Road Width

“The extent and nature of an easement is determined from the use made of the property during the prescriptive period, and the width of the public highway acquired by prescription must be determined as a question of fact by the character and extent of the use or the amount dedicated to public use, but it may be more or less than the width of a public highway as prescribed by statute.” Olson v. Bonham, 212 Neb. 548, 324 N.W.2d 260 (1982)

In the General Statues of 1873, Chapter 67, Sec. 3, the width of all public roads was established with the requirement that “All county, state, and other public roads shall have a width of sixty-six feet…” Plischke v. Jameson, 180 Neb. 803, 146 N.W.2d 223 (1966); See also 1971 Att’y Gen. Op. No. 65. This width requirement originally appeared in Chapter XLVII, Section 3, Revised Statutes of 1866 and continued to be the law until 1903, when the Section was amended, as found in c. 78, section 2, Laws of Nebraska, 1903 to read that “all public roads shall have a width of not less than 40 feet nor more than 66 feet to be determined by the County Board.” This provision remained essentially the same for a number of years, and appeared in the original 1943 statutory revision as Section 39-104, R.S. 1943. Then a substantial recodification of the highway laws occurred and in c. 155, Art. IV, Section 2(2)(a), Laws of Nebraska 1957, provided that the right-of-way for county roads should be of such width as was deemed necessary by the County Board. 1971 Att’y Gen. Op. No. 65. This provision is still found in Section 39-1702 of the Nebraska Revised Statutes.

“Extent,” within the term extent of easement claimed in land as right-of-way for a road, means the width. If the public has acquired the right to a highway by prescription, it is not limited in width to the actual beaten path, but the right extends to such width as is reasonably necessary for public travel. Olson v. Bonham, 212 Neb. 548, 324 N.W.2d 260 (1982); State ex rel. Game, Forestation & Parks Comm’n, 168 Neb. 805, 97 N.W.2d 535 (1959).

‘If the public has acquired the right to a highway by prescription, it is not limited in width to the actual beaten path but the right extends to such width as is reasonably necessary for public travel.’ Plischke v. Jameson, 180 Neb. 803, 146 N.W.2d 223 (1966); (quoting, State ex rel. Game, Forestation & Parks Comm’n v. Hull, 168 Neb. 805, 97 N.W.2d 535 (1959)).

In Bredehoft v. County of Platte, 167 Neb. 603, 94 N.W.2d 18 (1959), the owners of land adjoining a public highway regularly established by the county in 1895 under the statute then in effect, requiring all public roads to be 66 feet wide, could not acquire any prescriptive right to any portion of roadway adverse to the county, regardless of the maintenance of fences so as to enclose a portion of the roadway with adjoining land.

SEE ALSO DEDICATION – WIDTH OF DEDICATION