Eminent Domain and Prescriptive Use
(from Municipal Roads Manual, Maine Municipal Association, 1992)

This Maine Municipal Association publication is presented for "Classroom Use Only."  Its intended use is to stimulate and aid in discussion and role playing within a classroom setting.

Eminent Domain [23 MRSA §§ 3022, 3023]

Eminent domain, also called "laying out and acceptance", is a process which allows the municipality to purchase private land for public use even if the landowner objects. Eminent domain can be used to take property for many purposes (see for example 30-A MRSA §§ 3101, 4746, 5108 and 5204) but this discussion is limited to roads. Eminent domain for road purposes is governed by 23 MRSA §§ 3023 and 3022. Section 3023 provides that eminent domain is available if "the municipal officers determine that public exigency requires the immediate taking of such property interests, or if the municipality is unable to purchase it at what the municipal officers deem reasonable valuation, or if title is defective". When there is no immediate need to take the property, we recommend that the municipal officers first ask the owner to sell voluntarily for a reasonable price; if no reasonable amount is agreed upon, eminent domain can then be used.

Eminent domain is a multi-step process, described below. Appendix B contains forms for this process.

First, the municipal officers, either upon petition or on their own initiative, give notice of their intentions [23 MRSA § 3022]. Second, they meet at the scheduled time and place to determine the location of the proposed way and whether circumstances require a taking. Third, they file with the clerk an order of condemnation, specifying the property to be taken and the damages to be paid to the landowners of record. (The determination of damages is a critical matter and is discussed further below). In a town meeting community, a copy of the order is sent to the owners by registered mail, but no check is issued until the voters approve the transaction. In a town council community (where the municipal officers have been granted legislative powers by charter), the condemnation order and a check for damages are served upon the owners. Fourth, and only in a town meeting community, the voters approve the taking and appropriate the money to pay damages, and a check is served upon the owners of record. Finally, a certificate evidencing the taking and attested by the town clerk is recorded in the Registry of Deeds [23 MRSA § 30241. Title to the property passes to the town (in a town meeting community) when the check is served or the certificate is recorded, whichever occurs first. In a council community, title passes when the order and check are served or the certificate is recorded, whichever occurs first.

An eminent domain proceeding may be appealed to Superior Court. The time allowed for an appeal depends on whether the issue is the amount of damages or the necessity of the taking. For example, if the landowners feel that the award of damages was too low, they must appeal this award within 60 days after the taking [23 MRSA § 30291. If the landowners feel that the taking itself was not a public necessity, they must appeal within 30 days of the taking pursuant to Rule 80-B Maine Rules of Civil Procedure [23 MRSA § 3029]. The "taking" occurs when title passes [Luce v. City of Portland, 556 A.2d 656 (Me. 1989)].

Damages in an eminent domain proceeding are determined in accordance with 23 MRSA § 3029 and 23 MRSA §§ 154-154E. Municipal officers are well advised to obtain the services of a real estate appraiser for any major taking, as an expert's determination will be given greater weight if the matter goes to court. The damages to which the landowner is entitled include not only the fair market value of the land taken, but may also include "severance damages", which is the reduction in value to the remaining land as a result of the taking [August Realty Inc. v. Inhabitants of Town of York, 431 A.2d 1289 (Me. 1931)].

Underestimating damages can be costly to the municipality, as the court may fix a substantially higher price than was anticipated.

Eminent domain can be used to create either a town way or a public easement [23 MRSA § 3022). Title to land taken by eminent domain (for road purposes) after December 31, 1976 is in fee simple unless otherwise specified in the condemnation documents.

Prescriptive Use 123 MRSA § 3030; 14 MRSA §§ 801,812]

Elements of prescriptive use. A public road can be created by long-term use, without any formal acceptance or taking by the municipality. Prescriptive use is recognized at common law and by 14 MRSA § 81 2 and 23 MRSA § 3030. A road created in this manner is called a "prescriptive easement", but do not confuse that term with the "public easement" (a type of road) discussed in Chapter 1. A road created by prescriptive use can be either a town way, a public easement, or even a private right-of-way. These distinctions are discussed later in this section.

