An Act To Improve the Laws Regarding Discontinued and Abandoned Roads
Maine Legislature, Session 129, LD 1415
Committee: State and Local Government
Sponsors: NADEAU, DIAMOND, COREY, MARTIN, JACKSON
Amends: 23 MRSA §3028

Legislative Document
No. 1415
H.P. 1028
House of Representatives, March 26, 2019
An Act To Improve the Laws Regarding Discontinued and 
Abandoned Roads
Reference to the Committee on State and Local Government suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative NADEAU of Winslow.
Cosponsored by Senator DIAMOND of Cumberland and
Representatives: COREY of Windham, MARTIN of Eagle Lake, Senator: President 
JACKSON of Aroostook.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  23 MRSA §3028, sub-§1, as enacted by PL 1991, c. 195, is amended to 
read:
1.  Presumption of abandonment.  It Except as provided by subsection 1-A, it is 
prima facie evidence that a town or county way not kept passable for the use of motor 
vehicles at the expense of the municipality or county for a period of 30 or more 
consecutive years has been discontinued by abandonment.  A presumption of 
abandonment may be rebutted by evidence that manifests a clear intent by the 
municipality or county and the public to consider or use the way as if it were a public 
way.  A proceeding to discontinue a town or county way may not prevent or estop a 
municipality from asserting a presumption of abandonment.  A municipality or its 
officials are not liable for nonperformance of a legal duty with respect to such ways if 
there has been a good faith reliance on a presumption of abandonment.  Any person 
affected by a presumption of abandonment, including the State or a municipality, may 
seek declaratory relief to finally resolve the status of such ways.  A way that has been 
abandoned under this section is relegated to the same status as it would have had after a 
discontinuance pursuant to section 3026, except that this status retains a public easement 
and all remaining interests of the municipality pass to the abutting property owners in fee 
simple to the center of the way.  A way that has been abandoned under this section is at 
all times subject to an affirmative vote of the legislative body of the municipality within 
which the way lies making that way an easement for recreational use.  A presumption of 
abandonment is not rebutted by evidence that shows isolated acts of maintenance, unless 
other evidence exists that shows a clear intent by the municipality or county to consider 
or use the way as if it were a public way.
Sec. 2.  23 MRSA §3028, sub-§1-A is enacted to read:
1-A.  Termination through discontinuance process only.  For a town way that does 
not meet the requirements of subsection 1 as of January 1, 2020, a municipality may 
terminate in whole or in part any interests held by it for highway purposes only through 
the discontinuance process pursuant to section 3026-A.  This subsection is not intended to 
modify common law regarding abandonment of a road.
Sec. 3.  23 MRSA §3028, sub-§5, as enacted by PL 2015, c. 464, §7, is amended 
to read:
5.  Filing of record of evidence and determination of abandonment.  If after the 
effective date of this subsection the municipal officers, either on their own or after being 
presented with evidence of abandonment, determine that a town way has been 
discontinued by abandonment pursuant to subsection 1, the municipal officers shall 
provide in writing the evidence upon which the determination of discontinuation by 
abandonment was made and the municipal clerk shall file a record of this determination, 
the evidence upon which the determination was made and the effective date of the 
determination with the registry of deeds.  The absence of a filing of a determination of 
discontinuation by abandonment may not be construed as evidence against the status of 
abandonment.  The registry of deeds shall record a document regarding an abandoned 
town way under the name of the town way, the name of the municipality and the names 
of the abutting property owners.  The municipal clerk shall provide a copy of the 
document regarding an abandoned town way to the Department of Transportation, Bureau 
of Maintenance and Operations.
SUMMARY
Under current law, a presumption of abandonment exists if a municipality fails for a 
period of 30 or more years to keep a way passable for the use of motor vehicles at the 
expense of the municipality. This bill eliminates that presumption for ways that have not 
met that statutory requirement by January 1, 2020 and instead specifies that the only 
process that a municipality may use to terminate its interests in a public way is through 
the discontinuance process established in the Maine Revised Statutes, Title 26, section 
3026-A.  This bill also amends the filing required by the clerk of a municipality following 
the determination of discontinuance by abandonment of a town way to require that the 
record filed with the registry of deeds include the evidence used by the municipality to 
make the determination of abandonment and the effective date of that determination of 
abandonment.