PRIVATE ROADS

A street or route that is designated by a public authority to accommodate a person or a group of people.

A private road is often established because an individual needs to gain access to land; such a road can cross another person's property. A private road can be used by the general public and is open to all who wish to use it, but it primarily benefits those at whose request it was established. Unlike highways that are cared for by the public at large, private roads are maintained at the expense of the private individuals who requested the road.

Statutory regulations must be observed when a private road is designated. An applicant can recommend a certain location for the road, but the ultimate decision rests with the highway authority, which might vary the proposed route to comply with the public interest and statutory regulations. Distance, practicality, the interests of the applicant, and the least intrusive means of utilizing private property are some considerations involved in making a road. When a private right of way is requested over another person's property and the owner of the land over which the proposed route is sought provides a convenient and practical route, that passage will often be earmarked for a segment of the private road.

The authority to establish a private road is derived from the power of eminent domain and exists only when expressly provided by a statute. The statute must be strictly followed, especially when the private road benefits only the requesting party. Generally land is taken for the construction of a private road only in cases of necessity. The definition of necessity varies among the jurisdictions and is determined on a case-by-case basis. Some jurisdictions hold that an applicant establishes necessity when she proves that a private road is absolutely indispensable as a means of reaching her land, whereas others only require proof of a reasonable and practical need for the road. Private roads are never opened merely because the applicant would find it a convenience. Before establishing one, the authority must consider all the facts and balance the benefit received by the limited number of people who use the road against the burden imposed on the owner of the land over which the proposed road will cross.

Most statutes require that an applicant file a petition with a court to commence a civil action for the establishment of a private road. The action is between the applicant and the owner or owners whose land will be utilized in the proposed road. The court appoints viewers, commissioners, or jurors to inspect the affected area, to decide whether the road should be established, and to suggest any needed modifications. Where statutes provide for the appointment of viewers, who subsequently find the road necessary, they will map out a route that does the least amount of damage to private property and consider the needs of the applicant. The awarding of damages to the property owner over whose land the road passes is within the exclusive discretion of the viewers. A court will review the damages award only if it is alleged that the viewers acted in a dishonest or corrupt manner.

Some statutes require the commissioners or viewers to conduct a hearing on the proposed road. Such a hearing provides for a better fact-finding procedure since the applicant and any opposing party can present arguments for or against the proposed road. If an opponent wishes to contest an application that receives a favorable report, he must file an exception, which preserves the record should the losing party decide to appeal. If no exceptions are filed during the hearing, a report that conforms to the law is binding on a court. A court must then enter a judgment, describing the location of the road and, if required by statute, limiting its use to a specified period or time.

The duty to maintain and repair a private road rests on the person or persons for whose benefit the road is established. If a large portion of the public utilize the road or if a statute requires its designation as a public highway, then the duty to maintain and repair falls on the public at large. Persons who are injured as a result of disrepair can seek to recover damages from the responsible party.

further readings

Harris, Brian R. 2002. "Private Road or Public Use? The Landlocked Property Dilemma: A Constitutional and Economic Analysis of Private Road Acts." University of Detroit Mercy Law Review 80 (fall): 149–70.

Stewart, Jill. 1996. "The Next Eden: The Movement into Gated Communities Is Not About Escape: It's About Building Neighborhoods." California Lawyer.