Prescriptive Right of Way Easement.

If I cant find a recorded document, I will not draw in an assumed r/w. I label it No recorded r/w found. I am working on one right now where the previous guy labeled it as 60' with no reference. I found a recorded r/w of 45'.

In Oregon the width of a right of way, where none is specified in the documents, is http://www.oregon.gov/ODOT/HWY/GEOMETRONICS/ROW_Eng/HistoryHighwaysOregon/FRYE_DETERMINING_WIDTHS_OF_EXTG_RW_1959.pdf&apos ;">governed by statute. The state law specified different widths at different times. So you have to look at when the right of way was created to determine a width if none is specified. But for most times there is a proper width to use even when none is specified.

Norman Oklahoma, post: 342967, member: 9981 wrote: In Oregon the width of a right of way, where none is specified in the documents, is http://www.oregon.gov/ODOT/HWY/GEOMETRONICS/ROW_Eng/HistoryHighwaysOregon/FRYE_DETERMINING_WIDTHS_OF_EXTG_RW_1959.pdf&apos ;">governed by statute. The state law specified different widths at different times. So you have to look at when the right of way was created to determine a width if none is specified. But for most times there is a proper width to use even when none is specified.

Same in New York

In NC, it's either per a recorded document, or back of ditch, shown as a maintenance r/w, not ownership.

There may be a specific right-of-way width specified in some statute somewhere, but that does not translate to fee ownership which is what I think the original poster was indicating. So in the case of a prescriptive easement, an owner would still have underlying ownership rights to his deed description and if the road ever was abandoned or vacated, the owner would have full ownership privileges to the calls on his deed. This can also affect his gross area of what he owns, which can play a part in having a minimum amount of acreage for a well or other municipality requirements. The "right -of-way" is a burden (or encumbrance) on the property (albeit a big one which doesn't allow much enjoyment of his land, except for the reversion rights perhaps)

I agree with not holding a set road width...a lot of roads (even state roads) in NY are user roads. Old roads that have been around for 200+ years and have over time become town, county, and state roads. We rarely show a road width and only when we find something to support it

I don't support what I am about to say and I am certainly not defending it but I think a lot of surveyors do it out of liability reasoning (even if its incorrect reasoning). Some surveyors who are doing a residential mortgage survey may look at it and say "well we don't have the time or budget to find this info, if we can find it at all...and even if the town only has a ROW and our owner has the road bed in fee, its still generally unusable property so we'll just play it safe and put the line at 3 rods (or even worse 50'). The actual fee ownership of that land will never come into question unless the road is abandoned by the town...which is pretty rare." Now of course this if it is actually a user road, you are essentially propagating bad information and potentially taking property away from your client. But they could rationalize it as saying that "most people don't complain when they find they have extra property along the road but the Town would complain if they found that you took away from their ROW." I don't know...its hard to rationalize it for me but I guess thats one way people do.

Finding old ROW info in NY is very hard for old town roads. We did a job where it took me as the LS about a month of daily searching through archives to find the original ROW taking. I read through hundreds of pages of handwritten town meeting minutes to find one paragraph. Even then it was complicated. The taking in the town minutes from 1840 said that it was taken in fee. However an opposing attorney pointed out that there was no record of payment to the homeowners in any records. In the end it was determined that because there was no record of fee payment that the town had only acquired an easement even though the books said fee. I spent dozens of LS hours trying to determine this ROW and it still had to be determined by attorneys.

Another note about ROW widths in my City. The City was formed by two and a half pre-revolution villages merging in 1913. Almost all of the current roads were in place at that time. The city has lost the original village board minutes. I have searched through their vault, through the local and regional historical societies, and am currently trying the State Archive. So there is no available info on the original street widths or interests. The best we have is knowing that the tax maps of the city were originally prepared by a Surveyor who was basically retiring in 1913 and was a second generation surveyor in the area. The tax maps do seem to match most old filed maps in the area so the tax map street widths are usually held when no other info is available. It's not not often that title issues of the streets come into play but I assume that the city would be give the least required interest in the street if an issue did come up...which would be an easement for the road and appurtenances.

Right of Way is a form of easement. Not fee ownership. A prescriptive right of way is an easement, not a fee. If we are discussing rights of way, we are discussing easements, not fee title.

Ancient Way / Old Road (Private w/ Private Rights) - ownership would be to the centerline with a By call. I will review it with the client and create an easement equal to half the required layout width in the municipality. It is annotated on the plan as XX' wide easement for future road purposes. I will suggest holding the street setback from this easement for building purposes.

