Public and private rights to discontinued roads is a confusing and highly litigated area of land use law in Maine. Ownership and rights in land encumbered by a discontinued road often hinge on a case-by-case analysis of the history of the right-of-way and the method of discontinuance. When a homeowner owns land abutting a discontinued or vacated road, they are often left to determine their ownership and rights in the abutting roadway.
In Maine, Town Ways are defined as: (A) An area or strip of land designated and held by a municipality for the passage and use of the general public by motor vehicle; (B) All town or county ways not discontinued or abandoned before July 29, 1976; and (C) All state and state-aid highways, or both, which shall be classified town ways as of July 1, 1982, or thereafter. The municipality must maintain Town Ways in a manner that is safe and unencumbered for travelers. A municipality may choose to discontinue, in whole or in part, its interest in a Town Way and does so by: (1) providing notice to all landowners abutting the road, and (2) filing an order of discontinuance continuing statutorily required information in the local Registry of Deeds
Generally, when a road is discontinued title to the road reverts to the property owners on both sides of the right-of-way to the centerline. This raises a question of whether the public retains access rights over the discontinued roadway in the form of a public easement. Public easements provide the public with unrestricted access over a discontinued right-of-way but alleviates the municipalities duty to maintain the roadway in a safe and passable condition. We look to the order of discontinuance itself to determine whether the municipality retained a public easement.
After 1965, there exists a presumption that a municipality retained a public easement over a discontinued Town Way unless otherwise stated by the discontinuance document. However, prior to 1965, no such presumption existed. Where a public easement exists, the public maintains continued rights to pass over the now private way and a municipality may retain rights to permit future road expansion and maintenance on the once public way. No public rights exist where the municipality failed to maintain a public easement. A discontinued Town Way without a public easement becomes a Private Road, ultimately forfeiting the public’s rights of access.
Discontinued public roads are only a small section of law governing Maine roads and easements. Both novice and experienced landowners often find themselves in difficult situations due to the confusing and often unprecedented facts surrounding ownership and access rights. Whenever you find yourself in a position where you have questions regarding your property rights, it is best to seek the advice of a qualified land use attorney to help navigate the complexities of land ownership and land use law.
Michael J. Skolnick, Esq.
Archipelago Law, LLP