Right of Way Mapping Guide

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1 Right of Way Mapping Guide

2 TABLE OF CONTENTS Section Page 1 MAPPING DEFINITIONS 1-1 What is Right of Way Mapping Existing Right of Way Mapping Final Right of Way Mapping The MaineDOT Right of Way Mapper EXISTING RIGHT OF WAY 2-1 Establishing Existing Right of Way County & Town Layouts Alignments State Highway Commission Right of Way for Bridge Projects Wrought Portion. 7 3 RIGHT OF WAY RESEARCH 3-1 Existing Plans Town Research Field Reconnaissance & Survey Fitting Existing Right of Way Plans Fitting existing Layouts Beaten Path Rule Reestablishment of lost or doubtful boundaries Right of Way Base Map Existing Conditions Plan FINAL RIGHT OF WAY MAPPING 4-1 Design Plans Impacts Complete Ordering Title Searches Easements and Rights Final Plan Users Acquisition of Rights State Statutes. 16 Research and Mapping 2

3 SECTION 1 - MAPPING DEFINITIONS- 1-1 What is Right of Way Mapping MaineDOT Right of Way Mapping is the application of technical and legal boundary principles in order to determine, and depict on a plan, the existing and proposed rights in land associated with a highway corridor. Right of Way Mapping is generally divided into two major Phases: (1) Existing Right of Way Mapping and (2) Final Right of Way Mapping. 1-2 Existing Right of Way Mapping The first phase, Existing Right of Way Mapping, consists of a series of actions to determine the nature and extent of the existing right of way boundaries of a particular highway; and depict them on a plan. It begins with research to examine the records that describe the nature and layout of the public rights. The first question to answer is - are the public s rights based upon: fee ownership, an easement for highway purposes or perhaps prescriptive rights based upon long term use? The research should also reveal the limits and width of the public rights or right of way. The research is followed by the Mapping portion; that is, where are those limits of the right of way located on the face of the earth. This first phase also involves field reconnaissance, and field survey to collect and coordinate the relevant data, and import it into CADD where it can be compared with the records. Once the ground data and record data is collected it is then interpreted and fit onto the ground survey using legal boundary retracement standards. The final result of this effort is a plan showing the boundaries of the existing rights of the public along the particular highway. The next step included in the mapping portion of Existing Right of Way Mapping is the review of private deed and survey records to determine the approximate location of private property lines of the abutting land owners along the proposed highway. For this property line determination work, complete boundary surveys are not performed for abutting parcels; but a concerted effort is made to accurately depict the abutting property lines directly adjacent to the highway. The existing right of way lines and existing property lines are then combined with the engineering topographic survey data to produce an Existing Conditions Plan for a proposed highway project. 1-3 Final Right of Way Mapping The second phase of right of way mapping is usually called Final Mapping. Final Mapping involves steps to determine and design the types of rights needed and the extents of those rights in order to build and maintain the highway or bridge improvements proposed in the design. A list of the most common permanent rights often acquired include: Fee Simple Absolute, Drainage Easements, Inlet and Outlet Drainage Structure Easements, Slope Easements, and Construct and Maintenance Easements. Final Mapping also will show any temporary rights needed to construct the project such as: the right to clear and grub trees, rights to have equipment temporarily operated on private property, the rights to grade and blend driveways and lawns to match the highway side slopes into the adjoining lands. Research and Mapping 3

4 Final Mapping begins with: the analysis of the new highway or bridge design to determine what additional rights are needed in order to build and maintain the new project. The Mapper will collaborate with: the designers, project manager, appraisers, the Title Office and right of way negotiators who work with the impacted land owners along the project, to modify the design to better assimilate the needs of the traveling public and the rights of the abutting land owners. The mapping portion of Final Mapping also includes working with the condemnation and title office to determine and depict on the Right of Way Plan which parcels are to be impacted, what are the areas of impacts, and who are the owners of those parcels. The Right of Way Plan is used by the appraisal office as a basis for the appraisal to determine the before construction and after construction values of the impacted parcels. This same plan is used to prepare the condemnation document and to negotiate with the private land owners whose parcels are impacted by the proposed construction. The final step of this mapping process is to record the Right Way Plan at the appropriate county Registry of Deeds. This Right of Way Plan is used as a basis to acquire the new rights necessary to build the project and as a legal record of the existing and newly acquired rights in land associated with the portion of the highway covered by the project. 1-4 The MaineDOT Right of Way Mappers The existing MaineDOT Right of Way Mappers have the requisite skills and experience to handle both Existing Right of Way plans and Final Right of Way plans functions. In order to complete a project the Mapper is required to possess many of the same skills associated with land surveyor in private sector work, and in addition must learn the skills to design the various rights in land to be acquired for highway projects primarily through the condemnation process. A Mapper must be able to read and interpret highway layouts, private property deeds, highway design plans and cross-sections, as well as private boundary survey plans. Along with the plan reading skills a Mapper must be able to correctly rebuild existing right of way plans and layouts as well as mathematically reconstruct deeds and depict them on a plan. Once any plans, layouts and deeds are reconstructed they must be fit to the ground survey and field evidence located by the survey. The vision of the review and implementation of the Property Office was to separate the mapping work into the two major phases referred to in the previous section. The Existing Right of Way mapping will be handled by the Property Office personnel under the supervision of the of the regional survey teams. The existing highway rights and existing private boundaries are determined under the direction of the Regional Licensed Land Surveyor; and shown on the Existing Conditions Plan. The existing conditions plan is not necessarily a separate deliverable or stamped plan; but it is delivered internally by posting the file to a specific CADD file location to which is then referenced by the highway design and right of way design personnel. The Final Right of Way Mapping is then handled by the engineering design teams. Final Right of Way Mapping is concerned with the design of the new rights and easements to be acquired and the necessary design skills to properly construct, label, and dimension the areas and ownership information. The Final Right of Way boundaries and plans are completed with input and direction from of the design team, the Title Office, and the Chief Surveyor who signs the plans for recording. Research and Mapping 4

