Here is the short version of my client's problem. I don't believe that his property is truly "land locked" in the proper (legal?) sense of the term.
He owns the 27 acres blue triangular shape. According to INDOT's certified inventory the County Road is 0.74 miles, which just reaches his property.
However, the paved & county maintained portion of the County Road stops maybe a couple/few hundred feet short of the 27 acres. And the landowner between the end of the pavement and the 27 acres property has built a pond in the location of the county road corridor.
We have scheduled a meeting with the county highway department to ask the following:
Well basically we just want to "think out loud" together to explore options and possibilities related to whether the county believes that either (a) they have vacated the right of way, in which case we would appreciate copies of that documentation, or (b) yes in fact there is right of way to the 27 acres, in which case the neighbor has built a pond and done earthwork within that right of way, in which case we would like to discuss what we can do to help the county maintain proper access etc.
Your thoughts/comments?
If that road has been historically used to access the property, then the current owner has a right to use it, regardless of any government maintenance.
In Oklahoma "vacated" public right-of-way can't exist as long as someone is either occupying (utilities) or using that R/W for access. It appears to me that the .74 mi. long R/W is that properties only access. The frequency of the use of that access usually has little bearing on whether the "rights" still exist.
Also, in Oklahoma, nobody builds ponds without at least the OWRB (Water Resources Board) blessing. A survey is required for such matters and the R/W would have come up at that time.
I have seen "clandestine" stock ponds forced to be removed, but rarely.
Let us know what everybody comes up with, that's an interesting problem.
Do you have historical mapping/aerial photos prior to the pond that show that the road running the full .74 miles? The county may only have a prescriptive easement along that road, which might cause a problem for them if they have never maintained the last couple hundred feet of roadway.
I would be interested in what the county road department/county surveyor has to say, if you wouldn't mind following up.
It is very common to have maintenance stop either before or after the official length. Sometimes it just stops in a convenient location where it is easy to turn a grader around.
In my area, it is also very common for the state to be very slow in making requested changes or corrections to the certified mileage database.
There is also such a thing as a county road that is not in the county maintained mileage database. An old dedicated public highway that was never taken into the maintenance system is an example. So there could be an underlying right that extends past the .74 miles.
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> Let us know what everybody comes up with, that's an interesting problem.
Status Update:
We met this morning with the County Highway Department.
They said they would only be so glad to ask the commissioners permission to bring out some dozers in the spring and replace the county road location in the corridor where the neighbor has now recently built the pond...
BUT, only IF they had some clearly written records indicating they have clear right of way along that corridor. Unfortunately the only written evidence we have so far is that INDOT inventory shown above, just like more than 2/3 of the rest of the roads in the county.
We also believe that even after many days of research at the courthouse we would NOT turn up any better written evidence.
So now it seems to be more of a private prescriptive easement rights issue rather than a county highway right of way issue, maybe?
The next step is for my client's attorney to discuss this a little further with the county's attorney.
