Roads Less Traveled

Pennsylvania’s little known Private Road Act was created in colonial times. The Act gives the owner of a landlocked property the right to put a private road across adjacent property owned by someone else. Based on the assumption that all landowners must have access to public roads, the Act recognizes that a public benefit flows from the guarantee that all parcels of land will have access to public roads. The Act was created, and amended several times, during the period when land grants in the Pennsylvania wilderness abutted each other with no public or private roads identified. In modern times, the Act is not frequently used, since title searches and a long history of land development protect real estate purchasers from the troublesome discovery that their land is landlocked.

Recently, however, a western Pennsylvania man found that a parcel of land he owned had no road access. He sued under the Private Road Act to secure access to the closest public road by constructing a private road through the land of a nearby homeowners association and part of one residential lot.

The man followed the procedure established in the Act-he petitioned the county court to appoint a board of examiners. Examiners are required by the Act to determine if the requested road is necessary and, if it is, to lay out the best ground for the road, considering the shortest distance and the minimalization of damage to the other landowner. The examiners are also charged with the duty of determining the loss in value to the landowner whose private property is “taken” for the establishment of the road.

Even though they were entitled to compensation for their losses, the homeowners association and the homeowner whose land was to be used for the road objected to the creation of the road. They challenged the constitutionality of the Act, claiming that no one’s land should be taken without the owner’s consent. They also raised objections that a taking of land should be limited to takings for public uses. Relying on the Pennsylvania Constitution, the homeowners association and the homeowner argued that the “taking” of their land for the benefit of one private landowner was unconstitutional.

Federal and state laws regulating the taking of private land are complex and often conflict. Both the United States Supreme Court and the Pennsylvania Supreme Court have recently approved the taking of “blighted” properties by local governments as part of redevelopment plans, even where the blighted property is then transferred to private owners.

In the recent case involving the Private Road Act, the Pennsylvania appeals court rejected the objections of the homeowners association and the homeowner, finding that the creation of a purely private road has an ultimate public benefit recognized by the Act.

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