🚀 go-pugleaf

Ken Kifer <kenkifer@simplecom.net> wrote:
: This is a very good explanation, but it's very different from anything
: I've understood.

: I own property in NE Alabama, in a sparsely-settled county.  In that
: county, if several people share a road on private property, they request
: of the country that the road become public property.  At that point,
: they loose the right to deny access, but gain free road work, sometimes
: even a paved surface.  At the same time, if a road is no longer being
: used by several families, or if alternative routes exist and the county
: no longer considers the cost justifiable, the county will close the road
: -- I believe after a public hearing -- and the owner is then free to
: erect no-tresspassing signs, which almost always happens, as a few
: individuals will try to continue to use the road (in cases where no
: signs have been erected, the roads remain passable to four-wheel drives
: for many years).  Certainly, people with property along such an
: abandoned road could still assert their use of the right-of-way; other
: people can pass only if the owner doesn't mind.   A friend of mine owned
: property with a road his family constructed traveling through it to a
: popular "beach" on a river.  When people started using the road to dump
: trash, he closed it, and then he had people arrested who broke down his
: gate.  They argued that the road was public right-of-way since it had
: been in use for many years; he argued that it terminated on his property
: on the river, and the river was not a navigatable stream, and won.

: Thus, I would tend to identify a public road by who was paying for it. 
: Your clarification would be helpful.

Two things first.  One, my essay was aimed at a situation covered by
California law, and the state statutes which may supercede provisions of
common law vary from state to state.  For instance the provisions you
cited about making the road public, and then closing it, are apparently
provsions of Alabama statutes, just as the method of extinguishing a
highway with a "vacation hearing" which I cited previously is a provision
of California statute.

Second, as for "They argued that the road was public right-of-way since it
had been in use for many years; he argued that it terminated on his
property on the river, and the river was not a navigatable stream, and
won", every case of a presecriptive right being asserted is different,
with many different circumstances, so without knowing all the facts I
can't comment.

It could be that the facts of the case as they actually are should have
resulted in a finding that the road was a highway, but often the necessary
evidence is very difficult and time-consuming and expensive to produce in
court, such as lengthy investigations to find persons with the
historical experience with the way, and time-consuming interviews to
determine the actual historical facts and reconcile them with other
testimony, and prepare them in proper legal form.  It's easy to botch the
job through inexperience or insufficient resources.

Also, the local courts which first hear such cases and hand down the first
rulings often err, and only on appeal to higher courts, which can be
prohibitively expensive for some parties, does a proper ruling under the
law result.

As for defining a public road solely by who is paying for it, there is no
reason why any state can't pass statutes, defining what is a public road,
which completely supercede common law and are entirely different from it's
provisions, as long as they don't violate basic constitutinal rights.

For anyone wanting to read more about this, I recommend going to your
local law library, and reading the article on "Highways" in Corpus Juris
Secundum.  The librarian can help you find it if necessary.  This gives an
analysis of the common law.  Then read in your local state's highway codes
for those statutatory provisions which may vary from common law.



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johnny king
northern california usa
johnnyk@primenet.com
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