Where is the ROW?

In 1929 was it a state or county highway?

Also probably state specific...

Is there a fence on the other side of the road? If so how far is it from the center or the road? Are there any other tracts along your clients side of the road? If so how far is their fence from the center of the road?

There may have been a legal precedent at the time that 66' is reserved as right of way for public use along section lines or some other standard. Some research of your state statutes might be in order. If there is some old R.O.W. surveyor in that particular County or State, that guy might be able to point right to the standard the allowed for a 66 foot right of way (or to a standard that would not allow for that).

Just curious. If a road crew had widened and paved in 1948 and noted a 500 foot width, would you believe that too?

The R-O-W width is determined by the real records, not what some ill informed crew might have scribbled down at some point.

Barring discovery of any recorded documentation I would have the tendency to place the R/W line 25' from CL. The "note" on the strip map isn't dismissed that quickly, just in this case there is no physical evidence of use or occupation to the 2 rod line.

Be careful. When the FAP (Federal Aid Projects) first began in the late twenties it made available moneys for surfacing existing public roads WITH the stipulation that the R/W be a minimum of 4 rods in width.

There are plenty of road jobs from the twenties that INDICATE 66' of R/W with no additional R/W actually conveyed. I believe it was just a quick way for the local folks to qualify for federal money...SHOW it as 66' on the plans. I'm not so sure that really makes the R/W that width. If it had been occupied...that might be a different story.

The Compensation For The Taking Was The Improved Road

I would hold 33' from centerline per the 1950's information. As an aside, the fence at the top of the cut is located outside of the 25' so it is a further indication of intent. I believe you are 85 years too late to dispute the taking, but hey, tilt at windmills if you must. Show the 25' line if the client insists, but render no written opinion other that 25' from centerline per 1855 document.

Your job is to show what you find, anything more may require adjudication, and you are not the adjudicator.

The legal document to go along with that strip map may be Law or Ordinance.

In PA the Governor's signature on page one of a set of highway plans makes it a sufficient legal document for a taking on any other page. There may be further documentation as to the compensated amount, but do not count on it being filed unless it required adjudication as to the amount.

Paul in PA

:good:

Barring any additional ROW dedications in the record I'd say the current record of 50 holds. sounds like 27 feet was convenient to avoid a fence on the slope. The later plan statement of 66ft doesn't have much weight without a legal recorded take, condemnation, dedication etc.

In 1929 was it a state or county highway?
It was a territorial road before 1929. The 1929 project was a federal highway project administered by the state roads dept.

Is there a fence on the other side of the road? If so how far is it from the center or the road? Are there any other tracts along your clients side of the road? If so how far is their fence from the center of the road?
The project was about 10 miles long. There are fences on both sides in places. I just chose one location for the discussion. The road fences and ditching indicate variable width from 54 ft. to 100 ft. Obviously the CL offsets are also variable. This is a meandering road uncontrolled by any section line. The original 50 ft road CL meandered on and off the constructed 1929 alignment...fairly common for that era.

Just curious. If a road crew had widened and paved in 1948 and noted a 500 foot width, would you believe that too?
No, I didn't say I believed 66 either.

The R-O-W width is determined by the real records
I disagree with that. It can also be determined by use. The 1855 record is all that is available. If you lay out the original 50 ROW it will cut back and forth across a paved US Hwy.

If there is a taking without compensation and without a record agreement between public and private owners is the public entitled to more land than is being used? Is the road 66 ft wide because a strip map says it is? What about where its much wider?

The Compensation For The Taking Was The Improved Road

I happen to have a set of 1929 PA highway plans, I checked and the governors signature as well as many others are on page 2. Page 1 is a cover page with title only and the recording date. The only signature on page 1 is the recorder's. Should I go and dispute that ROW? Page 2 also contains a station ROW width table however and a citation of the enabling law. Probably close enough for government work.

I suggest you recheck the full set of record maps.

Paul in PA

I don't know the law in your state but after 85 years I don't think that the private landowners have any right to move the road. I say that at a minimum what's inside the fences along the road are easement for the highway. If the highway is ever abandoned then reversion rights would apply.

Stuff happens. I've not been able to locate any records for county roads in my county (surveys). There is mention of county roads in commissioner records and there are some deeds here and there. The roads stay open though and a 10 year statute makes any road open for ten years a county road (public easement). So anyone trying to take-back public roads is fighting an uphill battle.

