Old Walker Road Abandonment
Summary
Purpose
The purpose here is to make the case that an unused section of Walker Road which abuts our property should be declared fully abandoned. On December 26, 1936 the section of road in question was declared qualifiedly abandoned, per a document to be found at the down offices and signed by the superintendent of highways.
Motivation
There are 2 motivations for this request. The first is a desire to improve the appearance of our property where the old road connects to Walker Road. The area is frequently used by large trucks to turn around, resulting in constant ruts and having the ground torn up. The second is vehicles sometimes going down the old road, getting stuck there, tearing it up and discarding trash. It's a nuisance.
The Law
The specific question of whether a qualified abandonment is subject to or exempt from any or all of the use and usability provisions of the highway law and subsequent case law is unclear. Our argument is that some semblance of usability and use must continue for the qualified abandonment to continue. How can it continue when it no longer meets the definition of a public highway in any way?
The wording in the qualified abandonment section of the highway law contains the phrase, "has not become wholly disused" But the road in question has been wholly disused. It has been completely impassible for several periods over the last 40 years. Most recently, it was destroyed by a logging operation, completed in 2008. We will show with photographs that it is and has been impassible since then, even on foot, except by leaving the road right of way.
The relevant section of the law may be read here: HERE. The law makes clear that disuse establishes abandonment. Case law affirms this. A declaration of abandonment by a government entity merely makes the status clear. However, the burden of proof of disuse rests on those who would have a road declared abandoned.
Equity And Our Neighbors
The old road extends at the north from Walker Road to the dividing line between Cosby Manor and Gages Patent, a distance of approximately 1,300 feet. The intention of the qualified abandonment seems to have been to maintain access to the parcel south of the Cosby Manor line, where the old road ends. This intention is no longer being met.
We have no desire to create hardship for our neighbors. We believe that abandoning the old road will not create hardship. In its' present state, the old road is impassible. Vehicle use is out of the question. It can no longer be used by ATV, dirt bike or even on foot. If there is hardship due to lack of access via the old road, it already exists.
The parcel of land which had been served by the old road also has several hundred feet of frontage on Walker Road. It would not be land locked by abandoning the old road. The owner appears to be considering creating vehicle access from that point. Culvert pipe, stone and what appears to be fill material has appeared there. The parcel was recently sold. The sold listing reads:
A proper repair of the old road would first consist of removing the logs placed in the deep ruts created by a log skidder and subsequently buried. We will show this via photographs where erosion has exposed the logs. Several culvert pipes torn out by the logger will need to be replaced. Grading and other steps to avoid excessive erosion on adjoining property due to runoff will need to be taken. The cost of this would be many tens of thousands of dollars and perhaps more.Property Overview - Build your country home on 45 acres of secluded property; three miles from downtown Utica. Three parcels sold as one. Road access from two points. [ emphasis mine ] City water nearby. Possibly more land available. Wildlife abundant.
Less than adequate repairs would cause erosion on our property and degrade its' value. This is also a reasonable equity consideration.
Location
In 1927 a section of Walker Road (then NY Route 8) was re-routed. The bypassed section of road plunged deep into a ravine and up the other side, using several cut-backs to reduce the incline. The south end began about 200 feet north of the entrance to what was then the Broad Acres skilled nursing facility. This is about 1/2 mile west of Smith Hill Road, where the road turns abruptly north. The northern end of the bypassed section meets Walker Road about 200 feet south of Browns Gulf Road. Pictured here is the north end of the bypassed section.
