Status of roads dedicated to the public (Oregon)

I don't know if it is because our state highway department purchases R/W in fee or what, but a lot of developers, realtors and even title company officers here in Oregon get confused about what a road dedication accomplishes. I compiled information from the Oregon Department of Revenue (DOR) publication “Oregon Cadastral Map System” ( http://www.ormap.com/mapmanual/toc.cfm ) to share with these “land title professionals” to help clarify the fact that a dedication creates an easement, not a fee title transfer.

At first glace you'd think the DOR publication is just a drafting standards manual for Assessors and Cartographers, which the majority of it is. But when you dig deeper into some of the later chapters (Chapters 14, 15 & 16) there is a wealth of information backed up by precedent setting court cases.

Here is the abbreviated information I've compiled, with the red text being copied from the DOR publication:

Dedication of a road creates easement
Chapter 15, Dedication
http://www.ormap.com/mapmanual/pdfs/15-Chapter_15.pdf

Page 3
Principle 1
“Dedication is an appropriation of land by the owner for a public use.”3

3. Id. See: Muzzy v. Wilson, 259 Or. (1971) Magic v. Basquin, Ohio Com. Pl., 102 N.E.2d 42, 44: “the word ‘dedicate’ means a grant of an interest in land for public use.” See: 26, 27 Am. Jut. 2d, Em. Dom., 56 Am. Jut. 2d; Municipal Corp., Counties, subsec 532 et seq Henderson v. Frio County, Tex. Civ. App., 362 S.W.2d 406, 408: “Instruction properly defined ‘dedicated as public road’ to mean road devoted or appropriated to public use as a public road by owner, by some unequivocal acts or conduct manifested an intent to appropriate it to such use.”
-----------------------------------------
Page 32
Principle 25
“the rule is that where land has been dedicated or appropriated for a public street, the fee in that street remains in the original owner subject only to the public easement.’’254 The fee passes to the purchasers of abutting lots in accordance with the intent of the grantors.255

254. Id. cit.: Huddleston v. City of Eugene, 34 Or. 343; Kurtz v. Southern Pacific Company, 80 Or. 213; See: sec 56-716, Oregon Code (1930).
255. McQuaid v. Portland & V. Ry. 18 Or. 237, 22 P. 899; Huddleston v. Eugene, 34 Or. 343; 43 L.R.A. 44. See: 70 A.L.R.; C.W. Nell et al v. Independent Realty Co.,317 Mo. 1233 (cited in Oregon cases).)
-----------------------------------------
Page 33
Consider first: At the time of dedication “...there is nothing more than a mere suspension of the dedicator’s right”;270 that is, “The public only acquires an easement in the land.’’271 In other words, a dedication “does not pass the legal title (fee) to the property dedicated”; 272 “the fee and all rights of property incompatible with the public enjoyment as a way remain in the owners.”273

270. Elliotts’ Roads and Streets, 1st ed.
271. Huddleston v. City of Eugene, 34 Or.
272. Meier v. Portland C. Ry. Co. Ry. Co, 16 Or.
273. Lankin v. Terwilliger, 22 Or. 97.
-----------------------------------------
Chapter 16, Court Cases
http://www.ormap.com/mapmanual/pdfs/16-Chapter_16.pdf
Page 9
In City of Burlingame v. Norberg and DeCastello v. Cedar Rapids the effect of a dedication was held to be:
... not to deprive a party to title to the land, but to estop him or her, while the dedication continues in force, from asserting that right of exclusive possession and enjoyment which the owner of property has. The dedication involves rather a right to the use of the land against interference from the dedicator.

Together, these principles make one of the most important points of this entire publication: It is not the purpose of the dedication of a public way to grant fee simple absolute title, with the right of disposal, to the public, or to any public body or agency. The dedication merely provides the public with the necessary interest to use the land for travel from place to place without interference from the dedicator, his or her heirs or grantees.
-----------------------------------------
-----------------------------------------
Creation of a county road creates easement:

A majority of the old roads in Oregon were created by the county courts through a statutory process involving petition by citizens (or later, resolution by the court), examination by road viewers, survey by the county, public hearings, and finally an order by the county court declaring the road a public highway. The roads created through this statutory process also created easements, not fee takings:

Chapter 16, Court Cases
Page 2> http://www.ormap.com/mapmanual/pdfs/16-Chapter_16.pdf

Lankin v. Terwlliiger.5 “By the location of a county road, the public only acquires an easement in the land, while the fee remains in the owner, subject to the charge in the public; and when the road is vacated by public authority, the land covered by it immediately reverts in the owner, freed from the easement.”

(5.Lankin v. Terwilliger, 22 Or. 97.{1892})

Although the cases cited above are Oregon specific, most of them cite decisions from other states and, in turn, some of these Oregon cases ended up being referenced in rulings in other states.