David E. Wynkoop
This is a follow-up to the article on Public Rights-of-Way (ROWs). It is important to understand how ROWs are created and the practical consequences of ROW classifications. It is also important to identify all ROWs on your Official Map.
Idaho Code §40-202(6) provides:
By July 1, 2005, and at least every five (5) years thereafter, the board of county or highway district commissioners shall publish in map form and make readily available a map showing the general location of all highways and public rights-of-way under its jurisdiction.
This mandate applies to Idaho’s highway districts and county road departments. The language appears not to apply to city street departments. However, since city street departments are considered a division of the local highway district or county road department (see Idaho Code §40-1323), there is an argument that city street departments should adopt an Official Map. In any event, even if cities are not required to adopt and maintain Official Maps, it may be desirable to do so.
There are several reasons why adopting and maintaining an Official Map is beneficial. Should your local highway jurisdiction (LHJ) be involved in litigation involving one of your ROWs, your Official Map will be valuable evidence of the existence of the ROW, the fact that it is public, and its location and dimensions. Also, the Official Map is helpful to patrons and prospective property purchasers to understand where private improvements and fences may be placed. Moreover, the Official Map is useful for planning for future ROW improvements such as chipseals and overlays.
Finally, the most important legal benefit is the liability protection an Official Map can provide. Idaho Code §40-202(2) states:
[A] county with highway jurisdiction or highway district may hold title to an interest in real property for public right-of-way purposes without incurring an obligation to construct or maintain a highway within the right-of-way until the county or highway district determines that the necessities of public travel justify opening a highway within the right-of-way. The lack of an opening shall not constitute an abandonment, and mere use by the public shall not constitute an opening of the public right-of-way.
Also, Idaho Code §40-202(3) provides:
If a highway created in accordance with the provisions of this subsection is not opened as described in subsection (2) of this section, there shall be no duty to maintain that highway, nor shall there be any liability for any injury or damage for failure to maintain it or any highway signs, until the highway is designated as a part of the county or highway district system and opened to public travel as a highway.
It is common for an LHJ to decline to maintain a ROW until the ROW is first constructed to the LHJ’s standards. There are many platted subdivisions and even townsites where roads were dedicated to the public but have never been maintained, and in some cases, never constructed. In other cases, a deed or easement was recorded but the road was never built or maintained. What happens when someone using an unmaintained ROW gets hurt and sues the LHJ? What happens when a new purchaser buys land accessed by an unmaintained ROW and demands that the LHJ build and/or maintain the ROW? There is older case law supporting an argument an LHJ may be required to open and maintain a ROW. See Harshburger v. Jerome County, 693 P.2d 451, 107 Idaho 805 (Idaho 1984). Keeping your Official Map up-to-date and labeling the ROW as unmaintained should avoid liability for failure to open the ROW and liability for tort claims based on use of the unmaintained ROW.
Also, when there is a battle over encroachments, or the width or location of a ROW, the Official Map may be helpful in defeating an adverse claim to the ROW. The more details added to the Official Map, the better. For example, if the ROW was dedicated by plat, deed or easement, it is helpful to identify the dimensions of the ROW on the Official Map. If the ROW was created by prescriptive use, there will be no specific dedication instrument; but there is a statutory presumption that the ROW width is fifty feet (50’). See Idaho Code §40-2312.
In snow country, it may be desirable to indicate on the Official Map that no winter maintenance is provided. There are recent examples where new property owners have claimed that the LHJ must plow the ROW accessing the parcels, even though the ROW previously had no winter maintenance.
Records should be kept of all maintenance activities on ROWs, especially prescriptive ROWs. This is most helpful if there is future litigation regarding the dimensions of a ROW, or a question whether the route is a public ROW. These records may be incorporated by reference into your Official Map.
Once an Official Map is created, it must be updated every five years. If there is no change to your road inventory, this will be easy. If ROWs have been added to your road inventory or deleted from your inventory by vacation or otherwise, these changes must be reflected on the new Official Map. I recommend that with each update more detail be added regarding the nature of each ROW, and the dimensions and maintenance of each ROW.
As LHJ’s gain access to Geographical Information System (GIS) data bases, it may be helpful to incorporate one or more GIS layers into your Official Map. The GIS layer can contain the details regarding width and other dimensions of each ROW segment. The GIS database can also include the date and method of ROW acquisition.
We have an example of what not to do when adopting an Official Map. The Idaho Supreme Court held an Official Map to be improperly adopted in the case of Homestead Farms v. Board of Com’rs of Teton County, 141 Idaho 855, 119 P.3d 630 (Idaho 2005). In the Teton County case, the County purchased a “big sky map” at the local convenience store. Teton County then held a public hearing and adopted the big sky map as the County’s Official Map. The Court held the big sky map adoption could not create a ROW where one did not previously exist. Adoption of the big sky map was not adequate to create an Official Map. The Court did not specify exactly what more was required, but clearly more research and fact-finding was required than presenting a big sky map at the public hearing.
If your LHJ has any ROWs created by road petitions, these ROWs should be included in your Official Map. Likewise, any RS 2477 ROWs should be noted.
If you end up in litigation over a ROW, your Official Map will be a valuable tool to provide the judge with evidence to support your arguments. Your attorney will be most grateful.
David E. Wynkoop
Mr. Wynkoop has actively practiced as an Idaho attorney for 37 years. He represents numerous Idaho local highway agencies as well as the Local Highway Technical Assistance Council. Mr. Wynkoop previously served as General Counsel and Commissioner for the Ada County Highway District. He is past Chairman of the Government Attorney Section of the Idaho State Bar.
Mr. Wynkoop is a partner in the firm of SHERER & WYNKOOP, LLP, 730 N. Main St., Meridian, Idaho 83642, phone 208-887-4800.