This is only of academic interest and I would hire a surveyor if I was building anything close to a boundary.
Vermont lets one use the center of the traveled way of a road to determine the boundaries of the right of way, if the boundaries cannot be located. ( http://legislature.vt.gov/statutes/section/19/001/00032 ) I found the page in the town record book where my road was laid out in 1810. The description of the course in front of my house reads "Then South 86?ø East 120 Rods". All the courses contain an integer number of degrees and an integer number of rods. The only monuments are stakes and piles of stones at the two ends, which are about a mile and a half apart, and don't seem to exist anymore.
Obviously when locating the traveled way there is a lot of leeway; just how close would folks drive their cars to the ditch before they became too fearful that the edge would give way and they'd be calling for a tow? If you were locating the road, would the fact that the original layout called for long straight sections influence you? Would you be inclined to call for straight sections (say 100-200 feet long) rather than trying to follow every wiggle? Would straightening a 2?ø bend over a 100 foot distance keep you up at night?
A straight line in legal contemplation is not a mathematical entity. It may not be perfectly straight mathematically but considered straight legally because location is a question of fact and facts don't always precisely line up as a scientist or engineer would expect.
In addition, the physical road most likely controls over any conflict with the numbers in the description. In this case, however, I doubt there is a conflict, the measurements given by our 1810 professional ancestor accurately reflect the location of the road, just not to the level of precision we are used to.
In case anyone would like to see how the description agrees with the modern road centerline from my state's E911 data, I'm attaching a drawing. Some of the handwritten numbers were hard to read, so there could easily be some transcription errors. The old description is expected to be shorter (fewer miles, not fewer words) than the modern description because a piece of the adjacent town was added to my town around 70 years after the original description. The drawing was made with ArcMap. https://www.dropbox.com/s/v5k6hwc7f4dn26p/BelgoOriginalLayout.pdf?dl=0
Generally "Road Returns" begin with the names of the three surveyors who met at such and such tavern before beginning their task. That is a first clue. Sometimes you have some very good ties, such as the NW corner of Adam Farmer's house or barn, which may still be extant. A surveyed straight line indicates a straight view from point to point and not necessarily a straight traveled way. Over the years the road would be widened and would jog around trees and buildings. Eventually cars came along and with higher speeds, curves were introduced and eventually were increased in radius. Eventually, usually during the WPA years, roads were improved with a durable wearing surface and alignment became more fixed. The road itself is the best monument to the road's location. The most relevant information from ancient Road Returns is the intended ROW width. Be aware that Road Return's have been amended over the years, many were rewritten as WPA make work projects, and parts have been abandoned.
There are some rules of thumb, 1?ø max angles, straight sections 50' or 100' minimum, exactly or close enough. Personally if I am fitting a curve, I can accept variance of +/- 0.5' to centerline. Very often there is a description for the parcel on the other side of the road that should be held by you. Suggestion, if you want the road straight, then make it straight at your own expense.
A 3 rod road is 49.5' wide and often becomes 50', no questions asked. Around here the most common was 2 rods, 33' and still many in use today.
Paul in PA
Paul in PA, my deed contains a 3?ø bend, and says I own to north edge of road. Neighbor to south deed says their line is straight, and they own to south edge of road. The farmer who owned the whole area and split it up seemed to think the town owned the road in fee simple, but I doubt that. Lot to south of me was split off first, and deed explicitly went to south edge of road. My interpretation is that the farmer unwittingly retained the road, and when he sold what eventually became my lot, the road went with it.
Monument count: three well down the street on south side, seem OK. Two on north side intentionally buried in 1970's stone walls. Three on south side missing. One on north side seems to be ~10 feet of where numbers place it. One on north side hit by school bus. Quite entertaining.
In CA, we are fortunate enough to have solid case law that would apply here that says when the original physical evidence for a line has disappeared, secondary physical evidence is still superior to angles and distances in a recorded description.
