Public vs. Private Roadways: The Distinction is Not Always Clear

Trey Wilson San Antonio Texas Real Estate Attorney, Trey Wilson Real Estate Lawyer in San Antonio wrote:

Roadway use disputes are common in Texas, because we Texans love our land, and because access to real estate is essential to the value and utility of land.   Often, roadway access disputes turn on the private versus public character of a given road. However, making the distinction between public and private is not always an easy task under Texas law. 

Public Roads Defined

Under section 251.002 of the Transportation Code, a public road is defined as follows: "A public road or highway that has been laid out and established according to law and that has not been discontinued is a public road." Tex. Transp. Code Ann. § 251.002. But, the Texas Supreme Court has recognized that there do exist other manners in which a road may become public: 

All roads which have been laid out and established by authority of the commissioners' courts are public roads. . . . A road not originally established under the statute may become public by long-continued use and adoption as such by the county commissioners with the assent of the owner or by prescription. A road may also become public, in the sense that the public have the right to use it, by dedication. 

Worthington v. Wade, 17 S.W. 520, 521 (1891).

How Can a Roadway Become Public?

Though asked to resolve a different issue (i.e. whether a Texas county can expend public funds to maintain a private road), the Texas Attorney General (John Cornyn at the time) in Opinion No. JC-0503 (2002) provided an excellent analysis of how a private roadway can become public.  I

highly recommend reading that opinion if this topic interests you.  In short, the AG observed that private roads may become public in the following manners:

• Establishment of a new road or changing an existing road under statue (Texas Transportation Code)
• Ordering that a road in a subdivision be improved (and upon taking the associated mandatory procedural steps)
• Purchasing or condemning land (through eminent domain powers) for roadway purposes
• Dedication (by a private owner) of a roadway to public use - this dedication can be express or implied
• Easement by prescription to the public by operation of law (a private road becomes part of the public domain after long  and continuous usage by the public. 

Determining Public vs. Private: Fact Issues Fertile for Dispute

Given the factors identified above, there exists fertile ground for creative legal argument over whether the history of a given road lends itself to "conversion" from private to public. This, of course, is a fact-specific determination, and each case is different because the history of each road is unique.

In my experience, legal arguments over whether a roadway is public or private tend to focus on three very general factors (each with various sub-factors): 

1.   origin of the roadway (who built it); 

2.  financial responsibility for the road's maintenance (who has the economic burden of repairing and maintaining it); and

3.  access (who actually and historically uses the roadway and for what purposes). 

Most often, the issue of ORIGIN is easily determined.  However, this factor is not dispositive.  If a city, county or other governmental entity used public funds to construct the roadway, then it is almost certainly a public roadway. However, the converse is not true. That is, just because a developer or private citizen paid-for roadway construction does not necessarily mean that the roadway is private (see above).

The FINANCIAL RESPONSIBILITY factor is also fairly straight-forward, but can also be tricky. Roads with private origins frequently contain express provisions (contained in restrictive covenants or in the language of plats or deeds) requiring those who benefit from (use) a given road to pay for its maintenance. Roadway Maintenance Agreements are somewhat common in rural Texas, while more urban subdivisions generally enjoy (or are burdened by) deed restrictions requiring property owners within that subdivision (or their Homeowners Association) to maintain the interior roadways.  Sometimes, however, (particularly in the absence of gates), a broader class of persons uses a roadway, while those whom it was originally intended to benefit foot the maintenance bill. Generally speaking (and with one minor exception), cities and counties cannot maintain private roads. Thus, when a road is generally accessed by the public, but has not become public, then a small group of owners (or perhaps nobody0 is saddled with the burden of maintaining a roadway that now benefits many.

Thus, ACCESS is the generally the most controversial factor (for a variety of reasons). First, individuals with private obligations to maintain a roadway can be unreasonably burdened when that roadway is used by a much wider class of persons (or vehicles) than was originally intended. This scenario frequently occurs when new development abuts long-time, existing development whose occupants have enjoyed very little use of a private roadway. Second, where the public or other commercial traffic frequently traverses a private roadway over a long period of time, that roadway can lose its private character even if it doesn't "feel" like conditions have changed all that much. That is, the public or "non-exclusive" use of a roadway does not have a "traffic count" threshold (i.e. if even just a handful of public drivers continuously use the roadway over an extended period, the shift to public may not seem all that great). In this respect, the conversion of a road from private to public can come as a surprise.  Third, those parties or landowners for whose benefit the roadway was originally constructed may have an inability to restrict access. Thus, even if the owner of a quiet and somewhat private tract adamantly opposes use of the road by any of the public, he or she is often unable to restrict access by way of a gate or otherwise.  

Roadway disputes are frequently expensive, lengthy and emotionally charged. But they are of great significance due to the tremendous impact that access has on the value of real estate.