Maine Land Conservation Law E-Bulletin

January 20, 2022

In this issue:

·         Another Change to Maine Conservation Easement Template

·         Barking Up the Right Tree: When Are Dogs Allowed on Public Trail Easements?

·         Upcoming Event: Land Trust Alliance Webinar - Federal Tax Law Latest and Greatest

·         E-Bulletin Information

Another Change to Maine Conservation Easement Template

The Maine Land Conservation Attorneys Network(MLCAN) strikes again! I wrote to you in August about some important changes to the Maine Model Conservation Easement Boilerplate. Since then, at our most recent meeting we made one more significant change by adding guidance on what happens when a third party (i.e., someone other than the landowner or holder) violates the easement. See the all new Section 10.B.5 for the goods.

Although thankfully easement violations are uncommon as a general matter, third party violations are perhaps just as likely to occur as landowner violations. So it’s especially helpful for both the land trust and landowner to know their respective rights and responsibilities when they do happen. The typical third party violation in Maine is a trespass by a neighboring landowner, often involving forest management activities or some other kind of encroachment.

The new language in the template seeks to strike a balance between holding the landowner accountable for such violations and acknowledging that in certain circumstances the landowner has taken reasonable steps to prevent or minimize third party violations. In these latter circumstances it is more likely that the holder and/or the landowner, acting together or unilaterally, would pursue a remedy directly against the third party, and the language of 10.B.5 elaborates on those options.

Barking Up the Right Tree: When Are Dogs Allowed on Public Trail Easements?

At least two Maine land trusts have recently faced difficulties around the question of when dogs may be permitted on trail easements. In both instances, the land trusts would like to allow dogs, while the landowners are objecting. So what does the law have to say about this issue, and how can land trusts be more proactive going forward with new projects?

To my knowledge (and please correct me if you know otherwise), there are no reported cases either in Maine or elsewhere that specifically address the question of whether a recreational trail easement grants the holder the right to allow trail users to bring dogs onto the trail. But the Maine Supreme Court has had occasion to interpret many different kinds of easements where the extent of the usage rights was ambiguous. When faced with this situation, the Court has enunciated a bedrock principle that the scope of the easement is to be determined by the presumed intent of the parties at the time the easement was granted. Saltonstall v. Cumming, 538 A.2d 289 (Me. 1988). The presumed intent is divined by determining whether a particular use would have been within the contemplation of the parties to the original conveyance. Guild v. Hinman, 1997 ME 120, ¶¶ 7-8. In other words, the question is whether a particular kind of use was “reasonably foreseeable” at the time of the grant. Pettee v. Young, 2001 ME 156, ¶ 15. Whether a particular use was “reasonably foreseeable” may be based on objective evidence such as circumstances prior to the conveyance as well as the use of the easement during the years shortly after the original grant. Sleeper v. Loring, 2013 ME 112, ¶ 20.

In one of the Maine situations I’m aware of, the land trust’s trail links two other conserved properties on which dogs are permitted (as was also the case at the time of the easement’s granting). Thus, the notion that trail users would seek to bring dogs on this particular trail easement seems especially foreseeable. But even beyond this exceptional circumstance, I think the Maine Supreme Court would acknowledge that dog usage on the typical recreational trail is a reasonably foreseeable use. For context, consider that dog ownership has been on the rise for decades in the United States, including Maine, where as of 2021 36% of households own a dog.

Another important consideration is whether the easement document includes a liberal construction provision. This is a clause stating that in the event of any ambiguity, the document is to be interpreted to further the recreational purposes of the easement. Such a provision bolsters the holder’s claim that dogs should be allowed, because doing so will greatly expand the recreational uses of the trail. As a practical matter, any trail that prohibits dogs is going to be functionally off-limits to a large percentage of trail users.

As for new trail easement projects, I recommend stating explicitly whether dogs are allowed on the trail. I have added such language to my trail easement template, with the default being that dogs are allowed. Another option is that dogs can be allowed if mutually agreed to by both the easement holder and the landowner. You could also add other limitations, such as a leash requirement.  

To be clear, I’m not suggesting that dogs should be allowed on every trail or even most trails. There may be instances where a trail crosses sensitive wildlife habitat, and the land trust and the landowner would hopefully agree that dogs are not appropriate in these circumstances. Furthermore, dogs change the trail experience for all users, and the land trust and landowner should consider what kind of trail experience is being sought for any particular trail, taking into account a variety of factors. That said, where a land trust would like to allow dogs on a public trail easement, hopefully this article provides some useful guidance.

Upcoming Event: Land Trust Alliance Webinar - Federal Tax Law Latest and Greatest

 Date: Thursday, April 28, 2022, 2:00 – 3:00 pm

Sponsor:  Land Trust Alliance

Register and more information here

 As usual, there’s a lot going on in Congress, at the Tax Court and at the IRS that land trusts need to know about. Attorneys Rob Levin and Jessica Jay will bring everyone up to speed on the latest developments over the past year.

E-Bulletin Information

I send E-Bulletins 3 or 4 times per year to provide updates and analyses on legal and policy matters respecting Maine land conservation.  I do my best to keep my messages brief, timely, and useful to conservation-minded landowners, as well as land trust professionals and volunteers.  At the same time, no one should rely on these E-Bulletins as legal advice, and I encourage you to consult a qualified attorney for advice on any particular situation.

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