What to do when the road is in the wrong place

sounds like the public has a prescriptive easement

location sounds easy, title becomes the issue, send in the clowns, er, I mean lawyers.

Spledeus is right. Since the road has been in place for nearly 40 years, there's a good possibility that the public has acquired an unwritten easement over the area it occupies.

In Minnesota there would be no question about it. There's a statute that says any road that has been maintained at public expense for 6 years becomes a public right of way. I don't know whether SD has a similar law, but quite a few states do.

Basically, though, the status of the road is a legal question, and it's not up to you to answer it. As in other cases of possible unwritten rights, all you can or should do is gather information, and advise the client to consult an attorney with real-estate expertise.

There was a case here in which a landowner named Barfknecht sued Carver County over the width of an unwritten road easement. The county claimed 33 ft. on each side of the traveled centerline, and Barfknecht disagreed. The court found that the unwritten easement included only the area actually used and occupied by the roadway, ditches, slopes, etc. This follows the general principle that adverse possession has to be "open and notorious".

After the Barfknecht case, I always made a practice of locating edges of ditches, tops and toes of slopes, etc. when surveying a road for which no recorded easement existed, the idea being to document the visible occupation. That might turn out be a good idea in this case as well.

At some point, we are NO LONGER error fixers. But, we are documenters of where it all landed.

Document it all, make a perdy plak, and throw it to the clowns, (as somebody above mentioned)

What can happen is simply a sign off by all involved parties, saying acceptance of your documentation of where it all landed. ie, We, the undersigned parties, and owners of Lot xx of xx subdivision, hereby endorse, accept and yield to the plat as recorded in book xxx, Page xxx possum creek records.

If they won't sign, then throw it into their lap, and let them pay to move the road, fix the ditch, etc.

Now, after all affected parties sign off, your plak becomes the "New Reality" out there.

I am not saying you should do EXACTLY that, but do something like that. There will usually be a lingerer, who lingers, and won't sign. OK, eventually, they will need some kind of legal activity, with their land, and they will slowly accept it.

Just an idear.

N

Unfortunately there is probably not an easy solution. One solution, however might be to just document what the current conditions are and show them on your plat. Advise your client and let him make the decision. I am personally a problem fixer type of guy, but that is not always the best solution. One solution is to do nothing and let sleeping dogs lie.

Try to stay clear of telling the client what all needs to be done in specific terms, but have him talk to an attorney if he wants to pursue the situation. A surveyor can find himself in the position of being the bad guy when the bills start arriving and you are seen as the one that created the mess by discovering it. I had a situation where a sewer line was unrecorded. The landowner claimed it had to be recorded. After much investigation he finally found some papers that were sent to him 30 years ago that he never signed. I did all the field work, wrote a meets and bounds description and gave this to the lawyer to get the sewer line easement recorded. The lawyer then sent the landowner a huge bill for processing the easement before I finished the rest of my work, so the landowner didn't want to pay me, but I did all the work.

If you do get more involved, you will incur expenses that the landowner may not feel is his problem to pay since the road involves multiple lots. Perhaps have a separate contract set up for additional work each time something new needs to be done. They might think this is an easy solution, but the old easement will have to be voided also. Keep us informed.

The Road Is Not In The Wrong Place...

...unless the cars cannot drive on it. I believe the road is in the right place, the map just does not describe it.

Since it affects quite a number of lots I believe a remapping is in order using the principle of equity. You need 100% agreement before you start and 100% agreement after you are done or the order of 1 Judge. You be the judge of which to recommend.

As of now you just map what you find.

Paul in PA

While I do not disagree with any of the above statements, there certainly are other considerations and it may not be as simple as the road is where the road is.

Let's consider potential zoning and subdivision issues (they may or may not apply, but consider). By moving the road have some of the lots been made too small and thus in violation of minimum lot sizes? Or maybe too small for a well and septic system if the health department has minimum lot sizes.

Or perhaps moving the road may create some set back violations for existing buildings.

And as to title issues (as was hinted at above) you can not take one person's land and give it to another because it's convenient.

Of course a lot of this depends on state and local regulations, but I could see having a lot of fun with this no matter which side of the road I was on.

Does occupation on the east side of the LOTS fit the plat or road?

Worked on a project once a bit like this. In our case, a subdivision plat ended with two lots in the northeast corner being served by a cul-de-sac entered from the southwest. What was constructed was a street running SW to NE through the cul-de-sac the continuing somewhat evenly along the common lot line between those to lots to a pre-existing city street. Everyone was happy with this solution to a bad subdivision plan. After 20-some years of existence, one of the lot owners realized that he was being taxed for land that was actually being used as a street. He got the other lot owner to join him in getting the city to "fix" the problem by declaring the apparent street to be a street and then deeding the unused area of the platted cul-de-sac to the adjoiners. The city did not want to actually do a replat of the subdivision so had us do everything using metes and bounds type verbage to describe what each lot owner deeded to the city and what the city deeded to each lot owner. This makes for some very wordy deed descriptions instead of just "Lot 4, Thayer Country Addition to the City of........."

The found lot pins support the platted dimensions of the lots with a 25 foot gap where the road easement is located. My first thought was that I was mistaking which lot pin was intended for which lot (the SW corner of Lot 2 was actually the NE corner of Lot 4 for example). I found enough pins to orient myself and verify what was really going on pretty quickly though. Not all of the same pins are of the same vintage, however, because another surveyor more recently came in and reset some of the pins that must have been knocked out by the reconstruction of the road. I'm sure he must have discovered the same issue and chose to either not mention it, or maybe the landowners at the time didn't want to pursue it. From the evidence I found it's pretty clear to me where the road was intented to be built on paper, but the convenience of the current location for constructibility is why it moved.

Call Obama. He built the road.