Closing a private road occasionally to preserve rights

[Lee Choquette]

A private university in Utah has for many years closed all its on-campus
streets for about a day, once every few years, usually on Christmas so
as to least inconvenience students. The university's reasons are
somewhat vague, but it's evidently "to protect the school's private
property ownership rights".

This year I bought and moved into a house in the same state. The private
road that accesses this house, as well as the houses of two neighbors,
goes through my lot. (The lot boundaries are strictly oriented along the
four compass directions, while the dirt road follows the topography.)

Would it be a good idea for my neighbors and I to periodically close our
road, as the university does? If I knew what rights the university is
trying to protect, I might have a better idea. Or if I knew what rights
would evaporate by allowing people to drive on this road 3650 days each
decade instead of 3648 (disregarding leap years).

Thanks,
Lee

[Barry Gold]

On 9/1/2011 12:52 PM, Lee Choquette wrote:
> A private university in Utah has for many years closed all its on-campus
> streets for about a day, once every few years, usually on Christmas so
> as to least inconvenience students. The university's reasons are
> somewhat vague, but it's evidently "to protect the school's private
> property ownership rights".

[OP asks about periodically closing the private road that runs through
his and his neighbor's property: what rights are being protected when
the university closes its road once every few years.]

The most likely concern here is "prescriptive easement" (look it up in
Wikipedia). Basically, if you allow somebody (or the general public) to
use your property for long enough, and don't take any action to protect
your rights, they may be able to establish a right to continue using the
property in that fashion. This is similar to the concept of "adverse
possession", except that adverse possession results in the title to some
piece of land being transferred, while prescriptive easement only
results in the right to make some (generally non-exclusive) use of land.

I would not recommend that you do this (or anything) without consulting
a lawyer. There are several considerations:

1. That chances are that your neighbors have an easement (granted by
deed) over that road. Therefore, you may not close it without
permission of your two neighbors.

2. It's possible that the deed grants easements to some other people --
e.g., the fire department, US Postal Service, etc. In that case, you
may not close the road without their permission -- or at least, you
would need to have somebody standing at the gate the entire time you
close the road, to open it instantly if one of those privileged groups
shows up and wants to use it.

3. Depending on how old the private road is, it's possible that the
public may _already_ have a prescriptive easement. In that case, it's
too late to shut the barn door -- the horse has already been stolen.
And you would be violating the public's right to use the road if you
close it arbitrarily.

4. Depending on Utah laws, you may not need to close the road. In
California, it appears to be sufficient to post signs: "Right to pass
over by permission only and revocable at any time". This establishes
that the public's use of your road is not "hostile" to your interests
and hence does not create an Easement by Prescription. You are
_allowing_ them to use your road, buy you reserve the right to close it
at some future time.

For all these reasons, _talk to a lawyer_ before you do anything.

Ask your friends who have used lawyers, whom they would recommend as
smart and trustworthy (at this point, regardless of what field of law
or what subject matter). Then call those lawyers and ask them who
you should go to, for your kind of issues. If your case is something
they can handle, great. If not, ask for _their_ recommendations of
colleagues who do this sort of law. When you get the same name from
several independent contacts, that's your go-to guru. Call him or
her and make an appointment. Ask about fees for the initial
consultation (some initial consults are free, as a marketing come-on,
other lawyers charge for their time regardless, which is also
reasonable).

[Mike Jacobs]

On Sep 1, 3:52 pm, Lee Choquette <l...@xmission.com> wrote:
> A private university in Utah has for many years closed all its on-campus
> streets for about a day, once every few years, usually on Christmas so
> as to least inconvenience students. The university's reasons are
> somewhat vague, but it's evidently "to protect the school's private
> property ownership rights".

That doesn't sound at all vague to me. It's a preventative measure,
intended to re-assert the most basic and essential aspect of the
bundle of legal rights we (legally and colloquially) refer to as
"ownership" of "property" -- the right to _exclude_ others from using
some thing over which we claim dominion. What I think you meant to say
instead is, you don't understand _how_ closing the street every few
years protects those rights.

The most likely reason the University's lawyers advised them (perhaps
many decades ago) to begin doing this, would be to prevent any
possible claim of "adverse possession" or of "prescriptive easement"
from ever arising. I don't know Utah law, and can't tell you
whether, or how, those concepts exist or are interpreted in Utah, so
these are just general comments. You should consult a Utah real
property lawyer if you actually plan on doing anything and this is not
just academic speculation on your part. You can Google those two
terms-of-art I put in quotes to find out more about them for general
purposes.

