Termination of a Public Right of Way by Abandonment Via Non-Use

Termination of a Public Right of Way by Abandonment Via Non-Use

Updated on May 20, 2021

A public road or any other public property devoted to a public use cannot be terminated or considered as vacated or abandoned by the acts of the owner of the servient tenement alone. For more on how a servient tenement can terminate a private easement, take a look at our blog post on termination of a public utility easement in a public right of way. In order to find that a public agency terminated a public easement by abandonment, it is necessary that the public agency engaged in some conduct to indicate that it intended to terminate the public rights of use of the road.

Generally, nonuse in and of itself is not sufficient to constitute abandonment. For example, a temporary nonuse by the public or a temporary blockage of the use of the easement by the public authorities are insufficient to prove the public intent to aboard the easement and to terminate the future public use of the road. Similarly, neither is a temporary use of an alternate route.  However, where there is a nonuse of the easement by the public, and a lack of maintenance, blockage, relocation, or other facts based on conduct of the representatives of the public, there may be an abandonment of the public easement and a termination of the public’s right to use the road by “operation of law.”

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Some other ways that a public right of way can be abandoned is when the public agency relocates the easement, subject to certain specific requirements, or when a road becomes impassable for vehicular travel and no public money was expended for maintenance for five years. However, for the second method, this does not apply if there is a public utility facility in place. In our next blog post, we will discuss some other methods a public right of way can be abandoned.

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See related: What Is a Public Utility Easement (PUE)?

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