Q & A On Roads

MMA Legal Services department gets a large number of similar questions regarding roads from plowing private roads to paving contracts

(from Maine Townsman, March 1995)
by Joseph Wathen, Esq.

AUTHOR'S NOTE: The following article discusses some of the more frequently-asked questions of MMA's Legal Services department about roads. The data accompanying this article were produced by the MMA Local Government Resource Center from data collected in its Roads Survey, based on FY 1993.

I know that the town is not supposed to plow or maintain privately-owned roads, but how do we know if a particular road is private? In one case, the landowners have told us that since the town has taken care of their camp road for more than 20 years, we have "taken over" the road. The road was never officially accepted by town vote. What do we do?

The landowners here are making the argument that the road has become a town way by "prescriptive use", which is similar to adverse possession. The landowners are probably wrong, because in most cases not all of the elements of a prescriptive easement can be established. The elements of a prescriptive easement are:

continuous use for at least 20 years;

under a claim of right adverse to the owner;

with the owners' knowledge and acquiescence or by a use so open and notorious that knowledge and acquiescence is presumed (see McGray v. LaMontagne, 623 A.2d 161 (Me. 1 993).

Usually, people hear about the 20-year element and assume that the test is met and that the town has taken over responsibility for the road. However, if the town has maintained the road at the request of or with the permission of the present or former owners, there will be no prescriptive easement. A "claim of right adverse to the owner" means that the road was maintained without the permission of the true owners. The landowners' "knowledge and acquiescence" means that the owners knew of the public use and maintenance of the road but took no steps to assert their ownership rights.

Some of the questions you need to research are:

Are signs such as "No Trespassing" or "Private Road" posted along the road? If so, this is a clear indication that public use is prohibited and that the maintenance provided by the town was at the request of private owners and not for the benefit of the general public.

Has the town's maintenance of the road been consistent with the winter and summer maintenance provided to all town roads? If not, it is evidence that the town and the owners considered the road to be private and that the town only supplied limited maintenance to accommodate the landowners. For example, many towns have historically plowed private roads but left all other maintenance (brush-cutting, grading, culverts, ditching, slowdowns) to the landowners. This is evidence that all parties have considered the road to be private, as otherwise the town would have provided all maintenance and repairs.

Has the town included the road in the mileage figures submitted to MDOT for local road assistance money? If so, this is evidence that it is a town road, since the town is claiming it for block grant purposes. If you are now doing this for private roads, stop it!

Is there any evidence (in writing or in the memories of long-time residents and officials) that the town originally provided maintenance at the request of the landowners? If so, a prescriptive easement will not arise. In some cases, people on private roads complain that they pay a lot of taxes and get nothing, so at least the town should plow their road. If the town plows the road to placate the abutters, this is considered to be done at the landowners' request.

If car accidents or related injuries have occurred from defects in the road (potholes, washouts, etc.), has the town been sued or paid on a claim? How have such claims been handled? If private landowners have handled such claims, it is an indication that the road is not a town way. If a claim was made against the town, look into it to determine if this issue was raised.

Are we required to go out to bid for a paving contract?

No, not under State law. However, a local charter, ordinance or article may require bidding out certain projects (usually based on the amount of money involved). By the way, no law requires a municipality to go out to bid for general road-related projects, including plowing and sanding.

Do we need a written contract with the paving contractor?

The law does not require a written contract, but we strongly recommend it. Oral contracts are very difficult to enforce because human memories tend to lapse or fail with the passage of time. Also, oral contracts often fail to include important items such as insurance coverage requirements.

If a motorist or pedestrian is injured by the paving contractor's activities, is the town liable?

Generally speaking, the town will not be liable if it uses a reputable, adequately-insured independent contractor. If the town hires an uninsured, fly-by-night contractor who causes an injury, the town will likely be named in the lawsuit as it is the only available party with enough money to satisfy a claim. The injured person's claims against the town would be that the town was negligent in using such a contractor for road repair purposes, and that the town is responsible for the acts of its agent. At a minimum the contractor should have $300,000 liability insurance coverage for any project. Also, make certain that the contractor has workers compensation coverage for his employees. Otherwise, an injured worker may pursue the town.

Our paving contractor did a good job on the road but some residents have complained that the pavement is raised quite high where it meets their driveway. Are we liable for problems such as their cars "bottoming out", or increased drainage of water onto their land?

There are two laws which may come into play here. 23 MRSA 3607 allows an abutting landowner to recover damages if the town raises or lowers a way and as a result diminishes the use or value of the abutting property. The cases reported under this law involve substantial changes in the level of a street—anywhere from 17 to 24 inches. The typical paving job will not cause the sort of damages that this law addresses, but a major project might. This law does not make the town liable for damage to vehicles as a result of the street raising, nor is the landowner entitled to damages to the property from subsequent rainstorms, see Sherburne v. Inhabitants of Sanford, 131 Me. 66 (1915). Instead, this law allows a one-time claim for damages in the event that the abutting land is devalued by the street raising or lowering.

The other law which might apply is the "pothole law", 23 MRSA 3651-3655. Under this law, a town may be liable for personal injuries or vehicle damage resulting from defects in the way. If a paving project leaves substantial hump or bump across driveways (big enough to hang up cars), an injured party could claim that it is a defect. In other words, the defect need not be a result of nature or caused by some third party, but could be the result of a road project authorized by the town, see Buck v. City of Biddeford, 82 Me. 433 (1890).

Someone from MDOT recently told us that the law about posting roads during mud season has changed. What is the change?

