HIGHWAY
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 jurisdic-
tion, 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
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 inter-
rupted 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 erec-
tion of a fence would most likely prevent a high-
way 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 pre-
scribed 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 emi-
nent 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 charac-
ter, 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 des-
ignated for public use, such as a park. Addition-
ally, some state laws proscribe the creation of
highways through residences, buildings used for
trade, gardens, or orchards.
Public Authorities
Public officials, such as state highway com-
missioners, act on behalf of the particular
county or MUNICIPAL CORPORATION upon
which the state has conferred power to establish
highways.
A highway and road district is a subdivision
of the state, which the legislature creates to facil-
itate the administration of highways. The legisla-
ture defines and sets the territorial extent, limits,
and boundaries of the road or highway district,
and, generally, only lands that will be benefited
are included. Highway boards and commissions
are ordinarily responsible for the construction,
improvement, and maintenance of highways.
Abandonment, Alteration, and Vacation
The right of the public to use a highway may
be forfeited by abandonment. Nonuse might be
considered ABANDONMENT under statutory
provisions. The evidence that a highway is in
such a dangerous state of disrepair for a number
of years that the public stops using it and a
county fails to repair it constitutes abandon-
ment in some jurisdictions. Where provided by
statute, delay in opening a highway might be
regarded as abandonment if it extends over an
unreasonable length of time.
An alteration of a highway ordinarily refers
to a change in its course that the state may effect
in exercise of its POLICE POWER. A proceeding
for a change or alteration in a public road gen-
erally will not be brought unless the change will
further safety, convenience, or other public
interests.
Vacation of a highway occurs when its exis-
tence is terminated by the direct action of pub-
lic officials. The authority to vacate is generally
delegated to the appropriate authorities or local
agencies. Certain statutes make the provision
that highways may be vacated by a vote of the
town in a town meeting. Ordinarily, highways
cannot be vacated unless they are useless, incon-
venient, or burdensome, and the grounds are
usually regulated by statutes. A highway that has
been laid out but not constructed may be dis-
continued due to a change of circumstances,
such as where a variation in traffic patterns
makes the proposed highway unnecessary.
Title
The public only acquires the right to use a
highway, whereas title to the land remains with
the owner, subject to the public’s rights.When a
highway is constructed, the public has the right
of way as well as privileges incident thereto,
including the right to construct, improve, and
repair the highway. When a highway is aban-
doned or discontinued, however, total and
unlimited ownership reverts to the true owner.
An individual whose land abuts a public
