Looking for opinions on re-establishing ancient row lines where no monumentation/occupation exist, in particular along curves. Do you "modernize" the row line by making it a tangental (or even non-tangental!) curve, or do you make it straight lines going around the curve? My feeling is that when these roads were laid out 200+ years ago the returns do not have curves, only lines. Therefore, I do not "correct" the row when I re-establish the lines.
My reason for seeking said opinions is this, according to 19 VSA 32 and 702 (Vermont), when the original survey was not filed, or the records properly retained, the right of way is to be established at 1.5 rods from the centerline of the existing traveled way. Now, I work with engineers and of course when they are doing design work for a road they will put math on the existing centerline to establish its location for construction. Therefore, I get a lot of grief for not using the established centerline along curves for the row. Given the statutes in VT I wonder what others think.
One of the statutes in question says
§ 32. Assumed width of right of way
A roadway width of one and one half rods on each side of the center of the existing traveled way can be assumed and controlled for highway purposes whenever the original survey was not properly recorded, or the records preserved, or if the terminations and boundaries cannot be determined. (Added 1985, No. 269 (Adj. Sess.), § 1.)
The language of the statute doesn't seem to contemplate mixing the method described in the statute with making guesses based on how the original construction crew would probably have operated (although, there could be a stretch of a road that is well-monumented and another stretch that is unmonumented, so the statutory boundary determination method might only apply to parts of the road).
(I'm not a surveyor, but I live on a road that was used during the evacuation of American forces from Fort Ticonderoga and surrounding forts in 1777.)
Not being familiar with VT, I would have to agree that the language is plain. A 3 rod r/w (1.5 on each side) of the traveled centerline. Why not use curves if they fit the existing centerline?
"Feeling" isn't evidence.
I do agree that the language of the statue is fairly clear, things are different in NH where there is no such statue.
These are situations where there is no return of layout, what I have an issue with is when there is a return and all the lines are straight but then putting a curve on the row where none was originally surveyed. Of course actually finding a return of layout is hit or miss in New England, at least the parts I work in.
Is it fair to rephrase the situation as a return of survey exists which documents the methods of the original construction crew (who may have been working long before the profession of land surveying was regulated), but there is insufficient surviving monumentation or occupation to determine where the road was on the ground. So should one go strictly by the language of the statute, or should one use the current centerline combined with the methods of the original construction crew (straight lines, perhaps a width of other than 1.5 rods either side of center, etc.). The statute says "whenever the original survey was not properly recorded, or the records preserved, or if the terminations and boundaries cannot be determined." So I suppose it depends on how "or" should be understood. Is it necessary that all three trigger conditions must exist, or can any one of them trigger the statute? If the later, should partial information be used as much as possible, and the gaps filled in with the statutory methods, or is it all-or-nothing?
Vermont law has required that roads be surveyed within two years of being laid out since at least 1781, or they should not be deemed lawful. A 1782 law said that a highway would not be regarded as being properly laid out unless "surveyed by a chain and compass". These plans were to be recorded with the Town Clerk (along with all other property records). Good luck finding one.
To respond to the questions you pose, I think that the statue allows for any of the conditions to trigger the 1.5 rod situation. Generally situation 1 and 2 will go hand in hand, ie, you cannot locate the records, situation 3 arises when there is no stone walls, ancient fencing, etc., to establish where the road was originally laid out. This statue allows for a legal punt position. I will always use evidence on the ground when present.
Now, the other sticky issue is, what if you actually have documentation that a highway was laid out 3 rods wide, but there are stone walls that are 3.5 rods apart. Do you hold the walls as the limits of the right of way, or the three rods? What if its laid out 3 rods wide but the walls are only 2 rods apart?
If the return shows straight lines it's part of the evidence. We quite commonly see that with a width called out. In practical terms it's usually not possible to honor the right of the public without determining the curve information. This is especially true when the document creating the road clearly grants a specific width.
Keep in mind you're retracing an established boundary just like any other. The sole exceptions are the given width if not determined by other evidence and the failure of fact patterns to ripen to fee against the crown while they own it.
In short, follow the evidence...
The correct answer is probably "it depends".
Holding the original route survey and a statute width may not necessarily be the correct solution either.
In my experience, the original route survey typically served a specific purpose - determine construction feasibility and cost. The route survey and statute width may have very little to do with where the road was actually originally constructed or where it currently exists. The mere existence of the road was proof enough otherwise they would have followed up with an as-built survey and acquired easements/deeds.
Long story short, because of all the factors that come into play with these dedicated highways, public agencies typically fall back to a prescriptive easement claim. It's clean and simple.
Locate the limits of occupation/maintenance (top cut/toe fill, vegetation clearing, fencing, drainage, ect.), design a modern road over your located prescriptive easement. Then pick up additional easements where the new design falls outside the claimed prescriptive easement. That would be a minimal effort.
Most agencies will not choose to utilize a statute width (or even the dedicated width) if it falls outside the traditional (many times ancient) occupation.
