The Language Police are on the rampage again. In relation to land use, the word “abandon” is used with — dare I say it? — great abandon. This came up recently during discussion of a potential public road closure in my township. Some were saying this underutilized street should be abandoned because of its great cost to the municipality for maintenance of pavement and removal of snow from an area providing rarely used alternate access to abutting lots. In fact, the abutting landowners use it to store all kinds of vehicles and objects, rather than for regular access.
It isn’t that I would mourn the loss of a street I’ve never used. What chafes is the use of the word “abandon,” or rather, its misuse. Had this been a private road, there are circumstances under which the road could possibly be abandoned. But for a public way, there is a process that must be followed to cease public responsibility for it. That process is called “vacation.”
Simply not using something does not mean that rights to it have been abandoned. I have a coat in my closet I haven’t worn for six or seven years. I have not abandoned it, though. Winters just haven’t been as frigid and snowy as when I acquired my heavy-duty parka. Similarly, nonuse of a roadway for some period of time doesn’t mean use won’t resume at some future time. How long is long enough to be considered abandoned?
When talking about railroads, “abandonment” is a strictly regulated process to allow cessation of service. For non-railed roads, there must be some action, or inaction, to show intent never to exercise a right again. It is strictly a case-by-case factual determination, possibly decided differently in different jurisdictions. If I donate my underutilized parka to Goodwill, I have abandoned all claim to it. If a private road is unused to the point that trees grow in the middle of it, making it impassable, it possibly could be considered abandoned (depending on how it was created and what interests different parties have in it). But even if maintenance of a public road is similarly poor, that road keeps its public status until an official action by whomever is responsible for it (municipality, county, state), following a statutorily prescribed procedure to vacate it.
The vacation process for roads, like abandonment for railroads, requires investigating potential harm to the public by cessation of its availability. At the local level, public notice of the proposed vacation must be given to allow protests. This generally entails publication of some sort. Traditionally this has been accomplished through notices published in newspapers. Ironically, the overwhelming proliferation of social media and other news outlets has made public awareness of such planned actions more difficult, as fewer people read newspapers and not many are likely to be subscribing to or checking government websites for such notices. Only those owning land directly abutting the affected roadway are likely to receive direct notification.
Upon completion of the proper notifications and passage of a resolution or ordinance by the responsible governing body, then the road is officially vacated, ending public rights. But then we have a different set of questions. Had that road been owned in fee by the government, or did it only have easement rights?
If the road had been an easement, then the land becomes unencumbered by the easement that served the public, and private owners regain complete jurisdiction over it. A new question arises: had the road rights been acquired over land all on one side of that roadway, or over properties on both sides of it? If the latter, had those rights been acquired equally from both abutting owners? Is deed research required to answer whose private rights are freed from road use, or will disputes result in a judge “splitting the baby”?
If the road had been owned in fee by the government, the vacated area is still owned by that entity and can be sold to anyone. What often happens is that the road is split down the middle and half given or sold for a nominal sum to the abutting landowners on both sides. I am aware of at least one case in which a municipality chose instead to sell undedicated roadway area as a building lot, making driveway access to a lot on one side impossible without trespass. (See MacBean v. St. Paul Title Insurance Corporation, 405 A.2d 405, NJ Superior Court Appellate Division, 1979.)
Meanwhile, any public utilities located in what had been a public road will now need either to acquire easements from private landowners on whose land those utilities now find themselves or move to another public road location. (Some states allow condemnation to preserve rights to stay in place.) Private utilities have no rights to be in public roads, so they already occupy privately held easements. If, however, the public road relocates to where those private easements lie, they will have to move.
While we are clarifying terms, let’s not forget that easements give a right of way over someone else’s land, but the phrase “right of way” indicates a strip of land over which a variety of rights can be held, not necessarily being an easement. Returning to railroads, for example, their corridors (or rights of way) were acquired in a variety of ways, most commonly fee ownership, easements, or leases.