will be harmed by the official declaration of abandonment ignores the fact that once a road is declared abandoned under section 3028, it becomes a "public easement."  According to the Maine Supreme Court in Fayette v Manter, 528 A.2d 887 (1987), footnote 1, a public easement gives the general public an "unfettered right of access" over that road.  

This has been taken to mean that anyone can use the road by whatever means they wish, including everything from ATV's to log skidders (although I dispute that interpretation.)  If an abutter repairs the road at his own expense so as to have access to his own property, he has no right to stop anyone and everyone from using the road at all times of the year, which can quickly make the road impassable once again.  Maine ROADWays' motto is, "Build a better public easement and the world will BEAT the pathway to your door!"

In 2015, an effort was made to mitigate the damage by means of 17 MRS 3853-D and 23 MRS 3029-A.  While these in theory give an abutter some recourse against those who damage a public easement, the difficulties involved in applying these two sections has proven them to be of limited value.  Unless one has pictures of the road just before it was damaged, pictures of the vehicle damaging the road, and pictures of the damage immediately afterwards, it can be impossible to prove who did the damage and how much damage they did.  Besides, often it's the insidious damage done over time by multiple passes by different vehicles that cause a road to deteriorate.

In 1992 in Lamb v New Sharon, 606 A.2d 1042 (1992) the Maine Supreme Court said that, "... for thirty years to have elapsed without the Town keeping the road passable for motor vehicles, the public must have failed to enforce its rights in the road."  Therefore the Court concluded that the abutter was not injured by recognizing that the road was no longer public.  Unfortunately, the Court failed to recognize that under statutory abandonment, a public easement remained and was in fact in danger of being damaged by public use in the absence of public maintenance.  Even if the road was not used for thirty years prior to its being declared abandoned, if an abutter rebuilds it at his own expense in order to access his property, he is not permitted to restrict the public from using (and wearing out) the road.

WHAT IS A ROAD THAT WAS ABANDONED UNDER THE OLD SECTION 3028? 

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.  (See Martin & Crabbe v. Burnham, 631A.2d 1239 (Me. 1993)

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.  (See Brown v.Warchalowski, et al,  471 A.2d 1026 (1984))

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.

I am not the only one to say this doesn't work. In the late 1960's, a law was passed (Title 23 section 2068) which allowed towns to decide that a road was of "limited use and value to the traveling public." Once a road was declared to be a "limited user highway," the Town had no further obligation to keep it in repair, but the road remained a public road and was not discontinued.

It only took a few years before the matter landed in court. In Jordan et al. v. Inhabitants of Town of Canton,  265 A.2d 96 (1970), 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. (See Town of Fayette v Manter, 528 A.2d 887 (Me. 1987), Note 1.)  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 triaxle trailer hauling out over a public easement.

Maine Municipal Association (MMA) warns towns not to use this provision of the law because of possible constitutional issues.  There are no due process or just compensation requirements for "taking" the road as a recreational easement, so a land owner could be wrongly prevented from making other use of the land (for example, if a land owner needs the road for year-round motor vehicular access to his home, but the town votes to make it into a snowmobile trail.)

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 decides not to perform further needed repairs 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)  THE ORIGINAL INTENT OF ABANDONMENT WAS THAT THE ROAD WOULD BE GONE, not that it would remain a public easement.  I draw this conclusion from reading the legislative discussion at the time the law was crafted.  There was lengthy debate over whether or not to include the "recreational easement" provision.  Those who pushed it through were worried that people who had used a road for years for hiking, fishing, snowmobiling, and the like, would be distressed if they were suddenly prohibited from using the road.

Obviously, the legislators did not anticipate that the road would become a public easement, and therefore open to use by anyone and everyone.  If they had, the recreational easement would not have been such a concern.  But their understanding was that once the road was abandoned, the land owners could block the road if they wanted to, and then no one would be able to use it even by foot.

So how did abandoned roads get to be public easements?  Something that never got brought up in the legislative discussion was the line that said a road that is abandoned takes on the same status as if it had been discontinued under section 3026.  So in order to know what that means, you have to go read section 3026, and there you find that a discontinued road automatically becomes a public easement unless the article the town votes on specifies that no easement will be retained.  Only in the case of abandonment, the town never has the opportunity to vote on it, so all abandoned roads automatically become public easements.  Sneaky, if you ask me!

11)  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?

12)  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.  But with cuts in funding, the DOT no longer has the staff needed to keep up with the task.  Towns are supposed to report any changes between reviews, but that doesn't always happen.

At the time of this writing, Maine ROADWays knows of at least six towns that have claimed (or attempted to claim) 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 so as to be able to abandon it, 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.

