NYCL AGO 95-31.

• Case Date: June 20, 1995
• Court: New York

New York Attorney General Opinions 1995. AGO 95-31. June 20, 1995Informal Opinion No. 95-31Jeffrey Kaplan, Esq. Town Attorney Town of Warwarsing P. O. Box 3 0 Woodbourne, NY 12 788HIGHWAY 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.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 and 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:

§ 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 ...