In the latest case (Bloxham v Saldinger, 228 Cal App 4th 729, 2014), the boundary in dispute was a portion of an 8 mile long course in a rancho boundary, originally surveyed in 1858. With the exception of a line tree near one end of the line, and still quite some distance from the particular dispute, there was no original evidence found by either surveyor. But there was lots of monumentation set along or near and in reference to the line between 1858 and the early 2000's when the surveys for the parties in this case were performed.
One surveyor insisted that since the original description called for a straight line and few, if any of the subsequent monuments purportedly set on that line were actually on the mathematically perfectly straight line he determined, that all of them must be rejected. He also argued that the opposing surveyor's survey should be dismissed because he didn't even attempt to make the line straight by retracing the original 1858 survey. Nevermind that the evidence accepted by this surveyor as original was at best, dubious, with the tree identified by him as being that called for in the 1858 notes couldn't possibly be the same tree. That was secondary to the main point of using secondary evidence.
The other surveyor managed to find the remains of the tree called for in the 1858 notes and misidentified by the other surveyor, but didn't make an attempt to locate the original monument at the far end of the line. He had found a chain of well documented surveys that showed retracement of the original 1858 survey or of subsequent surveys of points established according to original evidence of that line's location. Nobody argued that each of those surveys were measured to a high degree of precision or that the points established and lines reestablished were conclusively in the same exact position established in 1858.
What was established was that each appeared to have been at least reasonably performed and that there was no evidence to suggest that the later points were established off from the originally surveyed line location to any significant degree, and that aside from the tree near one end of the 8 mile line, no surveyor in recent decades had been able to find physical evidence conclusively determined to be from the 1858 survey.
There was testimony as to the precision capabilities of the equipment and methods used and the typical discrepancies found between original physical evidence of surveys of that era and the reported dimensions.
The court ruled that ???? ??Lines actually run and marked on the ground may be proved by any evidence, direct or circumstantial, competent to prove any other disputed fact, and where markers of the original survey have been destroyed, secondary evidence as to the authenticity of their relocation is admissible.?? California recognizes these rules to be sound.? (citing Chandler v. Hibberd, 165 Cal App 2nd 39, 55, 1958)
I don't know if VT has similarly clear case law on this particular subject, but I'd bet that it does. I very much doubt that this is the first case where an old road's actual location didn't fully match the description dimensions (and the discrepancy not explained by an intentional realignment having occurred). It seems to me that the custom of holding the physical location of the road as the monument of its location for a parcel survey is at least an acknowledgement of the principle that existing secondary evidence is better evidence of the original location than are dimension in the description. I'd also be that it is more than custom, but has a solid basis in VT case law.
If it is the principle there to hold the actual road location when there is no physical evidence of a different previous location is applied to limited portions of a road, then it would apply to larger portions. The principle doesn't change based on the magnitude of the area in question.
The quote from Chandler is straight out of CJS.
Boxham is interesting in that the argument is over a Rancho Grant boundary remote to the boundary in actual dispute. The parties and their Attorneys may have strange ideas on how to litigate a boundary dispute but the Court answered the question that was asked and got it right. The California Courts will treat boundary location as a question of fact when presented with two conflicting (or one proper) surveys. The cases really go off the rails when one side doesn't get a real boundary expert or they get an expert in counting gyrations of electrons but know nothing about or know the wrong things about boundary.
Bloxham v. Saldinger case attached.
ashton, post: 429981, member: 422 wrote: Paul in PA, my deed contains a 3?ø bend, and says I own to north edge of road. Neighbor to south deed says their line is straight, and they own to south edge of road. The farmer who owned the whole area and split it up seemed to think the town owned the road in fee simple, but I doubt that. Lot to south of me was split off first, and deed explicitly went to south edge of road. My interpretation is that the farmer unwittingly retained the road, and when he sold what eventually became my lot, the road went with it.
