WHO HAS THE RIGHT OF WAY?

WSLS InstituteWisconsin Dells, WI

January 25-27, 2017

The ROW is here!

No, it’s here!

I think it’s here….

Your wrong!

It’s definitely here!

TIMOTHY G. RUTZEN, PLS

• 16 years of experience overseeing and leading ROW Plat

Preparation, road & site construction projects, boundary

survey projects, as well as plan development.

• Extensive experience with drafting Traditional Right of

Way Plats, Transportation Project Plats ,84.25 Access

Control mapping, as well as topographic, ALTA’s, CSMs &

Plat of Surveys.

• Recorded and filed over a dozen Transportation Project

Plats, with over 300 parcels mapped and establishing well

over 100 miles of ROW.

• Leader in CAD and FDM standards for platting, has a clear

understanding of traditional right of way plats and

Transportation Project Plats, and has extensive experience

establishing right of way, calculating property lines, and

reading in title work.

Professional Land Surveyor

Associate of Science, Land

Surveying Technician, 2002

KEVIN C. BOYER, PLS

• 20 years of experience in roadway and route survey;

boundary survey and property corner monumentation;

subdivision design and layout; plat development, zoning

ordinances, section corner perpetuation, and

construction layout.

• Completed right of way establishment for various

roadway projects and is well versed in topographic

survey data collection for projects large and small.

• Recorded and filed over 30 Transportation Project Plats,

traditional right of way plats, 84.25 maps and 84.295

maps and documents. These documents total over 1200

parcels mapped, filed 16 miles of access control maps

(84.25), and recorded 9 miles of monumentation plats on

USH 45 and USH 51.

• Well-versed in state statutes, administrative codes, and

platting requirements.

Professional Land Surveyor

Associate of Science, Natural

Resources, 1996

RIGHT OF WAY

What is RIGHT-OF-WAY?

How is it established or created?

What is the methodology to establish it?

Let’s start looking at the “BIG PICTURE”

RIGHT OF WAY IS...

ORDINARY USEIn everyday use, “right-of-way” is used to mean the entire width between the boundary lines of every public road or way.

LEGAL MEANINGA “right-of-way” in it’s strict legal meaning is a mere easement. The Wisconsin Courts have long and consistently interpreted the legal meaning of the term “right-of-way” as an easement.

HOW CAN RIGHT OF WAY BE ESTABLISHED OR CREATED?

Right-of-Way is “generally” established or created by:

1. Highway Easement2. FEE acquisition3. Other: condemnation, grants, dedications, prescription.

For this session, we will be covering Hwy Easement and FEE simple Acquisition.

As a “general rule”, in the case of CITY or COUNTY right of way, it is typically an easement for public travel. (An easement is a privilege or a right, distinct from ownership, to use in some way the land of another.)

So, most likely a city or county does not own the fee title to the property underlying the public right of way; the abutting property owners have that fee title, and that title usually extends to the centerline of the right of way.

However, this is not always the case. In most cases, starting around 1945, the STATE’s ROW was purchased in FEE simple with warranty deeds. Prior to around 1945, state ROW was typically purchased as Hwy Easement. Hence why it is important for us as Professional Land Surveyors to distinguish whether the ROW was obtained by Hwy Easement or Hwy FEE.

HWY EASEMENT VS HWY FEE ACQUISITIONWhat to look for…..

• Look for the verbiage on Highway Deeds

– “Conveyance of lands for highway purposes” = this is an easement

– “Conveyance for road purposes” = this is an easement

• Look for certain verbiage on Warranty Deeds

– “Excepting the road” or “Excluding the road” or “Along the east side of the road” = these are recognizing FEE ownership only to the ROW line

• If you see verbiage

– “To the section line” or “to the centerline of the road” = this indicates FEE ownership to the centerline of the road

FEE Title

Prior to 1945

For Hwy Purposes

Fee Title

Things to remember…..