An example...a dedicated public highway runs past an old stage stop. A portion of the house falls within both the statute width and the dedicated width. Is the agency going to make the owner move the house so they can build an improved highway? Probably not. I'm not saying it hasn't been done before, but more likely they will first claim a prescriptive easement for the existing highway, then go through formal ROW acquisition proceedings to gain coverage for the entirety of the improvements.
A prescriptive easement rarely fits perfectly inside tangents and curves, but occasionally it will. In my opinion, the public agency has the flexibility to define the limits of their prescriptive easement "claim" to the extent they feel it will stand up to the scrutiny of the court and still meet the needs of the public. The claim limits may fall outside perfectly defined widths and perfect geometry.
Guys, guys, guys....................
A couple of you are driving this old geezer to an early grave. You know how old people sometimes (nearly always) focus on trivial things much more than younger people? Well, one of my peeves is a consistent use of the wrong word. There is a giant lady standing on an island somewhere near New York and New Jersey with a torch in one hand. She is a statue. A policy adopted by a legislative body is a statute.
(Muttering to self while searching for another bowl of oatmeal with raisins.)
Reminds me of the newspaper advertising this week by the local county highway department requesting bids for a specific list of tires of various sizes and quantities that announced bids would be "excepted" until June 11.
Guys, guys, guys....................
> Reminds me of the newspaper advertising this week by the local county highway department requesting bids for a specific list of tires of various sizes and quantities that announced bids would be "excepted" until June 11.
That one always gets me, too. Once I was buying gas for my truck and there was a sign on the pump saying "We do not except credit cards". I wanted to take a card inside and tell them "I'm glad you don't except cards, I'm out of cash!"
I didn't say anything, though.
spelling is impotent....................
I have run these a few different ways. Quite often, I will set stakes in the centerline at the estimated PC and PT of the way. I then take the lines from the locations of all the points and choose one or the other as a PC/PT to form a perfect curve. The point I do not choose becomes a point on line and using wooden stakes will rot out in short order anyhow. If the way is improved for access, then these monuments will be lost anyhow.
spelling is impotent....................
OH NO!
There is a firm down the road: Moran Engineering Associates, LLC.
I have to disagree on some of the finer points here.
Agencies and entities don't get to 'define' prescriptive easements. They exist as a matter of the fact pattern in light of case and statutory law. While many assert specific widths, etc. they have no authority to define them.
In locating an existing right established by prescription, we are not at liberty to inject our feelings and preferences. We are bound by law to find and report where they are. The types of evidence that control will vary by geography, terrain, jurisdiction and type of improvement. Most roads in this valley were constructed using layout methods that created consistent, tangent curves. If you determine the Era in which they were constructed you can usually figure the degree of curve used. The key is to recover and evaluate evidence without polluting it with things that shouldn't control...
When I locate a r/w, I locate the margins and back of banks of the maintenance area along with the centerline of the roadway or placement of whatever structure the r/w may be for.
Then I check everything according to the record information of the r/w.
Most of the time, the margins of use will follow the r/w info best.
Holy Cow, post: 321837, member: 50 wrote: Guys, guys, guys....................
A couple of you are driving this old geezer to an early grave. You know how old people sometimes (nearly always) focus on trivial things much more than younger people? Well, one of my peeves is a consistent use of the wrong word. There is a giant lady standing on an island somewhere near New York and New Jersey with a torch in one hand. She is a statue. A policy adopted by a legislative body is a statute.
(Muttering to self while searching for another bowl of oatmeal with raisins.)
Reminds me of the newspaper advertising this week by the local county highway department requesting bids for a specific list of tires of various sizes and quantities that announced bids would be "excepted" until June 11.
Point taken, hope to have not taken too many of your remaining years with my error. 😉
Agreed - they are defined by past case law and ultimately adjudicated by a court.
However, work continues to occur within the limits of this generally unprotested claim that is defined by the agency ROW department.
If every maintenance/improvement project had to have an prescriptive easement adjudicated in court, nothing would ever get done.
Agreed - they are defined by past case law and ultimately adjudicated by a court.
However, work continues to occur within the limits of this generally unprotested claim that is defined by the agency ROW department.
If every maintenance/improvement project had to have an prescriptive easement adjudicated in court, nothing would ever get done.
Old post, I know but hard to find info on this.?ÿ I've got a county road in the Rockies that's been there for?ÿover a hundred years.?ÿ No record of it.?ÿ It's being rebuilt and slightly realigned and the county needs?ÿconstruction easements written from the existing ROW.?ÿ In the past, we would use toe of fill slope and top of cut bank on side hills, or back of ditch to back of ditch on the flats, the reasoning being the fill slope is a necessary component of the road bed.?ÿ Prescriptive.?ÿ I swore I had a text that said to do that that way, but now I can't find it.?ÿ The county has a blanket policy of 60', but the adjoiners aren't on board with that.?ÿ It sounds like courts have to decide limits of use, but like Imaudigger said?ÿthat would be impractical for every road improvement project.?ÿ Has anyone seen an authoritative text or article on how to define prescriptive ROW??ÿ "...road as worked and used..."
spelling is impotent....................
"Let's eat Grandma."
"Let's eat, Grandma."
The same can be said for punctuation.
Well, according to the statute, you should show them all as they are; spirals. This should also make for happy engineers:)
