I wonder what the intent of the wall was. The highway department around here, builds fences to keep cattle or other animals out of the road, and they build the fences in the highway right-of-way. They don't want shared maintenance, and they need to keep the fences up There is liability involved.
Of course I don't know anything about all that legal stuff especially in New England
Let me ask you this. If the landowner owns the wall that fronts his property, can he take it down if he doesn't like it there?
foggyidea, post: 364420, member: 155 wrote: The variable width right of way is not a myth. For instance, I am working on a road that has varying widths, between 33', 40' and 50' depending on where you're working. That is when I label a road "Public Way, Variable Width."
Stone wall on ways, public or private, define use, but not ownership, necessarily. Stone walls on property lines are the same. Typically I will hold the centerline of a stone wall, linear regression at least, but never have I held the face of a wall unless it's explicitly defined that way.
We, in MA, do have some cases and even some legislation, on fences and walls, but they mostly are irrelevant since the courts will decide each case on it's own merits.
That will probably be the extent of my interjecting 🙂
Dtp
I kinda agree with my surveying brother to the northeast of me (event though he's a Red Sox fan). Here in CT the are many places where the width of the ROW does vary, in many places, on the same road. There are places along state roads here in CT, where the the face of the wall is the ROW, not always the case though. Us Yankees have a lot of rocks in our soil (yes, some of us have rocks in our head) so many a stonewall have been built, many times they delineate the property lines, sometimes they are just a stonewall
Tom Adams, post: 364619, member: 7285 wrote: I wonder what the intent of the wall was. The highway department around here, builds fences to keep cattle or other animals out of the road, and they build the fences in the highway right-of-way. They don't want shared maintenance, and they need to keep the fences up There is liability involved.
Of course I don't know anything about all that legal stuff especially in New England
Let me ask you this. If the landowner owns the wall that fronts his property, can he take it down if he doesn't like it there?
Yes, is the short answer, and it depends is the more correct answer.
I think some of your 19th century Yankees came out here and obtained GLO patents in the Sutter Buttes and Sonoma County, there are a lot of stone walls (or fences) in those places.
Gromaticus, post: 364121, member: 597 wrote: From the "How many of you prove all found monuments" thread:
Good idea! I have an old "that's how we always do it" question I've been wondering about for decades.
Here in New England, we have 100+ year old field stone walls all over the place. When these are used for property lines, surveyors will use the centerline of the wall for the property line location, as one would expect.
However, at least in my area of Massachusetts, there is an exception to the middle-of-the-wall rule: sometimes walls were built on both sides of a road. The roads eventually became public, but no layout was ever prepared. The walls are surveyed, and the road between them is called "variable width".
BUT! The FACE of the wall on the street side (not the middle) is usually used for the wall location, thus placing the wall itself outside of the road right-of-way. I've asked several surveyors in my career WHY this is done, but nobody seems to know ("That's the way we've always done it"). One surveyor once suggested that if you measure between the wall faces, you will find that it's about 2 rods, which shows the wall builders intent to make a 2 rod road. Well, sometimes it is. Sometimes it's wildly variable, both more and less than 2 rods.
So does anyone know of any authoritative source for this rule? I've never been able to find one.
"A bank wall is to be considered as on private property, its face being placed on the street line or a little back of it.
In case of ordinary stone walls local usage should be carefully ascertained."
--A.C. Mulford, "Boundaries and Landmarks/A Practical Manual," page 35, in subchapter entitled "Fences and walls on highways."
"A bank wall is to be considered as on private property, its face being placed on the street line or a little back of it.
In case of ordinary stone walls local usage should be carefully ascertained."
--A.C. Mulford, "Boundaries and Landmarks/A Practical Manual," page 35, in subchapter entitled "Fences and walls on highways."
Tom Adams, post: 364619, member: 7285 wrote: I wonder what the intent of the wall was. The highway department around here, builds fences to keep cattle or other animals out of the road, and they build the fences in the highway right-of-way. They don't want shared maintenance, and they need to keep the fences up There is liability involved.
Of course I don't know anything about all that legal stuff especially in New England
Let me ask you this. If the landowner owns the wall that fronts his property, can he take it down if he doesn't like it there?
I live along a road in Vermont that is mentioned in book 1 of the town select board minutes (but the handwriting is impossible to read, at least in the facsimile in the town clerk's vault). I presume I own to the center of the road (even though the paper trail only mentions ownership to the edge). So I think I can do whatever I want to my half of the road that is not incompatible with the passage of traffic, including removal of the stone wall.
In my neck of the woods the liberals have added planning regulations banning removal of walls on "scenic ways". Of course by their definition every way in town is "scenic".
Hack, post: 364675, member: 708 wrote: In my neck of the woods the liberals have added planning regulations banning removal of walls on "scenic ways".
