On a sunny Saturday in July, a state trooper stood in the middle of a dirt road in Cornish, trying to keep the peace between neighbors who live on a rural hillside near Route 5.

On one side of a locked gate, two men tried to convince their neighbor that he wasn’t allowed to block them from accessing their homes on Cole Road. On the other, the neighbor who put up the gate and “No Trespassing” signs told them the property is private and he’s sick of people “flying up and down the road.”

“No more traveling on my property,” George Dubois told his neighbors, Kathy and Michael Maher and James and Keri O’Brien, in a video the Mahers recorded of the interaction on their phone.

Anyone driving by could easily miss the road shaded by large trees just off Kimball Hill Road. Only four families live down the way. The first home, closest to Kimball Hill Road, isn’t involved in the dispute. The Duboises, who also run Hometown Builders from the property, are about half a mile down the road. The gate George Dubois built is beyond his driveway. A short distance past the gate sits the homes of the Mahers and O’Briens.

After the town said it couldn’t weigh in on the issue and George Dubois put up the gate, the Mahers and O’Briens asked the York County Superior Court to decide whether Cole Road was abandoned by the town decades ago and therefore is private as Dubois claims, or if the road is still public and the families have a right to use it.

A judge initially granted the request for a temporary restraining order requiring Dubois to remove the gate until the road’s status is decided. But the judge dissolved it last week following a hearing where he determined the plaintiffs have sufficient access to their properties – and the gate is back in place.

The Mahers and O’Briens say when the gate is up, the only other way to get to their homes is to drive on partially washed-out trails that cut over private property and through land owned by a conservation trust.

“You should not have the ability to shut someone out on a whim. It doesn’t make sense,” Kathy Maher said. “This has turned our lives upside-down on multiple levels.”

The Duboises referred questions from a reporter to their attorney, Sean Turley.

Turley said the situation also has been stressful for his clients, who feel their property rights and quality of life have been “totally disregarded.”

Disputes over access and the status of abandoned or discontinued roads are not uncommon in Maine. The complex cases can take years to sort out in court and cost property owners tens of thousands of dollars in legal expenses. They often are complicated by a lack of documentation, in part because the state does not keep track of how many abandoned or discontinued roads there are, and there is no consistent process for municipalities to track when and how a road becomes discontinued.

Maine lawmakers are trying to address some of these issues. The state Legislature last year established a 12-member Abandoned and Discontinued Roads Commission to study the problem and develop recommendations.

Roberta Manter, founder of Maine ROADWays, a group for people living on abandoned and discontinued roads, said she gets at least one new complaint a week from people who find themselves in disputes over access. The situations vary but rarely come with clear answers.

SIMMERING TENSION

Cole Road, also known as Old Cole Road, was first laid out as a county road in 1792, two years before Cornish was incorporated. It connects to Kimball Hill Road just east of Route 5 near Haley Pond.

In 2018, Michael and Kathy Maher and Keri and James O’Brien bought and subdivided a 68-acre parcel along the road so each couple could build a house. George and Brenda Dubois bought a 93-acre parcel the same year and began building their home. 

The relationship between the families was amicable — the O’Briens paid George Dubois $39,000 to frame their house and install doors and windows; he built the bank of four mailboxes at the end of the road; and the three couples split the $27,000 cost to bring electricity down the road.

There was no question about whether they’d be able to continue to use the road, Kathy Maher said. The issue never came up when their mortgage and title insurance cleared or when the town issued them building permits. Their property deeds do not include easements.

Yet the Duboises maintain that as early as the summer of 2018, they told their neighbors the road was private.

“At that time, I told the Mahers and O’Briens in no uncertain terms that Cole Road was a private road and that they would not be allowed to cross over our land without permission,” Brenda Dubois wrote in an affidavit.

George and Brenda Dubois sent their neighbors letters in July 2019 notifying them that “crossing our section of Cole Road to access your property will only be allowed if the maintenance is shared,” either monetarily or by workload. The Mahers and O’Briens agreed to share maintenance, according to court records.

But by November 2021, the relationship between the Duboises and the Mahers and O’Briens had soured. That month, George and Brenda Dubois sent them a letter terminating the agreement, citing irreconcilable differences. They said the Mahers and O’Briens would need to make alternative arrangements to access their properties by Dec. 10, 2021.

“The road will be posted and crossing it will be considered trespassing,” they wrote.

The Mahers and O’Briens continued to use the road because there is no other reasonable way to access their properties, they said. When Cole Road is gated, the only way to get to and from their houses is to drive over rough trails not intended for vehicles that cross private property — including land held by a conservation trust — to get to Route 5, they say. This has damaged their cars, and they don’t have permission to continue driving on the trails, Kathy Maher said.

Turley, the Dubois’ attorney, sent a cease and desist letter to the Mahers’ attorney in May. If they didn’t stop trespassing, Turley said his clients would take legal action and put up a fence or other barrier.

