> Typically Counties and Caltrans refer to those as Prescriptive Roads or Prescriptive Highways but possibly that is incorrect.
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> The extent of the easement is usually the road prism so its width varies.
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> 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.
They commonly refer to them as prescriptive roads or highways here as well. I've come to believe that is incorrect. They are statutory dedications, technically.
As far as the widths go, because they are statutory creatures, knowing the statutes is critical to determining the width. For a brief time, here, the statutes defined the width as 4 rods. Any road created during that time period were governed by the statute. Prior to and after that, the roads widths could be defined by local ordinance, so it's necessary to research the commission minutes to find the widths.
>1117. Width of public and private ways. The width of all public highways, except bridges, alleys, lanes, and trails, shall be at least sixty-six feet. The width of all private highways and by-roads, except bridges, shall be at least twenty feet; provided, that nothing in this title shall be so construed as to increase or diminish the width of either kind of highway already established or used as such.
The Federal dedication of all existing roads to the public happened in 1861 through the enactment of RS2477. The repeal of RS2477 by the FLPMA in 1974 has created a crap storm over state and private rights over federal lands.
Knowing the federal, state and regional and local ordinances regarding rights of way is critical for land surveyors to understand.
JBS
There is an interesting Appellate decision here where the County accepted all wagon roads as public highways before the Federal statute.
The issue was could the acceptance come before the dedication and the Court said yes it can.
Also not all rural roads that look prescriptive are actually prescriptive or implied dedication.
The Counties had a process in the 19th century where the landowners would petition the board of supervisors for a County Road then the viewers would select a route and the County Surveyor would survey it.
We had a question about a County Road (very rough dirt road) so I asked the County Surveyor's office about it and they proceeded to educate me about old County Roads. The County Surveyor which they laid off (:-() was an expert and left several binders of good information with the old statutes and other information in it.
> The issue was could the acceptance come before the dedication and the Court said yes it can.
Sure it can. The courts aren't interested so much in the order of events. They just require the events to take place. Offer + acceptance = dedication. They are commutative properties, like addition.
JBS
> The Counties had a process in the 19th century where the landowners would petition the board of supervisors for a County Road then the viewers would select a route and the County Surveyor would survey it.
That process was the norm in most all of the territories. Search your territorial statutes and you'll find the entire petition process including not only the surveying and mapping, but also the official bodies who could adopt the highways. Typically, the statues empowered the county court of commissions, now known as the county commissioners. They also had road viewers who worked with the landowners to determine the route location and the value of the taking so they could compensate the landowners for the taking. They actually had a pretty good handle on the constitutional process for the public to acquire the use of private property.
When you research the territorial statutes, you'll also find out where the records were kept. That's where you can still find them today, only with lots of dust on top.
JBS
We call them the Board of Supervisors or the Board of Soups for short.
I've done a little work in some of the same areas. I always liked finding the cotton spindle in the center line.
I try to always look for any record right of way. If none is found, I note it as such.
It is always fun to have
a subject property that claims a 30' r/w
an adjoiner on one side with a 20' r/w
an adjoiner on the neighboring side with a 25' r/w
all junior parcels of a tract with no recorded right of way ever conveyed off.