Thirty Feet or Sixty: A Road Established in 1874
Lane County. Your client owns a 2.1-acre parcel fronting a county road established by a county court order in 1874: "...commencing at a fir post on the claim line of J. Hinkle, thence south 40 rods to a stake, said road to be 30 feet wide." No plat was filed and no survey appears in the road file. The county's 1938 road map shows a 60-foot right of way, dimensioned 60, tied to no monument, signed by the then-roadmaster. The paved surface today is 22 feet wide with 3-foot gravel shoulders. A 1974 maintenance log records the county ditching "about 18 feet from the edge of pavement." The client wants to build 30 feet from the pavement centerline and needs to know whether the right of way is 15 feet or 30 feet from that centerline. The county engineer tells him, "Sixty feet, same as our map."
1. What is the presumptive width of the right of way, and what is your reasoning?
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The 1874 county court order created the easement; its terms define the width until something lawfully changes it. "Said road to be 30 feet wide" means a total width of 30 feet - 15 feet each side of the located centerline. Nineteenth-century road orders in Oregon routinely state total width this way, and reading it as a half-width would double the taking without any compensating instrument.
The 1938 map is an administrative depiction by a roadmaster, not a conveyance and not a widening order. A map that recites 60 feet with no monument ties and no supporting court order is evidence of what someone drew, not of what the county owns. Road rights of way are not widened by redrawing them on an assessor's or roadmaster's map.
So the presumptive answer is 15 feet each side - but note the caveat that matters as much as the width: the pavement centerline is not automatically the road centerline. The 1874 line must be located from the fir post and the claim line if either is recoverable, and the pavement may be offset from it.
2. What records and field evidence would you examine, and what could lawfully change the width?
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Records. The complete county road file for that road: the original order and petition, any viewer's report, later county court orders (widening, relocation, vacation), deeds, condemnation proceedings, and survey maps. Check the county surveyor's records for any survey of the road centerline and the state archives for the county court journal. Ask specifically whether a widening order exists - that is the single document that would resolve this.
Prescription. The county could have acquired additional width by prescriptive use, but that requires open, notorious, adverse public use and county maintenance beyond the 30 feet for the statutory period. A 1974 ditching entry at 18 feet from pavement edge is consistent with a 60-foot corridor but is thin on its own; a sustained pattern of maintenance, signs, culverts, sidewalks, and improvements outside the 30 feet, documented over decades, is much stronger.
Field evidence. Old fence lines and fencerows, ditch lines, mature trees predating the pavement, utility pole lines, mailboxes, driveway aprons, and the edge of the original gravel road visible in early aerial photography. These often mark the historical traveled way better than any map.
Any of these could support 60 feet; none of them is the road order, so each must be weighed and explained.
3. How do you advise the client, and what do you show on the survey?
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Advise him that the county's 60-foot assertion is not supported by the record unless the county produces a widening instrument or solid prescription evidence, and that a county engineer's statement is not a conveyance. Then tell him the practical reality: the building permit will be measured from whatever right of way the county asserts, and the county has asserted 60 feet.
Recommend he request the county's road file in writing and ask the county to state, in writing, the instrument on which its 60-foot width is based. That letter either produces a widening order you have not seen or puts the county in the position of defending an unsupported position - useful either way.
On the map, show: the located road centerline per the 1874 calls as best recoverable; the 30-foot right of way per the 1874 order, labeled as the right of way of record; the pavement, shoulders, and ditch lines; and a note stating that the county asserts a 60-foot width per its 1938 road map and that no widening instrument was found in the records examined. Do not draw a 60-foot right of way as established fact.
For construction, tell him to design to the more restrictive line until the county's position is resolved in writing - advice, not a survey line.