The Prescriptive Road Statute is found in § 72-5-104 of the Utah Code. It is also referred to as the “road by use” statute. Essentially, the statute provides that a road crossing private property becomes a public right-of-way if it is used by the public continuously for at least 10 years.
The statute was originally adopted by the Territorial Legislature, and has existed in basically the same form since approximately 1880. The purpose of the statute is to encourage economic and resource development by allowing the public to use roads located on private property that have been established through long-term use.
A highway across private property is considered dedicated and abandoned to the public when it has been continuously used as a public thoroughfare for a period of 10 years. Use by the public is sufficient–it is not necessary to show that the property owner intend to dedicate the roadway.
Any public right-of-way may be established by public use, including roads for vehicle travel as well as trails used by pedestrians.
Continuous use is satisfied if the use is a frequent as is considered necessary or convenient by the general public. It does not necessarily mean daily use, only regular use, as the circumstances allow.
Use is established by members of the general public using the roadway without permission from the property owner. If the property owner gives permission to use the property, then that use, no matter how frequent, would not establish dedication or abandonment of the right-of-way.
The person (or entity) claiming that the roadway has been dedicated has the burden of proving, by clear and convincing evidence, that members of the general public have continuously used the roadway for any 10 year period. Each circumstance is unique, and the amount of usage considered sufficient will vary from one roadway to another.
Usage is usually proven by testimony from actual users, or from people familiar with the roadway. Other evidence may be the physical characteristics of the roadway, references on maps, etc.
The statute provides that the scope (meaning the size of the right-of-way and its frequency of use) is that which is “reasonable and necessary for safe travel according to the facts and circumstances.” The historic use that established the right-of-way in the first place should be considered when determining the eventual size, along with reasonable concerns for safety.
If public use is interrupted or stopped before a period of ten continuous years has passed, the roadway cannot be claimed as a public right-of-way. A property owner may stop or interrupt public use by an action that is intended to disrupt use by the public, and is reasonably calculated to do so. For example, blocking the roadway or closing a gate, along with signs indicating that the roadway is privately owned would probably be sufficient to interrupt public use.