03/30/2008
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Staff photo by Joe Phelanfrom the Kennebec Journal
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from the Morning Sentinel
The fence separates their garage from a 19-foot strip of land separating their Academy Street property from nearby state-owned railroad tracks. It was put up on property that a judge says is owned by the state.
But homeowners Andrea Lapointe and Michael Barden aren't giving up. They say their deed says the land next to the rail line belongs to them. The case is now on appeal with the Maine Supreme Judicial Court.
Lapointe calls the wooden wall a "spite" fence, built in retaliation for the two-year legal battle that she and her husband have waged over ownership of the property between their home and the state-owned railroad tracks.
"There was no reason to put that fence up there," said Lapointe. "It was retaliation. Other people are using the right-of-way with plantings, lawns and what have you, but they decided to make an example of us."
Not true, said Toni Kemmerle, chief legal counsel for the Maine Department of Transportation.
"She and her husband parked cars in the area by the track," Kemmerle said. "Ultimately it was decided that, in order not to have that kind of encroachment, we had to actively delineate where the property line was."
Kemmerle said the department has already successfully defended its rights to the land adjoining the tracks by filing a trespass and nuisance lawsuit in Kennebec County Superior Court, which the department won last year.
But Lapointe and her husband in September filed an appeal of the court's summary judgment. Lapointe said the appeal is scheduled to be considered by the Maine Supreme Judicial Court in April.
Kemmerle said there was plenty of discussion between her department and the homeowners before the fence went up.
The Department of Transportation regularly offers lease agreements to landowners whose property abuts state rail lines to allow access for fuel deliveries, maintenance and other occasional uses, Kemmerle said.
She said Lapointe refused that offer, though the homeowners removed a dog house, clothes line and other items after the court decision.
The dispute between the state and the couple is unusual, Kemmerle said.
"We have a very good record of working with our abutters in rail corridors," Kemmerle said.
But right-of-way grievances aren't uncommon.
Austin Sylvester, a member of the South Pond Road Association in Warren, said Maine transportation officials installed a chain-link fence along the state-owned road that serves the 13 summer and year-round waterfront homes next to the state's Brunswick-Rockland rail line.
Sylvester said nearby homeowners didn't want the fence but they maintained friendly relations with state railroad officials during the transaction.
"We didn't like it. We still don't like it," Sylvester said. "They put it in and we're responsible for any damage to it and for its maintenance. They told us what they were going to do. They didn't ask what we wanted."
Kemmerle said Lapointe and Barden had their property just a few feet from the track so crews couldn't get by to maintain the rail line. In the final analysis, said Kemmerle, the court supported the state's claim on the land.
Nathan Moulton, director of the state rail program, said his agency has installed fences at several places along the 312-miles of state-own rail lines.
"When we have an issue along a right-of-way, we put up a fence," Moulton said. "The taxpayers bought that right-of-way for rail use.
"If we allow encroachment within three-feet of the tracks, when we go to use, it will have become unusable as time passes, so we try to deal with these things at the time."
Still, Lapointe and her husband didn't like their December surprise.
They said the fence is so close to their garage that they can't maintain their building's wooden-clapboard wall facing the fence. Moulton said he gave no warning that the fence was going up, but he noted that the court decision alerted Lapointe and Barden to state ownership of the land. He said the building contractor spoke with Barden while the work was going on.
Gary Remal -- 621-5642
gremal@centralmaine.com
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