Prescriptive Right of Way Easement.

I do so at every opportunity.

Your "vague statute" sounds official to me, though I guess the servient estate could still argue the point. Without that, I'd say I agree: until settled by the owners or a court, the dominant estate has merely a claim of right.

In this case the "colloquialism" may be more useful then a strictly literal definition. Agencies like DOT and railroads use the term right-of-way to refer to the strips of land over which they have authority over as their right-of-way regardless of whether it is an easement or fee simple. Any statutes or rules that govern the use of rights-of-way apply to both easements and fee simple ownership portions. When taking property for a highway DOT will take both easements and fee simple for "highway right-of-way" purposes.

I've never worked in Oregon, but if the statute defines width, doesn't there have to be some sort of official claim the easement actually exists? Or is it just expected of a surveyor that comes across a road with no record easement to declare the existence of a right-of-way?

Because of the multiple, widely used definitions of the term, you have to be careful when using it:

• Rights of Way are a form of easement.
• At an uncontrolled intersection, State codes define which driver has the right of way.
• Norman granted FattireTom a right of way in order to to access his property.
• The land over which the public has rights for road/street/highway purposes is called the road/street/highway right of way. In my experience the public rights can be a mix of fee/easement/implied dedication for any 100 foot segment of a road. So right of way refers to the footprint of the combined rights, not the rights themselves.
• The right of ways of Routes 1 and 63 are by fee title acquisition.
• The rights of way for Routes 1 and 63 are by implied dedication.
• The land over which a railroad has fee/easement rights is called the railroad right of way.
• etc.

The boundary following the margin of a road often happens because the buyer will not buy any property that lies within a road.

Unknown to them, they actually will become the person that owns that property withing the road when the actual boundary lies within the road.

I do not know why the system allows them to do so, it is something that is a local problem and the the tax rolls are full of unknown location property that has never been conveyed and the owners are no where to be found. The property is actually a part of some other property. Many small tracts on the tax rolls can not be located on the map or on the ground.

I surveyed a property last year that for one parcel a boundary was the margin of an old road. After 80yrs of thru timber harvesting and gravel mining and non use, it has completely disappeared on the ground. I finished two tracts easily. The third I am still waiting for the client to request more time to be able to revisit the site and relocate the road, which is basically an old driveway to the first two tracts and passes thru an overgrown site that needs a good burn to be able to even see the ground to be able to find evidence of the path of the road.

One other reason roads to property not of record is because nobody filed the proper papers and in some instances the county merely stopped maintaining those roads because it was no longer used by the mailman, bus driver or other public, state or federal governent purpose.

What was the legal access became off the books and is now a privately used road by only a few owners that the road serves. Many of these entry ways are being closed and access forbidden by people that do not understand what is lawful and what is not. Texas State law basically maintains that if a road once went to a property it is still the legal access to that property. Getting that accomplished can be a court battle all the way to the Supreme Court of the State of Texas. Too costly for the average person to fight and usually beyond the knowledge of the local police and sheriff and lower court judges.

The mention of prescriptive easement locally gets little attention unless it is the bank or Title Company or socalled important person doing the demanding of their rights.

I've shown roads across property surveyed and most times it is ask of me to take that off my survey. I don't take it off. I let them know that it is my job according to the BOR to show what I find and call it what I see it as. Anything less is a violation of my oath as a surveyor.

None of what I am talking about is across anywhere there never was a path used to get somewhere. It is about paths that were used in the past to get to presently apparent land locked properties. These people used some path to get there and that is a path that should still be the legal entry.

0.02

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

Thanks for sharing the article. The Author began his surveying career as an instrument operator at a company where we almost exclusively did roadway projects. We had many discussion about how the GDOT one size fits all approach does not cover every situation. He never just accepted anything he was told by anybody but would constantly challenge every process and procedure. Some times our discussion got a little heated; however, it was never personal. Actually, I prefer this to being surrounded by a bunch of yes men. He become a Survey Tech in about 3 years and was registered some time after I went on to a better opportunity. I had forgotten about this article and enjoyed remembering our many discussions. A part of being on this site is being challenged by others. It helps us to know what we know.

Concerning showing unrecorded or prescriptive "roads" on drawings:

I was in a seminar (probably 20 years ago) and the fella related a story concerning an ALTA that was prepared for a large retail chain store. The property was cultivated (farm) land and there was a 'trail' that crossed it from the section line, across the property, to a gate into an adjoining pasture. The surveyor had shown it on his final drawing as "farm road". Although he had been asked to remove the road and note, he stuck by his guns and declined.

The retail store was under construction when the owner of the adjacent land filed some sort of litigation claiming prescriptive rights to get his swather and baler to his hayfield. He had crossed the land for years, through several owners, and never had any resistance. It was eventually settled by granting the farmer his access by prescriptive rights.

The store chain was eventually forced to accommodate the access. The farm equipment was of such a size a concrete road was necessary as part of the parking area to bear the weight of the farmer's equipment. The grade separation at the property required a good deal of "redesign" to allow farm equipment to reach the gate.

Long story short, if the surveyor had "removed" the road and note (as originally requested) he would have screwed. As it was, he came out smelling like a rose and the plaintiff used him and his survey as evidence.

I would suggest that a physical road is surface evidence that an easement exists, and that the Surveyor's responsibility would be to locate the roadway on the survey plat as evidence of an encumbrance (you can determine, I would think, that it's at least an encumbrance whether you can leap to the conclusion as to whether it's a legal easement or a fee-simple ownership by another entity.)

Hopefully a surveyor writing a description for a DOT Taking will refrain from using 'for right-of-way purposes" in the description (if indeed it is not meant to be an easement). Limiting the use to be "for right-of-way purposes" can definitely be considered an easement by the courts even if you try to call it a fee-simple transfer.

Especially scriveners of legal descriptions need to keep the difference between a "right of way" and a fee-simple transfer in mind regardless of "colloquialisms".

paden cash, post: 343032, member: 20 wrote: Long story short, if the surveyor had "removed" the road and note (as originally requested) he would have screwed. As it was, he came out smelling like a rose and the plaintiff used him and his survey as evidence.

And, the surveyor lost a good paying client I'm sure.

I would rather lose a client before giving up my license....

If the City or County pave the road, they consider it public. If the deed calls the property line to be the center of the road, then that is the property line. However, if the state, county or city decide to widen the road, causing them to purchase right-of-way, they will only pay for that area beyond the prescriptive R.O.W. I haven't heard of anyone successfully challenging this. Since the property owner will not have a beneficial use of the property, we show the prescriptive R.O.W. as a second line. The prescriptive R.O.W. is typically considered either 20- or 25-feet from the centerline, depending on whether the road is classified as a 'major' road and shown on the Major Road Plan.

Here in Maine, M.R.S.A. Title 23 Sect. 2103 says:

"When a highway survey has not been properly recorded, preserved or the termination and boundaries cannot be ascertained, the board of selectmen or municipal officers of any municipality may use and control for highway purposes 1 1/2 rods on each side of the center of the traveled portion of such way.

When any real estate is damaged by the use and control for highway purposes of such land outside the existing improved portion and within the limits of 1 1/2 rods on each side of the center of the traveled portion, they shall award damages to the owner as provided in section 3005."