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Comissioners vote 2-1 to keep road open
Two Red Willow County commissioners voted Monday morning to keep a public road open, over objections from their fellow board member that there is "no reason to have this road, whatsoever."
Despite the commissioners' vote, the issue over County Road 713/221 is not settled, and is now in the hands of the county attorney, who has to determine its borders.
Commission Chairman Earl McNutt and fellow board member Steve Downer agreed with Stan Quigley of rural Indianola, who asked the board to retain Road 713 (formerly known as Road 221) on the county's inventory of public roads. The road, seldom used by the public, lies east of the intersection of Roads 397 and 713, south of Indianola on the Danbury-Indianola road. The east-west road has been on the books since June 12, 1889, when it was named Road 221 and lead to what is assumed to be a north-south driveway (not a continuation of the road, as previously guessed) into and out of a (now long-abandoned) farmstead. The contested road dead-ends after about one mile.
Stan Quigley and his son, Steve, asked commissioners to retain the road as it is now so they can access their farm fields and pasture. Stan Quigley told commissioners during a public hearing that an oilfield company that built a road into a pumping unit on his land has told him to "stay off it," so that he has no other option but to use the public road that is on the south side of the boundary line of the land he owns in Section 5 -- as he said he has done since he bought the land in Section 5 in 1954.
Janice and Phil Bamesberger recently purchased the Section 8 land that borders the south boundary of Stan Quigley's land, and started to erect a fence on their section line when the Quigleys protested to the new fence and gates.
Efforts to resolve the issue failed, so the questions of whether the trail is still a legal public access road, whether the road should remain open or if it could be legally abandoned and vacated and whether the Bamesbergers can erect a fence on the land they purchased came before the commissioners.
The Bamesbergers asked that commissioners vacate and abandon the road; it is no longer anything more than a trail with narrow gates at both the east and west ends, and they want to complete a new pasture-field fence and gates on the north boundary line of their land, which is on the north side of the original Road 221. Phil told commissioners at the public hearing that he has never denied Quigleys access to their land, offering to let them enter and exit across his land and through new, wider barbed-wire gates.
Road 221 is not maintained by the county on a regular basis. It looks like a tire trail into and across a pasture, according to pictures that the Bamesbergers presented at the public hearing.
After the public hearing, commissioners were required to make a decision at their following meeting.
Commission Chairman Earl McNutt said Monday morning that he talked to a representative of Quantum Operating, the oil company which pumps oil on Quigleys' land, who told him that the road is part of the mineral lease with the landowner and the oil company established and maintains the road. The oil company places no restriction on the use of the road by the landowner, although it is not generally built to width standards for large farm equipment traffic, McNutt said the Quantum representative told him. "But by no means, it's use is not restricted," McNutt said. The oil company does not restrict the landowner from using the road, he said.
McNutt said some of the problem can be traced to "bad information" when the Bamesbergers purchased the land and the road was not identified.
McNutt said he has heard more comments about keeping the road open than closing it.
Commissioner Leigh Hoyt said, "It's not a mail route or a bus route, and there's no house to go to ... nothing. We've closed roads like this in the past -- we're not setting a precedent. There is no reason to keep it open."
Hoyt said the problem boils down to a neighborhood dispute that resulted when Quigleys owned the land to the north and rented the land to the south, and did not get the land on the south purchased. "It's more of a dispute between neighbors because one didn't get the land bought and the other one did," Hoyt said.
Hoyt recommended that the Quigleys use the oilfield road to access their east field. Hoyt said he measured the width of a dam across the oilfield road at 22 to 26 feet, and the widest John Deere tractor is 18 feet. If, at some point, the oilfield road ceases to exist because the oil company is not there to maintain it, the Quigleys would have to create and maintain their own roads into fields and pastures located off county roads, as other farmers and ranchers have always had to do over the years, Hoyt said.
McNutt said that whether the land is isolated is not the case here. "The road means nothing to the county," McNutt said. "It leads to nowhere."
Commissioner Steve Downer said that the Quigleys' 50+ years of history of using the road ought to be considered in the commissioners' decision whether to close the road or keep it open.
What precipitated this situation, Downer said, was not having the information needed before the Bamesbergers started building their fence. "It comes back to that ... bad information," he said. "But you don't correct that by closing the road. That's not the right thing to do."
Downer said he has had a lot of people tell him that the road should remain as it is. McNutt added, however, "It's not the general public's decision."
Downer's initial motion was to keep the road as it is, change it to a minimum maintenance road and require both Quigleys and Bamesbergers to erect fences on each side of a 66-feet right-of-way. However, the motion was pared down to keeping the road open after County Roads Superintendent Gary Dicenta said that changing the road to minimum maintenance would have to follow a different legal procedure, and he questioned whether a county board can require anyone to build a fence.
McNutt seconded Downer's motion to retain Road 221 as as a legal county road.
As a final statement before the vote, Hoyt said that Quigleys have access to their land without the old county road. "There is no reason to have this road whatsoever," Hoyt said.
McNutt said he was basing his decision on the number of people "telling me not to close this road."
Downer's motion to retain the road passed -- with Hoyt casting the lone dissenting vote. "The motion carries 2-1," McNutt said. "The road stays open."
McNutt admitted the situation made him uncomfortable. "This was a no-win situation," he said. "We (the board) were on the negative side, one way or the other."
Dicenta said the road is "open to the public. It's still classified as a local road," even if commissioners want to eventually change its status to minimum maintenance.
Commissioners will ask County Attorney Paul Wood to determine now where the road right-of-way lies and how wide it is. Dicenta said, "Finding the middle of the road is easy. It's hard to establish the right-of-way. There's nothing recorded that says what the right-of-way is."
There is some indication of where fences have been in the past, Dicenta said, explaining that those "might be the best evidence of what has been used as the right-of-way in the past."
The existing section line of the property that the Bamesberger purchased -- which has been identified, is not contested and is where the Bamesbergers started their fence -- has no bearing on where the road right-of-way is, Dicenta said.
Some right-of-way disputes come down to only what the county has maintained over the years -- such as a 22-foot roadway, and no ditch work, Dicenta said.
Dicenta said the county attorney can also answer the question of whether the board can determine the distance from the center of the road that a landowners can build a fence.
Dicenta concluded, "It's a legal deal now. The county attorney needs to specify a right-of-way width."
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