Winter 2010-#8. RUMINATIONS Sewing Clouds.

AuthorBy Paul S. Gillies, Esq.

Vermont Bar Journal


Winter 2010-#8.


THE VERMONT BAR JOURNALVolume 35, No. 4Winter 2010RUMINATIONS Sewing CloudsBy Paul S. Gillies, Esq.The work is done now. Several hundred hours of trying to recover what generations of town officers were thinking when they laid out, altered, and discontinued the town's highways has produced a report to the selectboard, in anticipation of the deadline for reporting on the town's ancient roads. The so-called "ancient road law," Act 178 of 2006, requires towns to review their road records, locate all existing highways, and have them added to the official town highway map, or watch them become discontinued on July 1, 2015. The goal of the law is to add all town highways and trails to the town highway map by that date .(fn1)

The first critical deadline of this process is February 10, 2010. This is the date selectboards file the 2010 Certificate of Highway Mileage with the Agency of Transportation. Towns making that deadline avoid a more complicated and expensive process later on. Requests to add other, later-filed unidentified corridors to the highway map require a formal reclassification hearing, the potential payment of compensation for damages, as well as a formal survey.(fn2)

The goal of the many ancient road committees, working diligently in more than eighty Vermont towns, has been to identify a species of highways called "unidentified corridors," roads properly laid out by survey or dedication and acceptance (maintenance coupled with acquiescence or agreement), not on the town highway map, and "not otherwise clearly observable by physical evidence of their use as a highway or trail."(fn3) The towns that have met the standards established by the Agency of Transportation will be issued new highway maps showing the corridors by July 1.

Stage one of the process is done now. Now we know what is there, we must decide what to do with it.

The Decision

Selectboards have to make the critical decisions triggered by the old road efforts. Knowledge brings trouble. A decision to create unidentified corridors and later whether to convert them into Class 4 highways or trails (or not), has consequences either way. Landowners may object, and challenge the town in court. Others will insist that roads be re-established, particularly in remote areas of town, where access was previously unavailable, because of "No Trespassing" signs and cranky residents or owners. There may be public turmoil, anxious meetings, and hard feelings that last for years to come.

Some selectboards will put the question to the voters at town meeting. Some will decide finally not to pursue any of these roads, out of caution, believing that the risks outweigh the benefits, life being hard enough without a new source of friction in the community. Many have chosen to focus on one or two highways, leaving the rest of the known old roads to go away in a few years by operation of law.

The real value of the ancient roads research has been the recreation of the town's experience with highways. To find ancient roads, you have to locate every road survey, every alteration and discontinuance, and in the process you reveal rhythms and contours of the town's development.

How We Know Anything

This is not the first time Vermont towns have had to confront the reality of their road networks. The process of rediscovery is cyclical. Vermont towns first understood their highway system in the 1850s, when the first county maps were assembled and printed by H.F. Walling, Jay Chace, Jr., Hosea Doten, and C. McClellan.(fn4) There are rare exceptions-Bennington and Woodstock, for instance, where highway maps were created in the 1830s-but most Vermont town officials took their first look at the town's road network with the publication of the county maps. By that time, the majority of town highways had been surveyed, opened, and used. These mapmakers walked the roads, pushing wheels that calculated distances, turning corners by the compass, writing down the names of the residents who lived along the roads, measuring and memorializing the work of three or four generations of officials. These maps were not based on town road records, but on what was found on the ground.

Consequently, those roads that were laid out, but never developed, or were treated as abandoned before that time, usually because some better route was found to get from here to there, remained unmapped and forgotten. The surveys in the town records were rarely understood, or connected to specific roads. Names of the early settlers were forgotten, thereby cutting off the most critical connections between record and road. Sometimes roads were laid out anew over existing, surveyed roads, even though the original surveys appeared only a few dozen pages earlier in the book, and later in the nineteenth century roads were discontinued that were never formally laid out, as a way of finally shutting a door on the question of their status. This demonstrates how fragile a hold town officials had on their own records- and not for any fault of any selectman, but simply because the road surveys were written in codes few could decipher.

Over time the chasm between what was in the records and what was on the ground...

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