Anatomy of a City Street
A street typically consists of more than just the paved asphalt or graveled surface for vehicle travel. The traveled portion of the street is contained within a much larger swath of land that consists of many elements known as the street right-of-way, or ROW.
The ROW is usually defined on the recorded plat map and the width is measured in feet or rods. In some less common situations, the ROW is defined by actual use.
The ROW includes the street and area on either side of the street used to support the street. It also includes the area below and above the roadway. A typical city ROW consists of:
- Traveled street surface.
- Shoulder of the street.
- Curb and gutter.
- Bike lane (if any).
- Sidewalk and/or ditch alongside the road.
- Any remaining land described or depicted in the easement document or plat.
- Subsurface below the actual ROW and airspace above the ROW.
Who Owns What?
The street or road in front of houses or platted property is probably a public road laid by the municipality many years ago by a formal process involving the city council. Most likely the city or municipality doesn't even own the the land under the road; the abutting property owner probably owns the land to the middle of the public road but has no right to its possession. What the city owns is an exclusive public easement, a right to use the land for public street or road purposes. In other words, a public easement is the right to use another's property for a stated purpose in a responsible manner and in exchange to use the land for the public's benefit the government has the right and duty to maintain the right-of-way and its structures as along as it remains open. Within the public ROW, the adjoining landowners have very few rights. If the road ever closes, then the land will revert to the abutting property owners after going through a formal process. While the ROW is in force, the landowners' rights are not much different from that of the traveling public.
Does Title Matter?
Whether the city outright holds the fee title to the street, which is less common, or holds as an exclusive easement in the right-of-way, it does not matter. The municipality has exclusive control over the public right-of-way, including the duty to maintain the entire right-of-way and use it responsibly for the benefit of the public. Abutting landowners don't have a right to possession of the right of way, and their rights don't differ much from the public's. Landowners can't forbid someone from traveling on the road; can't place obstructions in the ROW; and can't exercise dominion over the right-of-way land. Most towns or cities won't make a big deal about a landowner making use of the land within the ROW that falls outside the traveled portion of the road, short of building something in the ROW, but technically the city could insist on abutting property owners to ask permission to park a car or mow grass within a ROW. Many cities or towns pass ordinances for ROW mowing or sidewalk shoveling.
Duty to Maintain and Retaining Walls
The public right-of-way maintenance and the structures in it is a duty and right that falls exclusively to the town or city, not on the the abutting landowner. While a specific lawful statute or ordinance for simple maintenance such as boulevard mowing or sidewalk shoveling may require the abutting homeowner to help, most ROW maintenance is the exclusive domain of the government by law and charter. A city's public works department has long been charged with building and maintaining retaining walls created from street grading, street paving, water and sewer main installation and replacement, street light repairs, or curb and gutter work in the ROWs, rather than individual property owners, for obvious liability reasons.
If you have received a violation notice from your local municipality or city and you paid to complete the ordered retaining wall repairs in the ROW Contact Us now — especially if have paid to fix the retaining wall violation in the last 6 years. You may have paid to repair property that is not your responsibility.