Who Owns the Street?
They say that all roads lead to Rome, but does anybody ever wonder who owns those roads? We occasionally encounter that question in our practice, and the answer often varies.
In common parlance, the term “road” generally refers to an unimproved public way, while the term “street” refers to an improved public way—hence why “dirt road” rolls easily off the tongue, but “dirt street” doesn’t. However, court opinions and statutes often just use the term “street” to mean any public way, whether improved or unimproved. In some cases, “street” is even synonymous with “highway,” despite those terms having substantially different meaning in common parlance.
Usually, in order to determine who owns a street, you have to determine how the street was created. Streets in residential and commercial subdivisions are often created when the developer files a plat in the public records which depicts the streets and contains language dedicating the streets to the public. This is also how most streets get their names. Generally, unless the dedication language clearly indicates a different intent, a plat dedication creates only a public easement in the street. If fee simple title is expressly conveyed to a governmental authority, such as a city or county, then that governmental authority owns the street, but only if they have expressly or implicitly accepted the dedication. However, if only an easement in the street is conveyed, then the abutting property owners typically own to the center of the street.
Another way streets are commonly created is by condemnation. Highways in particular are often created by condemnation. In Texas, condemnation is essentially a lawsuit where the value of the condemned property is determined by the fact finder, and a judgment awards that amount as damages to the owner and conveys an interest in the property to the condemnor. The condemnor generally does not acquire fee simple title to the property; therefore, a street created by condemnation typically creates only an easement in the street, much like a plat dedication, but the original landowner continues to own the underlying fee simple rather than abutting landowners each owning to the center of the street.
There are still more ways that streets can be created, whether in the form of an easement or fee simple title, but those discussed above are the most common. Some streets are originally created to be private, and are later transferred to public use. Some streets exist only on paper, and are yet to be improved or used. Insofar as the law is concerned, a street existing only on paper is just as much a street as its fully paved brethren.
After a street has been created, there may come a time when it is appropriate to close or abandon it. Perhaps the public entity responsible for maintaining the street no longer has the funds necessary to maintain the entire infrastructure, or perhaps the growth and development of the area has shifted traffic patterns so that once busy streets are now seldom used and would serve the public interest better if converted into something other than a street. In any case, the procedure for closing and abandoning a street is typically more complicated than the procedure for creating it, and may differ depending on what type of public entity maintains jurisdiction over the street. A public hearing may be required in some cases, affording people who desire to have the street remain open the chance to be heard. In other cases, a street may be closed or abandoned without notice and without a public hearing.
On any given road trip, you may drive upon property owned by a myriad of people, and ownership may vary in certain places depending on what lane you’re in. There are no signs along the way to inform you when you’ve left one person’s property and entered another’s. There are no signs indicating which exit to take to get to Rome, either—at least not around here. But keep on driving; I’m sure you’ll get there eventually.
Randle Law Office represents clients in a wide variety of real estate matters, including transactions, contracts, economic development and litigation. Learn more about our commercial real estate practice here.
Byron L. Brown is an attorney with the Randle Law Office in Houston, Texas, where his practice areas include municipal economic development, municipal franchises and commercial lease litigation. He graduated from the University of Texas at San Antonio with a B.A. in Criminal Justice, and earned his J.D. from the University of Houston Law Center.