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Dave Karoly
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I wouldn't discount the possibility of a clever Lawyer convincing a Judge his client should get the 20'.

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Mike Berry
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The vacated land has to vest back to the lands it came from. If the court, judge, commission, council or whatever political body gives additional land to the attorney's client it would be repugnant to the constitution... an illegal taking of the land of others without compensation. 

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aliquot
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only if it is an easement

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Mike Berry
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Right. Like if it was dedicated on a subdivision plat (...and hereby dedicate to the public all roads...) or a dedication deed (...and hereby dedicate to the public the following described land...). ODOT here in Oregon purchases in fee, most all other public roads are dedicated by deed or plat or they were established by the county commissioners which also created a mere easement for the public rather than a fee taking. 

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Dave Karoly
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The Government can effect a taking without compensation.  Usually it's inadvertent or an accident.  The property owner can bring an action in inverse condemnation within the statute of limitations demanding either return of the taken land or compensation but they can't force the government or other taker (such as a utility or railroad) to return the land.  As soon as the statute runs in the absence of a lawsuit the taking is complete, the record owner can't recover the land or gain compensation.  Our courts have ruled this is not a constitutional violation, I forget the exact reasoning.

The clever lawyer I mentioned above would argue that the centerline of the 40 foot R/W is the boundary, there is no transfer of land either way, so no taking of any kind.  This is strictly hypothetical of course.  Naturally the other side would have an expert who would successfully explain that the boundary is at the original platted centerline and the Judge of course would adopt that theory of the case, naturally.

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Mike Berry
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Dave - a lot of the case law regarding road vacations here in Oregon is due to local governments getting it wrong. Many city councils or county courts believe (even to this day!) that a public road dedication "gave" the land in fee to the governing body and therefore they can dispose of the vacated R/W any way they chose. They can't, unless the abutting parties agree to an atypical vesting.

“While a highway exists there is nothing more than a mere suspension of the abutter’s right.”

- A Treatise on the Law of Roads and Streets; Third Edition (1911) Byron L. and William F. Elliott

In this state the rule is that where land has been dedicated or appropriated for a public street, the fee in that street remains in the original owner* subject only to the public easement.’’

 - Portland Baseball Club v. Portland, 142 Or. 13, 18 P.2d 811 (1933)

* And subsequent owners

 

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Dave Karoly
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My Clever Attorney managed to keep all that away from the Judge, the brother-in-law of the politician that called in a favor from the Governor who appointed him.

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