The road posting law was formerly located at 29 MRSA 902. Effective January 1, 1995, the law is found at 29-A MRSA 2395. The current version of the law covers the same activities as before, but the text of the law has been rearranged. The municipal officers (selectmen or councilors) still have the authority to adopt regulations which govern the weight, speed, operation and equipment of vehicles on posted roads. A road may be posted at any time of year if necessary to prevent damage; it is not limited to "mud season".

By the way, Title 29 MRSA has been entirely recodified as Title 29-A MRSA, and all the former sections have been re-numbered. There is a table in Title 29 (1994-95 paperback supplement) which shows how to go from a former law to the new law and vice-versa. Call MMA Legal Services if you need assistance or a copy of the table.

Is there state or federal law which limits the number of hours that a snowplow operator can plow in Maine?

No. Municipalities may set their own limits through a policy or ordinance, but there is no state or federal law at this time. The Maine State Legislature is now considering a " tired trucker" law, and it is possible that municipal drivers could be subject to regulation under that law. We will know more about this in the next 3 months.

What is the law about culverts under a driveway or private road? We always thought that the abutting land-owner must purchase the first culvert, and the Town is thereafter responsible for maintenance and replacement culverts. One landowner refuses to pay for a new culvert. Who is right?

There is no state law on this issue. However, the traditional and commonly-accepted practice in Maine is for the landowner to pay for the first culvert, and the town to be responsible after that. The only case I've found on point upholds the traditional practice, see Town of Chesterville v. Erickson, Me. Dist. Court Docket .No.FAR-89-SC-66 (Franklin 1989). In addition, the town is free to adopt an ordinance which clearly states the abutters responsibilities in this regard.

We have recently been asked by a citizen to help clear up a "paper street" problem? What is a paper street?

A paper street is a road which is shown on a recorded subdivision plan but which does not actually exist on the face of the earth—it exists only on paper. Even though the road is not real, public and private rights of access may exist, and this often causes title problems for lot-owners in the subdivision.

In brief, the municipal officers can take formal action to "vacate" a paper street, or the street can be vacated by the passage of time. The law is too complex to cover here, but Chapter 7 of the MMA Roads Manual (1992 ed.) discusses the law in detail.

Two residents are at odds about the status of an old town road. One resident says he can use it, but the other has put rocks and logs in the way. They have come to us Selectmen for advice. The town never formally voted to discontinue the road, but someone said it has been discontinued by abandonment. What is abandonment?

A road may be considered discontinued by abandonment if it has not been maintained at public expense for 30 consecutive years. The law is found at 23 MRSA 3028. The selectmen have the authority to initially determine whether a presumption of abandonment has arisen with respect to a particular road, and to determine the status of what remains. Chapter 3 of the MMA Roads Manual (1992 ed.) discusses the abandonment process at length. If either party is dissatisfied with the selectmen's decision, he may appeal to Superior Court. If the case goes to court, the town need not get involved but may simply let the private parties handle it. If the town has a significant interest in the outcome of the dispute, then the town should hire a private lawyer to defend the selectmen's decision in court.

A woman called us this morning and said she ruined her muffler, catalytic converter and exhaust pipes because of a pothole on the Ridge Road. She wants the town to pay for the repairs. Is the town liable for this (the woman is not even a resident of our town).

This issue is governed by the "pothole law", see 23 MRSA 3651-3655. The town is not liable unless the selectmen or road commissioner (or some other official whose duties relate to the roads) had 24 hours actual notice of the defect prior to the injury. A notice of a defect must be specific enough to enable town officials to locate the defect. For example, a phone call from a citizen that "the Ridge Road is a mess" is not sufficient notice of a particular defect. Chapter 8 of the MMA Roads Manual (1992 ed.) explains these issues further. By the way, it does not matter whether the injured person is a resident or not.

I'm the Road Commissioner. I recently heard about a "workplace manslaughter" law. What is this and how does it affect me? If one of my crew runs over someone, am I liable for the person's death?

The law you are asking about is 17-A MRSA 203(1)(C), and it is a criminal law (maximum penalty is 5 years in prison). Under this law, a supervisor can be held responsible if he or she knowingly or intentionally violates any state or federal occupational safety or health standard, and that violation causes the death of an employee, and that death was a reason ably foreseeable consequence of the violation. The law only covers the death of an employee; it will not come into play if a non-employee is killed by the acts of you or your crew (there are civil laws for that purpose).

We want to do some ditching and shoulder improvement on a road, but some abutters are claiming that we're invading their private property. How do we find out the boundaries of the road?

There is no law which specifies the boundaries (width) of town roads in general. Different roads often have different widths, or one road might have different widths along different portions. It is sometimes possible to determine the boundaries from the documents which created the road, particularly if the road was established in the past 50 years or so. If the boundaries cannot be determined from records, the town can establish the boundaries by other methods. See Chapter 4 of the MMA Roads Manual (1992 ed.) for details.

Roads Maintained by Municipalities

Population Group-----------------Summer Road-------------Winter Road-------------Average Total------------Average Expenditure
------------------------------------------Miles----------------------------Miles----------------------Miles------------------------Road and Bridge
0------1,999__________________20.1_______________25.9_______________23.0______________$117,666
2,000-4,999_________________38.8_______________49.5_______________44.1______________$311,316
5,000-9,999_________________59.9_______________74.2_______________67.0______________$620,769
10,000+___________________106.1______________121.4______________113.8_____________$1,159,557
Statewide Est._______________30.1_______________37.8_______________33.9_______________$232,662