In recognizing that vast timberlands in Maine are in private hands, the State created a law that provides legal protection to those landowners who allow free access to those lands for recreational purposes . The Recreational Use Statute, 14 M.S.R.A. § 159-A, protects a landowner from liability if a person is injured while recreating on the landowners property.

The law provides that as long as the landowner is not charging for the use of their land when used for recreational purposes, (and they have not willfully created any dangerous conditions on the land), they will not be liable to anyone who might be injured while on the property. Allowing access to large areas of timberlands in the northern part of the State may have been the impetus of the law, but it is not limited to those areas. Any improved or unimproved land is included in the law. The law also covers not just land, but structures and water bodies flowing through or standing on those lands.

The statute defines "recreational and harvesting activities" broadly as "including, but not limited to, hunting, fishing, trapping, camping, environmental education and research, hiking, recreational caving, sight-seeing, operating snow-traveling and all-terrain vehicles, skiing, hang-gliding, dog sledding, equine activities, boating, sailing, canoeing, rafting, biking, picnicking, swimming or activities involving the harvesting or gathering of forest, field or marine products" The only things it specifically excludes are commercial agriculture or timber harvesting.

Overall the law favors landowners, in the way it was written, and how it has been applied in the courts. Anyone injured on someone’s land needs to be very careful in deciding to bring a lawsuit, because if they are not successful the law provides that they must pay the landowner’s legal costs incurred in fighting the lawsuit.

The courts have consistently ruled in favor of landowners in lawsuits, applying the statute broadly. One of the main issues that has been a subject of litigation is when someone using the land does pay for part of their use of the land, but that payment is not considered "consideration" (i.e., compensation) under the law. This is significant because if there is payment, then the law does not apply, and the landowner owes a duty of reasonable care to those of their land. If the law does apply, there is essentially no duty of care owned to those on the land.

There are two primary cases where the Courts have rejected claims made by injured parties that they had made payments that would have removed the landowner from the protection of the law. In one case there was a toll paid by the injured party to use a road that went across several landowners properties. In another, the injured party rented a lot on the property, and they were allowed to put up a temporary camp on that lot. In both cases the Maine courts found that the payments made by the injured parties was not specifically for the recreational use of the property, therefore landowners were still protected by the law.

Overall the law serves its purpose well in that lets landowners allow people onto their land without being concerned with lawsuits, and in return allows thousands of acres of private land to be open the general public to use. Landowners benefit by the way the law was written, and how the courts have applied the law, landowners do not have much to worry about with letting people on their land. And everyone else benefits because the law encourages landowners, who hold vast areas of land in Maine, to open that land without charging for access.

This article looks at right-of-way easements in Maine. Right-of-way easements are a common type of easement in the state, and this article is meant to provide a basic overview of this legal right, how the right comes to be, who holds it, what it provides and how this right can be lost. An easement, at its most basic, provides a non-owner of a piece of property certain rights over that property. There are several different types of easements, they can be created in different ways, and they can be extinguished as well. An example of a right-of-way easement would be when the general public is allowed to cross over private property to access a shoreline. In Maine, often people are unaware that the reason they are able to reach a shoreline (be it the ocean, a lake, or a river), is because of a legally established right.

Someone looking to purchase or sell land in the Maine should ensure that a proper title search is done to find out if there are easements over the land, or if the property enjoys easement rights over another property. It is better to know beforehand if there easements involved with the property so that all parties to the transaction are aware of any implications the easements might have. It is more cost affective to address the issues of easements before the transaction, than attempt to resolve them in court later on.

There are two basic ways a right-of-way easement can be established, first by express consent by the property owner, and second by prescription.

An express right-of-way is recorded in the deed of the property over which the easement is granted. This often occurs when the property is transferred, typically either by sale or gift, or after the owner passes away and is property is transferred with the easement pursuant to their will.

The express right-of-way will be described in the deed, though often with archaic language, and sometimes without fully setting out the exact nature of the right-of-way. References in the deed to certain landmarks on the property are meant to provide the location of the right of way, perhaps citing metal rods driven into the ground. However, other times the deed might state that the right-of-way is over the property with language such as “as has always been travelled.” Either way, as time passes these markers and traditional ways might be moved or changed. Legal disputes arise when, years after the right-of-way easement was granted, new owners or residents want to restrict the easement rights, or the easement holder attempts to expand or alter the right-of-way.

The second way an easement can be established is by prescription. A prescriptive easement is acquired through the continuous use of a right of way for a over a certain amount of time, and in a certain manner. The law on this issue is complicated, and establishing a legally enforceable right-of-way easement is very fact specific.

