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The Road Not Taken

 


For twenty years I was engaged in a project to remap our county. I redrew all 1200 Assessor’s maps from scratch, every lot, and every street. While there were many challenges in this project, probably the biggest one was the mapping of roads. Many of the county roads were created over a hundred years ago. This poses two challenges: 1. Roads tend to move over time. Drivers cut corners eventually moving the roadbed. Also, things like floods and landslides make the road as it existed impassable, so drivers cut new routes around the obstacle, often without any formal action to change the road. 2. Surveying techniques and equipment were not as sophisticated a hundred years ago as they are today. The original survey and formal order that went with it, established the legal location of the road, but it is not uncommon to find errors in the original surveys. In fact, some of the original legal descriptions of the roads are so poorly written that there is no way of determining the location of the road.  So then, where is the legal location of the road? What follows are but two examples of the kind of problems I found.

The road on the ground may or may not be inside its legally defined right-of-way. There is a road in our county called Seal Rock Street. The legal right-of-way for this street was established by the subdivision plat from 1888. For most of its path the street (as constructed) stays inside its defined 80 foot wide right-of-way. But parts of this road cuts through lots where there is no defined legal street at all. Different states and countries will have different rules and laws when it comes to this situation. In my state (Oregon) it is generally acknowledged that if a road has been in use and maintained for more than ten years the public has some rights for using it. You might have to go to court to prove it, but in most cases a judge is usually going to grant that the public has the right to use that road as it exists on the ground.

I also found the opposite situation. When the Highway Department built the Oregon Coast Highway (in the late 1920’s) they surveyed a route through the town of Depoe Bay and had the county legally dedicate that route for the new highway. But by the time they got around to building that highway, they decided to build it in a different location. Decades later they got deeds for the highway in the new location so the highway on the ground is in fact on land they own. But they never eliminated the original location, so there is a legally defined road that goes through houses and businesses and lots where there is no trace of a highway on the ground. This is a problem because the landowners cannot claim adverse possession against a public road no matter how long they have owned their house. I have spoken to the County Legal Counsel about this, and they tell me they are working on eliminating that road (It has been wrong for almost one hundred years).

These are just two examples (out of many) that I found. The bottom line is if you have any question about your lot or the road adjacent to it, you should have your lot surveyed and follow the advice of the surveyor.

Star Liner

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