My local district UDOT surveyor is great help to me. Researching one right now. County road before 1937 (haven't found these records yet). 1937 federal highway project (got new easement ROW). 1964 new federal highway improvement, this time got extra ROW in fee. So trying to sort it out, original county ROW, more ROW in 1937, then additional fee in 1964. I need to sort it out for annexation (who needs to sign to annex the highway and where)!

The Compensation For The Taking Was The Improved Road

>Page 2 also contains a station ROW width table however and a citation of the enabling law. Probably close enough for government work.

I believe the ROW for Old Highway 99 in California (1916) was obtained in a similar manner. That didn't mean there were not easements granted for highway purposes, but I believe if there is a lack of recorded easements, the plans and the authorizing legislation is something that has been used in the past for determining the ROW.

I have had luck searching the grantor/grantee books for the years prior, during, and after construction to find record of the easements. It is very time consuming, but necessary.

I estimate the 66 ft width fits about a third of the 10 miles. Surveyors have set ROW at a various property line intersects with the ROW as required by law. They all used 33 ft offset. Some are 5 ft outside the ROW used and others are in the ditch. They are basing their opinion on the plan. You know that feeling you get when you find a mark that doesn't look like it belongs. I'm a stinker for questioning I guess.

Leon, I am reading a paper by Craig M. Call, J.D. entitled "Public Roads and Private Lands, How Public Access Rights are Created, and Abandoned in Utah".

I wish there were a similar paper for California, but I have not found one yet.

I agree with you that at the min. the physical presence of the road and the historical use by the public establish it's right to be there and be used. That doesn't necessarily delineate a specific ROW width. That does mean that evidence of occupation and maintenance need to be shown.

From the above mentioned paper.....

Factors that indicate width of a road created by use:
"The presence of pavement, maintenance of shoulders, placing of gravel for lateral support, piling of snow, placement of signs, the use of a fence line to define the boundary between the private activities and the public activities, fence lines established by neighboring lands nearby, the normal width of highways in the area, the width of highways in the system of highways which the subject highway is a part, presence of sidewalks, utility lines and poles, underground utilities, highway drainage facilities, shoulders adjacent to the right-of-way, and the course of conduct between the public at large and the landowner, or between public officials and the landowner, can all be factors in determining the width of the easement. This is a question of fact for a jury or other trier of fact to determine. (emphasis added) Hunsaker, 509 P.2d 352

I would think that at the min., the courts would err on the side of the public and hold the fences (lacking any evidence showing the contrary), assuming they represent a reasonable and necessary width for the safe passage of the public.

Good reply

Surveyors feel obligated to make the call when the platting law requires a pin at the ROW intersect. They feel more obligated when they are working for the Road authority to mark and plat the ROW. This could fall into the area where a written agreement between the road authority and the adjacent owner is in order before a ROW survey is completed. This is a new concept however.

> Road widened and paved 1929 with note on strip map "66 ft ROW used without any compensation for added width"

Three things would influence my decision:

1) Is it being taxed? If the local public agency wants it in our area they have to give up the right to tax it.

2) Does 33ft cause an encroachment by the property owner upon the ROW? Other than the fence.

3) Is it +/-25ft for any real distance along the parcel as it was in 1929? Where does the fence move back to 33ft? the next 1929 adjoiner each way? This might indicate you're missing a document.

A note on a highway strip map is a start, but by what legal action was this obtained?

Condemnation?

Act of the state's congress giving DOT engineer's the right to 66ft whenever they need it as long as some width of ROW is already possessed? Don't laugh kinda happened in the mid 50s 'round here.

Should be some paper trail out there to hang your hat on.

Steve

A note on a highway strip map is a start, but by what legal action was this obtained?
Condemnation?
In 1929 condemnation was not ever used. No one disputed the need for pavement. Use what you need, no problem. Oral agreements were very common then.

Act of the state's congress giving DOT engineer's the right to 66ft whenever they need it as long as some width of ROW is already possessed? Don't laugh kinda happened in the mid 50s 'round here.

There is a law that a road established after a certain date can be assumed 66 ft width if no other width is called. This road precedes that date and the original width is given.

What about property taxes?

Steve

Tax map uses 66. That is inconclusive evidence in this state.

"This could fall into the area where a written agreement between the road authority and the adjacent owner is in order before a ROW survey is completed."

Absolutely, have the owners, state and private work out the agreement. Go for some even offset from the center line (with new fence) but if all you can get is to the fence use the existing fence. Get it in the record for the future.