When does a private road in a New York town become a public highway by long use?

Plain-English summary

Highway Law § 189 sounds simple: any land used by the public as a highway for 10 years or more becomes a highway, with the same legal force as one formally laid out, and the town superintendent must open it to at least three rods (a rod is 16.5 feet, so three rods is 49.5 feet) wide. The Town of Rochester asked the AG to translate three statutory phrases into operational tests. Three answers came back.

First, "use by the public" means use by the general public, not use by the residents who live on or border the road. The Court of Appeals decided this in Speir v Town of New Utrecht more than a century earlier: a road that is used only by adjoining owners and their visitors stays private. The statute is for roads that the broader public has treated as a thoroughfare. Use by residents and their guests does not count, because it is not the open-to-all-comers use that the statute requires.

Second, the road must also be continuously maintained by public authorities for the 10-year period. Continuous maintenance means actively kept in repair, taken in charge, and adopted by the town. Isolated acts (an occasional snowplow run, a one-time patch, a courtesy police presence) do not satisfy the requirement. The AG cited LaSalle Co. v Town of Hillsdale for the proposition that continuous maintenance means a level of upkeep equivalent to what the town does on its other roads.

Third, the three-rod default in the statute is not the controlling width. The Court of Appeals and the AG have read the statute against its text: the actual extent of use defines the width, even if that is less than three rods. The traveled way plus shoulders plus whatever land is necessary for safety and ordinary repairs is the operative footprint. A footpath-narrow trail does not blossom into a 49.5-foot ROW just because the town has been calling it a road for a decade.

Whether a particular road meets the test is a factual question that has to be decided locally on the specific evidence of use and maintenance.

Currency note

This opinion was issued in 1999. 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 the practical difference between "use by the public" and "use by residents"?

If a few families on a back road use it to reach their homes and the only other traffic is their own visitors, the road is private. If hunters, hikers, delivery drivers, and strangers all use it as a through-route to get somewhere else, that is general public use.

What kind of maintenance counts?

Routine grading, regular snowplowing, drainage repair, paving when needed, and the same treatment the town gives other roads on its inventory. Sporadic one-off help does not. Towns sometimes do informal favor-maintenance on private roads; the opinion warns that those courtesy acts will not convert a private road into a public one.

Why does the width rule exist?

If the AG had read three-rod literally, every prescriptive highway would automatically come with a 49.5-foot ROW, including land the public never actually used. The court-developed rule keeps the ROW tied to the use that justified public status in the first place.

Who decides whether a road has become a highway by use?

The factual determination is local: the town board, or a court if the matter is litigated. The AG cannot resolve it from an opinion request. Documentation of public use and town maintenance over 10 years is what makes or breaks the claim.

What if only the public-use prong is met but not the maintenance prong?

Then the road has not become a Highway Law § 189 highway. The town has no obligation to maintain it as a public road, and any taking of land for ROW width would require formal dedication or condemnation, not § 189.

Background and statutory framework

Highway Law § 189 codifies a common-law concept that public roads can arise by long use without formal acts of dedication. The statute traces back to the Revised Statutes of New York, which used a 20-year period (since shortened to 10). Speir v Town of New Utrecht is the foundational case interpreting the predecessor statute; the modern statute's standards descend directly from Speir.

The doctrine matters when title questions come up: a parcel split when the original deed described land "to the road" depends on whether the road was a Highway Law § 189 highway at the time. It also matters when a town wants to add a maintained road to its formal inventory or pave a road that has been in informal use for years.

The width-by-use rule is in tension with the statute's apparent three-rod text, but the Court of Appeals' construction has held. Towns that need a wider ROW than actual use established generally use formal dedication or condemnation rather than relying on § 189's three-rod language.

Citations

• Highway Law § 189 (highways established by use; 10-year period; three-rod default).
• Diamond International Corp. v Little Kildare, Inc., 22 NY2d 819 (1968) (continuous maintenance requirement).
• People v Sutherland, 252 NY 86 (1929) (public use and maintenance both required).
• Speir v Town of New Utrecht, 121 NY 420 (1890) (foundational case; public use means general public use; isolated travel insufficient).
• Matter of Danial v Town of Delhi, 185 AD2d 500 (3d Dept 1992), lv denied, 81 NY2d 706 (1993) (highway by use standards).
• Goldrich v Franklin Gardens Corp., 282 AD 698 (2d Dept 1953) (isolated maintenance insufficient).
• LaSalle Co. v Town of Hillsdale, 199 AD2d 685 (3d Dept 1993) (continuous maintenance equivalent to maintenance of other town roads).
• Op Atty Gen (Inf) No. 95-31 (width of highway by use determined by actual use, may be less than three rods).
• Op Atty Gen (Inf) No. 82-59 (highway-by-use factual question for local determination).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-19_pw.pdf

