Remember when delineating a DOT prescriptive easement on your record of survey, there is a big difference between a "prescriptive easement claim" and a "prescriptive easement of record" (court decree).
Not many record of surveys denote the difference between the two unless there is a specific court decree to reference.
Federal Aid Projects (F.A.P.)
In areas like this my process has always been to identify the property that abutts the R/W...not the R/W itself. In a lot of cases I have found that the properties are far better documented and described than the "right-of-way" itself.
I'm by no means saying you won't run into conflict, you will. There are probably some areas that the "66 feet" simply doesn't exist. There will be estates that have acquiesced to the entire R/W. Be a surveyor...survey what's in the deed, the documents and what's occupied...then explain to the client it's not nice to slay the messenger.;-)
it's a utility placement permit from the DOT.
Here is the California DOT's opinion on issues very similiar to what you describe.
It is interesting to note that they mention the fact that a prescriptive easement claim will not be considered as encumbering a subject parcel until it is affirmed by a court decree and is entered into the public record. This makes you wonder if you should show any more than the physical location of the road (lacking a recorded easement or a recorded court decree).
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In the early 1930's when the State absorbed many miles of
county roads into the highway system, it also received all right,
title and interest the county had in the right-of-way that was in
use at that time. Some of the right-of-way was not covered by
a recorded document. The counties had only a prescriptive
claim to it.
In other cases, the highway was constructed partially outside the
recorded right-of-way. There are other factors that contribute
to this type of situation that result in bits and pieces of the
operating facility being outside the recorded right-of-way. The
areas outside the recorded right-of-way are held by claim of
prescriptive right.
Prescriptive right is the limited possession or use of another's
land, as stated in Chapter 4, which vests certain rights in the user
of the land. There are certain conditions that must be met before
a claim of prescriptive right for highway purposes can be recognized.
These conditions require possession to be actual, visible,
exclusive and continuous for five years to create a bar under the
statute of limitations.
The Department's claim of prescriptive right to a highway
right-of-way has historically been acquiesced to by the underlying
fee owner. As a result, the right-of-way continues to be held
without a document of public record. If our claim was challenged
by the underlying fee holder, a court would determine
the extent of the prescriptive right. In our case, the prescriptive
right for highway purposes would take the form of an easement,
but would be much more limited than a recorded permanent
easement for transportation purposes.
The limitations are significant. For example: The State has a
two lane facility on a prescriptive right-of-way. Fences are 100
feet apart and an old map such as a Record of Survey or a Road
Survey shows a right-of-way 100 feet wide. However, there are
no deeds and no statement on the map dedicating right-of-way
so the 100 foot width can best be described as an implied
right-of-way. The Department begins construction to widen the
shoulders and all improvements are within the implied hundred
foot right-of-way. The underlying fee holder could go to court
and attempt to get an order to stop the construction because the
construction violates the conditions of prescriptive rights.
If the underlying fee holder does not become aware of the
construction until after it is completed, he can initiate court
action anytime within five years and ask for damages for the
added burden to the land because we had violated the conditions
of the prescriptive right. If the court found in favor of the fee
holder, the only recourse the Department would have would be
to pay the damages or acquire the right-of-way in fee or permanent
easement and pay fair market value.
The widening of shoulders would only jeopardize the prescriptive
right across parcels where the construction took place.
In the case of an adjacent parcel where no construction took
place, the prescriptive right would be secure.
Basically, the Department can maintain and operate the existing
facility. It should not change its function or character.
Since prescriptive rights are not recorded and therefore not part
of the public record, title companies would not normally pick
them up. Title reports will be silent on prescriptive right-of-way
across subject parcels. If a court of law has upheld a prescriptive
right claim, the court's decision becomes part of the public
record. As such it would be picked up by the title company and
would appear as an encumbrance on the subject property.
We should try to get a deed for the areas we are occupying on a
prescriptive basis when it is convenient to do so. When we are
acquiring right-of-way from an owner and we have a prescriptive
right-of-way that extends beyond the limits of the new take,
it is usually an easy matter to acquire the rest of the area occupied
on a prescriptive basis by including it in the description of the
take.
I'm aware of a situation where a small town condemned or purchased various lots and fractions of lots to use for highway right-of-way for a new project. The DOT plans show a specific distance either side of the project centerline for right-of-way. This has created all sorts of little pieces of no-man's land that the adjoiner does not own, but, which the DOT does not consider their right-of-way.
There are some very legitimate ideas in that quote in my opinion.
I'm no expert at these things...thats for sure.
Seems to me like you are thinking about this R/W issue as if you were the DOT trying to assertain the extent of the undocumented rights along that road.
I believe that thought process is something that the DOT would follow to formulate their claim or "implied right of way".
It is my understanding that ultimately the actual extents of the easement is not officially delineated until the courts resolve a prescriptive easement claim. After which, a surveyor could locate or monument accordingly.
