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To: KevinB
That's important, but not dispositive. As a defense to a claim of trespass the company had to prove the precise location of the ROW. Because the 1871 order wasn't specific as to location, the judge concluded that the company was unable to prove that the ROW was in the precise location it was using. Accordingly, the claim of trespass prevailed. I don't know how a judge in a declaratory judgment action could order a ROW to be located in a certain location when the very order granting the ROW didn't precisely describe the location. A judge can't just make it up.

Old deeds were far less precise than modern practice about such things, and relied on "public knowledge" and witnesses now long gone. I would make an unjust enrichment argument against someone regarding the lost public right-of-way to the river. The private agreement is proof that the present location of the landing wasn't on public property, but there is an equitable argument to be made if it can be proved by a preponderance of the evidence that the public access to the river was on the plaintiff's land. (It would get tricky if the land has been subdivided after 1871.) When was the public road recognized/extended? It ends near the ferry landing. Looking at the map, the buildings on the other side are further down stream. That suggests to me that the original ferry landing was there. This will likely be appealed.

Perhaps. Of course, the county would have to pay the landowner. The landowner would also have a good argument that the county can't use its power of eminent domain to protect the interests of a private company, namely the ferry company.

The rejoinder would be that the land provides public access to the water for fishing, recreation, etc. and benefits more than just the ferry, which would be argued is a public utility. They could also claim that the land is being condemned to build a bridge, which could force a settlement.
89 posted on 12/29/2020 6:23:30 AM PST by Dr. Franklin ("A republic, if you can keep it.")
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To: Dr. Franklin

I’m curious to know whether you are a lawyer.


90 posted on 12/29/2020 7:09:56 AM PST by KevinB (''... and to the Banana Republic for which it stands ...")
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