13) FAILURE TO PROVIDE DUE PROCESS.  The abandonment statute does not require notification of land owners, does not require a hearing, and provides appeal only through court action, which can be prohibitively costly.  How does this pass constitutional challenges?  Simple - the courts have held that abandonment merely affirms the status quo, causing no damage, and therefore no due process is necessary.  That is, if no one has needed a road for a full thirty years, and if no one has complained to the Town to get them to repair the road, then by now the road is presumed to be so grown in that it's obvious it's not being maintained and it harms no one to continue doing nothing.  (See Lamb v. Town of New Sharon, 606 A.2d 1042 (Me. 1992))

The problem is, in many cases towns are claiming abandonment of roads that are still in use, that still appear open, and that people have been trying to get the town to repair for years without success.  Things might be different if more people knew they could complain to the County Commissioners under 23 MRSA 3651 and 3652 to force the town to repair the road before it reaches the thirty year mark.  But most people don't know they can do that, or by the time they find out, the town claims abandonment and that takes it out of the county's jurisdiction.

We contend that there can in fact be grave damage as a result of abandonment, so full due process is necessary.  First, there is the possibility that a town has claimed abandonment of a road that simply does not qualify for that claim.  With complaints about rising taxes, towns are desperate for any way to cut their costs.  If a road is only needed by a few landowners (or even by a few residents,) ceasing to maintain that road will save money.  But formally discontinuing the road requires compensating the landowners for loss of access.  If the town can get away with simply failing to maintain the road for a while, they may be able to claim abandonment.  With changing administration, towns tend to have short memories.  A new road commissioner says, "Oh, we've never maintained that road," and it can be hard to prove otherwise.  With no notification required, land owners may not even be aware that the Selectmen have declared the road abandoned until the deed is done, and the only way to refute it is to go to court.  Abandonment should require actual notification of all land owners who depend on the road for access, and a full hearing should be provided with the opportunity to present evidence and cross-examine witnesses.

Another way in which damage occurs is when one or more land owners maintain the road at their own expense in order to have access to their land or homes, but because the road is a public easement due to abandonment, they cannot stop the public from using the road and wearing it out.  Although there is now legislation that provides some potential for relief in cases of obvious damage to the road, there is little that can be done about the insidious damage that happens due to repeated use of the road by the public.  This amounts to a taking of private property for public use with no just compensation.  Even if a town were to compensate the land owners at the time of the abandonment, continued public use of the road can cause continued damage, requiring continuing compensation. 

14) EX POST FACTO LAW.  The U.S. Constitution, Article 1, Section 10, prohibits states from passing any "ex post facto Law, or Law impairing the Obligation of Contracts."  That is, a state cannot pass a law that makes something illegal that was legal when it was done, or that interferes with a contract that was agreed to before the law was passed.  So what happened when a person sold land with the buyer's understanding that it was accessed by means of a road which the town was responsible to repair, but then the abandonment statute came into existence, allowing the town to  declare the road abandoned?  Or what if the land was sold with the understanding that no one had used it for twenty years and it was therefore private property through common law abandonment?

The abandonment law did not exist when the land was sold.  Depending on the circumstances, the buyer might have been able to invoke 23 MRSA section 3651 and 3652 to get the town to repair the road.  But with the passage of the new law, the town merely has to claim abandonment, and those sections no longer apply.  Or, alternatively, the buyer might have understood the road to be abandoned by common law, and therefore his private property which he could close off with a gate.  But the passage of section 3028 allowed the town to make the road into a public easement - something that could not have been done when the land was sold.  Where the buyer may have gated the road, a claim of abandonment under the new statute makes blocking the public easement illegal.  Either way, the contract between the buyer and seller has been impaired.

15) UNFAIR TAXATION.  Some towns reduce the tax value of properties on abandoned roads, but there is no requirement that they do so.  Many towns tax such properties at the same rate as those on maintained town roads.  But what does the taxpayer get in return for his tax dollar?  He contributes to the maintenance of town roads, but the road to his own land, or in many cases even to his residence, gets no public maintenance.  Not only that, but if the road becomes impassable due to lack of maintenance, he cannot even get from his house to the rest of the public road system so as to be able to enjoy any of the other facilities or services his tax dollar supports.  He cannot get to the school, or the library, or the town office, and the fire department and other emergency services cannot get to him.  In short, his private property (in the form of his tax dollar) is being taken for public use and he gets nothing in return.  Isn't this a taking of private property for public use without just compensation?  If you walk into a store and give the clerk $100, don't you expect to get $100 worth of goods in return?

Towns love to collect taxes from those who cost them nothing, because it gives them more money to spend elsewhere.  We call it "mining taxes."

Worse yet, the resident on an abandoned road must then pay a sort of second tax in the form of road maintenance, or he will inevitably lose his ability to use the road.  This would be bad enough if he were keeping the road in repair for his own use alone, as he would if it were his own driveway or a private road over which he could restrict passage.  But because the road is a public easement, he is prohibited from discouraging anyone else from using the road.  So his time, money, gravel, culverts, etc. are all being contributed for a public use, with no compensation whatever.

