Town of Cornville v. Gervais

661 A.2d 1127, 1995 Me. LEXIS 207

Opinion

LIPEZ, Justice.

Frederick Gervais, pro se, appeals from the judgment entered after a jury-waived trial in the Superior Court (Somerset County, Kravchuk, J.) declaring a public easement across the road leading to his property. Because we discern no error of law, we affirm the judgment of the Superior Court.

Title 23 M.R.S.A. § 3028¹ states that it is prima facie evidence of abandonment if a town has not kept a way passable for the use of motor vehicles at the expense of the municipality for more than 30 consecutive years. Because abandonment pursuant to the statute does not occur until the end of the thirty-year period, Gervais’ argument that abandonment occurred in 1948 when the Town last maintained the road is wrong.

The entry is:

Judgment affirmed.

All concurring.

1 . 23 M.R.S.A. § 3028 (Supp.1978), in its form applicable to the instant action, provided in part:

It shall be prima facie evidence that a town or county way established prior to January 1, 1946, and 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 next prior to January 12, 1976, 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.

By reference to 23 M.R.S.A. § 3026, the statute also provides that a way abandoned pursuant to the statute remains subject to a public easement. Gervais argued for a common law abandonment by which all rights to the way would pass to the owners of the land that abutted the centerline of the way. Martin v. Burnham, 631 A.2d 1239, 1240-41 (Me.1993).