> This year I bought and moved into a house in the same state. The private
> road that accesses this house, as well as the houses of two neighbors,
> goes through my lot. (The lot boundaries are strictly oriented along the
> four compass directions, while the dirt road follows the topography.)

Does anyone else, other than your family and your neighbors and their
guests, ever use this road for travel _through_ your blcok of
properties, not just to access one of the lots in that block? In
other words, does the road come out and connect to some other public
roadway at the other end, so that anyone so inclined could use it as a
"shortcut?" If not, you probably don't have anything to worry
about. But as noted above, consult a local lawyer if you really are
thinking of doing this.

> Would it be a good idea for my neighbors and I to periodically close our
> road, as the university does?

Close it to _whom_? You don't have a right to close that road to
your neighbors who require the use of it to access their own
properties -- they have a legal "easement" for their residents,
tenants, and guests to cross your property for that purpose, which is
also a kind of property right. However, if all parties concerned
agree, and if all are given the necessary access to the private road,
e.g. by having a gatekeeper on duty who will let in only authorized
owners and guests, or by padlocking a gate and giving all the owners
and tenants a key, then perhaps it wouldn't be _illegal_ to do what
you're thinking of doing. OTOH, it might be, I don't know. Better
consult that local lawyer if you're really thinking of doing this.
And, there may be _some_ benefit to your doing so, but right now I
can't think of any, unless it is in fact a through roadway that
connects to a public road on the other side.

> If I knew what rights the university is
> trying to protect, I might have a better idea.

They are trying to put "facts on the ground" which would soundly
defeat any possible claim that someone might make at some point in the
future, that the claimant had somehow acquired property rights in the
land in question, or that the public in general had acquired such
rights, by reason of their open, well-known, and _continuous_
unfettered usage of that property for some prescribed period of time
(usually at least a decade or more, but varies from state to state)
despite lack of permission from the nominal owner. Not that such an
event is very likely to occur -- but the University's actions make it
even _less_ likely ever to occur.

> Or if I knew what rights
> would evaporate by allowing people to drive on this road 3650 days each
> decade instead of 3648 (disregarding leap years).

Your rights would not "evaporate." If you somehow failed to prevent
another person from use your property for a very long time during
which you _knew_ (or should have known) he was doing so, did not give
him permission to do so, but nevertheless did not do anything to
prevent it, the claimant would still have to prove all the elements of
adverse possession or prescriptive easement by filing a suit in court
against you and your fellow property owners of this block, and would
have to convince a judge that his actions, and your inaction under
circumstances where any reasonable person would have taken action to
prevent the adverse claim, meant that you had "slept on your rights"
so that the claimant had thereby acquired some bundle of rights in the
property you formerly had the right to exclude him from using (i.e.
that you formerly owned to the exclusion of all others except your
fellow easement holders). By taking periodic steps to affirmatively
close off access to the property, though, you would have created a
factual situation that would give you strong grounds to defeat such a
claim, by affirmatively disproving "continuous" usage for the required
length of time (whatever that is in your state). The closure in
effect "re-starts" the countdown clock on the adverse possession
claim, every time it happens.

Keep in mind that when lawyers recommend certain actions to their
clients BEFORE a bad event happens, they are _not_ thinking just in
terms of what _legal_arguments_ they can make (based just on the slim
set of existing facts available to support their case) to enable their
client to win a dispute, which is all that lawyers can do once an
event has already happened, and once litigation has already begun.
After all, the facts _are_ the facts, and they cannot be made to go
away (those who _try_ to do so often get slapped hard for destroying
evidence or suborning perjury or for aiding and abetting a crime after
the fact, rather than for whatever it was bad that happened in the
first place).

Rather, the transactional lawyer, looking at a situation before the
excrement has hit the ventilator, tries to plan ahead and come up with
fail-safe _factual_ scenarios for his client to adhere to, often
involving drafting of contract clauses or company handbooks or
recommended procedures for the client's employees to follow, all with
a mindset of preventing an anticipated (even if unlikely) bad event
from ever even happening. The goal is to create a situation in which
the potential claimant would find no ambiguity or "crack in the armor"
that he could exploit and thus would not even contemplate filing a
suit, let alone have any real chance of winning. Advising a client
to close a private roadway every few years to preclude an adverse-
possesion claim from ever arising, is one example of that kind of
"what-if" preventative thinking.

> Thanks,
> Lee

You're welcome.
--
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
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