OK, here is the scenario (and it is not hypothetical). Some of the facts are generalized though. In 1895, a 14' right of way was laid out for a "tramway". This r/w was later purchased by a brick company for use. Now fast forward to today. The road is about a mile long. There are a few houses within the first quarter mile and at the end, there is a bar and former park/campground. The road also provides access to a reservoir (I believed owned by the borough).
A little aside, in PA, only the state and municipalities (townships) own roads. Each road generally has a number (SR or TR). Some boroughs (more than a township, not quite a city)do not number their roads. This road can only be accessed through the borough, but it actually starts in the township. The road extends to the base of the mountain and pretty much turns into quad trails. The road is dirt and gravel now and you pretty much need a 4 wheel drive to drive on it.
As far as I know, neither the borough or the township maintain this road. The road is not shown on the Type 5 map (meaning the township gets no liquid fuel money). The deeds still refer to it as the right of way for a tramway. I believe that this is a case of a prescriptive easement by the public. I can personally attest that the bar/campground has been at the end of the road for over 30 years. I am doing a subidivision for one of the proeprties that are located on the first part of the road. My question is: How should this road be labeled on the plat? County ordinance requires a TR or SR number, road name, r/w width, and material. I labeled it as an "Unnumbered Public Road" Would any of you see a different way to label this road, without putting a dissertation like this one on the plat? I look forward to the answers. And like I said, it is a real situation so if I left anything out, I can add that as well, if needed.
In my mind (which is here in Oklahoma) the lack of a county designation means little.
I would probably label it as "unnamed road" and maybe reference the "tramway" description in the deed.
One question: Are there any public utilities that occupy the r/w; or are there any public vehicles that can or have utilized the r/w, as in school bus or emergency vehicles?
> In my mind (which is here in Oklahoma) the lack of a county designation means little.
>
> I would probably label it as "unnamed road" and maybe reference the "tramway" description in the deed.
>
> One question: Are there any public utilities that occupy the r/w; or are there any public vehicles that can or have utilized the r/w, as in school bus or emergency vehicles?
Well, the road has a name, just not a number. As far as public utilities, there may be but I am really not sure. The school buses would probably pick anyone up at the beginning of the road since the only houses are within the first 500 feet of the beginning. I have seen ambulances back at the bar. I remember my uncle used to take me to "snake hunts" they had when I was about 12. They did the snake competition and then had a wet t shirt contest. It is a pretty fond memory. 😛
Now understand that I am thinking in terms of being in Virginia. So, ...
Who owns the underlying fee? From what you have described it is a right-of-way of some unknown status, so presumably someone actually owns the land.
You want to do a subdivision so that will increase the use of the right-of-way. Can you increase the use without the permission of the owner of the underlying fee?
Are there any minimum right-of-way widths in zoning or subdivision regulations? If so, I would suspect they are more than 14'.
I could see lots more questions in your situation and I would want a lot of answers before I did a division that relied on that right-of-way.
Edit, I just read your reply to Dave. So, nevermind. 😛
> Now understand that I am thinking in terms of being in Virginia. So, ...
>
> Who owns the underlying fee? From what you have described it is a right-of-way of some unknown status, so presumably someone actually owns the land.
>
> You want to do a subdivision so that will increase the use of the right-of-way. Can you increase the use without the permission of the owner of the underlying fee?
>
> Are there any minimum right-of-way widths in zoning or subdivision regulations? If so, I would suspect they are more than 14'.
>
> I could see lots more questions in your situation and I would want a lot of answers before I did a division that relied on that right-of-way.
The property owner doing the subdivision owns to the center of the road (right of way). Generally, 50' is the required minimum r/w width (even though state and township roads only have 33' per state law). But, in the past, if the subdivider does not own adjoining property, he is not forced to increase the right-of-way. My main contention is that this is a public right of way, so therefore it should remain as is. Realistically, what is happening, there is a lot of 3 acres and a house. A buyer wants the house but only 2 acres. The seller would like to retain an acre as a "buffer" from other property owners. Due to topography and a stream, the acre being subidivided is essentially useless and will probably never have any improvements. I was afraid that this "simple little subdivision" would open up a can of worms and it appears it has. The usual situation for a "private" right of way in our area is a maintenance agreement. These are somewhat easy when it is all one person. This would involve a few other property owners who have nothing to gain by signing the agreement (including the borough who owns the reservoir property). I was hoping for an agreement to my opinion of it is a public right of way and to let sleeping dogs sleep.
Is it really a public right of way, or does the public use someone else's right of way to get to the bar and then park and go four wheeling?
Who maintains the road?
Does either municipality take responsibility for maintenance of the road?
I am not sure that the public in general can acquire a prescriptive easement over private property.
I'm with NYLS on questioning whether the public can claim a prescriptive use.
I would check with all possible jurisdictional authorities as to their take on it.
I'd show it and note all pertinent documents related to it.
Prescriptive is an adverse action and needs all the same necessary components.
The best I would put on the plat is possible prescriptive claim; but only as a last resort.
This r/w was later purchased by a brick company for use. used for what and did the purchase transfer fee? I question that is there is legal access at this time, maybe the courts would find that there are no prescriptive rights but there is a need ,so grant an easement for ingress and egress by necessity? Like I said, I don't think there is any guarantied legal right to use this route and until that is corrected, I would only show the location and the history of the documents of record, no assumptions or hints of right to use. Not disclosing a can of worms does no favors, the worms only grow until the can explodes and worm juice gets all over you and the owner.
jud
A new twist. After further research, it was discovered that the Borough actually owns the right-of-way now. They purchased it from whoever previously owned it. It is a r/w only as each adjoining deed description describes to the "center of the right of way". Sometimes the borough maintains the road, sometimes the township, and sometimes the users.
Then unless they have formally declared it a public right-of-way I think you need permission to expand its use - regardless of the likely hood of the new parcel ever being built on.
Legal ingress and egress with rights for utility routes need to be obtained before any improvements are proposed, don't think I would even get it surveyed until I was assured of access to a public way.
jud
Be Cautious If You Are Advising The Landowner.
As to yourself check the PA Municipal Planning Code.
While the borough may have purchased it, that does not make it a public ROW. It may only be a borough ROW for borough purposes.
That it is only 14' does not allow for expanded use and/or public safety. The developer may have to acquire and improve right of way.
Even if the municipality owns it, the developer needs to improve it, before the municipality can accept it as a public street.
It appears the borough has access to the reservoir. There is no obligation that the borough improve it for those in the township, even that portion in the borough.
Paul in PA
