Defective Public Roads - 23 MRSA 3651

How can a town be made to repair one of its roads?  
If it's still a town road, the laws below may apply.  For further explanation, scroll down the Solutions page.

TITLE 23
§3651. Failure to provide safety and convenience
Highways, town ways and streets legally established shall be opened and kept in repair so as to be safe and convenient for travelers with motor vehicles. In default thereof, those liable may be indicted, convicted and a reasonable fine imposed therefor. [1977, c. 363, §5 (AMD).]

1. Legal objects not defects.  Trees, structures and other things which exist in accordance with municipal ordinances are not defects in a public way.
[ 1987, c. 583, §1 (NEW) .]
SECTION HISTORY
1977, c. 363, §5 (AMD). 1987, c. 583, §1 (AMD).

§3652. Notice of defect; hearing on petition
When a town liable to maintain a way unreasonably neglects to keep it in repair as provided in section 3651, after one of the municipal officers has had 5 days' actual notice or knowledge of the defective condition, any 3 or more responsible persons may petition the county commissioners for the county, setting forth such facts, who, if satisfied that such petitioners are responsible for the costs of the proceedings, shall fix a time and place near such defective way for a hearing on such petition and cause such notice thereof to be given to the town and petitioners as they may prescribe. At the time appointed, the commissioners shall view the way alleged to be out of repair and hear the parties interested, and if they adjudge the way to be unsafe and inconvenient for travelers, motor vehicles, horses, teams and carriages, they shall prescribe what repairs shall be made, fix the time in which the town shall make them, give notice thereof to the municipal officers and award the costs of the proceedings against the town. If they adjudge the way to be safe and convenient, they shall dismiss the petition and award the costs against the petitioners. If they find that the way was defective at the time of presentation of the petition, but has been repaired before the hearing, they may award the costs against the town, if in their judgment justice requires it.

§3653. Manner of presenting petition
The petition provided for in section 3652 may be presented to the county commissioners at any of their sessions, or in vacation to their chairman, who shall procure the concurrence of his associates in fixing the time and place in the order of notice and cause the petition to be entered at their next session. They shall make full return of their proceedings on the petition and cause the same to be recorded as of their next regular term after the proceedings are closed.

§3654. Failure to comply with commissioners' order; warrant of distress
If the town neglects to make the repairs prescribed by the commissioners under section 3652, within the time fixed therefor in such notice to the town, they may cause it to be done by an agent, not one of themselves. Such agent shall cause the repairs to be made forthwith and shall render to the commissioners his account of disbursements and services in making the same. His account shall not be allowed without such notice to the town as the commissioners deem reasonable. When the account is allowed, the town becomes liable therefor, with the agent's expenses in procuring the allowance of his account and interest after such allowance, and said commissioners shall render judgment therefor against the town in favor of the agent. If a town neglects to pay such judgment for 30 days after demand, a warrant of distress shall be issued by the commissioners to collect the same.

§3655. Personal injury actions; limitations; damages; notice
Whoever receives any bodily injury or suffers damage in his property through any defect or want of repair or sufficient railing in any highway, town way, causeway or bridge may recover for the same in a civil action, to be commenced within one year from the date of receiving such injury or suffering damage, of the county or town obliged by law to repair the same, if the commissioners of such county or the municipal officers or road commissioners of such town or any person authorized by any commissioner of such county or any municipal officer or road commissioner of such town to act as a substitute for either of them had 24 hours' actual notice of the defect or want of repair, but not exceeding $6,000 in case of a town. If the sufferer had notice of the condition of such way previous to the time of the injury, he cannot recover of a town unless he has previously notified one of the municipal officers of the defective condition of such way. Any person who sustains injury or damage or some person in his behalf shall, within 180 days thereafter, notify one of the county commissioners of such county or of the municipal officers of such town by letter or otherwise, in writing, setting forth his claim for damages and specifying the nature of his injuries and the nature and location of the defect which caused such injury. If the life of any person is lost through such deficiency, his executors or administrators may recover of such county or town liable to keep the same in repair, in a civil action, brought for the benefit of the estate of the deceased, such sum as the jury may deem reasonable as damages, if the parties liable had said notice of the deficiency which caused the loss of life. In any action against a town for damages for loss of life permitted under this section, the claim for and award of damages, including costs, against a town and its employees shall be disposed of as provided under Title 18-A, section 2-804, but shall not exceed $25,000 for each claim and $300,000 for any and all claims arising out of a single occurrence. No damages for the loss of comfort, society and companionship of the deceased shall be allowed in an action under this section. At the trial of any such action the court may, on motion of either party, order a view of the premises where the defect or want of repair is alleged when it would materially aid in a clear understanding of the case. [1979, c. 663, §138 (AMD).]

SECTION HISTORY
1977, c. 2, §§3,5 (AMD). 1977, c. 578, §7 (AMD). 1977, c. 591, §§4-6 (AMD). 1979, c. 68, §§3,5 (AMD). 1979, c. 663, §138 (AMD).

