1869 Petitioned Road is ordered based on a surveyorÛªs survey and road viewers report (60Ûª wide). Very ambiguous survey with no found monuments called for and only mile posts monuments set that have never been perpetuated.
In the area of question, the road has a bounding call to the west line of an original public land survey section line. The monuments that define that west line have been perpetuated since the original monuments were set in 1850Ûªs.
No records from 1869 to 1930.
1930 County roads established a construction centerline to which paved road is constructed along. This construction centerline is between 12 and 30Ûª east of the original west line of monumented section line.
All local surveyors have accepted the construction centerline as the centerline of the road on surveys done along the road. Subdivisions, Road width deeds have also been granted based on the construction centerline.
The road exists as a country road, 2 lanes, edge of pavement, and no curb.
City has secured 13 million dollars for full improvements of the area in question, which will require additional right of way on both sides of road.
Question, do I
1. Deed stake the road per original description (along the west line of the section)
2.Accept the construction centerline as surveyed and accepted by local surveyors since 1945.
3. other. Please explain
What says you? Thanks, Jp
Jp7191, post: 344959, member: 1617 wrote: 1869 Petitioned Road is ordered based on a surveyorÛªs survey and road viewers report (60Ûª wide). Very ambiguous survey with no found monuments called for and only mile posts monuments set that have never been perpetuated.
In the area of question, the road has a bounding call to the west line of an original public land survey section line. The monuments that define that west line have been perpetuated since the original monuments were set in 1850Ûªs.
No records from 1869 to 1930.
1930 County roads established a construction centerline to which paved road is constructed along. This construction centerline is between 12 and 30Ûª east of the original west line of monumented section line.
All local surveyors have accepted the construction centerline as the centerline of the road on surveys done along the road. Subdivisions, Road width deeds have also been granted based on the construction centerline.
The road exists as a country road, 2 lanes, edge of pavement, and no curb.
City has secured 13 million dollars for full improvements of the area in question, which will require additional right of way on both sides of road.
Question, do I
1. Deed stake the road per original description (along the west line of the section)
2.Accept the construction centerline as surveyed and accepted by local surveyors since 1945.
3. other. Please explain
What says you? Thanks, Jp
2.
I agree with Dave #2
The improvement project is an overhaul of the existing road? Or is it being re-aligned? Are you construction or ROW staking?
The offset of the road indicates it was designed and built purposely away from the section line. The "centerline" was actually a stationline.
"....City has secured 13 million dollars for full improvements of the area in question, which will require additional right of way on both sides of road...."
That's were you get to fix it and make it all legal. In the interim go with the construction centerline. Document and record.
How wide is the road that is centered 12-30' off the section line?
Does the 60 foot right of way, if based on the section line, run through any houses or front porches or nice developed front yards?
Are adjoiners gonna say "what do you mean a 60 foot R/W? What's a road petition? 1869, really? My title report says my property is subject to "rights of the public in the county road" which I assumed to be what I can see out there, fence to fence. I'm calling my council man and my lawyer".
What is the county policy or history of accepting petitioned road widths as good, fully enforceable R/W, when they can be located with certainty (as they apparently can be in this case)?
Were all the local surveyors aware of the road r/w by petition? If not, their actions don't mean much, do they? If they were aware of it, they were just too lazy to locate it?
I'm inclined to say use the section line to control the 60 feet. Any public use not falling within that strip are prescriptive rights. Any other deeded or dedicated r/w pieces are where they are. What is a "Road width deed"?
Present your findings to your client (a City now?) and let them decide if conditions make it worth it to them to try to enforce the 60' based on the section line. Given the section line location is certain and the petition calls the section line, the 60' strip surely can't be centered on the road centerline, can it?
Norman Oklahoma, post: 344977, member: 9981 wrote: That's were you get to fix it and make it all legal.
That's my thinking. Too often we make a decision and hope no one challenges it, so when there's institutional support (with budget) for fully describing what appears to have happened and for pursuing a path to resolution, by all means take advantage of it.
Jp,
While there is some reasonable advice I see one thing missing. Your decision must follow the road creation, modification and abandonment law in your State.
Once the evidence is lined up, compare it to the Statutes in effect at the time of each change. The answer should appear. You are making decisions that will impact a lot of owners. Take your time and treat them justly...
My .02..
BajaOR, post: 344980, member: 9139 wrote: How wide is the road that is centered 12-30' off the section line? 60'
Does the 60 foot right of way, if based on the section line, run through any houses or front porches or nice developed front yards? No! all improvements have been built to 1930 construction centerline
Are adjoiners gonna say "what do you mean a 60 foot R/W? What's a road petition? 1869, really? My title report says my property is subject to "rights of the public in the county road" which I assumed to be what I can see out there, fence to fence. I'm calling my council man and my lawyer". Yes that could happen, and would be less likely if I hold the 1930's construction line, and I believe a judge would also hold the 1930 line.
