Private Roads

• Author: Jeffrey Lehman, Shirelle Phelps

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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

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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...