Road Commissioner

Road Commissioner

John Pond

(207) 778-9025

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Roads closed to winter maintenance for the 2020-2021 winter season:

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• Nadeau Lane

• Clearwater Road

• End of Dyar Brown to Smith Road

• Kimball Pond Road (sections on both ends)

• Gordon Road from Smiths driveway to the gate

• Hovey Road everything beyond Jim Fleming’s driveway

• End of Smith Road at Quarry

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From MMA Legal’s Roads Manual:

Roads Closed to Winter Maintenance

There is some confusion about who can use roads that have been closed to winter maintenance. It is not uncommon for private citizens to volunteer to plow a closed road at their own expense, in order to use the road for logging or some other purpose, but we recommend that the municipality not authorize or condone plowing such roads for easier access. The reason for this advice is that a plowed road may appear open and safe to passersby, when in fact it is poorly plowed and hazardous to travel. The municipality would likely be sued in the event of an injury, and even if not liable it would incur legal fees in defending itself. The safe approach is to disallow closed roads to be privately plowed.23

Snowmobiles and all terrain vehicles (ATVs) are a different matter. In both cases, snowmobiles and ATVs may operate on any public way which has been closed for winter maintenance.24 Maine law is silent about whether other vehicles may use snowbound roads that have been closed for winter.

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Ditches and Drains

Common Law Right to Control Water Maine’s law governing control of water has changed as a result of a legislative enactment. The law applies the “reasonable use rule.” The reasonable use rule is an express repudiation of the “common enemy rule,” which was the governing law in Maine. The reasonable use rule establishes as a nuisance the unreasonable use of a person’s land that results in the altering of the flow of surface water that unreasonably injures another’s land or that unreasonably interferes with the reasonable use of another’s land.45

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Liability for interference with municipal ditches, drains and culverts. Under Maine law, persons interfering with the municipality’s ditches, drains and culverts are subject to a fine of not more than $500, imprisonment of not more than three months or both.51 Also, no person shall cultivate plants, operate farm machinery or deposit fill within the municipal ditches, drains and culverts.52 A willful violation of this prohibition results in 56 a fine of $50 and costs ($100 and costs for each subsequent offense), plus double the amount of actual damages suffered by the municipality. A related State law covers public drainage systems and how they affect municipal roads.53 Municipalities have under State law a duty to maintain and repair public drains they have constructed. Anyone who negligently or willfully obstructs or damages a public drain or any street or culvert to a public drain may be liable for the possibility of paying double damages.54

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23 This advice is consistent with the reasoning in Lamb v. Euclid Ambler Associates, 563 A.2d 365 (Me. 1989).
24 12 M.R.S.A. § 13106-A(5)(C) states that snowmobiles may operate on any public way which has been closed in accordance with 23 M.R.S.A. § 2953. All terrain vehicles (ATVs) have this same right under 12 M.R.S.A. § 13157-A(6)(C).

45 See 17 M.R.S.A. § 2808. This law enacts the “reasonable use rule” and rejects the common enemy rule most recently reaffirmed by the case of Johnson v. Whitten, 384 A.2d 698 (Me. 1978). Maine now follows New Hampshire, as explained in the case of Micucci v. White Mountain Trust Company, 321 A.2d 573 (NH 1974). As of the date of this writing and in the wake of the statutory change, Maine’s courts have not yet applied the reasonable use rule. Previously, Maine applied the “common enemy rule,” as explained in Maddocks v. Giles, 1999 ME 63 and Johnson v. Whitten, 384 A.2d 698 (Me. 1978).

51 23 M.R.S.A. § 3251.
52 23 M.R.S.A. § 3252.

53 30-A M.R.S.A. § § 3401-3409.
54 30-A M.R.S.A. § 3407.

56 23 M.R.S.A. § 2702.