§3656. Repair within 6 years; location conclusive
When on trial of any such action or indictment as provided for in section 3655 it appears that the defendant county or town has made repairs on the way or bridge within 6 years before the injury, it shall not deny the location of such way or bridge.


UPDATE AND COMMENT RESPONSE: For some reason the blog is not letting me post a reply to the comment I received yesterday, so I’m going to try posting this as an edit and hope the person who commented will see it.  (If you do, please let me know.)

Many towns are now having trouble making ends meet.  With increasing weight and volume of traffic, and increasing costs of road maintenance, plus demands to keep property taxes in check, there simply may not be enough money to do all the road repairs that are needed.  The funds meager funds that are available get spent on the roads that demand the most attention.  So how can you get attention when there is a real problem in a less obvious place?

I see two possible solutions.  The first is what is presented on this page, namely, 23 MRSA 3651 and 3652.  First, write a letter to your Town informing them that the road is not being kept “safe and convenient for the public with motor vehicles as required under 23 MRSA 3651.”  If possible, hand deliver the letter to the Selectmen and have them date and sign it to indicate when it was received.  (Simply getting it into the hands of a secretary isn’t enough.)  Have them give you back a copy of the signed and dated letter as proof that they received it.  Wait at least five days.  (It’s a good idea to time your letter so they get to address it at a Selectmen’s meeting before you proceed farther.)

If you haven’t received a response after five days or a reasonable time thereafter, send a petition to the County Commissioners.  Your petition should have a copy of your letter to the town with their acknowledgment of receipt, and should state that you have waited at least five days and are now petitioning the County under 23 MRSA section 3652.  Your petition needs to be signed by at least three “responsible persons,” that is, people who can pay the cost of the hearing if your complaint is found to be frivolous (which is unlikely.)  I don’t know of any case where anyone has been charged for this. 

The County will contact the Town, and unless the Town tells them they are taking care of it, they will schedule a hearing and a view.  If they determine that the Town needs to repair the road, they will order the Town to do so, and if the Town refuses, the Commissioners can even hire someone to do the work, and send the bill to the Town.

The second possible solution comes under 23 MRSA section §3255. Watercourses not to injure property; remedy:
“No road commissioner, without written permission from the municipal officers, shall cause a watercourse to be so constructed by the side of a way as to incommode any person's house or other building or to obstruct anyone in the prosecution of his business. Any person so aggrieved may complain to the municipal officers, who shall view the watercourse and may cause it to be altered as they direct.”

Unfortunately, I see two flaws in this statute.  First, it appears from the wording of the statute that as long as the Road Commissioner has written permission from the municipal officers, he can direct a river straight into your basement.  I’m sure that’s not what the statute intended!  (I would love to work for the Office of the Revisor of Statutes.  I think I would catch a lot of these flaws before they got on the books.)  Second, the statute fails to give any method of enforcement.  If the Selectmen do nothing, what recourse do you have?

My suggestion would be to add that to your complaint under section 3651 and your petition under 3652.  Document what the water is doing to your house and lawn.  If possible, attach receipts for work you have had to have done, or estimates for what it would cost to repair the damage.  Be sure to mention that you are complaining under 23 MRSA section 3255.  The County may say they have no jurisdiction to address that complaint, or they may order repairs to the road in such a way that it fixes the drainage problem.

If that doesn’t work, you could try filing a complaint in small claims court to recover at least some of your damage.  Make sure you have good documentation of the damage, including photos, receipts, estimates for repairs, etc.   You could, of course, hire an attorney and file a lawsuit in Superior Court, but I would not recommend that except as a last resort.  That route can become frightfully expensive, and is likely to turn the community against you.  If you think you need to go that route, I would urge you to try to build community support first.  Let people know you have no desire to sue the town or to increase everyone’s taxes, but ask what they would do if they were in your situation.  With the Community backing you up, you might get the Town to do what they are supposed to do - and if not, at least people will understand why you are resorting to a lawsuit.

One other possibility.  I haven’t seen your situation, so I don’t know how drastic a remedy is needed, but you did mention cleaning out the ditch yourself.  Would that require heavy equipment, or is it something you could do with a hand hoe?  I certainly wouldn’t recommend doing anything that could undermine the road, as that could get you in big trouble.  But if simply cleaning out the accumulated leaves and silt would help, I’d say pick a time when not too many people will notice, and go for it!  Just don’t tell anyone I told you to do it!  (To Quote Mission Impossible, “If you or any of your impossible missions force should be caught or killed, the Secretary will disavow any knowledge of your actions!”)  But seriously, with insufficient funds to meet all the needs of a town, we have to find ways to cut costs, and volunteerism is one valuable resource.  It’s possible the town is not giving you permission to do the work because then they could be held liable for the result.  But if you do it without their permission, they can’t be blamed for it.  They might even secretly thank you for just quietly taking care of it.

If the Town finds out and complains, point out that they have no documentation to prove they dug the ditch, and give them the documentation of the damage it’s doing to your house and lawn.  If they are willing to reimburse you for the damage, past present and future, they can keep the ditch the way it is!

If you have any more questions, feel free to contact me directly by email at roadways@juno.com 
Keep me posted!