5 Many of the boundary decisions and actions concerning the laying out highways, discontinuing highways, property rights of the public, and condemnation for highway purposes made by Mappers and other Property Office personnel are impacted or governed by State of Maine Statutes. Some of the more important or influential statutes concerning MaineDOT can be found under Title23 M.R.S.A. Highways and Title 33 M.R.S.A Property. The practical application, along with the impacts and interpretation, of the statute language is guided by the Legal Services Office. SECTION 2 - EXISTING RIGHT OF WAY 2-1 Establishing Existing Right of Way For MaineDOT Existing Right of Way determination is typically associated with a proposed reconstruction project. One of the considerations when planning the scope of a proposed project is; what are the limits and nature of the existing right of way along the proposed project. Some of the questions to ask are: how wide is the existing right of way? Do we have existing right of way plans along the proposed project? Is the right of way based upon one or more county or town layouts? Or- is the origin and ownership of the road layout unknown? 2-2 County or Town Layouts Many roads that are now classified as state highways, originated long before there was a state highway department. Most roads in Maine began with a petition for layout voted on by the county commissioners or by the local town or city government. These roads or layouts are normally considered as an Easement for Highway Purposes rather than Fee Ownership. When a town or county road becomes or is designated as a state highway the underlying ownership of the original layout easement is not affected by this designation. There is or was no deeded transfer of whatever rights exist in the road from the county or town to the state. County or town layouts generally consist of a metes and bounds description, usually defining the centerline or one edge of the alignment tangents. Each tangent is generally defined by a bearing and a distance with the distance usually stated in rods, or chains and links. The bearings may vary from basic general directions such as Northerly or Easterly, to more specific bearings defined in degrees and minutes. A layout for a road was generally requested or petitioned by a group of people living along the proposed road and presented to the county commissioners or the town for a vote and source of funding. These layouts defined a road and its location or dedicated a road for public use and the county or town voted or accepted the road for public use. Roads which generally are contained within a single town are most often laid out by the town; and roads connecting two towns or several towns were generally laid out by the county. In some cases the proposed layout was a new route essentially through the woods and in other cases the layout followed some existing roadways or portions of existing roadways with portions being of new layout. It is important to review all the language of the layouts as written as these details can be instrumental when it comes to placing or fitting the layout to the existing roadway today. Research and Mapping 5

6 When recreating the bearings and distances from an old layout consideration must be awarded to the many changes in measurement equipment and technology since the original survey was conducted. Clearly, measurement methods, accuracy, and land values have changed greatly since most roads were first laid out. In most cases original monuments have long since disappeared or were of insufficient durability to still exist today. Many layouts call for tangent end points at monuments such as: a stake, a blazed hemlock tree, or a large rock. These types of monuments would likely have been destroyed during the construction of the road or otherwise disappeared over the years since the layout. Although not as common, some layouts have tangents which begin or end at a stream, or brook, or with a side reference to a natural or man-made object nearby which may still be recoverable today. In any event field reconnaissance with the details of the layout in hand is a valuable step necessary in order to determine the existing Right of Way location. In the case of new roads in substantially a new location; the original survey and written layout would be followed by the actual construction of the road. Presumably, the road would have been constructed where the evidence of the survey and layout said it should go, but experience tells us that was not always the case. Tangents may have been lengthened or shortened and objects such as steep hills, rock outcrops, side slopes, and wet holes may have been avoided and angle points added to the description. The land owners along a new road may have been involved in the construction of the road and may have made field changes to the location of the roadway as well. One must consider these possible changes to the original layout as written, when attempting to fit the layout to where the existing road is located today. In other words the existing road as it is today may be the best remaining monument as to where the road was in the past. Generally speaking when fitting the layout you begin with the best evidence available, and one of the elements of that best evidence often is; where is the road located today. Another important factor to remember is the centerline of the road and the centerline of the layout are not necessarily coincident today. The roadbed location may have meandered within the original layout corridor. Some factors to consider concerning any discrepancies between the written layout and the actual road location can be explained by: limitations of the field equipment and survey methods, field changes to the location, transcription errors when copying the field survey notes into the Commissioner s layout record, or just plain reading or recording blunders in recording the field survey. 2-3 Highway Alignments Before at least the 1930 s, road layouts nearly always consisted of a series of tangents made up of a bearing and distance. More modern layouts or alignments consist of a series of tangents and tangential circular curves. Modern alignments generally define both the centerline of the proposed highway and the centerline of the new Right of Way Corridor. However, the Highway construction alignment and Right of Way alignment are not always the same and do not have to be in the center of the new or existing Right of Way. Most often the right of way lines are mathematically tied to the baseline or centerline alignment by ties defined by a station and an offset. This method of anchoring the new rights to the centerline alignment has its roots in the baseline method of surveying, but remains today, and is often the best way to mathematically tie a series of otherwise unrelated rights in land to a common description. Research and Mapping 6