Original opinion text

HIGHWAY LAW § 189
The public use requirement of Highway Law § 189, governing highways established by use, has been construed to necessitate a showing that a road was both open to use by the general public like any other highway and continuously maintained by public authorities. The width of a highway by use, established in accordance with Highway Law § 189, is determined by the extent of actual use and, therefore, may be less than three rods. July 13, 1999

Mary Lou P. Christiana, Esq.
Berger, Friedman & Christiana
Town Attorneys
Town of Rochester
129 South Main Street
P.O. Box 391
Ellenville, New York 12428

Informal Opinion
No. 99-19

Dear Ms. Christiana:
You have requested an opinion regarding the application of Highway Law § 189, which governs highways established by use. Specifically, you have asked whether the phrase "use by the public" refers to use by the general public or merely use by the residents bordering the road, whether the road has to have been maintained by the town in order to be declared a highway by use and whether a highway by use must be opened to a width of three rods or may be limited to the actual traveled way. Highway Law § 189 provides that "[a]ll 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." The public use requirement of Highway Law § 189 has been construed to necessitate a showing that a road was both open to use by the public and continuously maintained by public authorities for the statutory period. Op Atty Gen (Inf) No. 95-31; Diamond International Corp. v Little Kildare, Inc., 22 NY2d 819 (1968); People v Sutherland, 252 NY 86 (1929); Speir v Town of New Utrecht, 121 NY 420 (1890); Matter of Danial v Town of Delhi, 185 AD2d 500 (3d Dept 1992), lv denied, 81 NY2d 706 (1993).

2
In Speir v Town of New Utrecht, supra, the Court of Appeals noted that the meaning of the phrase "used by the public" is unclear. In interpreting this phrase, the Court stated: the mere fact that a portion of the public travel over a road for twenty years [now ten years] cannot make it a highway; and the burden of making highways and sustaining bridges cannot be imposed upon the public in that way. There must be more. The user must be like that of highways generally. . . . A private way opened by the owners of the land through which it passes for their own uses does not become a public highway merely because the public are also permitted for many years to travel over it. Speir v Town of Utrecht, supra, at 429-430. Therefore, "use by the public" requires a showing that a highway has been open to the general public, like any other highway, for ten years. Use by residents and their guests is not sufficient because such use is not opening a road to the general public like any other highway. Additionally, to be a highway by use, a road must be continuously maintained by public authorities for the statutory period. Speir v Town of New Utrecht, supra, at 429-430. A road is "continuously maintained" if it has been "kept in repair or taken in charge and adopted by the public authorities." Id. It has been held that isolated acts of maintenance, irregular snowplowing, policing of the area and acts done merely for the accommodation of a portion of the public do not constitute the continuous maintenance required to make a road a public highway. See, Goldrich v Franklin Gardens Corp., 282 AD 698 (2d Dept 1953) and 1957 Op Atty Gen 146 and cases cited therein. Continuous maintenance requires a level of maintenance equivalent to that performed on other town roads. LaSalle Co. v Town of Hillsdale, 199 AD2d 685 (3d Dept 1993). Accordingly, a road must be both open to the public and continuously maintained by public authorities for the statutory period in order to become a highway by use. Use by residents and their guests is not sufficient. Whether a roadway has become a highway by use is a factual question (Op Atty Gen [Inf] No. 82-59) which must be determined locally. You also inquire whether a town must open a highway by use, established in accordance with Highway Law § 189, to the width of three rods or may limit the width to the actual traveled way. This issue was discussed in detail in Op Atty Gen (Inf) No. 95-31, a copy of which is enclosed herewith. In that opinion, we concluded that the width of a highway by use is determined by the extent of actual use and, therefore, may be less than three rods. The extent of actual use may include, in addition to the traveled portion, the shoulders and whatever land is necessary for the safety of the public and for ordinary repairs and improvements. See, Op Atty Gen (Inf) No. 95-31 and cases cited therein. We conclude that the public use requirement of Highway Law
§ 189 has been construed to necessitate a showing that a road was both open to use by the general public like any other highway and continuously maintained by public authorities. The width of a highway by use is determined by the extent of actual use and, therefore, may be less than three rods. 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,

YVONNE M. HOVE
Assistant Attorney General
Enclosure