Ancient Roads Legislation

Vermont Real Estate transactions and the cost of buying and selling real estate in Vermont have been complicated recently by Vermont's "ancient roads," also known as "unidentified corridors." Many roads in Vermont were established up to two-hundred years ago, and while many of these roads are still maintained as part of town highway networks, others have not been used for many decades and no longer physically exist. Unfortunately,  snowmobile- and ATV-users now claim that these forgotten roads are still public rights-of way and are thus still usable for public purposes, including, it just so happens, recreational purposes.
Consequently, some Vermont property owners have recently learned that ancient roads exist on their property only after purchasing land and building a house.  In one case, a building permit was granted for a house within the right-of-way of an ancient road. Three cases led to lawsuits, and, until the State stepped in, Vermont Attorneys
Title Corporation considered not insuring titles in several towns.
According to Paul Hodge, a surveyor with VTrans, most of these
problem ancient roads were historic turnpike roads that never
opened. Even though most towns know where they are and historic
property deeds should reveal the locations, ancient roads
may not be found with a standard 40 year title examination.
A bill (H.334) was introduced in the VT Legislature in 2005 to
define these ancient highways, and to establish a procedure for clarifying
their legal status. Though the Agency of Transportation is under funded and important road maintenance work goes unfinished throughout the State, legislators allocated precious VTrans money for purposes of mapping these unidentified corridors. Additionally, in 2006 they sent the ancient roads legislation into three separate committees: House Commerce Committee, House Government Operations Committee, and
House Transportation Committee. In mid-January the House
Transportation Committee voted on H.701, which is now being
reviewed by the House Government Operations Committee. The
bill would discontinue any town right-of-way that is not mapped
and shown on the Agency of Transportation (VTrans) town highway
maps by 2013. The bill also targets Municipal and Regional
Planning Funds generated from the property transfer tax to assist
towns to map ancient roads.
The use of town highway maps to inventory these roads is a major
change from their present purpose. Town highway maps help
VTrans to equitably distribute town highway funds. Because
funds are not available from VTrans for Class 4 Town Highway
or trails, many of those rights-of-way do not appear on the maps.
Unless towns get these roads added to the VTrans map, they will
automatically be discontinued in 2013 under H.710.
In order to inventory ancient roads, towns would need to review
historic town road maps from before 1869, and compare them
with the current town highway map. The roads on the historic
map that do not appear on the current map are likely the problem
roads. Then towns would research records for discontinuances of
these problem roads, identify how much was discontinued and
where those segments are located. (An attorney or surveyor may
be necessary for this task.) Towns would then have to request
that VTrans add those identified ancient roads to their town highway map. Town selectboards are required to do many things and may feel overburdened by this time consuming and potentially expensive task. Some towns may choose not to go through with this process. However, they may risk creating landlocked lots by the inadvertent discontinuance of an ancient road. H.701 is currently in the House Government Operations Committee. H.844 was recently introduced by the House Commerce Committee. This newest bill would amend H.701 by authorizing title insurers to collect a 10% surcharge on all title insurance policies. Any costs incurred by title insurers for the defense and settlement of ancient roads related claims may be paid out of the surcharge funds.
An amendment being considered for the ancient roads legislation
includes a hold harmless clause to protect citizen volunteers who
might risk being sued for identifying ancient roads.
While the ancient roads issue is often framed as relieving property owners
from these roads, the Vermont legislature, by passing the ancient road legislation, has done all Vermont property owners a great disservice. Because title insurance costs can expect to go up as a result of the uncertainty of a clear title created by ancient roads, all Vermont property owners will be economically burdened by this misguided legislation. The result of this legislation is even worse for those Vermont property owners unlucky enough to own property on which an ancient road is determined to exist. For them, ancient road legislation is akin to the taking of their private property for public use without just compensation.