How wide is a NY town road that became a highway just by public use over time?

Subject

Width of a highway-by-use is determined by actual extent of use

Plain-English summary

The Town of Warwarsing asked the AG how wide the right-of-way is on a town road that became a town highway just by public use (a so-called "highway by use" under Highway Law § 189). The question matters because the statute says the town superintendent shall open such highways "to the width of at least three rods" (about 49.5 feet), but on many old country roads the actual traveled and maintained portion is much narrower.

The AG concluded the width is whatever the public actually used during the ten-year statutory period, not the three-rod default.

Highway Law § 189 says that lands used by the public as a highway for ten years or more become a highway "with the same force and effect as if it had been duly laid out and recorded as a highway, and the town superintendent shall open all such highways to the width of at least three rods." Read literally, that creates a default three-rod right-of-way. But the Court of Appeals rejected the literal reading in People v Sutherland, 252 NY 86 (1929), construing the earlier two-rod version of the statute (Highway Law § 209, L 1909 ch 30). The Court held that where there was no evidence of public use of the full statutory width, the town superintendent could not "open" such a highway to that width: "If a road or way be established by prescription or user, the public use defines the extent of the easement."

The town's interest in a highway by use is an easement for use as a public highway, not fee title (Ashland Oil & Refining v State, 26 NY2d 390 [1970]). Like any prescriptive easement, its extent is measured by the use that established it.

The AG canvassed the case law and found the prevailing view follows Sutherland: width is actual use, which may be less than three rods (LaSalle Company v Town of Hillsdale; Danial v Town of Delhi; Hill v Town of Horicon; Schillawski v State of New York; Walker v Caywood; People v Misevis; Matter of Usher v Mobbs). The actual use may include not just the traveled portion but adjacent shoulders, ditches, and other areas customarily maintained as part of the road (LaSalle; Van Allen; Nikiel; Jones).

The AG acknowledged one outlier: Desmond v Town of Summit, 82 Misc 2d 669 (Co Ct Schoharie Co 1975), which read the statute literally and was followed in a 1982 lower-court case and two 1978/1981 AG opinions. But subsequent cases and AG opinions have not followed Desmond, and the prevailing view is firmly with Sutherland.

The opinion closes with a practical implication: if a town wants to widen a highway-by-use (build wider ditches, add shoulders, cut trees beyond actual use), it has to either obtain the fee holder's permission or pay just compensation. Just opening up more land under the three-rod default is not authorized.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What's a "rod" and why is it in the statute?

A rod is 16.5 feet. Three rods is 49.5 feet. The unit dates from old English land measurement and survives in many rural land-use statutes in the eastern United States. The historical idea was that a public road needed enough width for two wagons to pass, plus shoulders and ditches.

How does a road actually become a highway by use?

Two factual elements: (1) public travel on the road, without interruption, for at least ten years (under current § 189; older statutes required 20 years), and (2) town maintenance of the road, without interruption, for the same period (People v Sutherland; Nogard v Strand). Both conditions must be met. If the public used the road but the town never maintained it, no highway-by-use is established.

What does "actual use" include besides the wheel tracks?

Per LaSalle, Van Allen, Nikiel, and Jones, the actual use includes the traveled portion plus adjacent shoulders and ditches and other areas. If the town historically mowed an eight-foot shoulder on each side, plowed ditches, and maintained a culvert, the easement extends to that area. What it does not include is land beyond the maintained zone that just happens to be near the road.

What if the town wants to widen the road for safety or development?

The opinion lays this out clearly: the town must either get permission from the fee holder (the adjacent landowner) or pay just compensation. The town cannot just declare a wider right-of-way and start clearing trees or grading new shoulders.

Does this principle apply to other prescriptive easements?

Yes. The Sutherland rule is just an application of the general prescriptive-easement principle: the scope of the easement is defined by the use that established it. The same logic governs private prescriptive easements, not just public highways by use.

Statutory and case-law framework

Highway Law § 189 provides for establishment of town highways by use after ten years of public use, and instructs the town superintendent to "open" such highways "to the width of at least three rods." The pre-1995 versions of the statute (going back to L 1909 ch 30 and earlier) used different time and width thresholds (e.g., 20 years and two rods), but the core structure is the same.

People v Sutherland, 252 NY 86 (1929), is the leading case: actual public use defines the extent of the easement, not the statutory default width.

The lower-court line of authority (LaSalle, Danial, Hill, Misevis, Usher, Van Allen, Nikiel, Jones) consistently follows Sutherland and elaborates the rules on what falls within actual use.

The minority Desmond v Town of Summit line is acknowledged but not followed.

The town's interest is an easement, not fee title (Ashland Oil).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-31_pw.pdf

Original opinion text

HIGHWAY LAW § 189; L 1909, CH 30.
The width of a town highway by use, established in
accordance with Highway Law § 189, is determined by the extent of
actual use.

