NYS town road abandonment

Unless the Town actually had title there would be no reversion, just a relinquishment of the public easement. Private easements that pre-existed the public easement would survive. Prescription can be a problem argument because there's no adverse use while the public easement exists, but if they have been using it since 1989 they might have a perfected unwritten right. Probably better to look at whether it was pre-existing or implied by earlier transactions or circumstances. It could be re-opened by the Town without a taking as long as it has not been officially discontinued (probably not too likely though). Then there's the necessity theory or private condemnation by statute. But that doesn't help a sale go through. Still, because private condemnation is a statutory last resort, thereby intending that no parcels in NY can be landlocked, I would think it okay to write in a description of the easement and let the attorneys or parties worry about perfecting the right. Just add a note to the description and/or map pointing out the uncertainty.

> I'm doing a survey which has our only access to the parcel to be 1989 abandoned road (not qualified). The issue is that the title to our parcel is worded to run along the northerly road line. In reading my Ken Ayers NYS Highway Law book, the case law shows that the title does not revert back to the centerline of the road...
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> Now the buyers needs the right to use that road in his deed and I can't write that in or an attorney with what I'm reading. They would need to get a quit claim deed from the town to get those rights back. A prescriptive easement is not automatic according to the case law I'm ready.

There seem to be a lot of overly broad presumptions here, FLS. Not all roads are equal, therefore, the status of the post-abandonment road will vary depending on a number of factors.

The first step is to determine how the road was created (by grant, statute, dedication, acquisition, prescriptive use, etc.).

Second step is to determine whether the road was held in fee or as an easement.

Third step is to determine whether the road is public or private and whether it was perhaps private before going public.

Fourth step is to determine whether your boundary extends to the center of the road by common law or by statute. The adjoining parcel boundary is typically limited to the sideline of the road when the road is held in fee by another party and extends to the centerline when the road is held as an easement. Just because the deed says to go to the northerly right of way does not presume that the title conveyance is limited to the right of way or excludes the strip from the right of way to the centerline. The strip is typically considered appurtenant to parcels adjoining a roadway. It doesn't have to be recited in the deed.

Fifth step is to study the order to vacate or abandon. Was it by an official public action, by petition, by stoppage of use, etc.? Each will potentially have a different effect. Public abandonment (vacation) only affects the public's right to use the road. Any rights of adjoining properties to use the road will typically still remain.

Sixth step is to determine the whether the parties have a remaining private right to continue private use of the post-abandonment road based upon all of the evidence, statutes and case law.

JBS

Good point on the description JB. The current high court in NY would probably say the description goes to the center. Lower courts are a toss up. But who wants to go to court anyway; I would feel comfortable writing the description and let them argue over it if they insist. One way or another the parcel is going to have access over that road. But you should point out the uncertainty (or resolve it with good research to back up your position) because it could cost some money if the neighbor is contrary.