Rules of (Creating) the (Public) Road: Dykes v. Friends of the C.C.C. Road

By: Andrew McRoberts, Editor. This was posted Tuesday, February 21st, 2012

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The state and local governments are often in the business of creating, accepting or maintaining public roads.  In some cases, there are rights of way that are used by the general public but never become truly public roads because of a lack of either landowner intent to dedicate, or an express governmental acceptance.

That was the situation in rural Highland County, where private property owners erected a gate and blocked access to a roadway long used by the public.  This dispute  lead to a lawsuit by members of the public against the property owners and a recent opinion of the Virginia Supreme Court in the case of Dykes v. Friends of the C.C.C. Road, decided January 13, 2012.

Stipulated facts showed that the roadway in question was originally built and used by the Civilian Conservation Corps, the “C.C.C.” in the 1930s.  The roadway was used since then by the public for access between river valleys in the mountainous area, and for access to the George Washington National Forest.  Various public officials used the roadway on official business and considered it a public road.  In 1941, the Highland County Board of Supervisors noted an agreement for the private property owner to maintain a gate a cattle guard on the C.C.C. road at its intersection with a state highway.  If the property owner failed to do so, the state highway department (today, VDOT) “may remove [the] gate and cattle guard.”

However, no government record shows that either the County or the state formally adopted the road as public, and the road was not shown on official VDOT maps.  In fact, a VDOT official in 2001 advised a private property owner along the C.C.C. road that such “emergency fire trails … established on private property, with the permission of the landowners, by the Civilian Conservation Corps … were never official state maintained roads, nor did the Commonwealth have legal easement to use them.  The trails belong to landowners on [whose property] they cross.”   Private property owners who erected the gate gave keys to other private property owners along the C.C.C. road and also the Sheriff’s Office, and utility company, and offered keys to the Forestry Service.

The Friends of the C.C.C. Road made two basic claims.  First, that the road was impliedly dedicated as a public road and accepted by long use by the public and government officials.  Second, that the public gained rights to use the roadway by prescription by long continuous use and “recognition”of public use by the government.  The circuit court ruled against the Friends of the C.C.C. Road on the first argument, but ruled in their favor on the second, reasoning that the 1986 Virginia Supreme Court opinion in Burks Brothers of Virginia, Inc. v. Jones supported unrestricted public use of the road.

On appeal, the Virginia Supreme Court ruled against the Friends of the C.C.C. road on both claims.  While the Supreme Court agreed with the circuit court that the C.C.C. road was not a public road by dedication and acceptance, it disagreed with the circuit court that the right of way could become public through prescription arising from long use and government recognition of that use.  

Like the circuit court, the Supreme Court found no evidence of express dedication by the property owners or acceptance by the government.  The Court noted that unlike dedication which could be implied, government acceptance of a public road must be express.  Therefore, the Court held that the Friends of the C.C.C. Road failed to prove that the road became public through dedication and acceptance.

The Court similarly held that a public easement or right-of-way cannot be acquired solely through long and continuous use by the public and “recognition” of that use by the government without formal acceptance, saying, “The law of this Commonwealth simply does not allow for a conversion of private property to public property solely by public use.” 

On the claim of the Friends of the C.C.C. Road that the roadway became public through prescription, the Supreme Court noted that no prescriptive rights can be obtained by the public at large.  The Court noted that one required element of a prescriptive right, exclusivity, was lacking because the general public — by definition — excluded no one.  While a long and continuous public use can imply a dedication by the property owners, it cannot create a prescriptive easement. 

The Court said that the sentence from the Burks case relied upon by the circuit court did not support prescriptive rights without government acceptance, but rather simply confirmed that use by the general public –lacking in Burks — was necessary element of a prescriptive right of way.  The Court stated that an implied dedication through long public use could give rise to a public right of way, but it must be coupled with an “affirmative act by a competent authority of acceptance of the dedication the use implies.”  Such an express acceptance was wholly lacking here.

This opinion reaffirms long-standing principles — the “rules of the road,” if you will — on road dedication and creating prescriptive rights of way.  In this case, the lack of any formal acceptance of the road or roadway as public doomed the claims that the C.C.C. road was public. 

The Dykes case has reaffirmed that, under Virginia law, the government, and not the public, decides whether a road is to be public.

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