In rural areas and in older subdivisions, it is common to find streets, roads or alleys which were never developed or are no longer used or maintained as public ways by the local governmental authorities. Frequently, these areas are mowed or used by adjoining landowners as a part of that landowner’s property without knowledge that once a strip becomes a public way, it remains a public way until the appropriate local governmental authority follows the required statutory procedure to vacate the road. In rural areas, the County Commissioners have the authority to vacate public ways. In incorporated cities and towns, the authority to vacate public ways lies with the city council or town board.
When a public way is vacated by action of the local authority, that public way becomes the property of the current owner(s) of the land from which the public way was originally taken. When the public way was taken through the land of a single owner, as would usually be the case in subdivisions, one-half the width of the land under the public way would become the property of the owner of land on each side of the vacated public way. In rural areas, it was common to lay out roads to straddle property lines with one-half of the width of the road lying on both adjoining owners. In such cases, one-half the width of the vacated road again becomes the property of the adjoining owners.
Any owner of real estate adjoining a road is entitled to petition the local government to vacate a road (whether or not that road is in use). All other owners of land adjoining the road for which vacation is requested must either join in the petition or be served with notice of the petition. In order to vacate the road, the local authority must also publish notice of the proposed vacation and conduct a public hearing at which adjoining owners and members of the public may express opinions about the proposed vacation.
Determination of whether or not to vacate the road is within the discretion of the local government and is normally not subject to judicial review or appeal. If the local authority decides to vacate, it does so by ordinance, which should be recorded to show that the local government has relinquished its right to the road and the road has again become public property. The local government does not execute a deed to the road and does not determine the new ownership of the road.
When a road is vacated, it is placed on the tax rolls for assessment to the new owner.
Public utilities are entitled to use public roads for utility lines. Vacation of the road does not extinguish a utility’s right to continue an existing use, but does extinguish a utility’s right to a new use.
Tags: property owner, public way, subdivision