Monument count: three well down the street on south side, seem OK. Two on north side intentionally buried in 1970's stone walls. Three on south side missing. One on north side seems to be ~10 feet of where numbers place it. One on north side hit by school bus. Quite entertaining.
In PA and most Colonial States you own in fee to the physical centerline of the road with an easement to the public. When your deed says you own to the North side of the road that is what you own unencumbered by the public right of way. I am undisturbed with how the road is described by the deed cross the road, as it may overlap or gap, as long as both descriptions are somewhere within the road.
Municipalities can never really take title in fee to local roads. Fee Title gives one the right to sell the land, the municipality can never sell the public right of way. The municipality can abandon maintenance of it in which case any title they had reverts to the individual adjoining landowners, with assumed easements for any utilities in same.
Paul in PA
LA Stevens, post: 430032, member: 2391 wrote: Bloxham v. Saldinger case attached.
Interesting, but without the surveys submitted for evidence, nothing can be truly understood.
Paul in PA
Paul in PA, everything I've read in Vermont indicates most town roads are easements, not in fee. In the absence of a specific statement in the conveyance when the land owner who owns land on both sides of the road sells the land on only one side, the sold lot runs to the centerline. But in my case, the seller specifically sold only to the near edge of the road. One could infer that if the farmers only knew they owned the roadbed, they would have sold to the centerline, but it's a bit of a stretch to override the words of the deed when the farmers retain a lot on one side of the road that the road is attached to.
Paul in PA, post: 430045, member: 236 wrote: Interesting, but without the surveys submitted for evidence, nothing can be truly understood.
Paul in PA
I've found them on the Santa Cruz County GIS before but it isn't working on my iPad.
Paul in PA, post: 430044, member: 236 wrote: In PA and most Colonial States you own in fee to the physical centerline of the road with an easement to the public. When your deed says you own to the North side of the road that is what you own unencumbered by the public right of way. I am undisturbed with how the road is described by the deed cross the road, as it may overlap or gap, as long as both descriptions are somewhere within the road.
Municipalities can never really take title in fee to local roads. Fee Title gives one the right to sell the land, the municipality can never sell the public right of way. The municipality can abandon maintenance of it in which case any title they had reverts to the individual adjoining landowners, with assumed easements for any utilities in same.
Paul in PA
This may be true on PA, but dont assume this is true anywhere else without your own research. In some other states the municipality doesn't take title in fee for roads, but the public does, and the municipality manages it in trust. In this case maintenance has nothing to do with title.
The idea that title to roads that are easements passes unless specifically excluded is followed in all states I am familiar with. The specific exclusion has to be clearly stated with a clear statement like, "excluding the area occupied by XXX road." Calling to the near edge of the road doesn't cut it.
[USER=422]@ashton[/USER]
Thanks for the chuckle......................................
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"One on north side hit by school bus. Quite entertaining."
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Was the bus driver someone you have had a reason to dislike for many years?
aliquot, post: 430083, member: 2486 wrote: This may be true on PA, but dont assume this is true anywhere else without your own research. In some other states the municipality doesn't take title in fee for roads, but the public does, and the municipality manages it in trust. In this case maintenance has nothing to do with title.
The idea that title to roads that are easements passes unless specifically excluded is followed in all states I am familiar with. The specific exclusion has to be clearly stated with a clear statement like, "excluding the area occupied by XXX road." Calling to the near edge of the road doesn't cut it.
Fee Title includes the right to sell, the "Public" cannot sell, therefore the public never has Fee Title.
The Sovereign has Fee Title and has the right to sell to individuals. When the Sovereign reacquires land for Interstate Highways or Federal Projects, Military Bases, etc. under it's Eminent Domain it takes Fee Title back because it can and does restrict access to adjoiners.
Paul in PA
Holy Cow, post: 430096, member: 50 wrote: [USER=422]@ashton[/USER]
Thanks for the chuckle......................................
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"One on north side hit by school bus. Quite entertaining."
