Access to a clearly-defined trail over private land is threatened.

Recently, during my semi-annual trip to Rumford, I drove up to the “swimming hole” where I spent many childhood summer days. I found it posted and barricaded. Access lost.

According to recent Sun Journal stories, a similar fate may lie in wait for Rumford Whitecap, which I first climbed during those same childhood summers. If the Mahoosuc Land Trust fails to raise some $650,000, parcels will be sold off. Barricades may then go up on long-established trails and access will be, once more, lost.

I have made my own modest contribution to the Save Whitecap fund, but, as a Canadian-educated legal scholar, I find the threat to access mystifying. In Canada, if members of the public use a clearly-defined path across privately-owned property for a clearly-defined period of time – 20 years, in most jurisdictions – without restriction or permission, then the property owner loses the right to obstruct passage.

A right-of-way “dedicated” to the public is established, the land is “burdened” with an “easement” and that burden travels with the title. Sale of the property does not extinguish the right of way, since subsequent buyers can only acquire the limited title the seller has.

A striking example is provided by a once vacant corner lot in Halifax, Nova Scotia. When I was a first-year university student, in the fall of 1962, I cut diagonally across that lot, following a path which was, even then, well worn. In the spring of 1980, when I had returned to Halifax as a first-year law student, I noticed construction taking place on the lot, apparently obliterating the path.

I wondered, aloud, to other law students, whether or not the obstruction would be challenged.

As things turned out, there was no need. The church, which had acquired the lot to expand its own adjacent building, constructed up and over the right of way, and, obligingly, laid down a brick walkway on the original path.

I do not know if this is the law in Maine. I have looked at what I take to be the relevant Maine statute, title 14, chapter 205. At first glance, it bears considerable similarity to Canadian statutes with which I am familiar, and it certainly uses the language of “public dedication,” but there may wrinkles only a local practitioner can know.

However, this much can be said: if “public dedication” of a right-of-way is recognized by Maine law, if the “easement” created is not extinguished by the transfer of title, then new owners “take” the property with all limitations and burdens, and erecting a barricade on a long established right of way is, simply put, an unlawful “public nuisance.”

The difficulty may be that, in each instance, it will take a court to tell the errant landowner to remove the obstruction. In Prince Edward Island, we have the good fortune to be able to apply to the attorney general to litigate the removal of a “public nuisance,” but if this is not the case in Maine, then a considerable burden will fall on the shoulders of private litigants.

In the case of Rumford Whitecap, at least, if the Mahoosuc Land Trust is not able to purchase the land, they have my permission to apply my modest contribution to the funding of a war chest. Court ordered removals of unlawful barricades may be a second-best alternative to outright purchase, but at least they will ensure continuing access to trails I first hiked more than 50 years ago.

David Bulger, a native of Rumford, is an adjunct professor of political studies at the University of Prince Edward Island.