Hwy Conveyances & Deeds Govern Deeds take precedence over plats, surveys, etc.

Per past court cases…..ROW will get “theirs” first The courts will always look at the “intent” of the deeds

and or plats, very important to have a grasp on what you feel the “intent” was.

Read the small print on the deeds for the “intent”

“generally”, the courts have mainly accepted the Right-of-way as “easement, unless there is hard proof otherwise.

Road ROW width in Wisconsin is presumed to be 66’, unless there is evidence to the contrary ss 82.18

The burden to prove a ROW is not 66’ is on the challenger….you better have a good case!

When a public ROW is vacated and it is in HWY easement, it becomes “unencumbered” by that easement and the public easement becomes extinguished and the abutting owners regain title.

WE KNOW THE FACTS IT’S TIME TO ESTABLISH THE ROW

1ST step before even stepping foot on site is to research the records and analyze all of your evidence and documents for ROW determination.

• Public Records Research at courthouse in Land Information, Register of Deeds, County surveyor, town, city or village municipal building

• Review past surveys (CSM’s, plat of surveys, subdivision plats)

– understanding what was done prior, what is the “weight” of the field monuments for different projects, “small picture VS big picture”

– Was anything dedicated or is the road there by easement?

• Survey notes, town ROW records, RR row plats if they parallel or cross

• Engineering plans and ROW plats from county HWY dept. or regional WisDOT plat coordinator

• Title work if available (look at Hwy conveyances…….is the road there by Easement or FEE?)

• Important to review all records before going into the field and know what you are looking for and why. Get a plan in place to be efficient and make the right choices when performing the field work.

A LITTLE HELP PLEASE…..

• GIS mapping for background– Import GIS shapefiles – export DXF files to data collector

• Great way for field crews to be “close” to the right spot when searching for ROW irons

• Compute Alignment from ROW plats– Export XML file to data collector

• Allows for stakeout to ROW jogs, PC, PT or curves, etc

PHYSICAL EVIDENCE

WHAT PHYSICAL EVIDENCE REMAINS IN THE FIELD THAT WILL HELP RE-ESTABLISH THE ROW?

• Is the road located where the ROW plats/plans show it? Has it changed locations from reconstructions or overlays?

• What monuments from past surveys should still exist? (have road construction, new roads, etc. taken them out?)

• Is there any distance calls from old ROW plats or plans to bldgs. & do they still exist?

• Is there accurate calls from section corners to R/L?

• Evaluate past surveys. Are there any that refer to prior ROW plats? Are there some that likely established ROW from C/L at that time period?

ASK YOURSELF…..

– How are you going to bring everything together to Re-establish the ROW based on evidence, intent & improvements?

– What if your computations don’t fit the current improvements? Why might they not fit?

– How can we make everything fit with so many prior surveyors all establishing and monumenting the ROW with different methodology?

EXAMPLES OF ROW CREATION some situations we have come across on a daily basis

EXAMPLE #1STH 21 Waushara County, WI

SCOPE OF PROJECT Establish the ROW and Reference Line along the Hwy across the entire county (15 miles +/-)

What we know……

• The ROW for the Hwy was mainly established from 2 ROW plats, one in 1945 and one in 1949– Due to the ROW plats being dated after 1945, the ROW is most likely there by FEE simple acquisition, but should be

verified by the deeds.

• The ROW plat ties into existing subdivisions near Coloma– In these areas, the roads were established and dedicated in the original subdivisions.

– The ROW plat only purchased lands abutting the previously established ROW.

• Over 100 CSM’s & Plat of Survey’s were completed and abutting this ROW along the corridor

• Existing ROW monuments & ROW posts exist from both survey’s and the ROW plats– Most likely, many of these set using different methodologies from different surveyors

• The Hwy has several areas of reconstruct and overlay’s over the many years that have passed– How does this affect the surveys and ROW irons that were done adjoining the ROW?