June 20, 1995

Jeffrey Kaplan, Esq.
Town Attorney
Town of Warwarsing
P. O. Box 30
Woodbourne, NY 12788

Informal Opinion
No. 95-31

Dear Mr. Kaplan:
You inquire as to the width of a town's right-of-way with
respect to a town highway established by use. We conclude that
the width of the right-of-way is determined by the extent of the
actual use.
Highway Law § 189 (hereafter, "HL") provides for the
establishment of town highways by use, as follows:
All lands which shall have been used by the public as a
highway for the period of ten years or more, shall be a highway, with
the same force and effect as if it had been duly laid out and recorded
as a highway, and the town superintendent shall open all such
highways to the width of at least three rods.

Generally, whether a town highway by use has been established
involves a factual determination that the public has traveled
upon the highway without interruption for at least ten years and
that the town has maintained the highway without interruption for
a corresponding period. People v Sutherland, 252 NY 86 (1929);
Nogard v Strand, 38 AD2d 871 (3d Dept 1972). The interest of the
town in a town highway by use is an easement for use as a public
highway rather than fee title. Ashland Oil & Refining v State,
26 NY2d 390 (1970).
The language of HL § 189 would appear to establish the width
of a town highway-by-use at three rods and to require a town
superintendent to widen and maintain the highway at that width.
The Court of Appeals has held otherwise. In People v Sutherland,
supra, the Court of Appeals sought to determine the width of a
town highway by use and examined for that purpose the provisions
of a statutory predecessor of present HL § 189, Highway Law § 209
as enacted by L 1909, ch 30. Said section read as follows:

2
§ 209. Highways by use. All lands which shall have been
used by the public as a highway for the period of twenty years or
more, shall be a highway, with the same force and effect as if it had
been duly laid out and recorded as a highway, and the town
superintendent shall open all such highways to the width of at least
two rods.

The Court held that
the town superintendent could not . . . in the language of Highway
Law, section 209, open such highway "to the width of at least two
rods," for there was no evidence of use by the public for twenty
years of a road two rods in width. . . . If a road or way be established
by prescription or user, the public use defines the extent of the
easement.

People v Sutherland, supra, at p 90.
While case law interpreting HL § 189 has not been entirely
consistent, the prevailing view concurs with People v Sutherland,
supra, that the width of a town highway by use is determined by
the extent of the actual use during the statutory period set
forth in HL § 189. The extent of actual use may be less than
three rods. LaSalle Company v Town of Hillsdale, 199 AD2d 685
(3d Dept 1993); Danial v Town of Delhi, 185 AD2d 500 (3d Dept
1992), motion lv appeal denied, 81 NY2d 706 (1993); Hill v Town
of Horicon, 176 AD2d 1169 (3d Dept 1991), motion lv appeal
denied, 80 NY2d 752 (1992); Schillawski v State of New York,
9 NY2d 235, 238 (1961); Walker v Caywood, 31 NY 51, 63 (1865);
People v Misevis, 138 Misc 2d 1097 (Co Ct Schoharie Co 1988);
Mtr. of Usher v Mobbs, 129 Misc 2d 529 (Sup Ct Tompkins Co
1985).1 The extent of actual use, factually determined, may
include, in addition to the traveled portion of the highway,
adjacent shoulders and ditches and other areas. LaSalle, supra,
at p 686; Van Allen v Town of Kinderhook, 47 Misc 2d 955, 959
(Sup Ct Columbia Co 1965); Nikiel v City of Buffalo, 7 Misc 2d
667 (Sup Ct Erie Co 1957); Jones v Cederquist, 1 Misc 2d 1020,
1024, 1026 (Sup Ct Chautauqua Co 1956); Op Atty Gen (Inf)
No. 92-60; Op Atty Gen (Inf) No. 82-59. Where a town seeks to
improve a highway by use beyond the extent of actual use, for
1

But compare, Desmond v Town of Summit, 82 Misc 2d 669
(Co Ct Schoharie Co 1975). Desmond was cited with approval in
Flacke v Town of Fine, 113 Misc 2d 56, 60 (Sup Ct St. Lawrence Co
1982), and in 1978 Op Atty Gen (Inf) 244 and 1981 Op Atty Gen
(Inf) 209. In subsequent cases and opinions, Desmond has not
been followed. See, LaSalle Company, supra; Danial, supra; Hill,
supra; Misevis, supra, at p 1101; Usher, supra, pp 530, 531; 1982
Op Atty Gen (Inf) 173; Op Atty Gen (Inf) No. 92-60.

3
example, by widening the roadway, constructing ditches, or
removing trees, the town should obtain the permission of the fee
holder or pay just compensation. Usher, supra, at p 532; Jones,
supra, at p 1026; Op St Comp 61-821; 1971 Op Atty Gen (Inf) 102.
In sum, we conclude that the width of a town highway by use,
established in accordance with Highway Law § 189, is determined
by the extent of actual use.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Very truly yours,

MICHAEL D. MORGAN
Assistant Attorney General