A recent New York Times article asks this question rhetorically when discussing repurposing right of way, but the literal question implicates property rights.
The New York Times recently discussed New York City’s contemplation of “congestion pricing toll for drivers entering Manhattan south of 60th Street.” That issue introduced the larger question about “who owns the streets? The public right of way can occupy as much as one-third of the land in big U.S. cities, and various residents have begun to ask if there might be better things to do with all that territory than moving and storing cars.”
I don’t address the public policy debate about whether roads and other right of way should be repurposed for other uses. However, that public policy debate must contemplate the literal question of who owns the road and whether can right of way can be repurposed for other uses.
Government agencies can obtain right of way used for roads and parking in a variety of ways. It could be owned by the government in fee. It could be subject to a right of way that often lacks much in the way of description. But it could also be owned through an easement that specifically describes the purposes for which it can be dedicated for public use.
In Blackhawk Development Corp. v. Village of Dexter, the Michigan Supreme Court evaluated this issue in the context of an easement. The property owner “granted ‘an easement for the purposes of relocating, establishing, opening and improving’” a road. The Village of Dexter did not use the entire area encumbered by the easement for its road. A neighboring property owner desirous of developing his property was granted “permission to construct developments on the subject property, including two access roads, light poles, trees, landscaping, pond grading, sidewalks, pipes, conduit, sewer lines, and water lines.” The Supreme Court recognized that the “existence of an easement necessitates a thoughtful balancing of the grantor's property rights and the grantee's privilege to burden the grantor's estate. And while the easement holder's rights are ultimately ‘paramount ... to those of the owner of the soil,’ the latter's rights are subordinate only to the extent stated in the easement grant. Consequently, ‘[t]he use of an easement must be confined strictly to the purposes for which it was granted or reserved.’” A beneficiary of an easement “cannot ‘make improvements” that “are unnecessary for the effective use of the easement or they unreasonably burden the” underlying property owner’s rights. Since “there is no evidence in the record that the proposed developments were within the scope of the easement,” an injunction was issued protecting the owner of the underlying land.
Bales v Michigan State Hwy Comm also involved an injunction, although it approached the issue from a different context. It recognized that injunctions must be issued when a government agency pursues a project without first securing necessary property rights. “‘If instead of composing or satisfying plaintiffs' easement rights by condemnation, the defendants asserted intention to go ahead and destroy or injure such rights and remit plaintiffs to actions at law to obtain redress, then a clear instance for interposition of a court of equity and its restraining power exists. Equity will enjoin parties, empowered with right to employ eminent domain, who assert the right to take or damage property or property rights but ignore the legal method. Upon this, authority is ample.’” Thus, if the existing right of way is insufficient to allow conversion of the use, eminent domain must be employed to compensate the property owner.
Government agencies cannot simply assume that because they enjoy a road right of way, it can be converted to another purpose. Property owners who disagree with the potential repurposing of the right of way should check their title documents. It is not uncommon for property owners to own rights under public roads, sidewalks, and parking areas. Further, they should check for those rights themselves and not trust the government to do it. I have seen instances in which the government aggressively analyzed right of way documents to the detriment of property owners in the hope that their interpretation does not get challenged. Furthermore, property owners often obtain limited title work going back 40 years in the past, which could miss right of way documents for long-existing roads. Finally, property owners in platted subdivisions should examine not just their own title work but the plat documents themselves.