7 2-4 State Highway Commission In Maine, the State Highway Commission came into being by authorization of the State Legislature around In the early years of the Highway Commission much of the work involved fixing dangerous curves and hills, and replacing some of the old tangent angles with highway curves more suitable to the developing automobile traffic. In some cases these highway projects were shown on plans recorded at the various registries of deeds and the transactions completed by deeds granted by the abutting landowners. In some other cases no deeds can be found recorded completing the transactions shown on the plans, and in yet other cases no recorded plans or deeds can be found leaving no paper trail; yet the road has clearly been moved. Generally, if we have recorded plans showing the new road location, the department would claim an easement for highway purposes based upon that long standing recorded plan. During the 1930 s some projects were completed by federal work programs to fix curves or rebuild bridges and during this period in particular there are documents missing from the public record. 2-5 Right of Way for Bridges The Right of Way for Bridges is often more complicated to unravel than the Right of Way for Highways. Many of the original bridges were located at the narrowest crossing of the stream or river. When the bridge was replaced it may have been reconstructed next to the existing bridge or in some cases moved a few hundred feet and new rights may or may not have been purchased at that time. This seems to be particularly true again in the 1930 s and in some cases the 1940 s. At times when replacing a bridge a meandering stream may have been altered to meet the new bridge location or a bridge may have been moved to better match the current meanders of the stream. And again, new rights may or may not have been acquired and recorded, or right of way plans drawn, for these new locations. In some cases, where a new right of way plan was not drawn or recorded, there may still be a design site plan in the bridge archive files at MaineDOT. In some cases when a highway layout reached the bank of a larger river the layout stopped at the bank or edge of the river and may begin again on the opposite side of the river. The highway layouts were normally not written to encompass the waters of a navigable river. The feelings may have been that the public already had the common law rights to use the river for travel and navigation and no additional rights were necessary for the public to construct a bridge to cross the river. If a bridge location and associated approaches were moved from their original location and no recorded rights can be found for the new locations MaineDOT normally claims the rights to have a road their by Wrought Portion (a prescriptive easement right) 2-6 Wrought Portion Wrought portion rights are the rights associated with an active highway or road where we claim an easement for highway purposes over the worked or improved portion of the road including out to the back edges of a ditch and built slopes. The rights of wrought portion concerning highways apparently have their basis in case law. Research and Mapping 7

8 Wrought portion is also claimed by the department in cases where there is clearly a highway there today but no records or plans can be found documenting the public s right to use and maintain the highway. Wrought portion is also claimed over areas where the use of the highway by the public has migrated, or crept outside of the original bounds of the layout. This situation is very common in a curve that was formally defined by two tangents or at an intersection where the road has gradually cut off the corner over time. SECTION 3 -RESEARCH 3-1 Right of Way Research Right of Way Mapping for a Highway or Bridge project begins with research. The Mapper checks for existing plans and layouts by checking either the paper hard copy right of way index in the Augusta Property Office, the Regional Office or electronically in the MaineDOT Map Viewer software. Either way will provide a list of existing Right of Way Plans for the specific section of highway covered by the project. Also found on this index are the recording references for the county layouts along the road. It is important to remember that the county boundaries have changed dramatically over time as new counties were added and the lines between counties redrawn. For example a road that is currently in the County of Kennebec may have been laid out prior to the county being created in about 1800 and may have been laid out by the county of Hancock, Lincoln, Cumberland, or York, as Kennebec county was part of each of these counties at over time. In the 1970 s the Department of Transportation copied all of the recorded layouts from all of the county commissioner s records across the state. The layouts were plotted by hand onto tracing paper at the same scale as the original 15 minute quadrangle sheets published by The United States Geological Society (USGS). Over a period of time the layouts were compared to existing roads and assigned to the appropriate locations as well as could be determined. The location of some layouts was clearly identifiable and others were much less clear. The location for some layout plots could not be identified and have been labeled as such, and some may have been mislabeled, are in fact associated with the wrong road. 3-2 Town Research Research of roads also often involves a review of town records. The researcher may travel to the particular town and review records of: the town clerk, the Town Road Book if it exists, town meeting records, the public works department records, or the town planning department records. Unfortunately, many towns have incomplete records or records that were not separately categorized from other items voted upon at a town meeting or have missing records due to a fire or other natural disaster. The Maine State Archives Office has copies of many town records and may also be a source for town road record research as well. Another source at the town may be the local historical society. The society usually has copies of town reports and town history books which may not contain an actual layout, but may contain valuable information about the roads. Town history books are also valuable sources for information about changes in town boundaries, town names, and road names. Most old road Research and Mapping 8