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Was the bus driver someone you have had a reason to dislike for many years?
I didn't know the bus driver. It's the overall situation of figuring out which surviving monuments to believe that's entertaining, not the bus driver's predicament.
Some states regard dedicated right of way to be fee simple title with a reverter. Their Courts reason that a street is more than an easement and if it looks like a duck, quacks like a duck, and paddles like a duck, then it is a duck. This is not true in California; I have no idea about Vermont but I know how to find out.
In California a call for the sideline of the street is sufficient to overcome the presumption for the center but again this may be different in Vermont and again I know how to find out.
Hint: at a Law Library look up Dedication and Public Streets under boundaries in a Vermont Digest or Summary of Vermont Law. CJS, AmJur, or Tiffany Real Property may cite Vermont cases under the relevant headings.
Paul in PA, post: 430104, member: 236 wrote: Fee Title includes the right to sell, the "Public" cannot sell, therefore the public never has Fee Title.
The Sovereign has Fee Title and has the right to sell to individuals. When the Sovereign reacquires land for Interstate Highways or Federal Projects, Military Bases, etc. under it's Eminent Domain it takes Fee Title back because it can and does restrict access to adjoiners.
Paul in PA
I think you are confusing absolute fee title, which doesn't really exist, and fee title.
The public can, and has throughout US history, sold their propert to individuals. That is what a patent is. When the government is the fee owner a quit claim deed is issued instead of a patent.
ashton, post: 429933, member: 422 wrote: This is only of academic interest and I would hire a surveyor if I was building anything close to a boundary.
Vermont lets one use the center of the traveled way of a road to determine the boundaries of the right of way, if the boundaries cannot be located. ( http://legislature.vt.gov/statutes/section/19/001/00032 ) I found the page in the town record book where my road was laid out in 1810. The description of the course in front of my house reads "Then South 86?ø East 120 Rods". All the courses contain an integer number of degrees and an integer number of rods. The only monuments are stakes and piles of stones at the two ends, which are about a mile and a half apart, and don't seem to exist anymore.
Obviously when locating the traveled way there is a lot of leeway; just how close would folks drive their cars to the ditch before they became too fearful that the edge would give way and they'd be calling for a tow? If you were locating the road, would the fact that the original layout called for long straight sections influence you? Would you be inclined to call for straight sections (say 100-200 feet long) rather than trying to follow every wiggle? Would straightening a 2?ø bend over a 100 foot distance keep you up at night?
At first impression, I'd say that the relevant question is whether the description in the town record book simply followed an existing path, using courses and distances to identify the route or whether someone actually surveyed an entirely new route along the lines described in the record.
It was not uncommon in Texas for an existing road that became a public road to be described as economically as possible. That sometimes involved surveying curves by running from PI to PI on the tangents, rather than actually tracing and fully describing the curve. In that situation, I think the most reasonable interpretation of the description was to identify the existing road that was being established as public, not to create a new route that replaced existing curves with an angled alignment.
In the case of that Vermont road in question, I suppose that one could examine the existing pattern of land ownership in 1810 when the road was declared to be a public way to see
(a) whether its route follows certain boundaries that existed at the time or
(b) whether the pattern of existing ownerships suggested that some sort of a way probably already existed at the time to provide access to them.
"Kent McMillan wrote "At first impression, I'd say that the relevant question is whether the description in the town record book simply followed an existing path, using courses and distances to identify the route or whether someone actually surveyed an entirely new route along the lines described in the record."
The recorded deeds of the era read something like "the land of Smith, bounded on the east by the land of Jones, on the south the land of Allen, on the west the land of Warner, and on the north by the land of Wentworth." There are no angles or distances mentioned.
The easterly part of the road was part of the Crown Point Military Road, built during the French and Indian War to connect Fort Ticonderoga with what is now Charleston, New Hampshire. I've been on tours with a group that's trying to retrace the road, and no one is sure what the exact route was in my neighborhood
