LEGAL ISSUES INVOLVING APPARENT ROAD RIGHT OF WAY March 8, 2011 JASON P. LUEKING BAMBERGER, FOREMAN, OSWALD & HAHN, LLP Capital Center, 201 N. Illinois St., Suite 1225 Indianapolis, Indiana (317)

BASIC CONCEPTS Real Estate Rights = Bundle of Sticks Fee Simple Absolute Owner’s Rights – Mortgage – Lease – Sell – Subdivide Smaller Parcels Surface/Mineral Rights – Create Covenants – Grant Easements

PUBLIC USES OF LAND Railroad Public Works Electric Power Transmission Lines Gas Pipelines Air Rights Water Rights Mineral Rights

GOVERNMENT RESTRICTIONS ON LAND Property Taxes Lien Enforcement Protect Endangered Species Protect Wetlands Zoning Eminent Domain Poled Powers

EASEMENTS, PROFITS AND LICENSES Easement = an interest in land in the possession of another than entitles the easement holder to a limited use of the land. Profit = the right to use another’s land by removing a portion of the soil or its products (i.e. sand, gravel, ice, trees). License = a revocable privilege to do an act upon the land of another (the licenser) without possessing any estate or interest in the land. A license is terminable at will while an easement is not.

CREATION OF EASEMENTS Express Act (Grant or Reservation) Implication – Quasi-Easement – Necessity Prescription/Adverse Use

IMPLIED EASEMENTS Quasi-Easement – At time of easement, one part of land is being used for the other part – Use is apparent – Use is continuous – Use is reasonably necessary to the enjoyment of dominant parcel – Relies upon intent of parties

IMPLIED EASEMENTS (continued) Necessity – Landlocked parcel resulting from subdivision – Public Policy – Termination when necessity no longer exists

PRESCRIPTIVE EASEMENTS I.C Adverse vs. Permissive Open Notorious Continuous/Tacking Uninterrupted vs. Nonexclusive 20 Years Only 10 years for adverse possession (fee simple)

ESTABLISHING ROAD RIGHT OF WAY Is the land a public road? – Dedication – Acceptance

EVIDENCE OF PUBLIC DEDICATION 1.Public Plat – Applies to Incorporated or Unincorporated Cities and Towns 2.Parcel Dedication and Public Use 3.Acts of the Owner – Subdivision of parcels on opposite sides of street – Knowledge and permissive use 4.Taking/Eminent Domain 5.Intent to Dedicate/Public Use

RELEVANT STATUTES I.C. § – Width of highway. A county highway right-of-way may not be laid out that is less than twenty (20) feet on each side of the centerline, exclusive of additional width required for cuts, fills, drainage, utilities, and public safety. I.C. § (b) – Establishment of apparent right-of- way. A county executive may establish the apparent right-of-way of a county highway. However, the width of the apparent right-of-way may not exceed twenty (20) feet on each side of the center line exclusive of additional width required for cuts, fills, drainage, utilities, and public safety.

ESTABLISHING APPARENT RIGHT OF WAY I.C. § (c) To establish apparent right-of-way, a county executive shall: 1.Make preliminary finding 2.Prepare map and legal description 3. Give notice by publishing the map and legal description 4.Send notice to landowners 5.conduct public hearing 6.Adopt an ordinance 7.Record map and legal description

MAINTENANCE OBLIGATIONS Once accepted, the County has the burden of maintaining the road. As to unimproved roads, a county has no duty to maintain a highway that it has accepted until it has improved that highway and that highway has therefore become a part of the highway system. Estate of Reasor v. Putnam County, 635 N.E.2d 153 (Ind. 1991) Government unit does not need to accept an offer to dedicate a public road.

MAINTENANCE OBLIGATIONS (Continued) Local governments are not obligated to open a public road upon acquisition – Discretionary authority – Contracts between governments and private persons are void as against public policy.

DEFEATING PUBLIC ROADWAYS (ESTOPPEL) Citizen misled by government and good faith belief in private road Citizen makes improvements to “private” road

ABANDONMENT Intent to abandon Detrimental reliance by landowner Landowner does not need good faith belief that road/land is private

OWNERSHIP OF ROADWAYS Fee Simple or Easement Dedication = Easement, Clark v. City of Huntington, 128 N.E. 453 (1920) Condemnation = Easement, Quick v. Taylor, 16 N.E. 588 (Ind. 1888) Public utility authorized to transmit gas through a pipeline for public use may locate that pipeline in a county road right-of-way as an appropriate use of the public right-of-way, Fox v. Ohio Valley Gas Corp., 235 N.E.2d 168 (Ind. 1968)

WIDTH OF ROADWAY Width of Right-of-Way vs. Pavement Width INDOT Standards – 9 to 12 feet or metric equivalent County Roads – 40 feet minimum, I.C. § Zoning Regulations/Development Plans, I.C. § – 50 feet R/W (local streets) – 100 feet R/W (arterial streets) – 28 feet pavement width (local streets) – 60 feet pavement width (arterial streets)

WIDTH OF ROADWAY (Continued) Roads Established by User – The width of a road established by user will be limited to that actually used by the public in establishing the road. Elder v. Board of County Commissioners of Clark County, 490 N.E.2d 362, 365 (Ind.App. 1986)