Garland County rights of way clouded

40-foot easement maintained despite many property lines ending in road

HOT SPRINGS -- The absence of court orders declaring many of the 1,800 miles of county-maintained roads as public rights of way clouds who is responsible for them, Garland County Judge Rick Davis said.

The quandary was highlighted by a Mill Creek Road property owner's request earlier this year for a state Plant Board investigation of the vegetation management company the county contracted for chemical mowing.

The complainant said Roadside Inc. of Auburn, Ala., treated areas outside the Mill Creek Road right of way and killed almost a dozen trees on her property.

The Plant Board issued civil penalties to Roadside and the applicator for being unlicensed when the chemicals were applied to a 9.5-mile segment on May 31. The applicator received a warning letter for pesticide drift, according to the report from the June 12 investigation.

Davis doesn't dispute the 40-foot right of way the property owner said her deed stipulates, saying the county assumes a 40-foot right of way despite many deeds that show private property extending to the centerline of adjoining roads.

He said the county has to mow or treat areas outside the right of way on roads like Mill Creek, which don't have curbs or proper drainage, and that new roads the county accepts for maintenance will have 50-foot rights of way to facilitate their upkeep.

Davis said the deed to his farm shows the property extends to the centerline of all adjacent roads, property that's included in the square footage that determines his property taxes.

"There are a lot of situations where people are paying property taxes on county roads, and I don't know how you fix that," Davis said. "A lot of our rights of way are screwed up. There's so many places where we don't have legal easements."

Davis said private roads become public rights of way through prescriptive easement, a designation that attaches after the public has used a road over a continuous seven-year period that begins when the landowner becomes aware it's being used in such a manner.

Davis said he considered creating a blanket easement for all county-maintained roads but was dissuaded by the county attorney.

"He said we'd be taking people's property, and at that point we'd have to compensate them," David said. "We can't afford to do that, so we're stuck with what we have. We have a minimum of 40 foot throughout the entire county because we've maintained it for 50 years."

Davis said the road study his office began this year shows the county maintains about 1,800 miles of roads, many of which have origins as private, U.S. Forest Service or logging roads. He said the numbering system the county used to catalog roads before the implementation of the 911 system establishes a road's inclusion in the system, but it doesn't mean it was intended for public use.

"The county numbered a lot of them just so they'd have a number, but they were really private or company roads," Davis said.

Davis said the road study and traffic counts will help determine which roads the county continues to maintain.

An ordinance adopted in July excludes new roads that don't meet standards enumerated in the county's 2013 master road plan. Roads landowners or developers have submitted to the 911 system for names and addresses after Jan. 1, 2014, are assumed substandard.

Owners or developers applying for road names through the county's Department of Emergency Management have to sign a notice that acknowledges they're aware of the road standards, and that the naming of a road doesn't mean the county has accepted it.

Davis said the ordinance was a response to numerous constituent calls to repair private roads washed out by flooding last spring.

He said many callers were unaware that the county wasn't responsible for private roads, explaining that some developers have misled buyers into thinking the county will maintain roads on their property as a result of decades of poor record keeping that's blurred the distinction between publicly dedicated rights of way and private roads.

The more than $1.7 million the county annually budgets for road materials limits maintenance to a small fraction of miles in its system. Davis said turnback money from the temporary half-percent state sales tax voters approved in 2012 for four-lane highway construction has helped.

According to the state treasurer's office, the county received $935,035 in half-percent turnback money during the 2015 fiscal year and $2,049,774 from the 21.5-cent per gallon gasoline tax.

State Desk on 11/26/2015

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