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Steve Kantor bought his home here in 1996. It's the
last house on a quarter-mile dirt drive, with views of cow
pastures and a mountain range. He likes it because it's
off the beaten track.
Seven years later, however, he was informed by the
town that a 50-foot-wide public road runs through his
land. He says he wasn't aware of that. The road doesn't
appear on maps and there's little evidence of it today.
"They say the center of the road is right
here," said Mr. Kantor, as he crouched down in the
middle of a hedgerow alongside his land and cleared away
brush.
Mr. Kantor, a lawyer, is at the center of a
controversy threatening to throw a monkey wrench into the
state's residential real-estate market. Vermont has scores
of old public roads that haven't been used as such for
decades and haven't been kept up. Some resemble paths
through the woods or private driveways, while others, at
least to the casual observer, are indistinguishable from
their surroundings. Now, with more retirees and
second-home buyers acquiring Vermont real estate, some
towns are rushing to stake claims to these "sleeping
roads."
Disputes center on differing perceptions of public and
private property here. Known for its woodlands and rolling
hills, Vermont has vast networks of trails, some of which
run through people's land. And Vermonters have a long
tradition of letting people pass through their property
for snowmobiling, hunting, hiking, and other forms of
recreation. Locals worry that some of the outsiders now
moving to the state are less open to that idea and are too
fond of no-trespassing signs.
Some Vermonters are helping to guard this trail
network by combing through old records to show that some
of these roads are, in fact, still public. The Vermont
Association of Snow Travelers, which represents about
38,000 snowmobilers, has been giving PowerPoint
presentations to members on how to compare road atlases
from the 1850s with today's highway maps to find roads
that might have gotten lost over the years.
That alarms some property owners and has spooked the
state's biggest title insurer, which threatened to stop
writing policies in three towns where a number of old-road
cases have cropped up.
For title insurers in Vermont, who by law are required
to go back only 40 years in their title searches, the
nightmare scenario is the one now unfolding in the town of
Chittenden, in the western part of the state. For nearly
four years, James and Kathy Peterson have been seeking
approval to build an addition to their 2,500-square-foot
white colonial house. The town has blocked them, saying it
would encroach on the Green Road, which was laid out by
the area's settlers in 1793 as a mail route and hasn't
been maintained as a road since the 1830s. The Petersons'
deed contains a survey that mentions the possibility that
an old road runs through their property.
The Green Road battle reached its apex one Saturday
morning in May 2004, when two members of the town select
board, accompanied by the town historian and others,
showed up with chain saws and announced that they were
going to cut the road out of the woods where they believed
it once went. They began by taking down trees on the
adjacent property and were moving toward the Petersons'
plot when the state police intervened. The case is set to
go to trial later this year. The couple's title insurer,
First American Title Insurance Co., has already spent more
than $100,000 getting ready for the case.
The worst of the battles over sleeping roads may be
yet to come. A new law gives cities and towns until 2009
to get any old roads onto their town highway map or risk
having to pay damages if they later want to claim them.
For property surveyors, these clashes have been
good for business. Cases typically are resolved by
researching the history of the road to determine whether
it was, in fact, built (some were surveyed but never
actually created), and if it was, whether it was ever
"discontinued," the formal term for
decommissioning a road. Roads that weren't discontinued
are legally still public roads, says Paul Gillies, a
lawyer and former deputy secretary of state in Vermont
with wide experience in old-road cases. That's true even
if they no longer resemble roads. Surveyors pore over town
charters, road maps and even deeds going back to the time
of King George III.
Surveyor Terry Harris has worked on about 10 old-road
cases in Vermont, including one in the town of Barnard.
During a recent visit to the town clerk's office there,
Mr. Harris flipped open a volume titled "Road
Surveys, 1779-1865, Barnard." It contains more than
240 surveys recorded in yellowed, tightly packed script.
Not only must they try to decipher the handwriting of
the day, property surveyors must also wrestle with Old
English spellings and 18th-century legalese, as well as
references to people who are long dead and landmarks that
no longer exist, including churches, barns and specific
trees. "You don't know what you're going to find,
whether it's going to be to your client's benefit or
not," says Mr. Harris.
Dave Sargent, a select-board member in Chittenden, a
hilly town of 1,200, says he remembers walking parts of
the 7.5-mile Green Road as a kid with his father and
enjoying its mountain views and remnants of cellar holes.
"People have long accepted that a road was there,
knew it was there, and never really questioned it,"
says the 66-year old. "But then there is this mass
migration of people from out of state and they're building
on what was or is old farmland, and suddenly, they think
that because no one is driving on it, it's no longer a
road."
Mr. Sargent says Chittenden currently has no interest
in rebuilding the Green Road for cars, but the town wants
to retain that option for future generations. The
Petersons say they have a court document proving that the
road was discontinued in the 1840s; the town says the
document isn't valid.
In Charlotte, the town says research has turned up 12
old roads that it is considering claiming. Once it decides
which of those it wants to pursue, it will hold separate
public hearings for each. "You can't see them, and
they were used 200 years ago, if they were used at
all," says Eleanor Russell, chairwoman of the
Charlotte select board. "But they are still
legitimate roads."
For Mr. Kantor, because of the old road, there is now
an encumbrance on his property, which means that every
time he refinances his mortgage he has to get a letter
from the title insurer pledging to defend the title.
States have different ways of dealing with their old
roads. Maine, for example, presumes
"abandonment" if a road hasn't been maintained
(with public money) as a road for at least 30 years.
In Vermont, some towns are likely to let their
sleeping roads lie, mainly because mapping them out is
expensive. But others plan to follow the path of
Chittenden, Barnard and Barnard's neighbor, Bethel, which
were among the first Vermont towns to research their old
roads. They all relied heavily on a local history buff,
John Dutton, 69, who says he also is advising other towns.
"My time is pretty tightly booked because of the
pressure on these towns," he says.
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