What is the Highway Right-of-Way?
All kinds of folks ask this question: private citizens, municipal officials, law enforcement, and highway departments. The problem is that the real answer can be very complicated. In some cases there IS not a clear, easy answer. This is because many highways in New York State are defined as 'highways by use', as specified in Highway Law - Section 189 (see the full text below). At first blush this designation appears to be very simple, but the case law pertaining to this section is extensive, and over the years, there have been lots of different interpretations and rulings by the courts and others, and sometimes these decisions conflict with each other.
The current interpretation of a 'highway by use' is that if a municipality has performed work and the public has used the road for ten or more years, then the highway is a public highway. The right-of-way is then defined by the land worked by the municipality. However, land can drop out of the right-of-way if the highway department does not do any work for six or more years. But even this can vary because the municipality may be able to claim the work was supposed to last for more than six years, so no work is needed. In that case, the land may still be in the right-of-way..., but..., then again..., etc.
Obviously this is a complicated issue. The good news is that many highways, including almost all State Highways, and many city and village streets, have defined right-of-ways. In these cases, there is a deed, a quick-claim deed, or some other written paperwork filed with the County or municipal Clerk that lays out the actual right-of-way.
Here is a simple set of rules that may clarify where the right-of-way is and help reduce conflict.
- If you have an officially filed piece of paper (typically a deed), then you know the right-of-way. A city or village may have a right-of-way map filed at the Clerk’s Office.
- If there is no paperwork, the road is most likely a 'highway by use'. In this case, talk to your municipal attorney to determine the right-of-way before doing any work. If you need to leave the right-of-way, you will need to get an easement from the landowner.
- In any case, talk to the land owner. Good, clear communication is sometimes the best policy. Many land owners are happy to work with the Highway Department if there is good communication. Don’t just start digging.
- Finally, remember that the land owner may own the road. Therefore, some materials may actual be owned by them. For example, if you get permission to cut down a tree, the wood belongs to the land owner.
Highway Law - Section 189, Highways by Use
All lands which shall have been used by the public as a highway for the period of ten years or more, shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway, and the town superintendent shall open all such highways to the width of at least three rods.