The following article was prepared by John Murray, an associate attorney at Kohrman Jackson & Krantz P.L.L.:
If you are a landowner or prospective landowner, the presence of a public right-of-way on your land can have a significant impact on your rights and obligations in your property. In particular, rights-of-way can be a nuisance to a developer seeking to remove encumbrances on his or her land to make way for strategic developments. Consequently, it is important to understand how public rights-of-way are created and removed.
I. How is a Public Right-of-Way Created?
A public “right-of-way” is a portion of land dedicated to the public, such as a street, a highway, or an alley, for the purpose of allowing the public to pass through private property. Public rights-of-way can be created by following a formal procedure established by a municipality, county, or other local government. Alternatively, they may be created by a court’s determination that the public’s continual use of a portion of land coupled with the landowner’s intent that the portion be used by the public created a public right-of-way.
The formal process of dedicating land varies by each local government, but generally requires an official transfer of the portion of land to be used as the right-of-way in a deed or plat recorded and accepted by the local government. Failure to follow the specific process will result in a failed dedication. However, even if the formal process is not correctly followed, a landowner’s attempt to follow the procedures can demonstrate intent to dedicate a right-of way, and if the right-of-way is actually used by the public, a court may find that by common-law (i.e. a court order) a public-right of way has been created.
II. Once a Public Right-of-Way is Created, How Can It be Removed?
There are only two ways in which a dedicated right-of-way can lose its “public property” status: (1) vacation, and (2) abandonment. Similar to dedication, vacation is a formal process whereby the local government or a court declares a right-of-way vacated (i.e. removed). Once vacation proceedings have started, the vacation is not complete until a new plat is prepared and recorded in the office of the county recorder where the land is located showing that the right-of-way has been vacated.
Abandonment of a right-of-way is exactly what it sounds like. The municipality, county, or township stops using the right-of-way for its intended public purpose for an extended period of time. It must be noted that removing a public right-of-way through abandonment is a very uncertain process that is available only through court proceedings, and can often consume valuable time and resources. If a landowner wishes to remove a right-of-way, it is always best to follow the formal vacation procedures before turning to the principles of abandonment.
Ohio law will not apply the abandonment principles to remove a right-of-way unless evidence shows that the public stopped using the right-of-way for at least twenty-one years. But extended non-use alone is not enough to constitute abandonment. An additional element must exist for abandonment to have full vacating effect: the municipality must intend to abandon the right-of-way. Intent can be shown through statements made by local government representatives or other deliberate actions showing a desire to give up the right-of-way. In the 2001 case of Duggan v. Village of Put-In-Bay, an Ohio appellate court found that the Village of Put-In-Bay had abandoned an alley that cut across the private property of local business owners when the village failed to exercise any dominion over the alley since its formal dedication in 1925 (well exceeding the twenty-one year time limit). Evidence of intent to abandon the alley was found when, years earlier, the village entered into a dispute with a local historical society over the land in question and the village Mayor stated that the village should not be responsible for maintaining the alley because it never exercised control over the alley and the alley was not important to them.
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The presence of a right-of-way on your land can impact your rights and obligations as a landowner. By understanding how public rights-of-way are created and terminated, a savvy landowner or developer in purchasing, selling, or developing real estate can better evaluate his or her options.