Twists and Turns in Ancient Roads : As Unidentified Corridors Become a Reality in 2010, Act 178’s Shortcomings Come into Focus

Act 178 is a Vermont law passed in 2006 to resolve Vermont’s ancient roads problem: the problem of legal highways that fell into disuse, were largely invisible to an observer on the ground, and increasingly clouded landowner’s titles. On its face, Act 178’s solution seems simple: by 2010, towns must map the ancient roads they wish to preserve; in 2010, unmapped ancient roads become Unidentified Corridors; and in 2015, Unidentified Corridors are discontinued – seemingly ending the ancient roads problem. Many ancient roads were mapped by the 2010 deadline, and will therefore be preserved by towns while putting landowners on notice about the roads’ existence. However, as Unidentified Corridors become a reality in 2010, new problems with Act 178 are coming into focus. Act 178’s Unidentified Corridor provisions fail to achieve the legislature’s goal to provide a comprehensive solution to ancient roads. Rights like prescriptive public easements, private rights of access, trails, and “clearly observable” highways appear to fall outside the statutory definition of Unidentified Corridors and therefore likely constitute ancient roads that will survive despite the Act. Furthermore, the statutory language allowing a town to reclassify an Unidentified Corridor into a permanent class of road may inadvertently lead to invalid unconstitutional takings which require towns to pay compensation to landowners. In its Unidentified Corridor provisions, Act 178 therefore fails landowners that should be able to rely on the Act to extinguish ancient roads that may now be clouding their titles. Similarly, the Act fails towns that should be able to rely on it to systematically discontinue the ancient roads they do not want, while preserving those they do want. This article analyzes these lurking shortcomings in Act 178’s Unidentified Corridor provisions that take effect in 2010. It does so in three parts. First, is a background of the statutes and common law that together make up Vermont highway law. Second, is a discussion of the ancient roads problem in Vermont and how Act 178 purports to solve the problem. Finally, third, is an analysis of how Act 178’s Unidentified Corridor provisions fail to fully resolve the ancient roads problem and thus fail to achieve the purpose of the Act