Re: Neighbor Put Fence in Road--Advice?

Posted by noncompos on January 02, 2007 at 17:53:39 from (67.42.238.52):

In Reply to: Neighbor Put Fence in Road--Advice? posted by T.C. in Tx on January 02, 2007 at 07:01:10:

I've never worked in Texas, but have in a coast Calif county and in Clackames and Multnomah counties here in OR, all of which have hilly ex-timber areas where many "County" and "private" roads "just grew", i.e: were never dedicated/deeded as roads to any public body but were just created and used as necessary, until the County Commissioners, in their search for votes or wish for development took over maintenance.(Counties very rarely own the land outright under older roads; if they have anything of record it's a dedication or grant for road purposes, which is a road easement).
On the roads the County "maintains",especially unpaved roads, they're generally very reluctant to get involved in these questions (unless it's a road they want, in which case they can be tenacious in the extreme).
On "private" roads, often nothing shows in old deeds; often access is only mentioned when mortgage lenders become involved; they fear foreclosing parcels with no record access and it's hard to resell such loans to the big pension funds, etc., so easements have become a major headache (and source of losses for Title companies).
Land is always acquired subject to existing access rights, whether of record (mentioned in deeds, etc) or acquired thru usage, and to diminish/limit existing rights is legally risky, but it's also true a Court decree is sometimes necessary to settle conflicting claims.
Allen: With all due respect, I doubt that any State has no provision for "ways of necessity", or that all adjacent landowners could shut off access when no easement of record exists; it's too complex to get into here; email if you'd like to discuss.
Gerald: You're right: most County roads are easements; it's perfectly true that an owner owns that land in the road to his deeded line, or the whole road area if he owns on both sides, but it's not unusual to have no recorded dedication or grant to the County. The ownership, of course, is subject to the right of way, whether public or private.
John T: Good advice; my only quibble might be that the longer such diminished area is allowed to exist, the easier it becomes for the fencer to state no one was materially threatened or damaged.
Walt: Is that the creekside taking from the back of the business property case? I doubt the Courts would apply that to existing streets, etc., if for no other reason than to avoid onerous litigation and as "against public policy".
Coloken: I'm unfamiliar with RS2477 rights; I'll have to research a bit. I do recall something about public roads along section lines on the old Federal level, but cannot recall a single case of Federal references in my locations in Cal/OR, or of ever hearing of a claim thereunder, altho it may be applicable in other areas. "Heritage" roads would, like all other un-deeded ways, come under the prescriptive-use laws.
Sorry about the long post; easements are a real rats-nest. Please add qualifiers to anything above that sounds concrete; the easiest way to get into trouble with easements is to think you know which way a Court will jump!!

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