– Which ones used the ROW plat and which ones used the centerline?

WHAT WE KNOW……RW PLAT DATED IN 1945

PLAN & PROFILE THAT

COINCIDES W/ ROW PLAT

Area where the

“original” Scott Ave

ROW was platted

and dedicated per

the subdivision

Radius per Plat and

design plans match

how the road was

“intended” to be built

during construction

ALONG COMES THE SURVEYS….PLAT OF SURVEY (1997) PLAT OF SURVEY (2007) CSM (2008)

OVERVIEW OF SURVEY LAYOUT

A FEW CONCERNS.......1. Ignoring the original “Scott St” and where the ROW Plat

purchased to 50’ Lt of R/L.2. Ignoring existing monumentation at 33’ and setting new

monuments at 50’ and then at 49.5’ in an area where it is still 33’.

3. Ignoring the previously platted radius and setting ROW monuments on a best fit radius, when using platted radius, pavement fits great!

4. Monumenting and establishing a curve that isn’t tangent to the survey’s on same ROW line.

Previously platted

radius is 17’ different

than radius on survey?

The results are..….

Two set iron’s set at 50’, rather than 33’ per the original subdivison

Two set iron’s set at a different radius than

platted & not tangent to surveys in/out down

ROW from survey

Irons set at 49.5’, rather than 50’ per

the ROW plat

EXAMPLE #2

Mercer Trail

SCOPE OF PROJECTTo establish the northerly ROW along US 51 for the use in design and plan production

What we know……

• The ROW for the Hwy was established in 1955 as shown on the ROW plat

• The ROW plat clearly shows the purchase to the northerly ROW of “old” Hwy 51

• Several Plat of Survey’s were done abutting this ROW

• Existing monuments & RW posts exist from both survey’s and the ROW staking when the plat was completed

• There is an old roadbed that still exists as well as utilities, box culverts and ditches

WHAT QUESTIONS TO ASK……

– 1955 ROW Plat-Hwy Easement or FEE?

– Clearly mapped the new alignment, new ROW limits intended to butt up to the original road in both Fee and Highway Easement

– What is the status of the original road ROW “old hwy 51”

– Is the “old hwy 51” abandoned? Obliterated? Is it being used for any public purpose?

– At what point is a Hwy considered abandoned?

ROW LIMITS

Was it always USH 51?• Are you looking for the correct

Hwy?

• We know Hwy names change in recent times, what about 100+ years ago?

What do the survey’s show……

• Looking at the existing surveys.

• Do they make sense?

• Are they correct?

• What was the survey’s intent?

SEEING A PATTERN……

• Gut Check

• What are the facts?

• What has been assumed?

• As a surveyor I MUST always follow in the footsteps of those before me...RIGHT??

ANALYZING THE ROW PLAT

• Calculating the alignment and Station/Outs

• What we find is the calls fall either in the old roadbed or south of the old road bed

• Distance call to building fits 1’±

• Field evidence of the utilities and old road show the ROW to be 33’/33’.

• Old ROW scales to 66’

• No existing ROW Plat of the original road ROW

• No call for the original ROW in any deeds

USING STA/OFF PER PLAT, NORTH ROW

FELL IN OR SOUTH OF ACTUAL ROADBED

SEVERAL STA/OFF PER PLAT DID NOT MATCH

THE ROAD BED REMAINS, OTHERS MATCHED NEAR

PERFECT

LOOKING AT THE WHOLE PICTURE

What questions to ask……

• Did WisDOT sell the remnant parcel between the old and new Hwy or did it revert back to abutting owner?

• Was the original “Old Hwy 51” truly abandoned?

• Was the land acquired by Hwy Easement or fee simple?

ABANDONED OR NOT?