9 layouts whether the origin is with the town or the county do not state a name for the road and if it did the name may very well have changed and maybe several times since it was laid out. Other pertinent information gathered at the town office is from the tax assessor s office. This research may not actually be done by the Mapper but it is necessary in order to research the current owners of record, and compile a list of Names, mailing address, property address, Map and Lot # and book and page numbers of the listed owner s deed. Other research commonly conducted at the town level, which may be helpful to right of way determination includes: copies of private surveys, site plans and subdivision surveys which may not otherwise be recorded. The private surveys usually show a source of title for the road, local monumentation either found or set by the surveyor and can provide a record of monumentation from the past that has been removed or altered over time. 3-3 Field Reconnaissance and Survey Ideally once the research has been gathered and reviewed the field reconnaissance and survey can begin. In practice it is not always this linear, and only a portion of the research may be completed prior to the commencing of the field survey. Also, as the field survey progresses new information often comes to light in the form of additional property monuments may be found, and impromptu meetings with abutting landowners which may lead to additional survey plans not previously discovered. The field survey will be tasked with locating all the pertinent topographic features necessary for highway design along with any monuments from previous surveys, old fences, stonewalls and large trees, which may indicate the possible location of Right of Way lines. 3-4 Fitting Existing Right of Way Plans Once the existing topographic survey information is downloaded and edited; the surveyor/mapper can begin the process of determining the existing right of way. If there are existing plans from previous projects the surveyor/mapper will recreate the baseline and right of way mathematics used to define the right of way lines in the previous project. The surveyor/mapper will review and analyze the plans, deeds, and condemnation documents from previous projects to determine the existing rights either: fee, easement, or both that were acquired. The existing rights are overlaid with the current topographic survey and best fit to the current survey. For anyone who has never tried to fit an old plan to a new survey it seems like this should be a simple straight forward process. And on some occasions it actually is quite simple. However, most often some elements of the previous plan don t fit well such as alignment mathematics, or monument locations or locations of other features don t perfectly match the existing road right of way as surveyed today, and some adjustments must occur. A few years back this fitting took place on a drafting table or more often on a long light table. Today the comparisons are usually done in the CADD system but the light table concepts still apply. Research and Mapping 9

10 3-4 Fitting Existing Layouts Fitting existing right of way layouts to the modern survey is usually more difficult and time consuming than fitting old highway plans. An old highway plan may be anywhere from the 1920 s to just a few years ago, but old highway layouts can date back to the late1700 s. In the early days of highway layout and construction the roads were most often located where it was easiest to construct a road without the aid of machinery. The layout for the old highways usually was based upon bearings observed with a staff compass, and the distances most likely measured with a rod or pole or a Gunters Chain. As previously mentioned, the measurements from the original survey and the measurements from today are not likely to match exactly. The surveyor/mapper must begin with the original data and see where it fits and where it does not fit and begin to form ideas of how best to achieve an overall best fit. In some cases the layout may fit quite well for a mile and suddenly diverge from the existing road. In such a case the divergence may be due to a scrivener s error in the layout information, a survey mistake, or it could be the road was just built in a different location than the layout due to a field change. Often the reconstruction of the existing right of way is a combination of fitting the original layout for much of the highway along with a plan or two done for a previous project to build or rebuild a curve, an intersection or a bridge. When fitting an existing layout there are several elements of evidence to consider. A portion of the evidence is written and may be contained in a metes and bounds description. Other evidence can be physical; either manmade or natural monuments recovered by the field survey. The surveyor/mapper must consider the order of importance or hierarchy of the various elements and factor that into the decisions made as to where to place the boundaries. In boundary determination it is a fairly well accepted principle that boundaries are established in descending order of control by monuments, courses, distances, quantity, and coordinates. 1 Further definition of this principle reveals that in order to control, a monument must be called for in the deed. Additionally, natural monuments are of greater significance than artificial monuments which can more easily be moved. When reviewing the calls for monuments from old layouts for a road one should consider that the original monuments in most cases will no longer exist. One should also consider that the original monuments may never have been set; they may have been replaced, or they may have simply deteriorated by the passage of time or been destroyed by the construction of the road. Other elements which are often considered as evidence of the right of way location are stone walls, tree lines, fences, and private property pins or monuments. These elements or evidence are most often indicators to the right of way as it was constructed, and not necessarily as it was described in the written layout. Presumably, the stone walls were constructed along or near the right of way as the stones were cleared from the roadway during construction of the road or from adjacent fields as farmers cleared them to improve their fields. In either case, the stone walls may have been laid at a convenient place near the right of way but it is unlikely that accurate measurements were used to 1 Curtis M. Brown, Walter G. Robillard, and Donald A. Wilson, Boundary Control and Legal Principles, third edition, John Wiley and Sons, Inc. 1986, p78 Research and Mapping 10

