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SLEEPING ROADS - WAKE UP CALL

In Vermont, old roads almost never die, but they do go to sleep for long periods of time, and now they could arise to haunt property owners. In a few towns in south-central Vermont the wake up call has gone out.

The state of Vermont is criss-crossed with public rights-of -way created by towns in the 18th and early 19th centuries, many of which were plotted on a map but never laid out, or were used for a time and later abandoned because of changes in the way people got from one place to another. Legally, a public road can only be created by a set of prescribed actions, generally by "dedication" and "acceptance." They can only be abandoned by another process, called "discontinuance." If these processes are not followed exactly, especially the discontinuance of a road, then these public highways continue to exist, and the public has a right to use them, even if they lie unused and forgotten for centuries.

Therefore these old public roads, many of which have no evidence of their existence on the ground, or even from the air, are waiting to be discovered on old maps, to be documented from early town highway books, or in old deeds many of which are now sitting in the musty corners of town vaults. A few towns recently have gone so far as to hire someone to research their old rights-of-way, and are claiming the results for use by hikers, dog-walkers, and ATV/snowmobile enthusiasts. No property owner is safe from the possibility that a public road runs over his or her land, through the back yard, over the leachfield, or worse, right through the house.

How do you know if you have an ancient road on your property? You don't, and that's the nightmare. Your title searcher only has to go back forty years, and these roads, in most cases, are two hundred years old and evidence of their existence got buried over a century ago. Research to discover something that may not even exist on your property would be almost prohibitively expensive and time-consuming. And if a bonafide public road is found to exist on your property, then you are stuck with it. Be prepared for possible unwanted intrusion if that is the case.

So what's the solution? It has to lie with the legislature, and failing them, then the courts. Somewhere between the right of the public, embodied in town government, to travel any town highway, and the right of a private land owner to enjoy peace and quiet, is a reasonable and equitable compromise, and the end to the uncertainty from which no Vermont property owner is exempt.

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