Heyl Royster


Heyl Royster


Whose Right of Way is it Anyway?


By: Emily Perkins, eperkins@heylroyster.com

A road's right of way is something often taken for granted, but is more important than one might think. A typical person may recognize a right of way as the driving lanes, shoulders, ditches, and slight corners at intersections. In fact, a right of way is defined by the Illinois Department of Transportation as "the land, or interest therein, acquired for or devoted to a highway," and the Illinois Highway Code's definition of "highway" is even broader, including land bordering the road surface (e.g., ditches, drainage structures, etc.).

In all likelihood, a township doesn't own the land on both sides of the highway, but rather has an easement or a right to use the land for highway purposes. That easement is a public right of way. Often times the Road Commissioner has the responsibility to maintain, regulate and control the activities on a public right of way to provide efficient operation of the county road system. This includes the power to cut down or plant trees, expand portions of the road, and add gravel or pave the road without having to ask a specific resident's permission. The Road District may also permit others, such as utility providers, to use the right of way or easement itself for sewer or water lines.

So why should anyone other than the Road Commissioner care about the right of way? Well, it could have an impact on your safety as a driver, pedestrian or resident of the county. Encroachment onto a public road's right of way can be a safety hazard. For example, planting crops within the right of way might obstruct a drivers' view of traffic signs or other vehicles at a rural intersection. In addition, crop encroachment into ditches can affect proper drainage, clog culverts or jeopardize the stability and integrity of the road itself. Interference with the utilities underneath the right of way can also expose residents to safety hazards. Public utility companies are permitted to use the right of way to install gas, power, and telephone lines, but the use of plows or other heavy farming machinery can damages these utility lines or create potentially dangerous situations for residents and utility workers.

Yet before determining whether the right of way has been encroached upon, it must first be determined how a right of way is created. A highway can be created in one of the three ways: (1) statute, (2) dedication or (3) prescription. 605 ILCS 5/2-202. A highway created by statute means that the Illinois statutes established the authority to create the various highway systems and provide the financial ability to fund their construction and/or purchase of the necessary right of way. A recorded plat is an example of a highway created by statute. A highway created by dedication occurs when a landowner donates or dedicates land for public use as a highway, and the public accepts the dedication. 605 ILCS 5/2-202. For example, a public body that maintains the road by plowing and salting the roadway, maintains the culverts, and mows the corresponding rights of way may be evidence of dedication and acceptance. Finally, a highway may be created by prescription by the continuous and uninterrupted use by the public for fifteen years, with the owner's knowledge but without the owner's consent. Town of Deer Creek Road Dist. v. Hancock, 198 Ill. App. 3d 567 (3d Dist. 1990). A large majority of rural roads are established by prescription.

So how does one know if they are encroaching on the right of way? Typically, the width of a right of way is 66 feet wide, which means the right of way is approximately 33 feet on both sides of the center of the road. However, the width of the right of way on a rural road or larger highways varies. Thus, it is often difficult to determine the width a right of way established by easement because there is no standard width. However, Illinois cases have given us some guidance. For example, in Pilgrim v. Chamberlain, 91 Ill. App. 2d 233 (3d Dist. 1968) the Third District determined that the width of a gravel road extended "fence to fence." In Semmerling v. Hajek, 258 Ill. App. 3d 180 (2d Dist. 1994) the Second District determined the width of the right of way was the width of the pavement, plus six feet on either side. Finally, in Highland Park v. Driscoll, 24 Ill. 2d 281 (1962) the Illinois Supreme Court held that the right of way in that case extended the width of the pavement, plus the drainage ditches. Street signs and utility poles often serve as good indicators of right of way limits because they are typically located on the outer edge of a road's right of way, but further research is always recommended to learn as much about a road as possible. Your county highway engineer and local IDOT district office may have additional records that help you learn more about both the existence of right of way and its width.

Counties and townships expend a great deal of public money to maintain and preserve the roadways and ensure its safe and efficient operation. Residents should be familiar with the property and recognize the hazards resulting from encroaching or utilizing the public's right of way. If you have any questions regarding a right of way or its applicability to a specific issue in your county, please do not hesitate to contact us.