11 lay them out. Often times if stone walls do exist on both sides of an old roadway the width between the walls varies greatly at various points along the road. Similarly, trees may have been planted and fences constructed along or near the apparent right of way of the roadway during or after the construction of the road. Most often private property monuments along roads would have been set after the road was constructed unless the original layout actually followed a private property line. 3-6 Beaten Path Rule When recreating road layouts the current position of the roadway is always considered as one element of evidence of where the layout may have been intended. A road layout may have been based on a survey of a new layout (where no roadway previously existed), or it may have been based upon an as-built of existing private roads, or some combination of the two situations. Depending on the type of layout may well impact how close the ancient layout actually fits today s existing roadway. The Mapper should expect that a layout description constructed from an as-built survey would result in a layout that more closely follows today s existing roadway. Whereas, a layout created a from a random survey, which was then followed by roadway construction may not follow today s existing roadway location as well, and in fact may at times differ greatly from the written layout, because the road was actually built differently than it was described. The Mapper s task is to best fit these written layouts to the existing layout evidence or existing roadway location in the absence of layout evidence. This is usually achieved by lengthening or shortening some tangent sections, adjusting the deflection angles between the tangents, or as a last resort adding some new angle points. These adjustments to the angles and distances are defensible, in that, today s survey equipment is much more accurate than the equipment used for the original layouts. The addition of angle points, although somewhat less defensible, has validity because it is unlikely the road was actually either laid out or already existed, as straight as the survey would indicate. Also, other adjustments to the original survey and written documents can in some cases be attributable to scrivener s errors, math mistakes and perhaps low land values at the time of the survey. In situations where the written layout diverges from the actual roadway location, and there is no layout evidence to the contrary, (i.e., there is no evidence that the road has moved from its original location), we would continue to use the documented layout width, and best fit the existing road with the layout width. When performing this best fit under these circumstances we are using the roadway as a monument. That is, the existing roadway location is the best evidence of where the original roadway or layout was located. This method is often referred to as the Beaten Path Rule. When using the Beaten Path Rule the existing roadway is the monument; and the Right-of-Way is defined as centered on the roadway, and concentric with the roadway, including the existing curves necessary to define that roadway. The Beaten Path Rule is essentially saying that where the roadway is today is the best evidence of where the roadway was originally laid out or built on the face of the earth. This determination can only be made after a thorough field investigation has been completed and no conflicting Research and Mapping 11

12 evidence can be found of the original layout or original roadway. In other words, the Beaten Path Rule should only be considered after thorough research and field work has ruled out other possibilities and should not be the fall back position. 3-7 Reestablishment of Lost or Doubtful Boundaries Another method of establishing or in this case reestablishing the existing Right of Way boundaries can be found in Maine Statutory law. This Statute is under Title This statute states that Whenever in the opinion of the department the boundary lines, limits or location of any state highway or state aid highway or any part thereof are lost, uncertain or doubtful, the department may reestablish those lines, limits or location; land lying within those lines is a part of the highway right-of-way. The statute continues to describe rules for the posting of plans and the publishing of the descriptions and the process for any person aggrieved to file a complaint. The statute also describes reestablishing with regard to landmark boundaries and historic features such as fences, fence posts, tree rows, stone walls, corner stones or other monuments and their impact on the Right of way limits. This statute is rarely used by the department to reestablish boundaries as we generally rely heavily on record boundaries or the wrought portion of the highway to establish the existing limits. 3-8 Right of Way Base Map Until recently the Right of Way Base Map was always the initial product produced by the Right of Way Mapper. The Right of Way Base Map consists of: the existing ground topography, the existing right of way lines of the highway, and abutting property lines derived from tax maps only. The Right of Way Base Map can be used for preliminary public hearings and was in the past the initial delivery product to the design team to begin the highway or bridge design. 3-9 Existing Conditions Plan Under the mission of the Property Office the goal is to produce a more comprehensive plan referred to as the Existing Conditions Plan. The Existing Conditions Plan builds on the Right of Way Base Map concept, but adds information concerning the existing wetlands, and identifies potential historic property. In addition the abutting property lines are based upon deed descriptions, field monumentation, and private boundary surveys, rather than relying entirely on tax maps. With the more comprehensive information shown on an existing conditions plan, the designers should be better able to make informed decisions concerning the property impacts of the new location and grade of the design. See Appendix F for a copy of a sample Existing Conditions Plan. Research and Mapping 12

