WEST virginia legislature

2021 regular session

Introduced

House Bill 2836

By Delegates Evans, Toney, Bridges, Booth, Mazzocchi, Dean, Paynter, Brown, Steele and Maynard

[Introduced March 02, 2021; Referred to the Committee on Technology and Infrastructure then the Judiciary]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §36-1-25, relating to the establishment of a public easement by prescription on private property; providing that failure of noticed owners to limit or condition use of the road or path for a continuous period of 20 years may create a public easement; providing for circuit court petition and designation of public easements conditions for granting easement by a court; defining terms; and providing effective dates.

Be it enacted by the Legislature of West Virginia:

ARTICLE 1. CREATION OF ESTATES GENERALLY.

§36-1-25. Public easement by prescription.

(a) When the owner of the property has notice of the establishment and continued use of the surface of the private property by members of the public as a road or path for a period of 20 or more years and does not condition or limit its use, a public easement for that road or path may be established by court order.

(b) Any member of the public who uses the road or path may petition the circuit court in the county where the property exists for the establishment of a public easement to transverse the property. The court may establish the public easement if the court fines the following conditions exist:

(1) The property owner has actual or constructive notice of the existence of the path or road and has taken no action to prohibit or condition its use;

(2) The court finds that the regular vehicular use of the road or path is by members of the public or local community, and not just by adjacent or nearby property owners; and

(3) That granting the public easement will not result in a substantial reduction in the value of the private property, that the public or local community derives benefit from use of the road or path, and therefore it in the public interest to the public or the local community to establish a public easement by prescription.

(c) For the purposes of this section, the term:

(1) “Public easement” means the right of transverse that has vested in the public or a local community by their regular vehicular use of a road or path through private property to another location;

(2) “Constructive notice” means that the property owner, through the exercise of reasonable care, would have knowledge of the creation and use or a road or path that has been used by members of the public to traverse through the property; and

(3) “Road or path” means an open way or line of travel that is observable and indicated by physical or other evidence of vehicular use of property as a thruway across the surface of the property.

(d) The provisions of this section are effective July 1, 2021, and are retroactive in calculation of the time period necessary for establishing the easement.

NOTE: The purpose of this bill is to allow the establishment of a prescriptive public easement on private property for roads or paths traversed by the public in vehicles over a period of 20 or more years.

Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.