To establish a prescriptive easement the party must show that they have used the right-of-way continuously for at least twenty years, under a claim of right, though adverse to the owner of the land, but with the owners knowledge and acquiescence. Someone who has been using a right-of-way for over twenty years, and wants to make sure they will have the right to do so in the future, will typically require judicial action. Often this comes up when a property owner attempts to stop the use of the right-of-way, and the parties cannot agree on their own to allow the usage of the right-of-way.

With the nature of prescriptive easement, in particular the twenty year requirement, establishing the facts is essential. Anyone concerned about a right-of-way they have been using, or have let people use, should consult with an attorney before taking actions that might be seen as hostile to the other party. Wrongly assuming you have acquired an easement by prescription can lead to trespassing charges; and denying someone access to an easement they have acquired can result in fines.

A right-of-way easement grants the holder only the right to cross the land, but not to change the nature or location of the right-of-way. For instance, if a right-of-way was granted to allow foot traffic down to a beach, the foot path may not be converted into a paved road. While the holder of the easement can do basic maintenance of the right-of-way, they may not cause an undue burden to the land owner.

A right-of-way easement can only be moved if both parties agree, unless the deed indicates otherwise. While a right-of-way easement provides access simply from point A to point B, the exact route of the right-of-way can become an issue, even though over time the route may established by actual use. As noted above, even the express right-of-way easement may not be clear as to it’s exact location.

Disputes over the location and permitted use of the right-of-way are very fact specific. Important issues in determining the legal extent of the easement are the history of use of the right-of-way and the original intent in granting it.

An important issue concerns who exactly holds the easement right. When it is an express easement, the deed should specify who can use the right-of-way, and it can be granted to the general public, to a specific group of people, or even just an individual. The reasons for granting the easement can help in understanding who is to benefit from it, and the grantor’s intent can become important if legal disputes arise later.

Aside from access to waterways, easements are often used to access public roadways. A common situation where easements arise is when a piece of property is divided, and only one of the sections has access to a public road. In this instant, an easement is granted so that the owners of the piece of property that does not have road access, can cross the other property to get to the road.

In a situation where a landowner needs to cross another’s land, typically the easement will pass to new owners of the land, but that is not always the case. There are two ways an easement can be held, either “in gross” or “appurtenant,” the former meaning it is limited to an individual, or specific group, the latter is tied to whoever owns the land that needs access.

In a case where a new owner acquires land in which the past owner relied on a right-of-way to access, but the easement is “in gross,” the new owner may not be able to use that right of way. In this instance, unless the new owner can show a “strict necessity,” meaning there is no viable alternative, than they will have to find a new way to access their newly acquired land. This is a great example of why it is crucial for anyone looking to buy land has a thorough title search done to ensure that the right-of-way comes with the land.

An easement right acquired expressly or by prescription can be lost. However, it takes a clear intent to abandon the right-of-way, including non-use, and the property owner needs to take action to show they are not permitting the right-of-way anymore. Both of these must occur before the easement is abandoned, absent a recorded written agreement of both parties removing the right-of-way.

An actual example of an abandoned right-of-way occurred when a property owner constructed a house on top of the right-of-way, which had not been used for years, and the easement holder did not object. Abandonment was found in that case, though generally the courts have been reluctant to make a finding that an easement has been abandoned.

It is crucial for land owners and perspective buyers of land to be aware of the issues involved with right-of-way easements. These easement are found all over Maine, they provide a way for people to enjoy access to areas, often public areas, that otherwise would be limited to private land owners. While property owners may be wary of allowing others to cross their land, in a state such as Maine where there is an abundance of natural resources, it ultimately benefits everyone to provide access to these special places.

The Maine Supreme Court recently ruled on a case that suggests greater liability for employers for actions of their employees. The case concerned a employee who was driving home after completing a work assignment when he crashed into another vehicle, killing one and injuring two others.

The significance of the Court’s ruling is its indication that in future cases, Maine courts should allow for an expansion of time when an employer may be legally liable for the actions of an employee. The dissenting judges in the case noted that the ruling is a change in Maine law. The legal standard has been that a person who is "going to or coming from work is responsible for his or her own actions."

Under Maine law, an employer is liable for the actions of an employee when their actions were within the “scope of employment.” To determine if the specific actions were within the scope of the employment, the court will look at three factors: (1) if the action was the type the employee was hired to perform; (2) the action took place substantially within the time and space as authorized by the employer; and (3) the action was done, at least in part, to benefit the employer.

The exact impact of the Court’s ruling is not yet known, though the ruling may lead to an employer being liable for the actions of an employee when they are driving to or from work or a specific assignment. The ruling in the case overturned a lower courts dismissal of the case at an early stage of the case, and the Court did not articulate a new standard for the lower court to use, or for other future Maine cases. The Court did not explain what specific facts it found to be different in this case, or if they thought the current standard was outdated. However, based on the somewhat limited facts of the case, employers should be aware that they may be liable for their employees actions while they driving to or from work, or a specific assignment.