13 3-10 Existing Property Lines The existing property lines between abutting parcels along the Highway Right of Way are plotted by the Property Office Mappers. Under the Property Office model for the Existing Conditions Plan the property lines between abutters are plotted before the existing conditions plan is delivered to the design team. Normally, the titles for highway projects are not ordered until the design impacts are complete and then titles are ordered only for the impacted parcels; and only to the level of title research necessary for type of rights to be acquired. Under the existing conditions model, each region survey team is responsible for its own boundary research. This approach may result in some duplication of research effort; but the benefits of the early research and recon efforts by survey can identify property issues earlier in the design process. When we research for the property lines were are primarily gathering enough history to uncover a metes and bounds description, survey plans, and calls for monuments wherever possible. With this research in hand we will attempt to hold the local evidence and layout the abutting properties by the plans and descriptions. We often encounter overlaps and gaps and account for them by holding dimensions from the deeds and plans, and evidence of possession. If there are still conflicts of title (particularly overlaps) then we may in some cases pay both parties for the contested area in an easement or temporary rights situation. We do not attempt to resolve any boundary disputes between the abutting land owners. One of the areas of conflicts in ownership boundaries, which often appear, is Riparian or Littoral rights along water boundaries. Many times the upland ownership and the rights to low water or to the center of the stream for example become separated by the language of the deeds. The separation of these rights may have occurred by mistake or unknowingly by the language used by the grantor but separation will have occurred regardless. In a situation where the upland rights have been separated from the water rights and a long period of time has occurred; we may elect to compensate the upland owner for any water rights that would normally be associated with the upland parcel. This is one of the many situations where discussions between the Title and Legal Services Offices and the Mapper are necessary to come to a consensus and a resolution of the conflicts. SECTION 4 -FINAL RIGHT OF WAY MAPPING 4-1 Design Plans Impacts Complete The final right of way mapping generally begins when the design plans meet the Design Plans Impacts Complete standards. See the MaineDOT Right of Way Manual table 2-3 for a check list of Design Plans Impacts Complete. At this point the mapper should have all the information on the plan to determine the extents of any strip takes necessary to reasonably accommodate the majority of the design impacts and then complete the design with the various easements needed in areas which exceed the width of any strip takes. The Final Right of Way Plans are used to document existing rights and to define any new rights in land to be acquired to accommodate the new highway or bridge design. The new rights acquired may be of several forms including: fee simple absolute, permanent easements, or temporary rights (which end with the completion of construction). The Final Right of Way Plans are used to document these rights for the Research and Mapping 13

14 condemnation process, by appraisal to calculate compensation, to inform the abutting landowners of the rights needed, and finally to record the acquisitions at the registry of deeds. The Mapper begins with the minimum standard widths based upon the road way classifications in order to design a Right of Way with a width that is as consistent as practical throughout the project and from project to project. ( See the MaineDOT Right of Way Manual Chapter 2, Section (b) and table 2-4 for table of widths and a listing of some allowable design exceptions). This table is also reprinted with this document as Appendix A. The Mapper reviews the highway design and decides which types of rights it is necessary to acquire for the various elements of the design. In some cases where the project scope and subsequent design calls for significant reconstruction of the highway we may have fee strip acquisitions on one or both sides of the existing highway. In such cases additional rights may also be needed to accommodate the installation and maintenance of new drainage or drainage structures, side slopes, riprap for drainage outlets or slopes, and temporary rights for clearing, grading lawns, re-grading of driveways and entrances to match the new road elevation. See Appendix B for a sample Final ROW Mapping step through document. 4-2 Ordering Title Searches The Title examinations of the impacted parcels are handled by the Title Office and the Office of Legal Services. They have established standards concerning the title examination practices and have compiled those into a table which can also be found in the MaineDOT Right of Way Manual, Chapter 2, Table 2-2. This Table is also reprinted with this document as Appendix C. Once the Mapper has determined which rights to acquire and from which parcels they review the table standards and request the appropriate level of title research for each impacted parcel. 4-3 Easements and Property Rights Over time certain easements and rights acquired have been renamed or consolidated into a somewhat shorter list. One of the primary changes was to limit the use the term easement when referring to a permanent acquisition of property interests; and the use of the term rights when referring to temporary property interests which generally expire with the completion of the project as defined by the department within its acquisition documents. In spite of efforts to consolidate the list of easements and rights it remains fairly lengthy due in part to the requirement that the state may take private property or property rights for public uses but not without just compensation; nor unless the public exigencies require it. In other words the Department of Transportation is empowered by statute to acquire what the public needs to build and maintain the highway, and limited by the same statutes to not acquire more than is needed. Some of the more common easements that appear on our projects are: Slopes, Slope with Toe or Berm Ditch, Drainage, Drainage Structure (outlet or inlet), and Construction and Maintenance Easements. To view a more comprehensive list of easements including written descriptions explaining the extent and limitations of those rights and sample sketches see Appendix D. Research and Mapping 14

15 4-4 Final Plan Users As mentioned previously the Final Right of Way plans have many users throughout the life of a project. Some of the users are early on in the life of a project such as designers, project managers and senior property officers looking at the existing public rights and evaluating how expanding those rights may impact the private rights and uses along the project. This analysis affects design decisions and may limit the final design decisions in order to minimize adverse impacts to the private rights along the project. In some cases the impacts to the private property are such that the entire property is taken and the owners or tenants are eligible for a variety of compensations and relocation services to relocate them to suitable housing. The details of the relocation services and procedures are also covered by statute and can be found in the Maine Revised Statutes Title 23 M.R.S.A. Sections 151 through 161. Other users of the Right of Way plans are appraisers and somewhat later the negotiators. The appraisers use the information concerning the area of parcels, the area of the proposed takings in fee, easement, or temporary rights and the remaining area of the parcel, if different, in conjunction with other valuation information, to calculate the values of the property both before the takes and after the takes. With this information the offers to the landowners are determined and negotiations begin with the landowners. The negotiators also use the plans when meeting with the landowners to explain and depict the limits of the property impacts, to explain the construction process, and describe what some of the physical changes may look like once the construction is complete. This is brief explanation of how the appraisers and negotiators may use the plans. For greater detail concerning the roles of both appraisers and negotiators please refer to the Maine DOT Right of Way Manual. 4-5 Acquisition of Rights One of the major purposes or uses of the right of way plans is to document the existing rights of the public and as a basis for acquiring new rights in land. For several reasons, including the convenience of both the private landowners and for MaineDOT, acquisitions are generally handled by condemnation. One of the advantages of condemnation is that Maine is a Rem Theory State. A taking in Rem is a taking against a thing (the land in this case) rather than the person. By this theory land acquired by condemnation can be in fee simple and simultaneously extinguish all other proprietary rights and interests of other parties. Much of the information that appears on the plan in the form of: parcel setups, areas, dimensions, station and offset distances, is placed on the plan to be used in the condemnation documents to adequately describe the rights in land to be acquired for public use. The Mapper works with the Title office to ensure that the information needed for the condemnation documents is complete and accurately shown on the plans. See Appendix D for check list of elements of a completed Right of Way Plan. Research and Mapping 15

