Rural Roads

Usually, the property line runs along the centerline on rural roads that I deal with. However, there are all kinds of exceptions to that rule of thumb. Each situation needs to be researched.

If all you can find are two deeds on each side of a county road that say north of the road and south of the road, then I would use centerline.

But; research, research.....

I would run my boundary to the centerline of the road or wherever the legal description goes to. On a plat, I would show the road, as that is the evidence of the prescriptive easement, therefore an encumbrance on the property, but does not change the acreage.

I would probably put a pin at an even offset that looks like where the easement would be to if there are no pins there. If there is a pin there at what some surveyor calls the edge of the easement, I would use that as my offset pin if you are accepting it as a pol.

Is it a given how wide the road easments are when there is no document on them? Do you use the edge of the pavement, or to a fence, or to a borrow ditch? I have heard a number of different things.

> Usually, the property line runs along the centerline on rural roads that I deal with. However, there are all kinds of exceptions to that rule of thumb. Each situation needs to be researched.
>
> If all you can find are two deeds on each side of a county road that say north of the road and south of the road, then I would use centerline.
>
> But; research, research.....

Right on the money, Mighty. Not so sure about the "all kinds of exceptions," however. There are only two possibilities with roads: either they are "easements," or they are held in "fee title" by the public. Research will provide the answer.

When the road is an easement, the boundary is presumed to follow the centerline. Even when the deed calls along the side line of the road, the presumption is that the title extends to the centerline. The only way to overcome that presumption is with direct evidence to the contrary. If both adjoining deeds to to, say, the "north" side of the road, then you've got direct evidence to the contrary. When one deed calls to the south side and the other to the north side, and the road is an easement, then the boundary is presumed to fall down the centerline.

When the road is held in fee, the boundary can only follow the side line of the fee title strip. Again, the fee title strip will be found in the title record owned either by the public or by an individual. Research will reveal the answer.

JBS

If I find a monumnent along line, I treat it as a line iron and set a corner in the center of the road. If a line iron is not found, I set one about 25 or 30' away depending on whether or not the assessor's map gives a row width.

"Some of my fellow surveyors cut the property off at the right-of-way of the road"

Why if the title runs to the centerline. It either does or it doesn't. Ask the other surveyor. Seems research would solve that question. Maybe they are just putting a monument on the line as it extends. Rejecting a line monument is a choice of the other surveyor....if it is a line monument. If it's a r/w mon then thats a different story. The property owner either owns to the centerline or to the right-of-way line.

If the road is prescriptive, aren't the side irons just witness irons to the center of the road? If you got title to the center, you got title regardless of whether the monuments are at the centerline or at whatever offset behooves the staker. We commonly will give a breakdown of the acreage showing a total, net, and how much is encumbered by the prescribed right-of-way for tax adjustment purposes.

Richard T. Tolbert had a very good write up in American Surveyor last month.

How Wide is the Right of Way on a County Road?

parts of it changed my way of thinking about country roads.

"We often hear the phrase "prescriptive easement" in describing the county's right of way. More often than not, what is a "permissive use" is misinterpreted as a "prescriptive easement." A prescriptive easement, in Mississippi, is the result of an adverse possession action by an entity or individual against a landowner. An adverse possession action has to be proven "hostile" (see reference #1), so if the landowner has long permitted the use of his property by the public, the "hostility" is a difficult circumstance to prove. To quote a recent case (Evanna Plantation, Inc., v. Thomas, 999 So. 2d 442 (Miss. Ct. App. 2009)): "A party claiming a prescriptive easement must satisfy the same burden as that required for proving adverse possession. Among other factors, the claiming party's use of the property must be hostile and exclusive...The Court restated the rather obvious principle that permissive use cannot constitute hostility."

Interesting legal theory about permissive use. But I just can't see how a property owner along a road that the county has maintained for a century could one day decide to no longer give permission for its use. The courts would find some interpretation to say it was still a public road.

I feel through Acquiescence that they can't.

It all depends on the highway law in your state. In many states a prescriptive easement is essentially obtained after X years of consistant public use and maintenance (with use being more important than maintenance). So the only time issues of title come up is for a re-alignment or when (if ever) a road is abandoned.

A public highway dedication through abandonment to public use or acquiescence to public use creates a public road by dedication, not a prescriptive easement. They are entirely different.

From Clark, Fourth Edition, 637:

"Since dedication may be presumed from an acquiescence in the public use and without an express appropriation by the owner, it follows that long acquiescence in user by the public may, under certain circumstances, operate as a dedication of land to the public."

"Express words of dedication are unnecessary, consent of the owner may be inferred from acquiescence and user by the public and user does not depend upon any fixed period of time."

Tommy,

i would have to agree w/ the previous comments regarding going to the center of the traveled way, and as said before, it's a boat load about research. i assume that you are already an expert locator and measurer, so locating the traveled way is not the subject.

Check the records of county departments such as public works, transportation, utilities, etc. They often have maps and/or files regarding county roads.

Go through the records of the county commissioners court. this is, in my opinion, one of the least researched and most useful set of documents available to a surveyor working on a county road.

