Prescriptive rights for County Right of Way

[ken paul]

Would like to start a discussion on when and how various counties claim prescriptive rights for all or part of a right of way. In particular, when the location of a road created by establishment falls outside of the described right of way, and on a property where there are no waivers or deeds; when a road was  built and used for the prescribed amount of time by statute but there is no establishment; and finally, when at a later date improvements were made to a small portion of a road at a later date which fall outside the right of way, and there was no acquisition.

Thanks.  

[Paul]

For us, it really depends on the situation.  If there is something, anything in the file (establishment, petition, surveyors report, etc.) that gives a ROW width, we usually use that, unless it is conflicting with other evidence.

If there really is nothing in the record to indicate width, then we use fences.  If no fences exist, then we usually claim out to what we've been maintaining.  Obviously in all of these cases, we have the 7 years maintenance already.  Usually it is many times that. 

I've also seen where a road without waivers or a stated width gets the same width as its extension (which did show a width).  The assumption being that they most likely intended them to be the same.  Especially since, in this case, the extension was only 2 years after the initial road was Established.

[dave...@centurytel.net]

In San Juan County, many of our roads have been built outside of the RW. The County Engineer has come up with three prescriptive use definitions.

One is by mowing /maintenance: The mowing may be weeds on the shoulder or sight distance on a curve or at road intersection. This would also include cutting trees / brush for sight distance.

Another is existing fence lines.

Another is toe of fill slope.

And the last is a five foot buffer around culverts.

This is actually four but you know how engineers can count differently.

If we are purchasing right of way, we include our prescriptive use in the legal description, to perfect our prescriptive use. We do not pay for prescriptive use area. On our current road project, we paid one owner, $500.00 for their time, to sign a deed perfecting our prescriptive use.

We have had a huge discussion on deeds that say, "excepting County Road RW" If the owners deed excepts the County RW, can we obtain that RW from the owner?

I would very much like to hear how other Counties handle prescriptive use and vague deed descriptions of where the RW is.

On Wednesday, March 1, 2017 at 9:52:05 AM UTC-8, ken paul wrote:

[Paul]

Hi Dave:

Just reread your post while posting something else.  I agree that the except County Road RW is a problem.  I usually look at it on a case by case basis.  It doesn't usually affect us on getting ROW, though I imagine it would be a huge issue for the adjoining owners when we vacate property (though we don't get involved with that).  As far as a prescriptive easement goes, I would say that (in most cases) the call to "Except County Road RW" in the deed is really just calling out the fact that there is a road/easement there, and the deed is acknowledging that fact.  Sort of like listing title exceptions on a deed.  Assuming the roadway was established by waiver or easement, and not a SWD or other deed.  Otherwise, then the original owner would be keeping part of the property for himself, which I think would sound pretty absurd to a judge (at least I hope so).