Attention, everyone -

   If any of you have ever had to deal with a road which has been declared a "public easement" by virtue of discontinuance or abandonment, you will be familiar with the expense and heartache of rebuilding a road, only to have the public tear it up and wash their hands of any responsibility.  For my husband, this has been a 42 year battle, and for me it has been 32 years.  We have tried every avenue we can find, from approaching other abutters, to appealing to the Town, to working with the legislature, to lawsuits, to civil disobedience.  Until recently we have had little luck, but it looked as if we were at last going to see the light at the end of the tunnel.  That hope has now suffered a severe blow.  As of January 10, 2014, the legislature has just put out a draft for a bill on abandoned and discontinued roads which will be presented for public hearing on January 13, 3014 at 1:00 in room 214 of the Cross Building.  A work session will follow on January 15th.  This is the culmination of two years of study, first by a legislative appointed Stakeholder Group and then by a legislative Subcommittee.  The people involved in both studies seemed to understand the injustice of forcing owners of abutting land to repeatedly bear the expense of repairing damage to a road which is open to unrestricted motor vehicular traffic, while the public is absolved of any responsibility.  They have listened at length to input from many people and many interests, and have said that they really wanted to get this right. 

 Unfortunately, the draft bill which has just come out DOES LITTLE TO ADDRESS THE PROBLEM THEY SET OUT TO SOLVE.  We find this extremely disappointing.  The best I can say for it is that abutters may now get some notice that their road is about to become a public easement, and purchasers may know that their access will be by public easement, but will they know the ramifications of that terminology?  I fear the notice requirement will only give towns more legitimacy when they excuse their actions by saying, "You knew what you bought when you bought it."  (We have been told that for years, in spite of the fact that we could not possibly have known the changes in the law that were to take place years after we bought the property.)

     We had hoped that we were going to succeed in getting the abandonment statute repealed, and that if the public kept any sort of easement upon discontinuance of a road, the public would be responsible for keeping it in repair - not leaving it open to indiscriminate use with resulting unabated erosion, runoff, and ultimate destruction of property access.  Most of all, we had hoped that access to properties would be protected by establishing an access to be held in common by the abutters, which could be kept in repair by a ROAD ASSOCIATION for the use of abutters only, and which could be posted or gated to prevent others from abusing it.  (Current law allows abutters to form road associations on these roads, but that merely allows multiple abutters to divide the injustice of being forced to repair a road which is torn up by the general public, who have a right to use the road but who do not share the expense of upkeep.) 

     Instead, the new bill perpetuates the problematic public easement, which remains open to unrestricted public motor vehicular use, and for which the public bears no responsibility.  Under this bill, municipalities MAY vote to restrict public use, and MAY vote to assume maintenance and liability responsibilities, but they are not required to do so.  Is there really any likelihood that they will vote spend money on something they can choose to get for nothing?

     Once again, the legislature is ignoring legal precedents.  In Jordan v. Canton, the Court said that the mere fact a road had legal status as a public way was meaningless if the public had no responsibility for maintenance and repair; that in the absence of maintenance and repair, public use and the rigors of Maine weather would inevitably destroy the road; and that destruction of the access to properties constituted a "taking," which required due process and compensation.  (How do you compensate for the new "taking" that happens every time the abutter has to rebuild the road?)  In Brown v. Warchalowski, the Court determined that in the establishment of any road, there must first be a determination that there is an actual public need for the road.  Yet abandonment requires that it first be proven that the public has had NO NEED for the road for the past thirty years, whereupon it becomes a public easement.  Towns have even been applying the abandonment statute to roads that were discontinued without easement decades ago, so this is not a matter of downgrading an existing road to the status of a public easement; rather, it is a matter of the public taking back land that has been long since returned to private ownership.  They might as well put out an invitation to all comers to test their four wheel drives in mud season on roads which in many cases may not have been built to withstand anything more than a horse and buggy.  In many cases, these roads were discontinued or abandoned because they were steep and were prone to erosion.  Allowing such roads to become public easements places a daunting and unjust burden on those who have no other access to their property.

     I have been compiling a list of people who have, or have had, problems with roads like these, and keeping them informed when there is any activity coming up in the legislature.  I also can help with researching the legal status of old roads to determine whether or not a public easement remains.  If any of you would like to be added to my list, or if you want further information, or just to commiserate, please send me an email at roadways@juno.com.

Thank you for your interest and involvement.

Roberta Manter, ROADWays (Residents and Owners on Abandoned and Discontinued Ways.)