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Maine Alliance for Road Associations

Question from member: Can a private road determine access to a public lands property?

  • 18 Sep 2016 4:44 PM
    Message # 4255766

    A member writes: "Our road association [SROA] has more than ten miles of dirt roads.  A Maine Public Reserve Lands property abuts our members' properties, so we apparently have the only viable road access available to those who, not being members, want to use our roads to access the public land.  Our road access is via a single locked gate.  Are we obligated to provide any access, other than by foot, to a potential public lands user that was referred to us by the state?"

    Last modified: 20 Sep 2016 1:50 AM | Anonymous member
  • 18 Sep 2016 11:36 PM
    Reply # 4256026 on 4255766
    Anonymous member (Administrator)

    Interesting question!  I'm not actually sure what your legal obligation would be, (not being an attorney,) but my gut feeling would be to go with the principle that he who uses the road should pay his fair share of the upkeep.  Both the U.S. and Maine Constitutions state that private property cannot be taken for public use without due process and just compensation.  According to Jordan v Canton, public use of a road without public maintenance will inevitably destroy the road; access is a property right attached to the land, and destruction of access amounts to a "taking," requiring due process and just compensation.  So one could argue that the public should not be using the road unless they contribute to its maintenance.  

    Does the public lands property count as a parcel "benefited by" the road association's roads?  If so, that may mean they should be a member.  But who is the "they?"  I recall seeing somewhere that if a town owns a lot benefited by a road association, then the town owes their share (although I don't know if that's enforceable for a property held on a tax lien - but that's a side issue.)  So I would think that whoever administers the public lands should be notified that the access is maintained by a road association and not with public funds, and that therefore if they expect to have access via the association roads, they must become a member.  

    From your description, it's not really clear if the public lands actually abut the road, or if it's necessary to cross private land to get from the road to the public land.  Unless there is a "great pond" in the public land, landowners are not obligated to let the public cross their private land.  If there IS a great pond, the public has a right to cross by foot to get to it, but only over unimproved land, which would not include the road.  

    I wonder how the land was acquired by the public.  Was it given to them?  Or was it taken on a tax lien because someone got tired of paying taxes for a lot that had no access?  The term "caveat emptor" comes to mind.  What is the point of acquiring land for the public if there is no way to get to it?  

    So I'm not sure if I've answered the question, or simply added more questions to it, but hopefully someone with more legal qualifications than I have can do better.

  • 19 Sep 2016 11:50 AM
    Reply # 4257530 on 4255766

    Cliff Goodall atty (retired) writes ;

    Without reviewing deeds as to who has rights to the road and who has to pay fees, I cannot say. The history and age of the road is also important as is whether the road serves an approved subdivision and when.

    Also important is the legal instrument, if any, that created the right for gates and bars.

    If SROA, and/or only its members own the road and the state land does not abut the road and/or has no legal right created by deed or easement or court decision to use the road, the answer is most likely to be that no, SROA does not have to let others use it and can charge others to use it. Even if the road was built to just serve the camps of SROA members, I assume the original land owner and its successors reversed rights to the road. The statutory right to cross unimproved land to get to a great pond does not include the road.

    This is a long way around to say: "I do not know”.

    MARA admin (Betsy Bowen): I suggest you attempt to find the necessary documents if you can, and consult an attorney. Lake and Denison (conference attendee) in Winthrop are highly recommended.



    Last modified: 19 Sep 2016 11:51 AM | Anonymous member

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