It took me a long time to consider how operations of law move boundaries. Researching the nuances of how each State handles this movement is a neverending pursuit. There are very few absolutes, but one applies here.
As a Surveyor it is never correct to inject my assumptions to effect or interrupt transfer between owners. A call to a non-ambulatory object is a call to it's location at the time of writing. No reasonable person would assume that roads 'move' and asserting owners believed that to be true without evidence is an invitation to court and or the Board...
Nate,
To consent to move a boundary a land owner has to realise what he is consenting to. Very few land owners would expect to loose area because of road construction unless there was a taking.?ÿ
Access to a road is different than river frontage. The road can be moved back to the right place to correct the encroachment, the river can't unless the accretion is compensated for. Also, access to the road will never be lost, a prescriptive easment, or easment by nessisity would exist.?ÿ
In this case, my client would loose a little acreage... In the traveled way.
If my client wants me to do this, to use present day c/l, then my client looses acreage, but not use of land... The public has use of.
It could come back seriously, IF the road were abandoned.
My main deal here is that I leave footprints. And, documentation.
O. And, keep everybody's title as clean as possible. 🙂
N
A case of the county road defined by row fences, as you can see the road bed wanders but the fences are the momument for the road, in other areas it's reversed. Not sure what your situation is, but the road bed can wonder inside?ÿthe ROW, without changing ?ÿthe centerline of the road.
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No fences, but the road work was well done. Well defined cuts, and fills.
N
There are thousands of deeds that were made that placed the conveyed property boundary at the margin of a county road because buyer insisted and did not want to pay taxes on any land in a roadway.
The parent tract boundary remains in original location be it in or across the road.
Reality check, the new tract will extend to the original boundary.
Had one client that had sold all his land at one location and was still receiving tax statements for a couple of acres of land. Turned out it was the land in the road. Tried to help and went to explain the situation with the Tax Assessor with no results. The client finally got so frustrated that he conveyed the long strip of land to the Tax Assessor.
That is the reason when selling out the farm add a statement such as "I hereby convey any and all lands in my name as located in the XYZ Headright Survey, Abstract ABC" in a paragraph after the property description.
Developers happen into this trap when they overlook conveying the roads to the HOA once they have no more lots to sell.
Many original Grants and Headright Patents descriptions have mention of roads and give their locations. These passive calls are witnessto the monuments and boundaries.
The moving of a road does not change any of these monuments or boundaries as the calls reflect the location on the day of the survey.?ÿ
When an original boundary along a county road can be relocated, that is where it is, no matter where the present day driving lane is.
0.02
I like Nate??s explanation.
If the 1850 Deed says thence to the County road, thence along the County road... the present location of the County road may be the best evidence of the boundary and adhering to it may be the best way to implement the intentions of the parties which is the paramount consideration.
I saw a Deed that ran to a 1/16th corner thence south 200?? to the County Road. If you go to the theoretical 1/16th corner the present state highway (former County road) is 300?? south but if you use the 1/16th post there since 1894 then 200??puts right in the middle of the pavement.
Locally, there are most often 60' and 66' wide ROW's for county roads, the top of traveled way is usually about 24' maybe wider for some roads. That still leaves 18-21' for play. Moving the road 12' wouldn't place the improvements outside the ROW and I see no reason to move the centerline description. The county has every right to put the improvements anywhere inside that ROW without buying a new easement. Cuts and fills are often considered temporary construction easements.
I surveyed a 3ac tract of land that was deeded out for church in the late 1800s.
Beginning at a rock in center of road............
100+ years later is Farm to Market road built in the 1950s.
Center of old road is 10ft south of the centerline of pavement and until last year the neighbors north of the highway were in argument over the north boundary of the 3ac.
The r/w guy dug out everything and found a design plan that showed the original path of the county road thru the new r/w.
What added insult to metes and bounds was that during a change in ownership of the 3ac a deed maker used the same original calls and changed the name from county road to Farm to Market.
That name change without a new survey is a very common problem that has affected nearly every cash buy deed around here.
There is no such thing as "change the names on an old description to protect the innocent".
Yes, I like your approach; document it.?ÿ
Fact is that older deeds may have been written at a time when roads were dirt and regularly moved around a bit and everyone knew it, hence intent is for an ambulatory boundary much like a stream centerline, and for the same purpose; access.?ÿ An abandonment when the traveled way has shifted could block access. The idea of the ROW is for maintenance, so it should shift as well (unless it's a well described, monumented, fee title roadway).
The shift is usually done for the public good, making the roadway safer or more passable, regardless of landowner wishes on either side.?ÿ It is a sudden and manmade change.?ÿ But courts have made exceptions to the normal rules in these cases.?ÿ Similar cases involving Dams, where one riparian owner would have lost all waterfront if normal rules of sudden manmade changes were followed.
It depends.