Ancient Way / Old Road (Private w/ Public Rights) - Ownership is still tot he centerline with the By call, but now we have some form of unwritten layout. I will often turn to the Town Surveyor to determine something fair for all parties and I will note my procedure on the plan. I will also note Undefined in the roadway itself.

Mr. Caddle has a good discussion on Georgia here. https://books.google.com/books?id=7kerM1_cvQEC&lpg=PA441&dq=cadle%20farris%20From%201799%20until%201973%2C%20a%20statutory&pg=PA441#v=onepage&q=cadle%20farris%20From%201799%20until%201973,%20a%20statutory&f=false

Correct but the term Right of Way is used colloquially by many including surveyors, attorneys, and municipalities in both senses. Even NYSDOT refers to their fee parcels as part of the Right of Way.

Most towns and counties (here anyways) don't have a surveyor...only the highway super who thinks all roads are 50' wide. About your second statement...the ROW is defined if it is a user road...its the edge of use or what is required for maintenance. Our regional DOT surveyor likes to use 5' from pavement edge for snow storage as his user ROW line unless there is some reason to put the ROW closer to the road (ie a fence or wall).

This is only if it is a road laid out by statute. If it is a user road the statute width does not apply.

In Oklahoma prescriptive rights must meet the criteria for adverse possession and are then actually granted (or officially recognized) by the courts. In the course of a survey we may find evidence of possible prescriptive use such as an established access road or a utility, but it is only recognized in a legal sense if either the owner or the user question its existence by petitioning the courts. No where in the State Statutes (that I could find) are any widths mentioned. The courts apparently enjoy expecting owners and users of private property to "work it out 'mongst theyselves".

There is a vague Statute that guarantees the dominant estate the right to maintain a prescriptive road. There are also cases where the dominant estate enjoys the ability for the road to 'meander' over the years and actually not be confined by a descriptive course or width. Apparently in Oklahoma if a prescriptive access road exists, the servient estate bears the responsibility to contain said road by barrier or fence. If such a fence exists the courts have accepted a physical barrier as evidence of the extents of the prescriptive rights, by either estoppel or acquiescence, but no mention of the existence of any minimum or statutory widths.

I darn sure wouldn't be pulling distances out of my ass and putting them on my survey without supporting documentation. Since Oklahoma Statutes allow for the maintenance of a prescriptive road, the extents of the either the actual roadbed or side drain (if one exists) would be the actual extents of any "rights" that may exist. But like I said, the easement's official existence is an action of the courts, not a surveyor. All we can do is locate and record the physical evidence.

Yes Mr. Caddle's book should be required reading for all Ga. RLS.s. It is one of the most referenced book in my library.

Norman Oklahoma, post: 342981, member: 9981 wrote: Right of Way is a form of easement. Not fee ownership. A prescriptive right of way is an easement, not a fee. If we are discussing rights of way, we are discussing easements, not fee title.

Tell that to the railroads and DOT's. 🙂 Jp

Time again for the ' Confessions of a Right of Way Surveyor'. Jp

Jp7191, post: 342997, member: 1617 wrote: Time again for the ' Confessions of a Right of Way Surveyor'. Jp

Nice article, thanks for sharing.

Jp7191, post: 342997, member: 1617 wrote: Time again for the ' Confessions of a Right of Way Surveyor'. Jp

That's a well written article by someone that has experienced the eternal conflict we as surveyors face so very often. And apparently GDOT shares a lot of procedural protocol with our local Oklahoma brand of Transportation authority.

I do agree with the author on several points, but hesitate to agree on at least one...and it has to do with the creation of a "right-of-way" parcel from a privately owned tract. The author has held existing (and admittedly poorly placed) R/W posts or monuments. His reasoning was that the deed referenced the R/W plans and the plans stand as record, hence the posts are the original monumentation of the R/W.

I have done this myself in specific cases where the descriptions were ambiguous or in error. In Oklahoma however it is fairly uncommon (although there are examples) to reference R/W plans in a recorded conveyance. When the transportation authority purchases "the west 35 feet of Lot 2", the conveyance has no ambiguity. Wherever Lot 2 is at, the west 35 feet was conveyed to the State. In a lot of cases the State's opinion of where the boundary of that tract is located and where it's REALLY located can be two different places.

A good article and I agree, it's a "confession".

As surveyors we need to stop enforcing this "colloquailism." Please don't keep using incorrect terminolgy...