Roads That Come Up Short Under The Law

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Before Harry Truman left home to serve in the First World War, he helped his father oversee the community’s responsibility to maintain the local roads. As biographer David McCullough wonderfully tells, Truman’s experiences with roads at the beginning of the Motor Age were pivotal in his path to the White House. The rutted and often muddy Midwestern rural routes needed constant attention, and the Sisyphean task proved fatal to the future president’s father after he strained to move a boulder out of the way. Years later as a Missouri county politician, Truman spearheaded the effort to improve these surfaces to meet society’s changing demands, and his success earned a statewide reputation that won Truman a seat in the U.S. Senate.

Reading about the technology shift from hoofs and wagon wheels to car tires made me curious about roads and their establishment as conduits of civilization–a public need that transcends the type of vehicles that pass through them. Laws about roads recall the concerns of their day, including the transition that Truman helped make happen.

How are roads created as legal constructs, as distinct from the "ribbon of highway" on the ground? To answer, we can look at disputes that center on a road’s validity. In the following court cases landowners challenged government assertions that public roads rightfully crossed their properties.

Implicit Reservation
Roads outline the patchwork quilt of land division across the Great Plains. The lanes are so intimate with the one mile square sections one might think they were established around the same time to ensure access. But in Leo Sheep Company v. United States, 440 U.S. 668 (1979), the Supreme Court held that just because a road became necessary when a section of land was first granted, it doesn’t make the right of access a reality.

Leo Sheep involved vast land grants under the Union Pacific Act of 1862, a law designed to induce the private construction of railroads. Under the Act, Congress gave alternating sections of land to the railroad over a parallel distance of twenty miles on both sides of the completed length of track. The government retained the remaining sections, usually to sell them later, creating a checkerboard pattern of ownership. The theory was that rails would hasten settlement of the West, and both the government and the railroad company would benefit from the increased land values that followed. A decade before, Congress had successfully subsidized the Illinois Central Railroad running south from Chicago in a similar fashion.

A century later this checkerboard disposition left no way for the public to access a particular recreation area in Wyoming without crossing private property (formerly Union Pacific’s). After negotiations with the landowner failed, the government unilaterally "cleared a dirt road" across Leo Sheep Company’s land. The landowner sued and initially prevailed in federal district court. But the decision was reversed on appeal.

It is the role of courts to interpret the law–in this case, the Union Pacific Act. Ruling in favor of the government, the appellate court held "that when Congress granted land to the Union Pacific Railroad, it implicitly reserved an easement to pass over the oddnumbered sections in order to reach the even-numbered sections that were held by the Government."

If unchallenged, the decision could have had huge implications across the country. It potentially meant that wherever such conveyances resulted in property being landlocked, the grants would be understood to have reserved rights-of-way.

But the Supreme Court saw things differently and overruled. If Congress had intended to reserve roads at the time of the railroad land grants, the Court reasoned, it would have expressly done so. In fact, the Union Pacific Act specifies other exceptions from its land grant provisions, such as certain mineral lands. When Congress wanted to hold something back, it knew how to say it.

For further support, the Court more broadly investigated whether Congress ever anticipated the need for access to public land. It found an 1887 report to Congress recognizing that the rights to such roads would have to be purchased. Referring to the report, the Court said:

The Secretary of the Interior recommended that Congress enact legislation providing for a public road around each section of public land to provide access to the various public lots in the checkerboard scheme. The Secretary also recommended that to the extent building these roads required the taking of property that had passed to private individuals, `the bill should provide for necessary compensation.’

Congress apparently was not under the impression that the government was already entitled to roads across the railroad’s land.

Despite the arguments in Leo Sheep that the road was necessary, the Court said it was "unwilling to upset settled expectations to accommodate some ill-defined power to construct public thoroughfares without compensation." Furthermore, obtaining a road in this way "is not actually a matter of necessity… because the Government has the power of eminent domain." The government can acquire a road that was not written into the land grant–but it must pay for it. In the next case, the landowner based his claim on century-old rules to dedicate highways.

1800s Illinois Law
Two existing roads running along sectional lines bordered the landowner’s property on two sides in the Illinois Appellate Court case, Klose v. Mende, 329 Ill.App.3d 543 (2001). When the local commissioner of highways sought to widen the physical lanes within their supposed rights-of-way, the landowner not only objected, he argued that the roads had never been properly dedicated to begin with.

It may have seemed a bold claim, given that the Meriden Township clerk’s ledger indicated that the rights-of-way, each four rods wide (66 feet), were originally dedicated to the township in 1856. But did the facts support what the ledger said?

Road dedications in nineteenth century Illinois evolved from few procedures, at first, to more elaborate steps.

The Act of March 3, 1835 required no survey for a new road. It simply called for three "suitable persons" to view the proposed location, followed by setting stakes or "ploughing furrows" to mark the road’s position. A report confirmed the actions performed and described the location, but without much precision. (The enduring Milwaukee Road, or Illinois 21, following the route of an Indian trail from Chicago to Wisconsin, was established as a public road in this manner.)

