S.B. 221

1

DEDICATION AND ABANDONMENT OF A
2 HIGHWAY
3 2009 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Mark B. Madsen
6 House Sponsor: ____________
7
8 LONG TITLE
9 General Description:
10 This bill modifies the Transportation Code by amending provisions relating to
11 dedication and abandonment of highway provisions.
12 Highlighted Provisions:
13 This bill:
14 . provides that a highway is dedicated and abandoned to the use of the public when it
15 has been continuously used as a public thoroughfare without permission and
16 without interruption for a period of ten years;
17 . provides that the dedication and abandonment provision does not apply if the
18 ten-year period of continuous use is followed by a ten-year period in which the
19 public use has been interrupted;
20 . provides that an interruption of the use is sufficient to defeat a dedication and
21 abandonment claim, regardless of whether the public use is known or unknown by
22 the owner;
23 . provides that fencing, gating, or other similar interruptions are sufficient to defeat a
24 claim of dedication and abandonment;
25 . provides that express permission is not required to defeat a claim of dedication and
26 abandonment, implied permission is sufficient;
27 . provides that there is a rebuttable presumption that a highway is not dedicated and

28 abandoned to the use of the public and provides that the presumption may be rebutted only
29 upon a showing by clear and convincing evidence that the highway has been continuously used
30 without permission and without interruption for a period of ten years;
31 . provides that a highway may not be declared abandoned under this section unless
32 the responsible governmental entity provides evidence that the route was
33 constructed or maintained by or with the assistance of the responsible governmental
34 entity; and
35 . makes technical changes.
36 Monies Appropriated in this Bill:
37 None
38 Other Special Clauses:
39 None
40 Utah Code Sections Affected:
41 AMENDS:
42 72-5-104, as last amended by Laws of Utah 2000, Chapter 324
43
44 Be it enacted by the Legislature of the state of Utah:
45 Section 1. Section 72-5-104 is amended to read:
46 72-5-104. Public use constituting dedication -- Scope.
47 (1) [A] (a) Except as provided in Subsection (1)(b), a highway is dedicated and
48 abandoned to the use of the public when it has been continuously used as a public thoroughfare
49 without permission and without interruption for a period of ten years.
50 (b) The provisions of Subsection (1)(a) do not apply if the ten-year period described in
51 Subsection (1)(a) is followed by any ten-year period in which the public use has been
52 interrupted.
53 (c) For purposes of this Subsection (1):
54 (i) interruption of the use by the public is sufficient to defeat a claim under this section,
55 regardless of whether the use is known or unknown by the owner;
56 (ii) fencing, gating, or other similar interruptions are sufficient to defeat a claim under
57 this section;
58 (iii) express permission is not required to defeat a claim under this section; and

59 (iv) implied permission or neighborly accommodation is sufficient to defeat a claim
60 under this section.
61 (2) The dedication and abandonment creates a right-of-way held by the state in
62 accordance with Sections 72-3-102 , 72-3-104 , 72-3-105 , and 72-5-103 .
63 (3) The scope of the right-of-way is that which is reasonable and necessary to ensure
64 safe travel according to the facts and circumstances.
65 (4) (a) There is a rebuttable presumption that a highway is private and is not dedicated
66 and abandoned to the use of the public under Subsection (1).
67 (b) The presumption that a highway is private and not dedicated and abandoned to the
68 use of the public is rebuttable only upon showing by clear and convincing evidence that the
69 highway has been continuously used without permission and without interruption for a period
70 of ten years.
71 (5) A highway may not be declared a public highway under this section unless the
72 responsible governmental entity provides evidence that the route was constructed or maintained
73 by or with the assistance of the responsible governmental entity.




Legislative Review Note
as of 2-19-09 10:20 AM

Office of Legislative Research and General Counsel