By MECHELE COOPER
Staff Writer Friday, December 29, 2006

The state has brought trespass and nuisance charges against Andrea Lapointe and Michael Barden, 10 Academy St., in Kennebec County Superior Court, claiming they built their 10-foot privacy fence on a DOT-owned easement.

DOT is seeking the authority to remove the fence and any other items in the railroad corridor. DOT also wants to be awarded damages as determined by the court and have Lapointe and Barden pay any costs or expenses incurred, along with attorney fees for the proceeding.

Court documents filed Dec. 20 indicate the state acquired the rail corridor from the Maine Central Railroad Co. via quit-claim deed in 1991.

Lapointe, a state environmental specialist, said no court date has been set. But she is ready to plead her case.

After researching historical documents, Lapointe said she believes she and her husband own the land within the easement -- not the state.

In their counterclaim, Lapointe and Barden say the easement is "clouded by the specific metes and bounds of individual properties," including theirs.

"Metes and bounds" is a description of land relying on natural landmarks such as trees and bodies of water, a method of measurement used before more precise instruments and methods were developed.

Lapointe said the railroad was built by Kennebec and Portland Railroad Co. in 1850. Bond holders took over the company when it experienced financial problems and renamed it the Portland and Kennebec Railroad Co.

She said the company was required by law to prepare a survey and pay a "condemnation award" to property owners in the railroad corridor. The condemnation award -- money a property owner is paid when their land is seized by the government or other authority -- was to be referenced in the deeds of adjoining properties.

"The people who owned the property at that time, Samuel and Sarah Johnson, appealed the railroad taking over their land," Lapointe said Thursday. "They ended up losing the appeal, but by then the railroad was bankrupt and didn't have the money to pay them (for the property). That means the railroad never obtained the title to the land."

She said the Maine Central Railroad acquired the tracks in 1870, along with land legally obtained by the Kennebec and Portland Railroad Co.

Toni Kemmerle, acting chief counsel for DOT, wouldn't provide the state's view of the case.

"It is our policy when we have active litigation not to comment and say the documents in public records speak for themselves," Kemmerle said.

Court records say DOT, from time to time, contracts with railroad companies to operate trains for the movement of freight and passengers over the railroad corridor in Hallowell. The documents allege the couple's actions are a potential hazard to passengers and workers employed by railroad operators.

But Lapointe says a train hasn't traveled on that track for five years.

"DOT seems to think it's possible to have some kind of freight service go through Hallowell at 60 miles an hour," Lapointe said. "DOT took out the crossing arms that come down on the roads and they've done a terrible job maintaining that track. There are trees growing everywhere and the retaining walls across the street from us is collapsing."

She also said MDOT spends money based on a 20-year Biennial Transportation Improvement Plan and that there is nothing in that plan for passenger service into Hallowell.

"Obviously, it's not an upcoming BTIP for them," she said. "So for them to say they need this track for public use is simply bogus."

"I don't think we're the only ones in this predicament," she added. "I would encourage people to contact us. I think a lot of other landowners on the railroad assume DOT has this right of way when actually they don't."

Mechele Cooper -- 623-3811, Ext. 408

mcooper@centralmaine.com