Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
My town council here in Ohio wants to install a public walking trail through the front yards of the private property owners on my street. The map shows the original roadway as being 66′ because it was originally intended to be a major roadway 100 years ago. The road is only 23′ wide since it’s installation decades ago and can’t ever be 66′ because there is creek running along the south side. There are numerous homes and structures along this road that have been there for decades and some even over a 100 years! Our question is, has their right of way easement been abandoned since they never developed the road as mapped and private property owners have existing structures that have been there for years (well within the easement) with no opposition from the town? Is this easement abandoned as it has been allowed to be used by others for other purposes for so long?
Good question, but you’re going to need to consult with a local attorney for the answer. There are two important factors to consider: First, the period of time for abandoning an easement is, in most places, the same as the time to create a prescriptive easement. Unfortunately,that amount of time varies widely from state to state, so you’ll have to find out what it is in Ohio.
Second, even if the requisite amount of time has gone by, there is very often an exception to the prescriptive easement rules for the benefit of the state or its subdivisions. In other words, even if an ordinary person might have abandoned the easement, it’s possible that the city hasn’t (and can’t, except explicitly).
