Did a state highway right of way turn adjacent privately deeded land into public property in 1995?

Official title

Regarding as to whether a right of way, specifically a right of way which the State of South Carolina has on either side of a road, causes that property which is otherwise deeded to a private property owner to become public property.

Requester

The Honorable James R. Metts, Ed.D., Sheriff of Lexington County

Plain-English summary

A 1995 South Carolina Attorney General letter declined to give a blanket answer about whether a highway right of way converted privately deeded land into public property. A sheriff had asked whether a landowner could eject a trespasser standing in a state Department of Transportation right of way alongside a road. The letter said the answer required facts and documents specific to the right of way.

The author identified the creating instrument and any rights reserved by the parties as central. Department of Transportation permission for an encroachment or another servitude might also matter. The letter enclosed older AG opinions about activity on rights of way but did not apply any of them conclusively to the sheriff's unspecified property.

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

Q: Did the letter say every state highway right of way is public property for all purposes? A: No. It said the documents creating a particular right of way and the rights they reserved would have to be reviewed before a definitive answer was possible.

Q: Could the landowner automatically remove a person standing in the right of way? A: The letter did not decide that scenario. It asked for facts about the right of way, possible encroachment permission, and other property interests.

Background and statutory framework

The sheriff posed a general property and trespass question without the instrument establishing the particular right of way. The letter treated those missing facts as essential and pointed to enclosed prior opinions for potentially comparable situations.

Citations and references

• Prior South Carolina AG opinions cited in the letter: June 10, 1975; December 5, 1951; and the 1957–58 Annual Report

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-2-1995-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/1995oct2metts.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

October 2, 1995
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The Honorable James R. Metts, Ed.D.
Sheriff of Lexington County
Post Office Box 639
Lexington, South Carolina 29071
RE: Informal Opinion
Dear Sheriff Metts:
By your letter of September 15, 1995, to Attorney General Condon, you have sought an opinion as to whether a right of way, specifically a right of way which the State of South Carolina has on either side of a road, causes that property which is otherwise deeded to a private property owner to become public property. For example, you have cited a question of whether a private property owner may eject a trespasser from his property if the trespasser is on a right of way of the Department of Transportation. The facts of a particular situation would require development before a definitive answer could be given to your inquiry; foremost among factual matters to be considered would be an examination of the documents (if any) creating the right of way to determine what rights might have been reserved by any of the parties, and to whom such rights may have been reserved. Whether an encroachment might have been granted by the Department of Transportation could also be a consideration, as well as whether an additional servitude may have been created; see Op, Att'y Gen. dated September 10, 1980, a copy of which is enclosed. Also enclosed are copies of Ops. Att'y Gen. dated June 10, 1975; December 5, 1951; and an undated opinion of this Office located in the 1957-58 Annual Report of the Attorney General at page 170. These opinions describe the rights of various individuals to be on a right of way or to conduct some activity on a right of way, as well as actions REMBERT

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POST OFFICE Box 11549

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COLUMBIA. S.C. 29211-1549

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TELEPHONE:

803-734-3970

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FACSIMILE: 803-253-6283

The Honorable James R. Metts. Ed.D.
Page 2
October 2, 1995
which might be taken by the owner of the property in some instances. Perhaps one of these prior opinions will fit factually the situation about which you are inquiring. This letter is an informal opinion only. It has been written by a designated Senior Assistant Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kindest regards, I am Sincerely,

~JJ./~
Patricia D. Petway
Senior Assistant Attorney General
Enclosures

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