Putting Public Roads to Bed in Maine


Putting Public Roads to Bed in Maine

Putting Public Roads to Bed

in Maine

Abandonment vs.

Discontinuance Can the laws be


Aroostook County Hypo

Monument Road, Town of Amity

0.9 miles from this sign to the woodlot

Statutorily abandoned

Monument Road Example

Suppose the following:

Pay $75K for 100 ac with public road


Other, cheaper lots available but poor


Intend to harvest wood and keep in Tree


Five years later Amity abandons

Monument Road Hypo Continued

• Town retains free public easement

• Ready to harvest but road needs $20K

• Unable to justify

• Put on market for $55K

• Sell to snowmobiler for $45K

• Town saves money but owners out at

least $30K

• Unfair or just too bad for them?

Three Types of Roads

• 1. Town Way (town road)

• 2. Public Easement

• 3. Private Road

Why abandon?

• Save money – roads are EXPENSIVE

Three ways to dispose of roads

• 1. Section 3026 Discontinuance

• 2. Common Law Abandonment

• 3. Section 3028 Abandonment

Statutory Discontinuance

• 1. Road is town way or public easement

• 2. Notice given

• 3. Order filed that specifies

a. Location

b. Names of abutters, and

c. Amount of damages

Important: Public easement retained

Key: Damages may be found and paid!

Common Law Abandonment

• Non-use of public road for 20 years

• No public easement retained here!

• Entire fee interest reverts to abutters

Statutory Abandonment

• 30 years of non-maintenance (not use)

• Refers back to Discontinuance Statute

concerning public easement retention

• Get ready…

• Subject to vote to make the way an

easement for recreational use

• MMA Roads Manual: never been tested;

be careful; have an attorney

Statutory Abandonment


• Isolated acts of maintenance not enough

• Key: no provision for damages to



• -Three different laws to do the same


• - Constitutional issues

• - Takings

• - Lucas v. South Carolina Coastal


• - Investment-backed expectations (Penn

Central Transportation Co. v. City of


These do not matter because:

• Maine Supreme Judicial Court says so

• Because lack of maintenance is not a

governmental action, there can be no

taking (govt is doing nothing rather

than doing some action)

• Do you agree?

Can’t the law still be made more


• Additional problems:

• Confusing recreational easement


• Liability issues

– Maine Landowner Liability Law

– Road damages

– Environmental violations

Aroostook County Hypo Again

• Under Common Law Abandonment:

• -Fee simple back to abutters

• -No easement retention

• -No damages paid

• -Public road has become private


Hypo under Discontinuance

• Town officials decide to discontinue

• Provide notice; file order with clerk

• Officials determine any damages and


• If after September 3, 1965 then public

easement retained (but damages might

be paid)

Hypo under Abandonment


• Road presumed abandoned if 30 years of

non-maintenance by Town

• If no party successfully rebuts the

presumption of abandonment then the

order stands (unless court rules no)

Public easement automatically retained

• Remainder of property reverts to


• Does town mess with recreational


Hypo under Statutory


• Problem: Landowners now have to pay

to maintain what was a townmaintained

road at time of purchase

• And town retains an easement

• And no damages were paid to the


• Fair or too bad?

Proposed Changes to Law

• Possible Solution #1:

• Repeal 3028 and allow 3026 and

common law abandonment to operate

• Possible Solution #2:

• Repeal 3026 and 3028 and abrogate

common law abandonment and replace

with a new statute

Quick look at new statute

• Towns have two years to designate all


• Landowners have two years to rebut the


• Hearings held to settle arguments

• At end of four years, all determinations


• Use discontinuance statute going


Final look at the hypo:

Under Solution #1

• Discontinuance and Common Law

Abandonment still operate

• No Common Law Abandonment here

because no lack to use

• No discontinuance because Amity never


• Road still public

• Amity could choose to discontinue

(damages may be paid to abutters)

Under a New Statute

• Amity designates the stretch as a public

easement (abandoned)

• Proper notice given

Public hearings held if needed

• Determination then becomes frozen

• Should Amity choose to add recreational

easement in future, must pay fair

market value


• Is the problem large enough to act?

• If so, go with simplicity and Solution #1

• Allow Common Law Abandonment and

Statutory Discontinuance to operate and

get rid of Statutory Abandonment

Thank you for listening!

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