Greater sophistication is evident in the 1851 Act to Provide for Township Organization, which governed the roads in Klose. It placed roads under the authority of township commissioners of highways and required a competent surveyor to prepare a plat based on survey data.

In addition to the plat, the 1851 Act required a surveyor’s report, including a precise metes and bounds description of the road. Both the plat and report were to be contained in an "order," signed by the commissioner and filed with the town clerk.

In 2001, because no order was found (so no description of the land), the court in Klose agreed with the landowner that the evidence was insufficient to show that road dedications had been completed in 1856. The court held that "the bare ledger entry," with nothing more, represents attempts that "fail to meet even the most basic requirements of the Act." No dedication, therefore no right-of-way owned by the government.

But the government had a fallback theory that rescued the existing roads–a position doubtless anticipated by the landowner. In the absence of statutory dedications, the court held that easements for roads were acquired as a result of continuous public use for a century and a half. Easements allow only the use of land that is owned by another. The timespan was more than enough to establish rights by prescription, a doctrine derived from Roman law concerning long time possession. With this ruling, the roads were safe.

Regarding the widening of the roads, however, the government was out of luck. The court curbed the government’s plans by strictly construing the scope of the road easements in terms of their size and permitted uses. In a clear victory for the landowner, the court ruled that any widening would require that the landowner be compensated for the land taken.

The Illinois legislature, apparently fearing an onslaught of legal challenges to roads, passed a law in direct response to the court’s ruling in Klose. It provides that an entry in a clerk’s ledger is sufficient to support the validity of a road dedication (605 ILCS 5/6-315). While such evidence can be overcome by contradictory facts (it is not conclusive), the new law certainly shifts the advantage back toward the government.

No More Mud
The 1856 roads described in Klose were likely unpaved at first. But early in the next century Illinois law reflects the need for better surfaces that occupied Harry Truman on his side of the Mississippi River. For example, the Road and Bridge Act of 1913 empowered counties to levy taxes for the building of "gravel, rock, macadam or other hard roads" that cars required. It was followed by the descriptive "Act in relation to the construction by the State of Illinois of a State-wide system of durable hard-surfaced roads upon public highways of the State and the provision of means for the payment of the cost thereof by an issue of bonds of the State of Illinois" (1917 Ill. Laws 696). Some communities resisted change, however, and implementation of these laws was delayed by court battles.

This time of transition and resistance– when new motorists faced the uncertainty of whether passable roads led to where they wanted to go–is viscerally chronicled in American Road, by Pete Davies. The book follows the adventures in 1919 of a cross-country military convoy that assessed driving conditions in the states they crossed, and both heralded the new age and crusaded for improved travel to the townspeople they met.

Participating in the convoy was a young officer who would one day succeed Truman as president: Lt. Col. Dwight Eisenhower. "In Illinois," Eisenhower reported, the convoy drove "on dirt roads, and practically no… pavement was encountered until reaching California." Of the roads along their arduous journey, another officer said they "belong to the Stone Age."

Davies attributes the early opponents of durable roads in part to rural populations that continued to rely on older technology. Although mud hampered travel for farmers, too, they were more likely to view change as a tax burden that would benefit the car-owning elite. In fact, in Iowa they elected a governor whose campaign indulged this sentiment with its "mud roads platform."

The Illinois Plat Act
While the roads in Leo Sheep and Klose relied on nineteenth century laws, dedications under modern statutes can be vulnerable, too. This year, a strip of land labeled "Winnetka Avenue" on a subdivision map was the subject of Bigelow v. City of Rolling Meadows, 372 Ill.App.3d 60 (2007). At one time a storm sewer was laid underground, but the surface was never paved or used for traffic. The court was asked to determine if the strip is a dedicated public way or belongs to the adjacent landowners.

Today’s dedication procedures are codified in the Illinois Plat Act (765 ILCS 205/), and relevant parts continue unchanged since the 1926 map at issue in Bigelow. Among the requirements, the road must be "marked or noted on such plat as donated or granted to the public…." The map, in other words, functions like a deed by which the subdivision owner grants certain portions to the public. As with deeds, the map must clearly communicate what is being granted, and to whom. If any material element is unclear, the grant may be considered void.

In Bigelow, apart from the avenue label itself, the map nowhere indicated an intent to dedicate. While the court "recognize[d] that most roads are public," the possibility of a private road remains, which rendered the map ambiguous at best. Without unequivocal evidence of "donative intent," the court held there was no dedication.

We have seen that courts are reluctant to conceive a road reservation where it is not expressed in the grant. And courts are equally exacting when it comes to the statutory steps to dedicate a public way. Whether preparing a map or deed to create a road, or seeking to challenge one’s presence, consider the perspective these cases make plain.

As for the early laws and clashes over society’s shift to driving on hard roads, it wasn’t long before the debate ended and automobiles and the infrastructure they need were advanced everywhere. The economics of bringing harvest to market and government policy manifested in highway legislation were among many forces that shaped the course ahead. But that’s all far behind us now on a welltraveled road.

Lloyd Pilchen is a lawyer specializing in land use and subdivisions with Jeffer Mangels Butler & Marmaro LLP in Los Angeles, and a California and Illinois licensed surveyor.

A 2.424Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE