INDEX TO MAINE ROAD LAW: ABANDONED OR DISCONTINUED ROADS
While this is not a comprehensive list of Maine road statutes, you should find most of the ones you need here. Be sure to check with the Legislative and Reference Library in Augusta for any updates, or for related laws that may not be included here. For now, I've listed them pretty much in numerical order, but I'm not sure if that's the most useful arrangement. Alphabetical listing is only helpful if you know what you're looking for by name. Fortunately, I was able to group them in a way that I hope makes the list short enough to scan for what you need. I'd welcome any suggestions on how to make this index more user- friendly!
Title 14 Adverse Possession
Title 17 Damage to a Public Easement
Title 23 State Highway Law
Title 23 County Highway Law
Title 23 Winter Closing
Title 23 Road Definitions
Title 23 Town Road Layout
Title 23 Discontinuance
Title 23 Paper Streets
Title 23 Abandonment
Title 23 Road Associations
Title 23 Defective Public Roads
Title 33 Description in Deed
hello,
ReplyDeletei live in southern Maine and the Cemetery Association that has been in town for 175yrs is on the corner or a Maine state road and a private road that has be closed before the 1960's. the town moved to close the road. here it is over 30yrs later the towns conservation/ Forestry committee wish to reopen because the town has land at the end of the closed road they wish to access after all this time.
we as a Cemetery board again about 1/4 ac. when they closed it and because of other reasons we have damages to our buyers lots and head stones?
what is the normal when is comes to something like this and what about the damages?
on top of this the road is not up to town or state codes and they have allowed some one to build out there also with out a clear right away?
You say the road was "closed" before the 1960's. The first thing to find out is the exact wording that was used in the "closing," and what process was used. Was it a vote at a town meeting, or simply an action taken by the Selectmen? And did it use the word "closed" or the word "discontinued?" Did it say anything about retaining a right of way, private way, or easement of any kind?
DeletePrior to 1965, if a road was discontinued it would have reverted to private property unless the vote specifically stated that an easement would be retained.
On the other hand, if it was merely "closed," that opens another whole can of worms. There was and is nothing in Maine statutes that allows a town to simply close a road. They could "close to winter maintenance" for a period of up to ten years, in other words, they could suspend snow removal, but only temporarily. After ten years they had to review it and decide whether or not to close it for another period of up to ten years. Counties (but not towns) could "close for maintenance," that is, close a road temporarily while it was being repaired. But I believe they did not acquire that authority until 1965. Even so, many towns did close roads, even though there is nothing in the law that allowed them to do so.
There is at least one Court case in which the Court recognized a closing as being a temporary suspension of maintenance, which was different from a discontinuance and did not relinquish town ownership of the road.
To be continued...
In your case, if the road was closed before the 1960's, that means presumably it hasn't been maintained at the expense of the public for somewhere around 50 years. That would make it ripe for a claim of abandonment. There are two types of abandonment - Common Law Abandonment and Statutory Abandonment.
DeleteI'm betting the Town would claim Statutory Abandonment under 23 MRSA 3028. To make that claim, they would only have to establish that it had been a town or county road, and that it had not been maintained at the expense of the public for 30 or more consecutive years. A road that has been abandoned by statute automatically becomes a "public easement," which would give the public the right to use the road freely by motor vehicle, but the public would no longer be responsible for maintenance.
In other words, the Town gets a free ride at the expense of any landowner who maintains the road because he needs it for access to his property. So if the Cemetery Association repairs the road so as to have access to the cemetery, the general public can then use it for free. That would include the Town using it to access their land.
The other type of abandonment, Common Law Abandonment, requires that the road not have been used for at least 20 consecutive years. A road that has been abandoned by common law ceases to exist as a road. It is no longer even a private road, so any land that has no other access is then legally land locked. Courts disagree as to whether common law abandonment of public roads is still an option now that we have statutory abandonment.
You could try claiming that it was abandoned by common law due to non-use for a period of twenty years immediately following the "closing" (if it was indeed a closing and not a discontinuance.) If the date of the closing was before 1956, that would put the whole 20 years before 1976 when statutory abandonment became available, so you could argue that the right of way was already extinguished before it could have been claimed under section 3028.
But that would leave properties land locked unless they had other access. If the property owners have continued to use the road for property access, they could then claim that by now they have acquired "prescriptive easements." In order to establish a prescriptive easement, they have to have used the road continuously for 20 years with the acquiescence of the other landowners whose land they have to cross.
I know this is all pretty complicated and probably confusing. If you send me an email I can correspond with you in more detail and see if I can help you figure out your options. My email is roadways@juno.com.
hello,
Deletei will send you an email over the weekend and give you the best to my knowledge what they are planning to do.. and thank you for your help and information is has been a great interest in helping me understand better...
Great! I'll look for your email. Also, if you can give me the exact location of the road, I'll see what I can find out about it.
Deletei have enclosed this in my e-mail but i dont think i gave you a town, let me know when you re-contact me via email.. thank you again
DeleteI'll look for your email and respond there.
DeleteWhat is the official definition of a "Private Road." Is does a non-property owner on a private road considered a trespasser?
ReplyDeleteThe short answer is, Yes, IF AND ONLY IF the road is in fact a private road, and not a "private way," which is defined as a "public easement." But the road would have to be posted as Private. So the first thing to determine is if the road is in fact a "private road." Generally, a true private road is one that was laid out by a private individual over his own private land. Roads in subdivisions are USUALLY true private roads. However, if the road was once a town or county road that was discontinued after Sept. 3, 1965, chances are it's a "private way," defined in 23 MRSA 3021 as a "public easement." According to the Maine Supreme Court, that means that the public has an "unfettered right of access" over it. But there are exceptions. I did a text search for "private road" on the Maine statute search page, http://legislature.maine.gov/statutes/search.htm and as I suspected, there seems to be no definition for the term "private road." This is odd, considering the fact that the term "private road" is used in a number of statutes. Often it is coupled with the term "private way." Unfortunately, this just confuses the issued because there is more than one definition of "private way" in the statutes, and the definitions conflict with each other. One definition is even self-contradictory! If you need help determining which it is, contact me at roadways@juno.com and I'll see if I can pin it down for you.
ReplyDeleteCan a motel next door to our dirt road private way that is a dead ends to the property line of the motel. of 3 seasonal cottages use the private way. Its been said for 40 years the only time it would be ever used by motel would be in a entrance or egress for emergenies such as fire
ReplyDeleteI'd need more information in order to answer that. You refer to the road as a "private way." If you are using that term to refer to a "private road," that is, a road that was privately built and deeded as access to the cottages, and NOT to the motel, then the motel has no right to use it. But if the land where the cottages are once belonged to the motel and the cottages were granted an easement over the motel's land, the motel may still have a right of access over it as well. You would have to check the deeds to all of the properties involved and trace their chain of title backwards to see exactly who was granted what. On the other hand, if you are using the legal term "private way" which has been updated to refer to a "public easement," that's a different matter. If it was once a town or county way but public maintenance was discontinued, in some cases that would retain a "private way" or public easement. If that's the case, it is open to use by the general public. If you send me the town, name of the road (if it has one) and/or exact location so I can find it on Google Earth and on tax maps, I may be able to give you a better answer. You can email me the details at roadways@juno.com Hope to hear from you!
DeleteGood evening, can a person claim adverse possession of a small section of a road easement that was granted to a road association and is currently used by the general public?
ReplyDeleteI would need to know a lot more about the situation before I could tell you. How was the road association formed, and how was it granted the easement? Are you a member of the road association? What sort of public use is there, i.e. is it the occasional hunter or dog walker, or is it used for access to a public boat launch or public park land? Does the public have a public easement over the road? On what do you base your claim of adverse possession? Have you used that section of the road uninterruptedly for 20 or more consecutive years, and was your use "adverse" to the purposes of the road association or the public? If you want to have me dig into it more, please send the name of the road, the town, and answers to as many of the above questions as possible to roadways@juno.com and I'll see what I can figure out.
DeletePLEASE HELP... I live on a private road with about 8 houses in Maine that abuts a town road. The private road has not formalized an association nor wants to. We would like the town to take it over as we're all property tax paying customers. Is there a statue to reference or does anyone have any further info on here? Thanks a bunch!
ReplyDeleteOne other option that some towns have used to allow them to at least provide snow removal on private roads is to get the abutters on a private road to agree to make the road a "public easement" - formerly known as a "private way," not to be confused with a "private road." Towns are not allowed to use public funds to maintain private roads, but declaring the road to be a public easement gives it a public purpose, which makes it legal. That then gives the Town the ability under 23 MRS section 3105-A to vote to allow their Selectmen to use town equipment on "private ways" when the selectmen determine that it's in the best interest of the public for fire and police protection. But again, that depends first on the people voting to give the Selectmen that authority, and then it depends on the Selectmen agreeing that there is a real public need. Some towns apparently take such a vote each year. Other towns see section 3105-A as only authorizing a fire truck to go in when a house is actually on fire. That interpretation doesn't make much sense, considering the fact that they have the authority to go wherever they need to when there's a fire, but that's how some towns interpret it. If you do get the town to agree to use section 3105-A, the down side is that your road would then have to be declared a "public easement," which means that the public could use the road any time they want. You said the abutters do not want a formalized road association. Do they at least have an informal one? Sometimes when there are only a few abutters, an informal association is the best solution.
DeleteGood afternoon I have a question about a purely private road owned by multiple parties. A property owner at the very end of the road is trying to sel, but does not have deeded access even though the road is a century old or more, and has been in continuous use. Is it the case that any landowner along that private camp road could choose to close it off permanently as long as no one "further in" has deeded a right of way? Additionally if there are multiple properties with a long-standing historic use of the road, some with deeded access and some without, is it the case that access could be restricted (say with a gate and key system) to only those who have deeded access?
ReplyDeleteIn order to give you a definitive answer for your specific situation, I'd need to know the name of the road and the town, and/or the specific location of the road so I can find it on Google Earth. If you want me to look into it, send me that information in an email to roadways@juno.com. But in general terms, if the person at the end has no deeded access, and if the road is in fact purely private, then there is the potential for someone to gate it. There would have to either be a person who owns land on both sides of the road, or an agreement between owners opposite each other to gate it. On the other hand, the person at the end might have a valid claim to a "prescriptive right" to the road. They would have to prove that they and/or their predecessors-in-title have used the road for twenty or more consecutive years without the permission of those whose lands they cross but with their acquiescence, or that their use has been "so open, notorious, and uninterrupted that acquiescence will be presumed." If they have lived on that land for twenty or more years, they'd have a pretty strong case. Or, if it is a wood lot and has been managed as such, there are some Maine Supreme Court cases in which it was declared that intermittent use of a road consistent with management of a wood lot is sufficient. The trouble is, either proving or disproving such a claim requires going to court, which can be frightfully expensive for all parties involved. I would strongly suggest getting all the landowners on the road together and working out an agreement to deed each other a shared private easement over the road. If you don't think that can be done, I would advise hiring a professional mediator to help with the process. You want a mediator who will help you listen to each other's concerns and work out an agreement you can all live with. (Some mediators will listen to all sides and then impose THEIR solution. You don't want that, you want the solution to be one the parties all agree on.) I highly recommend the Maine Association of Mediators. Or, if there is farmland or forest land in production, you may qualify for FREE or minimal cost mediation through the Maine Agricultural Mediation Program! They also do an excellent job. One last caution - you say it's a "purely private road owned by multiple parties." You would want to be sure it's not a discontinued or abandoned town or county road or a "rangeway." If it was, there may or may not be either private or public rights remaining over it, depending on when and how it was discontinued. That's something I could research for you.
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