Prescriptive use is akin to adverse possession (commonly known as "squatter's rights"), except that the user is entitled only to the use of the property, not to full ownership and possession of It. For a detailed discussion of these concepts, see Creteau, Maine Real Estate Law (1 969) and Cowan, Maine Real Estate Law and Practice, Vol. 1 (1990).

Prescriptive use has several elements: there must be continuous, uninterrupted use by the municipality, the general public or private individuals for at least 20 consecutive years, and that use must be "under a claim of right, adverse to the owner, with his knowledge and acquiescence, or by use so open, notorious, visible and uninterrupted that knowledge and acquiescence will be presumed." [Inhabitants of Town of Kennebunkport v. Forrester, 391 A.2d 831 (Me. 1978); Inhabitants of Town of Manchester v. Augusta Country Club, 477 A.2d 1124 (Me. 1984)].

A prescriptive easement will not arise where the use is with the landowner's permission or agreement. For example, if a municipality has plowed and maintained a school bus turn-around on privately-owned land adjacent to a public road for 25 years with the landowner's permission, the turn-around has not become part of the public way.

Sporadic, minor repairs financed by the municipality are not enough to create a town way or public easement by prescriptive use [Comber v. Inhabitants of Plantation of Dennistown, 398 A.2d 376 (Me. 1979)).

The prescriptive use statute can cut two ways. The municipality can rely on it to exercise legal control over a road and to keep abutters from blocking the road. On the other hand, it may be used against the town by landowners who assert that the town has a duty, based on past maintenance, to repair and maintain a road in the future.

Note that while prescriptive use may impose on a municipality the duty to maintain a town way, under common law neither prescriptive use nor adverse possession can be employed to take interests in real property from the State or municipalities [Phinney v. Gardner, 121 Me. 44 (1921); Carey v. Whitney, 48 Me. 516 (1860)). One exception to this doctrine is created by 23 MRSA § 2952, the "long-time buildings and fences" law. This law is discussed further in Chapter 4 regarding road boundaries.

Type of road created. The type of road created by prescriptive use will depend on the particular facts of use and maintenance. If, for example, the general public uses a privately-owned road for 20 years in the requisite manner, and the municipality maintains it at a level consistent with the maintenance of other town ways, then it is likely that the road will be declared a town way.The fact that a town way was created by prescription rather than by a formal method does not reduce the municipality's maintenance obligation. Not all roads created by prescriptive use are open to the public. For example, if a particular individual crosses his neighbor's property in an open and notorious manner for over 20 years, he may have obtained a private right to continue doing so, but this right is not available to the general public. The scope and nature of a prescriptive easement is determined by its use and its users.

How prescriptive use is determined. Proving prescriptive use is a complex factual matter, and can only be finally determined by a court. Usually, this is done through a declaratory judgment action pursuant to 14 MRSA § 5951. As noted above, the mere fact of use for 20 years is not alone sufficient to prove prescriptive use. The party seeking to prove prescriptive use must also establish the other elements. This can be difficult since there are usually no documents (deeds, town meeting records, and so on) accompanying the prescriptive use process. Municipal officials must often piece together the history of use and maintenance and make their own preliminary decision about the existence of a prescriptive easement and what type of road it is. That decision is subject to court review, if contested. Municipal officials may find that it is cheaper and faster to take a road by eminent domain rather than litigating the prescriptive use issues.

Boundaries of road created by prescriptive use. The width and location of roads created by prescriptive use are determined by the actual use and maintenance. Ditches and areas beyond the travelled portion of the road may be part of the prescriptive easement, but only if the municipality has exercised control over those areas for the requisite time and manner. If there has been no maintenance or control of land outside the travel way (as is the often the case with public easements), then the public right of way is limited to the travel way only [Burnham v. Burnham, 132 Me. 113 (1933)].