Survey the Physical Evidence• We have our research done

• Time to put some boots on the ground

• Old roadway includes a utility corridor

Working through

the evidence• Building fits well

• Tangent Sta /Outs fit well

• Complications on western tangent

Working through the west tangent• What is the issue

• What is the evidence

• Time to verify our calculations

• Do the calculations fit the field evidence

Is the original location of 51 still ROW• Project moved forward

as ROW and not vacated

• Utilities and drainage were still current uses

• No found documents discontinuing the ROW

What justifies this as R/W

• Grunwaldt v. Milwaukee and Miller Investment Co v. Milwaukee– There are some circumstances in which an altercation can result in a discontinuance

or abandonment. IF part of the highway is not included in the new highway. The theory is that injustice results if the public acquired the property for one purpose, discontinued that purpose, and still claimed the land for other purposes. The theory does not apply if the property is needed for present use, like clear zones, drainage, or future highway expansion or use.

• Ss66.1037(1)– No lands abutting on any highway, and acquired or held for highway purposes,

shall be deemed discontinued for such purpose so long as they abut on any highway.

– All lands acquired for highway purposes after June 23, 1931, may be used for any purpose that the public authority in control of that highway determines promotes the public use and enjoyment.

– The right to protect and to plant vegetation in any highway laid out prior to June 23, 1931

IN THE END…• Not one person disputed the ROW

still existed……

• The “old” ROW was never technically abandoned…..the “use” may have changed, but the “need” was still there (drainage, util, etc)

• All owners AND their attorneys agreed with the ROW synopsis

• Can’t always take what you see on the surface and run with it

“BEST FIT”

WHAT’S THAT?

BEST FITTING PHYSICAL EVIDENCE

Best Fit = A line that best illustrates the overall picture of what the collected data is showing.

Linear Regression = A mathematical technique for finding the straight line that “best fits” the values of a linear function, plotted on a scatter graph as data points.

In most survey software, there is a function called “best fit”, “point regression” or “linear regression” or something similar. Letting your software help you “best fit” the physical evidence should be used to minimize the issues with matching all physical evidence including ROW monuments, ROW posts, pavement splits, etc.

How can we use this when computing ROW and/or re-establishing R/L from prior plats and plans?

EXAMPLE: ANALYZING 1 MILE +/- OF ROWIs it agreed that within this area, the intent was the ROW and R/L to be parallel and in a straight line?

Tangent stretch between PI & PI

NOTE: In many older plats, it appears that the R/L runs coincident. However, as you can see, there is one within these limits but the bearing on the R/L is consistent and the PI is not located at the section corner. This R/L does not run coincident with section line.

GATHER THE EVIDENCEWhat we have to work with….1. We have 10 recorded surveys including a subdivision, CSM’s and plat of surveys.2. We have a box culvert that was intended to be built on the center of the R/L. 3. We have around 1000’ of topo of the existing pavement.

What can we do with our evidence….1. We need to attempt and best fit all evidence if possible while following the “intent” of the ROW Plat.

• (Existing IP’s, RW posts, pavement splits, box culvert) 2. We can analyze all data above on BOTH sides by using the “best fit” or “regression” commands in Civil3D.3. If we draw circles with the ROW width distance at each ROW iron, it will allow us to “click” and best fit BOTH sides of the road.

Using Circles to allow for “best fitting” evidence from BOTHsides of road, rather than just one side at a time

“BEST FIT” AND BIG PICTURE!!

Step 1In analyzing the 20 existing irons along the ROW all from different surveys and surveyors, the regression shows how they fit with each other.

Step 2After deciding that 75% of the irons agree very well and adding in the pavement splits, we now have a ROW that fits Irons from both sides as well as the improvements and the intent of the ROW plat. Hard to argue with.

CLOSING REMARKS

We believe as surveyor’s we can all do better. We need to make every effort as Professional Land Surveyors to do our research, weigh ALL of

the evidence, survey the necessary physical monuments and improvements, make the right choices and avoid situations like these.

THANK YOU!

Questions or Comments?