As strange as it may sound, check w/ the local historical folks. the historical commission in my county has some files of the patent/survey/section/tracts that include abstracts of title that have been donated by families digging through grandma's heirlooms. these have been very useful in my research.

Now regarding placement of the line, i agree w/ the above if the road is passing through a patent/survey/section/tract with the deed call going to the "right-of-way", but i would like to make a couple of remarks. some of this is Texas related but what the what.

in the case that the road was given up from both sides w/ old patent/survey/section/tract lines involved, then you can not extend the side line past the original patent/survey/section/tract line. yes, that means that you have to recover, as best as possible in your professional opinion, the original patent/survey/section/tract line, and that is where you stop. that is also one of the reasons you see Jerry Penry digging in the county roads looking for the old stones, or whatever is called for. it's often a PITA, but HEY, that's why you're getting paid the big bucks. cowboy up, put on the auto repellant vest and be as safe as possible while you dig a three foot cube out of the driving surface.

regarding the other guys stopping at the "right -of-way", in my neighborhood, most of this BS started w/ title companies not insuring the road area and developers having the "right-of-way" written out of the deeded tract in order to lower acreage purchased. Sounds good if you don't think about it!?

anyway, have fun. i been messing w/ county roads for a good while and they are always a challenge if you do it right.

That's interesting, I think most jurisdictions presume public use is hostile as it interfers substantially with the fee ownership use of the area. So one would have to prove somehow that they were giving permission to the public (a big sign on the road maybe?). Most Town or County roads in NY are "user" roads by public prescriptive easement. Statutes directed highway superintendents to open (maintain)to two or three rods if a certain amount of public use for a certain time. The requirements are different than private prescriptive rights and the statutes have changed over time. There is also instruction in the statutes to map and file said maps which was almost never done, but has been found not to destroy the easement because not a controlling factor in its creation.

But what is being dedicated? Not Fee. Only a Public Easement.

The fee of a roadway does not transfer unless explicitly taken by an action of the municipality (resolution of board/council, fee taking, new subdivision approval, etc.). All that is ever obtained through use and/or maintenance is a public easement, an easement by use over the statutory period of time...aka Prescriptive Easement. If the public use ends and the road meets the requirements for abandonment (however rare this situation is these days) the easement goes back to the adjoining, current or original land owner.

The fee ownership of the right of way is governed by the laws of where you are working, but regardless of the fee ownership, the road is where it is, and there is probably legal authority for it to be where it is, and most people do not care much about it...nor do the title companies. In most cases it can be presumed that if you are surveying along a road used by the public that there is...at the least...a public right of way or easement via the statutory requirements. And you as a property owner have no right to interfere with that easement. So while you may own fee to the center, your property effectively ends at the right of way line.

Often the main reason the actual fee ownership of the right of way comes up is when a specific question about it arises (ie abandonment, widening, or whatever other situation call the title of the ROW into question) and thats where we have to know the laws and how to conduct our research.

There is plenty of precedence to show a property line to an intelligent determination of the right of way regardless of the actual fee ownership of the ROW. This precedence is recognized by not only the lawyers who run title companies, but also by judges and the lawmakers. Whatever comments or feelings the people of this board may have about lawyers, the good or even decent ones tend to notice what the the courts are saying and not saying. Case law plays a huge role in modern law...not just statute.

Tom

That's right. It's a dedicated public road easement. I never said that a fee ownership was involved. I said that it was a dedication to the public and not an easement by prescription.

Totally different.

Tommy and I both work in Tennessee. In Tennessee, I am sure I have seen a centerline monument/description sometime, but I cannot remember ever seeing one. Maybe it is just tradition, but irons are always set at the right-of-way. Sometimes that distance is pretty much made up. I prefer that. Iron rods are more accessible and of more use to the owners and it avoids the question of determining who owns the road bed. Most deeds here read to the right-of-way, even on rural roads where right-of-way width has never been purchased, surveyed, or established by govt. entity. Many counties will keep a road list with a stated right-of-way width, but those are largly made up also. Many will claim what they maintain, back of ditch, fenceline, etc.

Alabama, a sectional state, is different. Many are to the centerline.

North Georgia, virtually all the surveys are run to the right-of-way.

Carl's correct.

There is a distinct difference between a prescriptive use (adverse use over time) and a statutory dedication (continued use fulfilling statutory requirements). Both methods for acquiring rights of way result in an easement, not a fee title transfer.

An example taken from Utah's 1898 Highway Statute:

>§1115. When deemed dedicated. A highway shall be deemed to have been dedicated and abandoned to the use of the public when it has been continuously used as a public thoroughfare for a period of ten years. [C.L. §2066]

An easement created by prescription is a common law offshoot of adverse possession with requirements including adversity (trespass against the rights of the true owner in an actual, open, continuous fashion for a period of time). If the owner grants permission at the outset of the use, then it's not a trespass.

JBS

Typically Counties and Caltrans refer to those as Prescriptive Roads or Prescriptive Highways but possibly that is incorrect.

The extent of the easement is usually the road prism so its width varies.

At one point in the 19th century the Feds dedicated all existing roads to the public or something like that. This was prior to everything being patented out.