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H.334

Introduced by Representatives Flory of Pittsford, Chen of Mendon, Allaire of Rutland City, Deen of Westminster, DePoy of Rutland City, Haas of Rochester, Helm of Castleton, Kainen of Hartford, Koch of Barre Town, Morley of Barton, Potter of Clarendon, Rodgers of Glover, Smith of Morristown and Young of Orwell

Referred to Committee on

Date:

Subject:  Highways; commerce; ancient roads; discontinuance

Statement of purpose:  This bill proposes to define ancient town and county highways and to set forth a procedure for determining the legal status of town and county highways.

AN ACT RELATING TO DISCONTINUANCE OF ANCIENT ROADS

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  STATEMENT OF PURPOSE

The purpose of this act is to facilitate commerce within the state by upholding settled expectations on the part of landowners, banks, and insurance companies as to the quality of title to Vermont real estate.  This act furthers that purpose by establishing a uniform system which defines and addresses the status of “ancient roads.”  At the present time, there are numerous lawsuits and legal disputes over the status of these roads.  Current law does not adequately address the problems associated with ancient roads and the rights of affected property owners.  Continued uncertainty regarding the existence, status, and location of ancient roads creates problems for:  landowners trying to buy and sell homes, businesses, farms, and other types of real estate or determine permissible uses of their private property; mortgage lenders who may suffer loss of value in property used as collateral after foreclosure; municipalities trying to make appropriate decisions relative to granting or denying permits authorizing development and use of the burdened property; and title insurance companies doing business in Vermont who cannot accurately assess the risks associated with insuring title to real estate.  Ancient roads were often identified early in the formation of many towns.  In some cases, these ancient roads were essentially ways to pass across town from one farm to another.  A great deal of uncertainty exists about these roads because they are not depicted on town highway maps, and they have not been used for many years – in some cases up to 200 years.  Neither the towns nor the property owners affected by this issue have a clear understanding about the legal existence or the exact location of these ancient roads.  The research costs associated with trying to determine the legal existence, status, or location of an ancient road (including the need for extensive survey work) is prohibitively expensive.  In many cases, even exhaustive research will never accurately disclose the existence or location of an ancient road.  This is true for a variety of reasons, including the fact that town records have been lost or destroyed.  Also, historic monumentation such as buildings or physical landmarks cannot be found on the property.  Nonofficial sources of information, including old maps, such as Beers Atlas, Scott, and H.F. Walling may be helpful to indicate the possible existence of ancient roads, but more often than not, they are not conclusive.  The marketability and value of real estate allegedly burdened by newly claimed ancient roads will  be seriously affected by continued uncertainty.

Sec. 2.  19 V.S.A. § 301(1) is amended to read:

(1)  “Discontinued highway” means a previously designated class 1, 2, 3, or 4 town highway as to which, through the process of discontinuance, including discontinuance pursuant to section 777 of this title, all rights have been reconveyed to the adjoining or underlying landowners.

Sec. 3.  19 V.S.A. § 701 is amended to read:

§ 701.  DEFINITIONS

(1)  “Acceptance” means receipt of the right-of-way needed for a new highway, in some cases this may include a completed roadway.

(2)  “Agency” means the Vermont agency of transportation. 

(2)(3)  “Altered” means a major physical change in the highway such as a change in width from a single lane to two lanes.

(4)  “Ancient highway” means a public right-of-way or highway, including so-called county roads, duly established by a municipality or municipalities under the requirements of the law applicable at the time of its establishment, or by dedication and acceptance, and which has not been subsequently discontinued, but which is not depicted, as of January 1, 2005 on the most recent map of the municipality’s highways prepared by the agency of transportation pursuant to No. 86 of the Acts of 1931, as amended; provided, however, that a municipality may cause, on or by July 1, 2006, the agency to amend its map of the municipality’s highways, through the process created under section 305 of this title, to add any lawfully established highway not depicted on the agency’s most recent map of the municipality’s highways but which was previously depicted on any of the maps prepared by the agency on or after January 1, 1931 pursuant to No. 86 of the Acts of 1931, as amended.  A highway added to a municipality’s map by means of such amendment shall not be considered an ancient highway.

(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 which through the process of discontinuance all public rights are reconveyed to the adjoining landowners.

(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 using the legal process described in this chapter.

Sec. 4.  19 V.S.A. § 777 is added to read:

§ 777.  DISCONTINUANCE OF ANCIENT HIGHWAYS

All ancient highways are hereby discontinued, and the public shall have no further rights in and to ancient highways.  Title to the right-of-way of an ancient highway discontinued under this section shall merge into the title of the owner of the fee simple interest in the land over which the ancient highway traversed.

Sec. 5.  19 V.S.A. § 717 is amended to read:

§ 717.  EVIDENCE OF HIGHWAY COMPLETION OR

             DISCONTINUANCE

(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 proceeding under the law applicable at the time of the proceeding shall be presumed to have been discontinued, notwithstanding failure to adhere to the law’s requirements for discontinuing the highway if, subsequent to the discontinuance proceeding, it has not been kept passable for use by two‑wheel‑drive passenger cars or trucks at the expense of the municipality for a period of 30 or more consecutive years.  This presumption of discontinuance may be rebutted by evidence that manifests a clear intent by the municipality or county and the public to consider or use the way as a public way.  The presumption of discontinuance is not rebutted by evidence that shows isolated acts of maintenance, unless other evidence exists that shows a clear intent by the municipality or county to consider or use the highway as if it were a public right‑of‑way.

Sec. 6.  EFFECTIVE DATE

This act shall take effect upon passage



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us