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ROAD RIGHTS-OF-WAY

AND THEIR TREATMENT UNDER UTAH LAW

STATE OF UTAH - DEPARTMENT OF NATURAL RESOURCES

June 1999

This summary is meant to provide a broad overview of the case law related to various kinds of public rights of way -- distinguished by how they have been created, and indicating how different kinds of rights of way may be treated differently when changes are proposed. Issues such as intensification of use, expansion, or abandonment may be handled differently, depending on how the right-of-way was created and used over time.

Type How Created 1

1. Purchased Roads. These roads exist on deeded public land, acquired in exchange for compensation to the underlying landowner. The road may have been created by condemnation of the right-of-way, but payment was made and a specific legal description of the right of way has been recorded officially at the county recorder’s office.

2. Dedicated Roads. These roads were conveyed to the public by a landowner by deed or dedication, but without payment. They are usually created by the landowner because of benefits available by the existence of a public road. The rights-of-way are shown on official plats at the county recorder’s office. They have the effect of vesting the fee interest in the roadway in the public.

3. Officially Mapped Roads. These roads are shown on the records of county recorder, but have not been deeded, purchased or dedicated officially by a previous or present owner of the underlying land. They are roads of record because they are shown on recorded plats that were drawn after the roads were created. The plat documents the location and configuration of the right-of-way at the time the plat was drawn, as understood by the person drawing the plat. The plat need not have been officially confirmed or endorsed by private landowners adjacent to or underlying the roads.

4. Purchased Easement Roads. These roads are created by the purchase of the right to use land for a road without acquiring the underlying land. A right of way easement is duly recorded on the public records with a specific legal description. The easement therefore burdens lands owned by some landowner. The landowner retains the title to fee interest in land under road, but that ownership is subject to the road easement and the public use provided for in the easement document.

5. Dedicated Easement Roads. These roads are built within an easement given to the public by a landowner. They are duly recorded on the public records, but not created by condemnation or purchase by the public. As with Category 2 Dedicated Roads, the motivation for the easement is typically some advantage to the landowner in having a public right of way on the property.

6. Prescriptive Easement Roads. These roads created are created by public use over time without the permission of the landowner. No deed or easement document signed by the landowner would exist on the county records.

7. Private Roads. These roads are not owned by the public but may be used by the public with the revokable permission of the underlying landowner. They include roads used by the public without the permission of the landowner, but for a term of less than ten years. In that case no permanent public right has yet been established, though the passage of time will accomplish the creation of a Category 6 Prescriptive Easement Road if the landowner allows the use continuously without permission.

8. RS 2477 Roads. Roads created across federal lands during the existence of a permissive federal statute, whether or not the road fits one of the other categories above as well. These roads were created or preserved under authority of the Act of July 26, 1866, 14 Stat.253, formerly Sec 2477 of the Revised Statutes of the United States, repealed by Federal Land Policy Management Act of 1976, Sec. 706(a), Pub.L.No. 94-579,90 Stat.2793. The repeal effected a change in the policy that allows new RS2477 roads to be created, but preserved the roads that existed as of the date of the repeal as public roads.

1-These categories and their classification are meant only as guidance, and do not exist in case or statutory law. They are only offered in an effort to improve the dialog and the debate that surrounds public land management.

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Type	How Created 1
1. Purchased Roads.	These roads exist on deeded public land, acquired in exchange for compensation to the underlying landowner. The road may have been created by condemnation of the right-of-way, but payment was made and a specific legal description of the right of way has been recorded officially at the county recorder’s office.
2. Dedicated Roads.	These roads were conveyed to the public by a landowner by deed or dedication, but without payment. They are usually created by the landowner because of benefits available by the existence of a public road. The rights-of-way are shown on official plats at the county recorder’s office. They have the effect of vesting the fee interest in the roadway in the public.
3. Officially Mapped Roads.	These roads are shown on the records of county recorder, but have not been deeded, purchased or dedicated officially by a previous or present owner of the underlying land. They are roads of record because they are shown on recorded plats that were drawn after the roads were created. The plat documents the location and configuration of the right-of-way at the time the plat was drawn, as understood by the person drawing the plat. The plat need not have been officially confirmed or endorsed by private landowners adjacent to or underlying the roads.
4. Purchased Easement Roads.	These roads are created by the purchase of the right to use land for a road without acquiring the underlying land. A right of way easement is duly recorded on the public records with a specific legal description. The easement therefore burdens lands owned by some landowner. The landowner retains the title to fee interest in land under road, but that ownership is subject to the road easement and the public use provided for in the easement document.
5. Dedicated Easement Roads.	These roads are built within an easement given to the public by a landowner. They are duly recorded on the public records, but not created by condemnation or purchase by the public. As with Category 2 Dedicated Roads, the motivation for the easement is typically some advantage to the landowner in having a public right of way on the property.
6. Prescriptive Easement Roads.	These roads created are created by public use over time without the permission of the landowner. No deed or easement document signed by the landowner would exist on the county records.
7. Private Roads.	These roads are not owned by the public but may be used by the public with the revokable permission of the underlying landowner. They include roads used by the public without the permission of the landowner, but for a term of less than ten years. In that case no permanent public right has yet been established, though the passage of time will accomplish the creation of a Category 6 Prescriptive Easement Road if the landowner allows the use continuously without permission.
8. RS 2477 Roads.	Roads created across federal lands during the existence of a permissive federal statute, whether or not the road fits one of the other categories above as well. These roads were created or preserved under authority of the Act of July 26, 1866, 14 Stat.253, formerly Sec 2477 of the Revised Statutes of the United States, repealed by Federal Land Policy Management Act of 1976, Sec. 706(a), Pub.L.No. 94-579,90 Stat.2793. The repeal effected a change in the policy that allows new RS2477 roads to be created, but preserved the roads that existed as of the date of the repeal as public roads.