Working on this little question for a nearby County.
The history as I have chased it down so far.
Sections 15 and 16 share a north-south boundary between them with all adjacent aliquot parts conveyed to settlers prior to 1875.
The southeast quarter of the northeast quarter of Section 16 was patented separately from any adjoining aliquot parts in either section.
By 1885, the southwest quarter of the northwest quarter of Section 15 was sold to Mr. Smith.
Prior to 1909 it appears there was no road providing public access to these two adjacent tracts.
In late 1909, Mr. Smith and a dozen other nearby citizens signed a petition to open a road along that one mile section line between Sections 15 and 16.?ÿ A preliminary route was surveyed by the County Surveyor at that time which had to move around a bit from a straight line to just miss a bend in a creek and then cross the same creek twice more.
In early January 1910, a request was made by Mr. Smith and at least one disgruntled neighbor that the alignment of the road be modified and the width of right of way be increased from 35 feet to 40 feet.
On January 18, 1910 the County Commission approved paying additional compensation to two of the neighbors.
I have found no record indicating any portion of said road has been officially vacated.
The current issue is that the land held by Mr. Smith (different owner, of course) is the lone tract today in need of legal access to another open road.?ÿ There is no residence on this tract.?ÿ The apparent route being used goes south from that tract one-half mile.?ÿ One of the two properties being crossed has a new owner who feels he can block access as the County has done nothing in many years to maintain a roadbed for general traffic.
Theoretically, there is a shorter route available to go north one-quarter mile, but that route has been completely abandoned for many years.
How would this issue be handled in your home area??ÿ Should the County step in and make improvements??ÿ Should the County declare the road has been vacated by mutual neglect and minimal use??ÿ Should the County improve the route going to the north as it is shorter and does not involve two creek crossings??ÿ Should the County tell the current owner of Mr. Smith's tract that this is an issue he must address with his neighbor to the north who owns the parent tract from which the Smith tract was severed in 1885 with no public road in place at the time?
To further complicate matters, this County operated for decades with certain roads being approved for opening by the County Commission but the maintenance was turned over to the Township Board of Trustees.?ÿ The return to where the County took over maintenance of all roads probably occurred in the 1940's.?ÿ Thus, finding records about the maintenance of such Township roads is probably not realistic.
All surveyors are loaded with opinions.?ÿ Please share yours.
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IMHO, if you haven't occupied the land you own for over a century, you don't own it anymore.
Also, do five feet less make the road unusable?
Zenthner vrs State of Montana. Judge ruled the Right of Way was on the used travelway and the formal County Road Easement moved to the traveled road.
Clearly, Massachusetts law does not apply, but here goes: neglect of a road has nothing to do with the legal standing of the public right of way. Only an affirmative act by the town, city, county or state to discontinue a road can eliminate the public rights in this state.
@skeeter1996 is that the actual name of the Case? I didn??t see it in the Supreme Court site, maybe District court?
It appears the spelling was close but not exact.
State of Montana Vrs. Zehntner. It was a District Court case. Spaulding was the Judge and it was a Summary Judgement.
@holy-cow That Lawsuit came later. Susan Swimley was the Zehntner Attorney. She butchered the State's Attorney during my deposition.
Clearly, Massachusetts law does not apply, but here goes: neglect of a road has nothing to do with the legal standing of the public right of way. Only an affirmative act by the town, city, county or state to discontinue a road can eliminate the public rights in this state.
This, in VT as well. Except the Towns had the opportunity a few years ago to include any unidentified corridors (i.e. roads that had been laid out, but were no longer identifiable on the ground) on the inventory maps if they chose to retain the public right. If they didn't choose to include them on the map, those roads are gone. But if you can still see the physical location of the road, on the ground, absent formal discontinuance, it still exists...whether its on the inventory map or not. As you might expect, this hasn't sifted its way all through the Courts yet.
A Co. Road is where it is, so if there is a used road to the parcels in question even if it doesn't follow the surveyed or described road then the physical location of the road supercedes the described location. If no road is constructed, or if that road is in disrepair then it's still a county road. Abandoned by disuse but not vacated and is still available as a right of way.
This is Wyoming, so if the OP was here then there would be a right of way to the parcel, but the landowner will need to construct the road,,,,,,,,to county specs. If there is a used road to that land, even if it's a considerable distance from the described road they might be able to force their way by calling it the actual county road, although, that's an iffy proposition.?ÿ
In New Zealand, once dedicated a road stays a road, regardless of any use or formation.
We have a large number of legal but unformed roads - often referred to as "paper roads" - as they seem to exist only on paper.
It takes a specific and definite action from the local government to close a road.
@mightymoe That's what I assumed, but the Attorney for the Zehntner's didn't agree because it was a dedicated County Road with a Centerline Description. The County intended to relocate the road to the Right of Way, but the town went away when the price of silver dropped, and the mines closed. The County wasn't going to construct a new road if there were no taxpayers at the other end.
Do you think the road could be relocated to the Right of Way location or does the Judge's decision vacate the original Right of Way location? It's a better location. The current location is down a ravine bottom and the hunters get stuck there often. The State initiated the lawsuit because the County Commissioners had a conflict of interest. Zehntner was a Commissioner so the County wouldn't act to open the road. Elk had moved down in the bottom and they made access a major issue. Zehntners are big game outfitters and they didn't want the public down there hunting "their" elk, so they put a locked gate on the road during hunting season. A good road could have been built on the existing Right of Way for less than the legal costs.
NY there is and there isn't.?ÿ It would be abandoned, but municipality can reopen without compensation to landowners, if municipality never took official action to discontinue the road.?ÿ And pre-existing private easements are not extinguished by abandonment or discontinuance of public easement.
But never know what courts will say.?ÿ Following a MN case where trial court said still a road, appellate court said no maintenance for statutory time so not a road.
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I got embroiled in one dispute over a county road that had an existing two track ranch road 3/4 of a mile west of the surveyed and platted road. In this case in the past the platted road was used in the correct location. Then over the years it fell into disuse and now it's almost faded to pasture land with no visible path. It got so bad in the 90's the ranch gathered up all the ROW fencing that hand fallen down and took it away.?ÿ
So two hunters complained that they wanted to use the road and the county came out and told the ranch to open their two track to the public cause it's now the real location of that county road. I went out and recovered evidence of the existing road and the county was told to open it, grade it, fence it and take care of it if they want a road there for the two complaining hunters.?ÿ
The county finally dropped the issue and the ranch kept their two track gate locked. The odd thing is that the ranch allows hunting if you walk, no one takes them up on the offer.
So here it's always a case if the road was platted and never built at the platted location, or did it slightly shift for topo reasons, or did it simply fall into disuse and now needs a rebuild where is was originally. If the road has always been some distance from the platted location the courts recognize it as the county road, not the surveyed track that was never built.?ÿ
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In most places a public ROW can only go away if an appropriate public body officially vacated, but there are a few jurisdictions in the U.S. where non use will lead to an unwritten vacation.?ÿ
One thing to keep in mind is that mainantace and the existence of a public easement are two separate questions. The responsibility of a local goverment to maintain a road varies more with jurisdiction than the whether the underlying easement exists.?ÿ
As a surveyor we should all be very well aware of what our local laws say about the existence of public rights of way, and how any local goverment body that may have an interest (planning department/County engineers, state DOT...) inteprets those laws. Our clients depend on us to be experts in this, and when our clients need an attorney, those attorneys will be depending on us to get them pointed in the right direction.?ÿ
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