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H.334
Introduced by Representatives Flory of Pittsford, Chen of Mendon, Allaire of
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Rutland City, Deen of Westminster, DePoy of Rutland City,
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Haas of Rochester, Helm of Castleton, Kainen of Hartford,
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Koch of Barre Town, Morley of Barton, Potter of Clarendon,
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Rodgers of Glover, Smith of Morristown and Young of Orwell
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Referred to Committee on
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Date:
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Subject: Highways; commerce; ancient roads; discontinuance
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Statement of purpose: This bill proposes to define ancient town and county
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highways and to set forth a procedure for determining the legal status of town
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and county highways.
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AN ACT RELATING TO DISCONTINUANCE OF ANCIENT ROADS
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It is hereby enacted by the General Assembly of the State of Vermont:
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Sec. 1. STATEMENT OF PURPOSE
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The purpose of this act is to facilitate commerce within the state by
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upholding settled expectations on the part of landowners, banks, and insurance
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companies as to the quality of title to Vermont real estate. This act furthers
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that purpose by establishing a uniform system which defines and addresses the
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status of “ancient roads.” At the present time, there are numerous lawsuits and
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legal disputes over the status of these roads. Current law does not adequately
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address the problems associated with ancient roads and the rights of affected
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property owners. Continued uncertainty regarding the existence, status, and
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location of ancient roads creates problems for: landowners trying to buy and
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sell homes, businesses, farms, and other types of real estate or determine
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permissible uses of their private property; mortgage lenders who may suffer
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loss of value in property used as collateral after foreclosure; municipalities
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trying to make appropriate decisions relative to granting or denying permits
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authorizing development and use of the burdened property; and title insurance
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companies doing business in Vermont who cannot accurately assess the risks
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associated with insuring title to real estate. Ancient roads were often identified
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early in the formation of many towns. In some cases, these ancient roads were
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essentially ways to pass across town from one farm to another. A great deal of
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uncertainty exists about these roads because they are not depicted on town
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highway maps, and they have not been used for many years – in some cases up
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to 200 years. Neither the towns nor the property owners affected by this issue
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have a clear understanding about the legal existence or the exact location of
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these ancient roads. The research costs associated with trying to determine the
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legal existence, status, or location of an ancient road (including the need for
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extensive survey work) is prohibitively expensive. In many cases, even
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exhaustive research will never accurately disclose the existence or location of
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an ancient road. This is true for a variety of reasons, including the fact that
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town records have been lost or destroyed. Also, historic monumentation such
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as buildings or physical landmarks cannot be found on the property.
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Nonofficial sources of information, including old maps, such as Beers Atlas,
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Scott, and H.F. Walling may be helpful to indicate the possible existence of
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ancient roads, but more often than not, they are not conclusive. The
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marketability and value of real estate allegedly burdened by newly claimed
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ancient roads will be seriously affected by continued uncertainty.
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Sec. 2. 19 V.S.A. § 301(1) is amended to read:
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(1) “Discontinued highway” means a previously designated class 1, 2, 3,
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or 4 town highway as to which, through the process of discontinuance,
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including discontinuance pursuant to section 777 of this title, all rights have
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been reconveyed to the adjoining or underlying landowners.
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Sec. 3. 19 V.S.A. § 701 is amended to read:
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§ 701. DEFINITIONS
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(1) “Acceptance” means receipt of the right-of-way needed for a new
highway, in some cases this may include a completed roadway.
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(2) “Agency” means the Vermont agency of transportation.
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(2)(3) “Altered” means a major physical change in the highway such as
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a change in width from a single lane to two lanes.
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(4) “Ancient highway” means a public right-of-way or highway,
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including so-called county roads, duly established by a municipality or
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municipalities under the requirements of the law applicable at the time of its
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establishment, or by dedication and acceptance, and which has not been
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subsequently discontinued, but which is not depicted, as of January 1, 2005 on
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the most recent map of the municipality’s highways prepared by the agency of
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transportation pursuant to No. 86 of the Acts of 1931, as amended; provided,
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however, that a municipality may cause, on or by July 1, 2006, the agency to
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amend its map of the municipality’s highways, through the process created
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under section 305 of this title, to add any lawfully established highway not
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depicted on the agency’s most recent map of the municipality’s highways but
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which was previously depicted on any of the maps prepared by the agency on
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or after January 1, 1931 pursuant to No. 86 of the Acts of 1931, as amended.
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A highway added to a municipality’s map by means of such amendment shall
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not be considered an ancient highway.
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(3)(5) “Classification” means the categorization of all town highways
pursuant to section 302 of this title.
(4)(6) “ Discontinued” means a previously designated town highway
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which through the process of discontinuance all public rights are reconveyed to
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the adjoining landowners.
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(5)(7) “Dedication” means the process of selecting a right-of-way or an
alignment for a highway.
(6)(8) “Interested person” or “person interested in lands" means a person
who has a legal interest of record in the property affected.
(7)(9) “Landowner” means a person who has title to real estate in fee
simple or a life estate.
(8)(10) “Lay out” means the legal procedure establishing the alignment
or right-of-way of a highway.
(9)(11) “Reclassify” means to change the classification of a highway
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using the legal process described in this chapter.
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Sec. 4. 19 V.S.A. § 777 is added to read:
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§ 777. DISCONTINUANCE OF ANCIENT HIGHWAYS
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All ancient highways are hereby discontinued, and the public shall have no
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further rights in and to ancient highways. Title to the right-of-way of an
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ancient highway discontinued under this section shall merge into the title of the
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owner of the fee simple interest in the land over which the ancient highway
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traversed.
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Sec. 5. 19 V.S.A. § 717 is amended to read:
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§ 717. EVIDENCE OF HIGHWAY COMPLETION OR
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DISCONTINUANCE
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(a) The lack of a certificate of completion of a highway shall not alone
constitute conclusive evidence that a highway is not public.
(b) A town or county highway that has been the subject of a discontinuance
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proceeding under the law applicable at the time of the proceeding shall be
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presumed to have been discontinued, notwithstanding failure to adhere to the
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law’s requirements for discontinuing the highway if, subsequent to the
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discontinuance proceeding, it has not been kept passable for use by
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two-wheel-drive passenger cars or trucks at the expense of the municipality for
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a period of 30 or more consecutive years. This presumption of discontinuance
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may be rebutted by evidence that manifests a clear intent by the municipality
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or county and the public to consider or use the way as a public way. The
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presumption of discontinuance is not rebutted by evidence that shows isolated
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acts of maintenance, unless other evidence exists that shows a clear intent by
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the municipality or county to consider or use the highway as if it were a public
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right-of-way.
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Sec. 6. EFFECTIVE DATE
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This act shall take effect upon passage.
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