Road Law

Disputes over roads often involve access to a particular route, the nature and extent of access permitted, or the ability to limit access to others.  The rights and remedies that may be available depend on the unique facts and circumstances of each particular situation.

The term “road law” encompasses a large body of statutes and judicial decisions that govern the use of roads: from private roads based on express or implied easements; to public roads as a result of historic use; to public highways.  In the broadest sense, a road is a physical feature of the ground surface which has been traveled over by livestock,1people, and/or vehicles, typically to get from one place to another.  A road can exist legally even if it is no longer used for travel and no obvious surface features indicate its existence.

Although there are many types of roads, most can be categorized as private roads or public roads.  Private roads traverse private property and are owned outright by the fee owner of the land unless an easement for use of the road has been conveyed to a third-party.  If an easement is private and non-exclusive, the road remains private and its use shared.  Categorizing public roads is more complex, both as to ownership and use.  But, whatever the nature of the legal interest in a public road, most are owned by, or held in trust by a governmental entity, either a federal, state or political subdivision.   Both private and public roads can be created by prescriptive use.2

State highways are purely creatures of statute.3At the county level, there are roads which are either primary or secondary.4And at the municipal level, roads are typically referred to as streets and alleys.5A toll road is a hybrid: its use is public, but it is owned and maintained privately.6

One fascinating species of public roads is a so-called “R.S. 2477 road.”  Such roads are created from the remnant of an old federal mining statute known as Revised Statute 2477.  The law provides for the recognition of public access by mere use of a roadway across property that at one time was in the public domain.  The statue is the hallmark of brevity:  “The right of way for the construction of highways over public lands, not reserved for public uses, is granted.”7That is, merely by traversing a defined route on public lands, the miners and settlers may have created a public highway the legal status of which survives to this day irrespective of whether the route is still in use.  See this post for a more extensive discussion of the statute.