Very few prescriptive easement claims probably ever get to the point where they need validated by the courts. This can be attributed to the fact that the DOT's tend to follow court precedence so as to be able to fully defend their position in court. Courts tend to side with the protection of the public.
This is very similiar to the RS2477 R/W issues we see here out West.
digger:
Where is this opinion from? It sounds pretty informal.
RE: "It should not change its function or character", does that mean the state can't (say) build a viaduct in a prescriptive easement created by use of an at-grade road?
To Holy Cow:
Are those little pieces caused by dimensions in adjoiner's deeds not reaching the R/W sideline? Wouldn't California's codes (for instance) clear that up?
California Civil Code
831. An owner of land bounded by a road or street is presumed to
own to the center of the way, but the contrary may be shown.
1112. Section Eleven Hundred and Twelve. A transfer of land,
bounded by a highway, passes the title of the person whose estate is
transferred to the soil of the highway in front to the center
thereof, unless a different intent appears from the grant.
California Code of Civil Procedure:
2077....
Four--When a road, or stream of water not navigable, is the
boundary, the rights of the grantor to the middle of the road or the
thread of the stream are included in the conveyance, except where the
road or thread of the stream is held under another title.
The Improvemment Of The Traveled Way Is In Fact Compensation
Consider the value of all those unbroken axles and wheels to the adjoiners who are the most frquent users.
A smart DOT lawyer would ask for repayment of all improvements from those who seek a smaller ROW. Accepting help, especially from the USA, comes with consequences.
Get over it, move on, find some real not imagined problems.
Paul in PA
It was published by the Caltrans Office of Land Surveys as study material in the 1990's (I believe for their right of way agents). It was used in conjunction with their right of way and surveys manual. I'm sure it represented the opinion of the office at least in the 1990's.
It serves as food for thought on Linebenders question as to where the R/W should be shown on a road with no recorded easements.
From what I can tell, resolving road right of way limits can be very involved and convoluted with many specific Streets and Highways codes evolving over many years possibly specific to only a local agency, then to the state, with road improvements happening over time as well.
I have in the past researched highway easements through the actual Grantor - Grantee books. Sometimes the easements would not be recorded until several years after the highway was constructed. You had to search every year by grantor..then every year by grantee. Very time consuming but rewarding when it pays off.
Just because it is not easily found, doesn't mean it doesn't exist. It is something that ultimately a title report should reveal.
Thanks. Awhile back I found this item, which addresses satutory widths and prescriptive R/W in the State of Washington:
http://www.vuwriter.com/vubulletins.jsp?displaykey=BLWA000041
I'd add that for use of statutory widths you probably want to make sure that the procedures laid out in state and local codes were followed before you tell those adjoiners that their house is in the R/W for which the only record is buried in some county board of supervisors minutes.
D. Extent of Easement
Once a road has been created by prescriptive easement, the extent of the easement is limited to the area used as a road. Bangert v. Osceola County, "We have long rejected the claim that a county road established by prescription must be normally sixty-six feet wide."
The county asks that the easement be established at 66 feet in width. However, there is no evidence to indicate that the county has made use of the easement outside of the width and length originally established in 1874. Mr. Witt testified that in 1934 a typical road right-of-way was 60 feet, including the ditches. There does not appear to be any reference to the width of the road in any of the documents from the 1870's. The court notes that the aerial photographs show [Ulmus] to be slightly narrower than Road 13 (Claybanks) which, presumably, is a 66-foot right-of-way. The court concludes that the county's easement is 60 feet in width. AFFIRMED.
What has this to do with ROW width or location?
Can you supply any written references to what you are saying? I have the same views when trying to "resolve" right of ways here in Oregon, but have a hard time convincing the engineers without some reference material which is hard to come by.
Thanks, Jon
the existing PI delta is a couple of degrees different than the plan and about 50 feet from where the plan would place it relative to the PI's back and ahead
Equations exist on nearly every ROW plan around here.
Once found 25° difference in a PI on the plans and as existing on the ground.
0.02
It seems like that court mixed up 'location by prescription' with 'statutory width' or 'width by conventions of the time'. They're allowed to do that but we aren't, are we? As the first part of your quote stated "the extent of the easement is limited to the area used as a road". Can we just take a foot or few of an adjoiners land to make the R/W some nice even number?
It is difficult to find written information that covers every situation.
The written Caltrans materials I quoted can be found here. LAND SURVEYS FOR RIGHTS OF WAY
To give you an idea what the material represented, here are a few quotes.
"The material presented here came from a variety of sources. Some came from existing training materials..., some came from individuals throughout the Department of Transportation, and some came from attorneys, surveyors, title people, old timers and others from the private sector and other public agencies."
"....the material is really a supplement to Chapter 10 of the Surveys Manual."
CALTRANS SURVEY MANUAL - SEE CHAPTER 10
As I said before, just food for thought. I'm no expert, but do find road right of way issues interesting. I'm sure each case would be governed by state specific statutes and court decisions.
"the extent of the easement is limited to the area used as a road".
Yes, that is the guideline I beleive.