The Property Rights Foundation of America's web site has detected a property rights issue of intense public interest. Numbers of visitors inquiring about roadways and access to their property are rivaled only by those with an interest in zoning. E-mails arrive here regularly pleading for advice about disputes with town officials and neighbors about old roads that are usually town highways suffering from neglect and non-recognition by the town.
This is a subject of great interest to my husband Peter and me, but one that, until this summer, I had not used as the subject of an article for PRFA because of the memories related to our early days when we moved to the mountains from College Point on the outskirts of New York City and the pain still associated with the injustice we experienced. However, time does gently heal wounds and the depth of study to which we applied ourselves during the 1970's, of both history and law related to town highways, may now serve to help others facing injustice very similar to that we faced in isolation.
After replying to many e-mails about this subject over recent months, I read an interesting article in the Hamilton County News on July 15 about the Long Lake Town Board's temporarily closing Sand Beach Road. The article revealed a common misconception about town highways, and I felt compelled to write a letter to the editor. Although the letter's length somewhat exceeded the word limit, the editor generously published the letter. It is incorporated into this longer article.
The Hamilton County News article strongly implied that the owner of property through which the road passes was trying to convey the idea that the road was deficient as a town highway because "the town only has a right-of-way," and because he "owned the property the road is on," as he was quoted in the article.
The fact is that nearly all town highways in upstate New York are "highways by use." These are rights-of-way for travel by the public. It would not be surprising if a Town did not have title to any of its highways. This would not in any way make these roads deficient as town highways.
An interesting sidebar to the fact that town highways are highways by use is that property owners need permission from intervening property owners to bring in electric or telephone utilities. Town boards have no power to grant this permission.
In New York, town roads cease to be "highways" only if they are formally abandoned according to a legal procedure established in the state law (there is also a procedure for qualified abandonment), or if they are neither maintained by the Town nor traveled by the public, including by foot, for at least six years.
This means that even if the Town doesn't do any work on the road for decades, if the public still occasionally travels by foot over the road, it is still a town highway.
Contributing to inaccuracies about town highways is the fact that in 1908 the ancient system of many town highway "beats," or districts, each with an individual "pathmaster," or district superintendent, was discontinued. Highway records, which were entered annually, ended at this time in most towns, but the fine old records are often carefully sequestered in the town clerk's safe.
After a long hiatus, inventories of town highways began again
in the 1960's, when the State required that the counties take
mileage inventories of town highways for state aid purposes. However,
these inventories are inadequate, for several reasons, not the
least of which is the fact that only the roads that could be traversed
by motor vehicle were included.
The intensity of town highway disputes reflects the impact of this common source of injustice. A typical experience of a new property owner whose land is accessed by a town highway that has not been maintained in years is that the intervening property owner will threaten or intimidate the new owner about using the road. When the new owner approaches the town board or highway superintendent, the officials fail to take action, leaving the new owner at the mercy of a neighboring owner's harassment, and facing expensive litigation brought by a lawyer who may know next to nothing about highway law and less than that about historic records. For his part, the new owner knows nothing whatever about local records and maps, and has no knowledge of highway law. The local officials may have some shared recollections about old roads, but usually they have almost no knowledge about records related to highways or the highway law.
During the almost thirty years since Peter and I researched the highway leading to our property, the older residents who signed affidavits certifying to their work on the road as employees of the town during the 1930's through the 1960's have all died. A similar situation probably exists in the other rural towns of this state. In addition, we faced deliberate destruction of evidence of the highway by the neighbor and theft of important town records by an official who had access to the town safe during the previous twenty years. Hopefully, such misdeeds are not widespread.
We brought to light records that are permanent and available to others willing to do the research, including town pathmaster records, excellent privately published maps from the nineteenth century, the pre-Revolutionary patent, deeds, assessment records, U.S. Geological Survey maps beginning at the turn of the twentieth century, New York State topographical and geological maps from the early twentieth century, official county highway maps from the early and mid-twentieth century, and other records. Every property owner and town official has access to these records. These are located at the town hall, the county historical records office, the county clerk's office, the county department of public works, the New York State Department of State, the U.S. Department of Interior, other state agencies and repositories. Pathmaster records must be explained in court, using deed references, assessment records, and maps to show the beginning and end points of each highway beat. Highway law is available to the public at the libraries maintained at the Supreme Courts (which are the courts of first action) in every county of the State of New York, and case law can be researched by starting from basic highway law.
If the property owner faces a hostile town and such a case must be presented in court, the highway proof would be prohibitive. Instead, the property owner and the town officials should sit down together to review the evidence that the property owner finds through careful research.
Town boards and highway superintendents have an obligation to become fully informed about the legal town highways within their jurisdiction, and not to leave this to lawyers, rumor, or opinion. Property owners should not face the financial burden of litigating to protect the right of access over a town highway to their property, especially considering the difficulty of presenting historical evidence in an adversarial situation. Town officials have a moral obligation to preserve the right of the public and property owners to the use of town highways and to maintain these roads when necessary to serve the public. Access to back parcels of land in rural New York should not be at the mercy of obstreperous property owners, or, worse yet, as has taken place in the North Country, at the whim of the State Department of Environmental Conservation, which has routinely blocked town highways during the long period of declining population lasting into the fifties and sixties.