Highway

• Author: Jeffrey Lehman, Shirelle Phelps

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A main road or thoroughfare, such as a street, boulevard, or parkway, available to the public for use for travel or transportation.

The nature of a public way is determinable from its origin, as well as the intention and plans of the appropriate authorities and the use to which it has been put. If a particular road or highway is designated as private, its character will not be altered if it is actually a public road or highway. PRIVATE ROADS are intended for use by a few private individuals, as distinguished from highways that are for public use.

It is essential that a highway be established in a manner recognized by the particular jurisdiction, whether it be by extended use?prescription?or by dedication to the public by the owner of the property subject to the consent of public authorities. Prior to the time that any statutory procedure for the establishment of highways was devised, prescription and dedication were the methods used in common law. Currently, most highways are created by statute.

Extended Use or Prescription

One method of establishing a highway or public road is through prescription?the

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extended use of a piece of land for a certain length of time by the public, absent the owner's consent.

The actual number of persons using the road or the frequency or extent of such use is immaterial provided the property is openly and continuously used as a road with no restrictions. In addition, such public use must not be interrupted by acts of the owner that are designed to stop the use of his or her property as a public highway. For example, the posting of several "no trespassing" signs around the land and the erection of a fence would most likely prevent a highway from being recognized. Verbal objections alone, or unsuccessful attempts to curtail use as a highway, are ordinarily insufficient.

Any property subject to the right of the state to lay out a public way over it can become a highway by extended use if the conditions prescribed by statute are met. The public is given an EASEMENT in the land as a highway, and the width and extent of a highway are determined by the extent of its actual use for such purposes.

Statute

The creation of highways is a function of the government that stems from its power of eminent domain?the authority to take private property for public use. The legislature makes the determination needed for public use and convenience and provides for establishment of highways by local boards or courts. In deciding whether the need for a highway exists, factors for consideration include topography, soil character, population, location, condition, convenience of highways already established or proposed, and the probable extent of use.

In the absence of statutory authorization, a highway cannot be constructed through lands of the state, or property that has already been designated for public use, such as a park...