Tuesday, January 24, 2012

Private Roads and Prescriptive Easements: The Supreme Court of Virginia's Decision in Dykes v. Friends of the CCC Road

In the midst of an abnormally warm winter (there was finally a scattering of snow over the weekend), the Supreme Court of Virginia has issued its first batch of opinions for 2012.

The Court's decision in Dykes v. Friends of the CCC Road (January 13, 2012) caught our attention. You can read Justice Koontz's opinion here.


Property law in Virginia generally distinguishes between private roads and public roads. 

The effect of a road being classified as "public" is what you'd expect: the public (taxpayers) are responsible for paying to maintain the road. 

Private roads, on the other hand, are maintained by the affected property owners, either by informal agreement or in accordance with the terms of a road maintenance agreement recorded in the County courthouse.

Another important distinction relates to the right to use a road: in the case of a private road, the right to drive (or walk, or bicycle) on the road can be limited to the owners of property served by the road. Public roads are -- you guessed it -- open to the public.

Road-building circa 1935

Dykes v. Friends tells the story of a Highland County road built in the 1930's by the Civilian Conservation Corps. 

Several of the property owners along the road erected gates that blocked the public's access to the road, and a group called "Friends of the CCC Road" filed a lawsuit requesting an injunction to compel the removal of the gates (perhaps the friends had friends at the far end of the road, and the gates made friendship more difficult?).


The Circuit Court of Highland County determined that the road had not been expressly or impliedly dedicated for public use. There were no records of the road's adoption into the County's road system, and the County had never paid for its upkeep.

Nevertheless, the Circuit Court granted the injunction compelling the removal of the gates.  The Circuit Court reasoned that a public right-of-way can be created over private property by virtue of the government's recognition of "long and continuous use" by the public. 

According to the Circuit Court, "recognition" can occur even though the public cannot satisfy the normal prescriptive easement requirement of exclusivity (more on this point below).


The Supreme Court of Virginia reversed the Circuit Court. 

Justice Koontz starts by stating that "long and continuous use" of a road by the general public, plus government recognition, do not, in and of themselves, prove an implied dedication of the road to public use. Private property enthusiasts will cheer Justice Koontz's strong words: "The law of this Commonwealth simply does not allow for a conversion of private property to public property solely by public use.

Justice Koontz then turns to the interesting theoretical question of whether the public can, over time, acquire prescriptive rights to a road.

A refresher on prescriptive easements: In order to establish the existence of a prescriptive easement, an owner must prove that his use of another person's property satisfies each of the following tests:
  1. The use must have been adverse and under a claim of right.
  2. The use must have been exclusive.
  3. The use must have been continuous for a period of at least 20 years.
  4. The owner of the servient estate (the property over which the easement is alleged to run) must have had knowledge of it and acquiesced in its use.
In Dykes v. Friends, the general public may well have been able to satisfy requirements #1, 3 and 4 above (adverse use of the road, with the knowledge of the owner, for a period of 20+ years).

But can the general public ever really claim "exclusive use"?  Isn't the whole idea of "public" the opposite of "exclusive"?


Justice Koontz solves the riddle by stating that past Supreme Court decisions have alluded to the public acquiring the right to use a road "by prescription", but only in circumstances when the government has taken an affirmative action to accept the road as public:
While on occasion we have discussed the conversion of a private road into a public road 'by prescription,' it has always been clear in the context of those cases that the elements of prescription were being used to establish that an implied dedication of the property had been made.  
As we explained in Tazewell County v. Norfolk & Western Railway (1916), 'when the dedication is implied from the long and continuous use by the public for the prescriptive period of twenty years, and there has been acceptance by competent authority, title to a right-of-way for a public road may be obtained by prescription' (second emphasis added).
Since the Supreme Court found no evidence of an affirmative "acceptance" by Highland County or another government authority, the CCC road remains private and the property owners retain the right to install the gates.

The Court's opinion in Dykes v. Friends seems right. It seems fair that a private road can become public over time, but not without some kind of overt action by the government authority. Without the requirement of overt action, evaluating the facts could become too tricky for even our most discerning jurists.

And now that you are up to speed on the latest from the halls of justice, it's time for a snow dance to see if we can't get a little bit more winter around here...