But they've been hoodwinked...by taking that stance they've inadvertently sided with the traditionalist over the progressive 😀
ÛÏTradition does not mean a dead town; it does not mean that the living are dead but that the dead are alive. It means that it still matters what Penn did two hundred years ago or what Franklin did a hundred years ago; I never could feel in New York that it mattered what anybody did an hour ago.Û
Û¥ G.K. Chesterton, What I Saw in America
We also have scenic highways in NH where removal of trees and stone walls is subject to PB approval.
ashton, post: 364673, member: 422 wrote: I live along a road in Vermont that is mentioned in book 1 of the town select board minutes (but the handwriting is impossible to read, at least in the facsimile in the town clerk's vault). I presume I own to the center of the road (even though the paper trail only mentions ownership to the edge). So I think I can do whatever I want to my half of the road that is not incompatible with the passage of traffic, including removal of the stone wall.
I would say that the road right-of-way is by prescription and that would include the wall and you own the underlying dirt. In other cases, where the landowner only owns to the edge of the right-of-way, the wall is probably basically a prescriptive easement on their land.
As to modern highway fences erected for the owner of the highway being placed onto the right-of-way a short distance rather than on the true right-of-way line, the reasoning is that their fences are not there to restrain livestock but to discourage users of the roadway from entering private property. If the animals enter the roadway, it is the fault of the landowner/animal owner because the animal had to leave private property first, not simultaneously. That is why you will see many miles of traditional livestock fence erected a short distance from the fences erected for the owner of the highway. Those landowners have learned why they need to do so.
Holy Cow, post: 364688, member: 50 wrote: As to modern highway fences erected for the owner of the highway being placed onto the right-of-way a short distance rather than on the true right-of-way line, the reasoning is that their fences are not there to restrain livestock but to discourage users of the roadway from entering private property. If the animals enter the roadway, it is the fault of the landowner/animal owner because the animal had to leave private property first, not simultaneously. That is why you will see many miles of traditional livestock fence erected a short distance from the fences erected for the owner of the highway. Those landowners have learned why they need to do so.
Wow....in our state, it's part of the highway department's duty to keep the livestock off the highway. The highway department builds and maintains the highway, And they build a fence a couple of feet into the right-of-way. I should have thought that it was probably a State law. I just kind of thought it was a standard. It sounds like it varies from state to state.
You will find many cases where the highway fence deflects from the right-of-way toward the ends of a culvert under the highway. This is to prevent travelers from entering the drainage courses. Flood gaps are not constructed across the end of the culvert as they would be a continual maintenance issue with no real benefit. Anyone silly enough to believe the highway is going to automatically accept responsibility for keeping their livestock contained is living in a fantasy world. The highway department would need to have crews working every day to keep up with the thousands of miles of fencing involved.
The DOT could be sued, and might be declared to be at partial fault, but not fully responsible for wandering livestock. That's how lawsuits work. You accuse everybody else of negligence and get as much as you can from those with the deepest pockets.
The problem with livestock in the r/w of the highway begins when they are involved in an accident and the owner becomes responsible.
I don't know of an insurance available for the actions of livestock while they are not on the farm.
Tom Adams, post: 364721, member: 7285 wrote: Wow....in our state, it's part of the highway department's duty to keep the livestock off the highway. The highway department builds and maintains the highway, And they build a fence a couple of feet into the right-of-way. I should have thought that it was probably a State law. I just kind of thought it was a standard. It sounds like it varies from state to state.
It depends upon whether your state is a "fence in" state or a "fence out" state. It was decided by early territory and statehood grazing legislation. In states where there was open grazing, you had to fence out roaming cattle to protect your crops. Here, in Utah, the early settlers were responsible to enclose their property by erecting a fence to keep livestock from trespassing and damaging crops. Utah is a fence out state. If you don't want trespassers, you must fence them out.
JBStahl, post: 365284, member: 427 wrote: It depends upon whether your state is a "fence in" state or a "fence out" state. It was decided by early territory and statehood grazing legislation. In states where there was open grazing, you had to fence out roaming cattle to protect your crops. Here, in Utah, the early settlers were responsible to enclose their property by erecting a fence to keep livestock from trespassing and damaging crops. Utah is a fence out state. If you don't want trespassers, you must fence them out.
Thanks JB.
Tom Adams, post: 365296, member: 7285 wrote: Thanks JB.
The results of a local civil case:
Rancher does a little cattle drive along a state highway into a more urban area. One landowner along the route has his property open to the highway for some reason, I always wondered why, but it's nicely landscaped, a pond all very tidy.
Cows come along, see the water, wonder over and drink, tear up the wet yard, and make a mess before cowboys can collect them and get them moving again.
Landowner sues rancher for damages.
Landowner loses, the court says it's a fence out state, if you want livestock out, fence them out.............