16 4-6 State Statutes Many of the activities of the Department of Transportation including those of the Right of Way Mappers are authorized and defined through The Maine Revised Statutes. The interpretation of the statutes and their impact on the department operation are the purview of the Office of Legal Services. Listed here are some of the more common statutes that may impact the day to day operations of Mappers concerning the determination of highway boundaries, and the acquisition of land and rights in land for highway purposes. TITLE 23: HIGHWAYS Part 1: State Highway Law, Chapter 11: Laying out, Altering, and Discontinuing Highways State and State Aid Highways This section grants the authority to the department to alter, widen or change the grade of any state or state aid highway and to layout, establish new highways and discontinue highways. 653 Highway Boundaries This section grants the authority to establish the boundaries, limits or locations of state and state aid highways; or reestablish the boundaries if lost or doubtful. TITLE 23: HIGHWAYS Part 1: State Highway Law, Chapter 3 Officials and Their Duties Subchapter 3 State Claims Commission Heading. 153-B Property for highways; acquisition This section grants the department the authority to acquire and hold land for highways and highway purposes; to conduct surveys, appraisals, to make entry to conduct soundings drillings and examinations along with some limitations to those rights. 154 Condemnation proceedings This section grants authority to the department to acquire land by condemnation and describes the procedures to determine valuations, damages, and compensation for the rights taken. It also describes the procedure for filing plans and documents to record the proceedings. TITLE 23: HIGHWAYS Part 1: State Highway Law, Chapter 7 Controlled Access Highways 301 Definition - This section defines a controlled access highway and grants authority to the department to determine the control of access. TITLE 14: COURT PROCEDURES CIVIL Part 7 Particular Proceedings Chapter 739 Waste and Trespass to Real Estate 7554-A Removal or destruction of landmark boundaries by state departments This section addresses the rights of affected landowners to request that the department reestablish the landmark location. See Appendix E for copies of the above referenced statutes or go to the Maine Revised Statutes on line to see the current statutes. Research and Mapping 16

17 Appendices Research and Mapping 17

18 Appendix A TABLE 2-4 Minimum Widths for Right of Way Acquisition Road Classification & Projected AADT Paved Width Traveled Way Width Side Slope Design Speed Proposed Minimum R/W Width (one side) Total R/W Width Minimum Minor Collectors Under to 4000 Over /13 (3.0 m/3.9 m) 14 (4.2 m) 15 /18 (4.5 m/5.4 m) 10 (3.0 m) 10 /11 (3.0 m/3.3 m) 11 /12 (3.3 m/3.6 m) 1:3 1:3 1:3 40 mph (60 km/h) 40 mph (60 km/h) 45 mph (70 km/h) 33 (10 m) 33 (10 m) 40 (12 m) 66 (20 m) 66 (20m) 80 (24 m) Major Collectors Under to to 6000 Over /13 (3.0 m/3.9 m) 14 (4.2 m) 15 (4.5 m 18 (5.4 m) 10 (3.0 m) 10 /11 (3.0 m/3.3 m) 11 (3.3 m) 12 (3.6 m) 1:3 1:3 1:3 1:3 45 mph (70 km/h) 45 mph (70 km/h) 45 mph (70 km/h) 45 mph (70 km/h) 33 (10 m) 33 (10 m) 33 (10 m) 40 (12 m) 66 (20 m) 66 (20 m) 66 (20 m) 80 (24 m) Minor Arterials Under to to 8000 Over (4.2 m) 14 /15 /18 (4.2 m/4.5 m/5.4 m) 18 (5.4 m) 20 (6.0 m) 10 /11 (3.0 m/3.3 m) 10 /11 (3.0 m/3.3 m) 11 /12 (3.3 m/3.6 m) 12 (3.6 m) 1:3 1:3 1:4 1:4 45 mph (70 km/h) 45 mph (70 km/h) 55 mph (90 km/h) 55 mph (90 km/h) 33 (10 m) 33 (10 m) 40 (12 m) 50 (15 m) 66 (20 m) 66 (20 m) 80 (24 m) 100 (30 m) NHS (Non-interstate) 35 to 50 mph (50 km/h 80 km/h) 50 mph 4 lane 34 (10.2 m) (3.6 m m) 1:4 35 mph 50 mph (50 km/h 80 km/h) 50+ mph (80+ km/h) 55+ mph (90+ km/h) 40 (12 m) 50 (15 m) 60 (18 m) 80 (24 m) 100 (30 m) 120 (36 m) Urban With Curb No Curb No Curb 35 mph ( 50 km/h) >35 (>50 km/h) 10 to 15 (3 m to 4.5 m) Behind Curb (7.5 m) 33 (10 m) 49.5 (15 m) 66 (20 m) Notes: 1. Minimum utility offset to face of pole. 2. Minimum utility offset with pole and mast arm, does not provide aerial clear zone rights beyond R/W limits. 3. Minimum utility offset based on 3-ft (0.9-m) deep ditch with pole 2 ft. (0.6 m) behind ditchline, includes pole and mast arm. 4. Truck lanes or additional lane/pavement width will increase minimum offsets by the added width. Research and Mapping 18