“There was nothing left for us to do but put up a gate to prevent further trespasses on our land,” George Dubois wrote in an affidavit.

The gate went up on July 15.

‘COMPLICATED HISTORY’

The families started trying to determine the status of the road earlier this year. 

Kathy Maher said she asked the town, county, and state about its status, but nobody was able to tell her if it had been abandoned or discontinued. In May, she asked the Cornish Board of Selectmen to declare Cole Road discontinued, which would leave a public easement in place that would allow the public to continue using it but not require the town to maintain the road.

Board members discussed the issue over six meetings and eventually turned to the Maine Municipal Association for legal advice.

Susanne Pilgrim, a staff attorney for the association, told the board chair in an email that Cole Road is clearly not a town road and “the status of any potential public easement is very much in dispute.”

The select board has no authority to make any determination about the status of the road, she wrote.

“Given the complicated history of the road, the lack of road maintenance, the possible lack of public use, and the longstanding understanding that the road is not a town road, this is not a situation where the board can simply point to a statute or other authority to clarify the road’s status,” Pilgrim wrote. “Only a court can determine the status of the road at this point.”

The land around the road was largely undeveloped until recent years when the homes were built and electricity was brought into the area. Long ago, paper companies may have used the road to access their property for logging, while others used it for hunting. Trails used by the local snowmobile club cross through some of the properties, including the land owned by the Mahers and O’Briens.

The town stopped maintaining the road during the winter of 1922 and five years later received permission from the county to close it from January through March each year. County commissioners denied petitions to discontinue the road in 1931 and 1941. Turley said town documents label the road as discontinued as of 1942, but that is being disputed by the other families.

“Regardless of whether the road was discontinued in 1941-42, the town appears to have intentionally and voluntarily deserted the road at that time,” Turley wrote to the select board earlier this year.

Turley and the Duboises argue that the road was abandoned under both common law and statute.

They say the town hasn’t consistently maintained the road since 1927 and therefore it’s a case of common law abandonment, which happens when a road is not used by the public for 20 years. If that’s the case, the Duboises own to the centerline of the road where it abuts their property, they argue.

Turley is also arguing that Cole Road was statutorily abandoned before 1965 because it was not maintained to a level to accommodate vehicle traffic for at least 30 years. State law says that any roads that were statutorily abandoned before 1965 do not have a public easement. Any roads abandoned after that year retained public access.

“From our perspective, this is not a case where you have an innocent purchaser relying on a deed that says there’s an easement. This is something they were aware of,” Turley said. “They bought the property, and now they’re asking the court to give them an easement across the land. From my clients’ perspective, this is trespassing across their land.”

Erica Johanson, an attorney who represents the Mahers, said she and her clients do not believe there is evidence to show the road was abandoned at any point. The Duboises did not receive a determination that the road was abandoned before asserting some of it was private property, she said.

In court filings, Johanson said George and Brenda Dubois waited until her clients “had invested their life savings in building their homes, and even participated in building those homes in a way that made use of the top half of Cole Road essential to the (Mahers and O’Briens) before claiming a right to bar (them) access.”

A STRESSFUL SITUATION

Kathy Maher and Keri O’Brien, who are sisters, said the entire situation has been very stressful. They worry about how emergency vehicles would get to their houses if the gate is locked.

After the temporary restraining order was dissolved, George Dubois put the gate back in place, though it is not always closed and locked. Last week, a state police trooper told him he needed to open the gate to allow emergency vehicles access if needed, Turley said.

Now, Kathy Maher said, she doesn’t know if the gate will be locked when she gets home each day. She has come to believe that “no one should have the right to deny access unless proof is given first” and would like to see a law saying people can’t be denied access to their property.

The Mahers’ son, who planned to build a house on land deeded to him by his parents, lost his loan because of the pending litigation, Kathy Maher said.

She is especially frustrated that the town didn’t have a clear answer for her, especially after it had approved building permits for their homes.

“How can a town not know the status of its roads? It could cost us up to $100,000 and two years before it goes to trial,” she said.

Turley said his clients feel they’ve done everything they can to get the Mahers and O’Briens to stop trespassing.

“It’s put them in the position to have to repeatedly watch people trespass on their land,” he said. “They’ve been really deeply harmed and stressed. They have great anxiety about this continuing use of their land without their permission. They’ve said many times it’s private, and it’s never been enough to stop it from happening.”

Johanson, the attorney for the Mahers, said the court will next take up whether to issue a preliminary injunction prohibiting the gate from being kept up until there is a trial. The court process has just started and will likely include mediation to try to find a resolution without a trial.

The one thing everyone involved agrees on is that there is unlikely to be a quick and easy resolution.

“Sadly, there will be this lack of resolution potentially for quite a while,” Turley said. “It’s not ideal, but it’s the reality we’re in.”

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