Understanding Roads-by-Use: A Legal and Operational Guide for Highway Departments

Disclaimer: Laws governing roads-by-use vary from state to state. Highway superintendents, road foremen, and municipal boards must consult their local legal counsel and study their state’s highway laws before taking action on, or around, roads that may fall into this category. The information provided here offers a general overview and should not be used as a substitute for legal advice or statutory review.

What Is a Road-by-Use?

A road-by-use, also known in some jurisdictions as a prescriptive road or highway by user, is a roadway that has become part of a municipality’s highway system through continued, open, and uninterrupted public use over a period of time, often 10 years or more, depending on the state's laws. Unlike formally accepted roads that are deeded to the municipality and recorded as such, roads-by-use generally lack a recorded deed or written agreement between the municipality and the property owner. Instead, their legal standing rests on historical patterns of public travel and municipal maintenance.

For a road to be considered a road-by-use, it must have been used openly and notoriously by the public, continuously for the statutory period, and without explicit objection from the landowner. Additionally, the municipality must have regularly maintained the roadway, though this maintenance typically includes basic travel-surface upkeep, such as grading, plowing, or patching, and does not equate to ownership of the land.

Uneven Title: When Some Segments Are Deeded

It’s not uncommon to encounter roads where certain stretches are formally deeded to the municipality while others are roads-by-use. This often occurs when a private developer constructs a subdivision or housing project and, as a condition of receiving approval, is required to deed the roads to the town. If the development abuts or continues along an older, previously unrecorded road-by-use, the result may be a patchwork of title: some portions of the road are municipally owned, while others remain under the private landowners’ title but are treated as public roads due to longstanding use.

Understanding where these deeded and non-deeded segments begin and end is essential. Municipalities should not assume uniform ownership or rights along the entirety of such roadways.

What Maintenance Activities Are Permissible on a Road-by-Use?

A municipality’s rights and responsibilities on roads-by-use are more limited than on municipally owned roads. Highway departments are generally allowed to perform necessary and customary maintenance to ensure safe passage. This includes:

• Plowing snow and sanding or salting during winter months

• Patching potholes and regrading gravel roads

• Clearing brush and overgrowth that encroaches directly into the lane of travel

• Installing essential regulatory signs (e.g., stop signs or speed limit signs), especially if public safety would otherwise be compromised

What’s not permitted without legal authority is just as important:

• Widening the roadway beyond its existing limits of use

• Installing sidewalks or shoulders that extend beyond the maintained path

• Cutting down trees or vegetation outside the immediate travelway unless they pose a direct threat to public safety

• Excavating ditches, installing stormwater systems, or conducting utility work outside the boundaries of the established use

• Entering private property to conduct grading, mowing, or snow storage without an easement or written permission

Legal Risks of Exceeding the Right-of-Way

When highway departments perform work outside the bounds of a road-by-use, they expose the municipality to legal liability. The most immediate risk is trespass. Because the municipality typically does not hold title to the land beyond the established roadway, any encroachment, whether grading, felling trees, or ditching, can be seen as an unlawful invasion of private property.

Moreover, such actions may lead to:

• Civil lawsuits for property damage

• Loss of good faith between the town and its residents

• Court orders to restore disturbed land at taxpayer expense

• Challenges to the town’s claim of prescriptive rights if the use becomes excessive or expanded

These risks underscore why municipalities must have a precise understanding of their rights and limitations and must operate conservatively on roads-by-use unless legal authority to do otherwise has been secured.

Training Crews to Understand Legal Boundaries

A municipality’s liability doesn’t begin and end in the office, it extends to every employee who operates under its name. Therefore, it is critical to educate work crews, especially equipment operators and road foremen, about which roads are roads-by-use and what the municipality may or may not do on those roads.

Simple actions like pulling a grader blade too far off the established travelway or trimming a roadside tree at a homeowner’s request can carry legal consequences. Even well-intentioned efforts to “clean up” or “improve” the roadside could be construed as property damage. The municipality should implement training and clear standard operating procedures (SOPs) that stress caution and legal compliance.

At a minimum, road foremen should maintain a list or map identifying all known or suspected roads-by-use within their area of responsibility. This information should be referenced before initiating any off-pavement activity.

When Is It Legal to Work Outside the Paved or Maintained Path?

Despite these limitations, there are specific circumstances under which a municipality may be permitted to perform work outside the maintained path of a road-by-use:

1. Public Safety Emergencies - If a tree or structure presents an imminent danger to the public, the municipality may have emergency authority to act, even on private land, but should document the threat and action taken thoroughly.

2. Easements - If the municipality has acquired an easement, whether temporary, permanent, or by agreement, it may perform the permitted work within the defined area.

3. Landowner Permission - Written permission from a landowner can authorize specific work beyond the right-of-way, though the scope and duration of that permission should be clearly defined and archived.

4. Court-Ordered Access - In rare cases, a court may grant access rights for necessary public works when no other alternatives exist.

5. State Law Exceptions - Some states provide limited statutory authority for municipalities to perform drainage work or remove hazardous trees slightly beyond the traveled path. Again, this varies by jurisdiction and must be confirmed with legal counsel.

When Limitations Work in the Municipality’s Favor

Interestingly, the restricted rights of roads-by-use can occasionally work in the town’s favor, particularly when residents expect the municipality to act beyond its authority. One common example is tree removal. On municipally owned land, the town typically bears responsibility for trees along the right-of-way. But on a road-by-use, those trees often belong to the adjoining property owners.

If a resident demands the removal of a large, healthy tree for aesthetic reasons, the town can rightly refuse, unless the tree presents a hazard. This limitation can protect municipal budgets from unnecessary spending and avoid liability for work the town isn't legally obligated to perform. However, if a dead or diseased tree threatens public safety, the municipality may have the responsibility, and authority, to remove it, depending on local statutes and case law.

Easements May Be Needed for Drainage and Utility Work

For projects that extend beyond surface maintenance, especially those involving stormwater infrastructure, drainage improvements, or utility installations, the municipality should strongly consider acquiring an easement. This is particularly true when installing culverts, drywells, or swales that extend beyond the limits of historical use.

An easement provides the legal right to access and maintain infrastructure on private property. It protects both the landowner’s rights and the municipality’s ability to operate, repair, or replace assets without future legal entanglements. Failing to secure an easement could mean being forced to remove newly constructed infrastructure at the town’s expense or losing access to critical systems when issues arise.

Roads-by-use are a legally complex, operationally sensitive component of many municipalities’ highway systems. They require a clear understanding of state statutes, consistent documentation, and prudent on-the-ground behavior by highway crews. When managed with knowledge and care, they can serve the public effectively. But without proper awareness, they expose municipalities to legal risk, property disputes, and costly remediation.

Every town and village should prioritize mapping its roads-by-use, educating its crews, and seeking legal counsel when planning any significant project along these un-deeded corridors. In the realm of public works, the line between a well-maintained rural road and a municipal lawsuit is often no wider than the grader’s blade.