19 Appendix B Final Right of Way Mapping 1. Abutting Property Information A. Verify titles property lines compare it to the ECP property lines. 1. Make changes if necessary 2. Label the property line - P.L. B. Create a Parcel Setup for all property affected by any proposed acquisition C. Item/Parcel setup example PROPERTY OWNER NAME PROPERTY OWNER NAME PARCEL/ITEM NO. ( ) LAND TAKEN = (PRESC. EASE.) LAND TAKEN = (OTHER) TOTAL LAND TAKEN = DRAINAGE EASEMENT = SLOPE EASEMENT = TEMP. CONST. RIGHTS = TOTAL AREA = REM. AREA = Note: some rights will be deleted or added as needed and all text is in caps. D. Update the property owner(s) name in the Parcel Setup JOHN A. SMITH, II E. Parcel/Item No. for each property involved with an Acquisition 1. Any property with Land Taken = Parcel No. ( ) or 2. Any property without Land Taken = Item No. ( ) F. Update the TOTAL AREA within Parcel Setup TOTAL AREA = 12.5+/- Ac. (PER BOUNDARY SURVEY) G. Reference any boundary plans related to the property 2. Baseline A. Label the Begin and End of the Baseline location BEGIN B.L. & END B.L. B. Dimensioning the Baseline 1. Tangent lines A. Bearings (to the tenth of a second) B. Distances (to the hundredth of a foot) 2. Curved lines A. Distances (to the hundredth of a foot) 3. Curve Data Information A. Usually provided by design team B. Make sure the math between PC & PT stations match the length of curve L in the curve data C. Label the curve (to the hundredth of a foot) 3. Proposed Right of Way A. Review R/W manual 1. Speed limit 2. Future traffic count B. Check with the following people 1. Right of way review appraiser 2. Utility coordinator A. Proposed pole locations Research and Mapping 19

20 B. offset requirements from last wire 3. Environmental coordinator A. concerns with historical, archeological, park land [4(f), 106(f)] property C. Plot proposed right of way lines 1. In most cases, equal distance on both sides of baseline (25, 33, 40 ) 2. Utility Clear Zone A. Draw a line between utility poles B. Off set distance 1. Usually about 10 from last power line wire 2. Look for areas that need additional R/W acquisition D. Dimension 1. Tie lines A. Begin and end of acquisition, PC Station, PT Station, Angle Points B. Tie Station 1. Proposed R/W blending into existing R/W (+12+/-) 2. Proposed R/W starting off at an exact station (+10) 3. C. Tie Distances 1. Proposed R/W blending into existing R/W no tie distance 2. Proposed R/W at an exact station tie distance to the nearest foot (33 ) 2. Condemnation Distances (Outside Distances) A. Tangent lines 1. Proposed R/W a. POB to first PC Station or Angle Point 1. +/- Station to exact station Distance to the nearest foot (102 ) or 2. Exact Station to Exact Station Distance to the hundredth of a foot ( ) b. PT Station to EOP or PC Station to EOP 1. Exact Station to +/- station Distance to the nearest foot (102 ) or 2. Exact Station to Exact Station Distance to the hundredth of a foot ( ) 2. Existing R/W a. +/- Station to +/- Station Distance to the nearest foot (102 ) B. Curved line 1. Proposed R/W a. PC Station to PT Station - Distance to the hundredth of a foot ( ) b. Matching into existing R/W or property line, distance to the nearest foot (102 ) 2. Existing R/W a. PC to PT of a Line 1. Only if the Existing R/W is parallel to the Design B.L. Distance to the hundredth of a foot (102.36) 2. Existing R/W is not parallel to the Design Baseline Distance to the nearest foot (102 ) 3. Parcel Distances (Inside Distances) A. Property line to property line along proposed R/W or existing R/W lines 1. If this distance is the same as the Condemnation distance, use Condemnation Distances only a. Could be either 102 +/- or If the distance is less than the condemnation distance, label the inside of line to the nearest foot± (102 +/-) 3. If the Distance is longer than the Condemnation Distance a. Property Line to PC Station place Parcel Distance Label (102 +/-) Research and Mapping 20

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