No ‘Public Road’ Status from Public Use

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Although the general public had for years used a “C.C.C. Road” built in the 1930s by the Civilian Conservation Corps on private property in Highland County, the Supreme Court of Virginia says the trial court erred in finding that plaintiff Friends of the C.C.C. Road had established the road is public solely by virtue of its long and continuous use by the general public and recognition of that use by the county; judgment for the Friends is reversed and final judgment for the property owners.

The parties filed an agreed stipulation of facts. Since its construction, the C.C.C. Road has been used by the general public as a thoroughfare between the Jackson River Valley and the Back Creek Valley as well as for access to the George Washington National Forest. Officers of the Highland County Sheriff’s Office, the county surveyor and the Bolar Volunteer Fire Department consider it as a public road and have used the road for at least 25 years for official purposes. No government record shows the county has formally adopted the road into the county road system, nor has the county ever maintained or repaired the road. Likewise, the road has not been adopted into the state road system by the Virginia Department of Transportation and does not appear on the official VDOT map for the county.

The circuit court ruled that the Friends of the C.C.C. Road failed to prove the road is public by a dedication and acceptance. The court went to hold that Burks Bros. of Va. Inc. v. Jones, 232 Va. 238 (1986), implicitly supported the possibility of a public right-of-way being created on private property through “recognition” by the government of a long and continuous use by the public, and that Friends of the C.C.C. Road had proven the general public is entitled to unrestricted use of this road. The court entered an order granting the Friends injunctive relief and requiring the property owners to remove the pole gates and allow the general public to have access to the road.

Because there can be no implied acceptance of an implied dedication of a rural road, and there is no evidence of a formal acceptance of the road in this case, the circuit court did not err in finding there had been no dedication and acceptance of the C.C.C. Road as a public road.

The 1941 acknowledgement by the board of supervisors of an agreement by a then-owner of the property to maintain a gate and cattle guard where this road intersected a state road is clearly not a formal acceptance of the road as a public road. The board has never agreed to maintain the road as a public road would require.

We hold the circuit court erred in finding the Friends had established that the road is public solely by virtue of its long and continuous use by the general public and recognition of that use by the county. The law of this commonwealth simply does not allow for a conversion of private property to public property solely by public use. Further, we are of opinion that the circuit court’s broad interpretation of a single sentence from Burks Bros. is so contrary to the well-established law of this commonwealth that it cannot be sustained. In many cases, we have been clear that to acquire an easement or right-of-way over a road by prescription, an essential element must be that the claimant is asserting the right to the exclusion of others. Mere use by the general public is not evidence of prescriptive use but of a license by the owner permitting the use, and such evidence will defeat a claim by one individual, by a group, or by the general public asserting a prescriptive easement.

We will reverse the judgment of the circuit court granting a permanent injunction to Friends of the C.C.C. and enter final judgment for the property owners.

Reversed and final judgment.

Dykes v. Friends of the C.C.C. Road (Koontz) No. 101630, Jan. 13, 2012; Highland County Cir.Ct. (Franklin) Timothy M. Purnell, Phillip J. Menke, Derek A. Poteet for appellants; John D. Eure, Lenden A. Eakin for appellee. VLW 012-6-005, 14 pp.