Abandonment vs. Vacate
A fairly common question/concern that our office faces is what to do with a road that has been ‘abandoned’. Some landowners want roads that are no longer being used to be permanently vacated to restrict access to their property. Sometimes these old rights-of-way can become an issue of a property dispute when accessing private property. Some people put gates on the road. The road may be totally grown over with trees and brush. In some instances, the road was platted out, but never actually built. In Illinois, a road is considered public until it goes through the legal vacate process. Illinois does not consider ‘non-use’ to be a sufficient enough reason to consider a road vacated.
Anyone contesting that a road is not open to public travel because it has been abandoned by non-use, has to have the issue resolved either through the local highway authorities or in the courts. The simpler process is to go through the local highway authorities and proceed with a formal vacate process. If it goes to court, the court is the entity that determines whether a roadway has been abandoned. The Illinois Department of Transportation has no policy or guidance in this area. Issues of this nature are referred to the county engineer and the county state’s attorney. IDOT would not be involved in any legal proceedings regarding this matter, since this is handled between the highway authority, the public, and the courts. The courts would then consider three factors in determining if a road has been abandoned by non-use.
1. Non-use of the road for a period of time (the length of time is not defined; it is up to the court to decide that based on each case);
2. Whether or not the public acquired the legal right to use another route, either new or existing, for access;
3. Whether the necessity for the road has ceased to exist. When a court finds that a highway has indeed been abandoned, the highway reverts to the original property owners.
The Vacate Process
For the complete process, please visit the Illinois Department of Transportation’s website. This link will take you to the document that outlines the process of formally vacating a road. The vacate process can be found in Chapters 10 through 20.
An important thing to remember is that the vacate process shall not deny anyone access to their property. Even if the road is not being used, if it provides the only way of access to a property, then it cannot be vacated. Once the road is vacated, the property should go back to the original owner if possible. If this is not possible, then the property should be split equally and given to the owners on each side of the road. This property should then be added to the tax rolls. In a ruling that was passed in 2005, if the property owners refuse the rights, then the highway authority may sell the vacated property to a third party at fair market value.
So as a reminder, at least in the state of Illinois, abandonment or non-use of a public road does not mean it has been vacated. Check with your local highway authorities, County Engineer, and possibly with your county’s mapping office on the ownership of a property before deciding if you wish to have a road vacated.