I can't think of it off the top of my head, but I remember reading a New York (I believe) case where the court said something along the lines of ?ÿ"a road isn't an object, or location, as much as it is a purpose, a travel way. ?ÿAs such, a call for a road has the intent of providing access to the travel way as much, if not more, than the intent of providing a physical location for the boundary."
That said, this question of "road as laid out versus road as traveled" tends to arise here in the colonies under rather different circumstances than in other parts of the country. ?ÿUsually when the call to the road being retraced is a call from the 1700's for "the road from Rhoderick's Mill to ford of the East branch of the river near Johnson's homestead".?ÿ
No.?ÿ The deeded ROW doesn't move, but you already knew that.?ÿ Just the construction centerline.?ÿ If the new road as-built falls outside of the deeded ROW, then the county needs an additional easement.?ÿ Around here, they would get prescription after 7 years of maintenance, using public funds (if they forgot to get it, and the owners didn't complain).?ÿ This is all for WA state.
I retrace lots of county roads in my little county.?ÿ One thing I've noticed is that (traditionally), most surveys around here didn't appear to be based on actual research of the road ROW, so don't show the waivers, deeds, or county field notes for the monuments set for the new road (which county survey was almost always referred to in the waiver or deed).?ÿ The surveyor would appear then to guess at the ROW width (usually by going with what the last surveyor guessed it to be), and used as-travelled physical road location (but only in front of their lot -without reference to the original geometry) to show ROW location.
This has had the effect of moving the ROW in the survey record every time the design centerline changed, when the maintenance crew had to reshape part of the road for some reason, or even when the next surveyor came to do a survey because they located the asbuilt road differently.?ÿ But it only moved in the auditors office survey record.?ÿ It never actually moved from its original location, which is usually easy to find, if one goes to the county engineer's office, which is also an office of public record in this state, with the mandate to be the repository for all documents related to county roads.?ÿ Modern county road documents are also recorded with the auditor, but most county road documents are much older and aren't at the auditors office.
Of course, now when current surveyors come along, most know where to find the research and the original monuments, so these older surveys vary quite a bit (by feet or several feet, usually).?ÿ It can be quite a mess, especially if adjoining owners built improvements or planted landscaping in the county ROW, based on these older surveys.?ÿ
I feel lots of sympathy for surveyors trying to find the actual ROW in counties where they didn't keep as good records, and/or didn't monument most of their roads.?ÿ It must be a nightmare.
I feel lots of sympathy for surveyors trying to find the actual ROW in counties where they didn't keep as good records, and/or didn't monument most of their roads.?ÿ It must be a nightmare.
Or in places where the roads and Land Records predate county maintence of roads and rights of way by 250 years.?ÿ ??ÿ
The "road" has, at the very least, a width in the historic record?ÿ with reference to the record layout. To me, the purpose of surveying is to find the record layout. The evidence of the layout would, most likely, be at the edges of the right of way as in the case of stone walls or long standing fences. The pavement, or the traveled way is not a monument. Yet I see many surveys that take the pavement as the center line of the road. I would expect as much from my clients, but, not surveyors.
NMRN,
The manner of road creation varies wildly by time and jurisdiction. While the improvements and law fix the rights of the public it is not at all uncommon for deeds to convey to the center of a traveled way. The controlling feature is where the evidence points. This may or may not align with our personal experience...
In Iowa it is common for deeds to convey to the section line, which is nominally where the road is centered, and the deed, or at least the tax bill, state both gross and net acres accounting for the loss of use of the easement.
The road refers to the layout, however that was accomplished. The road is not the pavement. I think it is silly to hide behind the different interpretations of how roads are created. Roads may be easements and roads may be owned outright by an agency. It is not an experience. It is historical fact. Roads that are in the public domain have a width that refers to the width of the road and not the pavement.
It is not an experience. It is historical fact. Roads that are in the public domain have a width that refers to the width of the road and not the pavement.
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And, you are in another world.?ÿ This is rural Arkansas. These public roads are there, with an undefined width. The R/W width varies, "AS NEEDED". They tried to assign an assumed width, but Arkansas is FULL of cranky farmers, who will not give a foot. And, so it goes.?ÿ THE FENCE STAYS, or the ditch, or the tree, or the mailbox.....
I would guess that your world is more orderly, but under constitutional law, the AUTHORITY of the governing body, comes from the people. And around here the PEOPLE are still hampering the efforts of the "Orderlies".
🙂 carry on...
N
I routinely find records of road layouts from colonial times. As early as 1700 there are records of highway (road) layouts. You mean to tell me that at a later time this practice of recording where the road is established was abandoned?
You mean to tell me that at a later time this practice of recording where the road is established was abandoned?
No. That's a straw man. You brought it, stuck it up, and set it as the standard. Old Indian trails with undefined width abound around here. Really.
Relax. It's simply not that way here.
OK?
N
