Can a dock be installed at the end of a right of way?

I have previously written about the law of docks in Maine (Docks and the Law, February 2019).  One issue that arises frequently is whether a dock can be installed at the end of a right of way. 

A right of way, also called an easement, is a legal right to cross over the land of another.  An easement can be personal, institutional, or attached to a property.  A property may have a right of way if stated or referenced in the property deed. Many of Maine’s lakes and ponds were developed in the 1940s to 1960s as subdivisions with a recorded plan that depicts the lots and ways.  It was common for the developer, in conveying out lots without water frontage, to reserve a shared right of way for some lots in the neighborhood. A host of legal issues can arise from a shared right of way in a subdivision, ranging from title ownership to legal scope and uses to zoning, with sometimes unpredictable results. 

Not every right of way to water includes the right to install a dock.  Some do, some do not.  Dating to the 1970s, the Maine Supreme Court has decided numerous cases concerning a right of way and dock rights.  The takeaway from those cases is that the issue is a highly factdependent legal question, which considers the language of the deed, the purposes of the right of way, and the circumstances, including how the right was used historically.   

If you or your neighbor own a right of way or property subject to one, you should consult competent legal counsel to understand your rights. 

This article if for informational and educational purposes and is not intended to be legal advice.  You should consult legal counsel to assess the legal issues specific to your case.  The attorneys at Libby O’Brien Kingsley & Champion, LLC have extensive experience in real estate, land use, and dock law, particularly litigation and other means of conflict resolution.