What is the county policy or history of accepting petitioned road widths as good, fully enforceable R/W, when they can be located with certainty (as they apparently can be in this case)?Because this is such a rural State the common practice is for the private surveyor to take a stab at the location and other surveyors hopefully glob on to your location (that typically depended on who the surveyor was, some were accepted and other surveyors were and are not) That is what happened in this case. No mention of the 1869 road is to be found in any of the surveys that hold the 1930 line. Oregon has statute for road legalization, ORS 368.201. According to people in the know the statute has not been used in 30 years in this county. That is kind of my point of this exercise. As these rural areas are becoming part of big cities I believe the private surveyors are being exposed to more liability with the common practice of accepting the centerline stripe as the cl of the road. I'm trying to revive the use of the legalization process in the area and educate the engineers and stakeholders that a surveyors interpretation is an opinion that can be challenged. (I think Jim Frame is saying this too above. "Too often we make a decision and hope no one challenges it, so when there's institutional support (with budget) for fully describing what appears to have happened and for pursuing a path to resolution, by all means take advantage of it. ")
Were all the local surveyors aware of the road r/w by petition? Some were and others should of been with very little research If not, their actions don't mean much, do they? If they were aware of it, they were just too lazy to locate it?That has been the standard of practice.
I'm inclined to say use the section line to control the 60 feet. Any public use not falling within that strip are prescriptive rights. Any other deeded or dedicated r/w pieces are where they are. What is a "Road width deed"? deed did not state one but by statute it is 60'
Present your findings to your client (a City now?) and let them decide if conditions make it worth it to them to try to enforce the 60' based on the section line. Given the section line location is certain and the petition calls the section line, the 60' strip surely can't be centered on the road centerline, can it?
That is what my gut says, but the local practice, the writings of JB Stahl and Lucas have me thinking other. The legalization statute is pretty cool vehicle but could become bogged down in politics. Thanks for your input, that is why I love this board. Jp
thebionicman, post: 344996, member: 8136 wrote: Jp,
While there is some reasonable advice I see one thing missing. Your decision must follow the road creation, modification and abandonment law in your State.
Once the evidence is lined up, compare it to the Statutes in effect at the time of each change. The answer should appear. You are making decisions that will impact a lot of owners. Take your time and treat them justly...
My .02..
Thank You! Jp
The section line is an original monument called in the road creation doc, and it sounds like the location of the section line has always been there for anyone who looked. If the road was created in conformance with the rules of 1869 how can those public rights not exist where the creation doc says? To clean this up, new R/W acquisition deeds should encompass the required portions of the 1869 road, so the 1869 doc is no longer needed to define the city/county rights in this area. Unused portions of the 1869 road might be vacated.
Use of ORS 368.201(3) sounds optional and a difficult way to "move" the 1869 60' R/W over to the 1930 alignment, or to claim a 1930's era standard width for the 1930 alignment. It doesn't sound like 368.21 (1) or (2) apply. I'd be inclined to recommend claiming prescriptive rights for any of the un-deeded/un-dedicated 1930's strip and including those areas in the new acquisition deeds so the City/County has written rights for their entire R/W. Underlying fee and payment to adjoiners is a whole other can 'o worms.
I'm wondering about the 1930's work. What was the intent of the County in 1930? Did they think they were using the 1869 rights? Was there an old road present then? Would it have fit in the 60 foot width based on the section line? Where the landowners involved then? Like thebionicman said, what were the rules in 1930? Are you saying the county in 1930 just "took a stab at the location..."?
RE: "the common practice is for the private surveyor to take a stab at the location and other surveyors hopefully glob on to your location", this seems to be a universal practice. Given the availability of ORS 368.201 as a resolution though, it seems the "taking a stab" practice couldn't be used to establish width, but only to establish a centerline of convenience.
Good luck!
Im with BajaOR on the location of the existing right of way, if the right of way was viewed in 1869 as being adjaceent to the section line, the right of way is adjacent to the section line. Other road configurations after the fact woould neeed to be research for validity. With that said, now is the time to clean it up with proper deed to make it legal and clear so that the 1869 and subsequent road location will be a moot point.
Thanks again guys! Spending my first 20 years surveying in Southern California I never heard about road problems except a few private or mountain road situations where the description did not match the physical location. Then I move to Oregon and one of the first study guides for Licensing preparation is a document titled "Road width laws, 1840 forward". Some of the first surveys I saw when moving here did not establish the property line at the road but instead set witness monuments (point on property line, but not on road right of way line) because no one knows where the roads are legally, and the agencyÛªs keep working off construction centerlines based on the skip strip. Different world, but also one of the reasons I relocated!
Thanks again for the great responses. Jp