The standard response we get to this argument is that everyone contributes to support public schools, even if they have no school aged children, because they nevertheless benefit from having an educated public.  But there's a critical difference.  The person with no children in public school is not expected not only to support the public school but also to build a private school and allow the general public to attend it for free.  The resident on an abandoned road must pay to build public roads, and pay again to build the road to his own house, which the public may then use without cost to them.  Not a cent of his own tax dollar goes into the effort; rather, much of is is spent to repair roads on the other side of town, so that those who live there can get across town and come to wear out the road he is building without the help of their tax dollar. 

He who lives on an abandoned road still can use the public roads his tax dollar helps keep passable.  But if he is unable to keep the abandoned road passable in the face of public use, he cannot even get from his house to the other roads in town.  Using the school analogy, that would be like saying it's fair to tax a person to support the public school, while at the same time prohibiting his children from attending that school unless they build and maintain a private school for other children to attend for free.  At the very least, we think the tax commitment of a person on an abandoned road should be reduced by the amount he has to spend to keep the road passable for the public's use.

16) INVOLUNTARY SERVITUDE.  The Thirteenth Amendment to the U.S. Constitution prohibits involuntary servitude except as punishment for a crime.  But the person who lives on an abandoned road is compelled to work on the road, with no pay.  If he fails to do so, his punishment is that he loses all reasonable access to his home.  Sure, he could hire someone else to do the actual work, but in order to do that he must work to earn the money to pay the person who does the road work, so it amounts to the same thing.  What crime did the resident on an abandoned road commit, that he should be sentenced to do maintenance work on a public road, against his will and without pay?

17) THE LAW IS GRAMMATICALLY FLAWED.  Having to analyze road law has made my husband and me intensely aware of the ways poor or imprecise grammar can lead to abuse of the laws.  If you examine section 3028 closely, you will see that the ONLY fact required to establish the prima facie evidence that a road has been discontinued by abandonment is that it is "a town or county way not kept passable for the use of motor vehicles at the expense of the municipality or county for a period of 30 or more consecutive years."  

The statute used to say that the road had to have been established 30 years before it was claimed abandoned.  That phrase was dropped when the law was amended to remove the original restriction to the thirty years from 1945 to 1976, and to make it apply to ANY thirty years.  Do you see the flaw?  If a town or county way is established today, as a brand new road, it has not YET been kept passable for the use of motor vehicles at the expense of the municipality or county for a period of 30 or more consecutive years, and therefor the way the law is worded, that road "has been discontinued by abandonment."  So it's open to public travel as a public easement, but the public has no obligation to provide any maintenance.  Imagine what a boon this will be to taxpayers.  We can lay out all the new roads we want, and just declare them all to be public easements by virtue of abandonment, and they won't cost us a thing - yet they will remain open to public use.   Beware, legislators - the grammar police are on the alert!

THE ORIGINAL VERSION OF THE LAW WAS QUITE DIFFERENT, AND IT HAS BEEN AMENDED SEVERAL TIMES.  These changes result in gross inconsistencies between the intent of the legislature when the law was passed, and the manner in which the law is now being applied.  The most notable changes are as follows:

A) Originally, there was to be a single thirty year period of neglect (from 1946 to 1976) that would qualify a road for abandonment.  The intent was to allow towns to clean up their records once and for all, so that from that point on, there would be no "forgotten" roads crawling out of the woodwork.  But when towns did not take advantage of that opportunity, it became apparent that more roads would come to light in the future.  The law was amended to make any thirty year period qualify.

B) Originally, the intent was that if a town had done ANY maintenance whatsoever on a road in 30 years, that was sufficient proof that the road was not forgotten, and the road would be ineligible for abandonment.  The law was amended to say that "isolated acts of maintenance" don't count.  Unfortunately, that term was not defined, leaving towns and landowners disagreeing as to how much evidence of maintenance is enough to prevent abandonment.

C) The law was amended to say that the determination of the Selectmen is binding until overturned in a court of law.  For those with limited finances, that can close the door to any hope of getting the abandonment overturned because hiring an attorney for one of these cases is so expensive.  This can make it very tempting for the Selectmen to claim abandonment in spite of an abundance of rebutting evidence, because the chances of anyone successfully challenging them on it are remote.  This amendment dealt a serious blow to due process.

D) Before section 23 MRSA section 3021 changed the term "private way" to "public easement," private ways were often allowed to be gated to prevent unwarranted nuisance traffic.  The logic was that since private ways were maintained at private expense, the land owner should have some control over how the road was used.  An amendment to section 3028 allows gates to be removed, leaving those who maintain the road at the mercy of the public who uses the road.

E) As of 2015, when a town abandons a road they are supposed to notify the Registry of Deeds and the DOT.  This will be a tremendous advantage to those trying to determine the status of a road - if towns do in fact file such notice.  Unfortunately, there is no penalty for failing to provide notice, and the abandonment is valid even if no notice is filed.

There are other problems with the abandonment statute.  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