This is the second post in a two-part series examining ownership of minerals located under bodies of water and roads. See part I discussing the ownership of minerals under adjoining waters.
Who owns the minerals underneath public roads in Ohio? This is really two questions:
- What ownership interest does the state, county, or township have in the land underlying the road?
- What is the rule for abutting landowners in the event the government owns less than a fee simple absolute?
Historical Ownership Interest of the State, Counties and Municipalities
Over time, the interest acquired in the land underlying roads has changed for states, counties, and townships. Ownership interests are transaction specific, but there is a general trend. Municipal roads were usually taken in fee, while roads outside municipalities are likely to be easements unless they were granted in the past 30 years, in which case they are likely to be held in fee.
Until 1953, Ohio law distinguished between “country” and “municipal” roads. Country roads consisted of all state and county highways not located within a municipality. Their ownership interests were predominantly easements, leaving the fee interest in the abutting landowners:
[a]s to country highways it seems to be settled in this state that while the public has the right of improvement and uninterrupted travel, the abutting owner has the right to all uses of the land not inconsistent with this right of travel and improvement.
Callen v. Columbus Edison Electric Light Co., 66 Ohio St. 166, 172 (1902); see also Chagrin Falls & Cleveland Plank-Road Co. v. Cane, 2 Ohio St. 419, 426 (Ohio 1853)( “The public had acquired…perpetual easement in the land covered by the road, which gave the right to all persons to pass and re-pass over it at pleasure…”). Furthermore, land appropriated for roadway purposes through the power of eminent domain was typically taken as an easement, not a fee. Henry v. Columbus Depot Co., 20 N.E.2d 921, 923 (Ohio 1939) (“where an easement is sufficient, only an easement may be taken.”). However, the state was permitted, through purchase or grant, to acquire in fee simple. This left a “mixed bag” of interests in roads, with a bias toward easements.1
Municipal roads, in contrast, were granted in fee to the municipality, but not in total:
It seems plain that the effect of the [granting statute] is not to vest in the municipality a fee simple absolute in the streets, but only a determinable or qualified fee, and that what is granted to the city is to be held in trust for the uses intended, viz.: for street uses, and street uses only.
Id., at 173; Reese v. Cleveland, 18 Ohio Dec. 12, 14 (Ohio C.P. 1907)(“The fee is in the city in trust for street purposes…”). The general rule held into the 1960s:
The weight of authority makes a distinction between the character of the title of the municipality to its public streets and the character of the title to public highways outside municipalities. The city owns the fee to its streets in trust for street purposes; outside of municipalities, abutting-property owners own the fee to the highway, subject to the easement of the public to use the highway for purposes of travel.
Friedman Transfer & Construction Co. v. City of Youngstown, 198 N.E.2d 66, PIN (Ohio 1964); see also Cincinnati & S.G.R.A.S.R. Co. v. Cumminsville, 14 Ohio St. 523 (1863).
Current Law Regarding Ownership Interest of the State, Counties and Municipalities
In 1953, the state legislature established the current classifications of roads: state roads, county roads and township roads. R.C. 5535.01. The old “country” roads classification was split in two with the establishment of the state and county highway systems. State roads are those in the state highway system. R.C. 5535.01(A). County roads are those that are part of the county highway system, which are specifically commissioned and constructed by a board of county commissioners. R.C. 5541.02. The new township road classification bundled together the old “municipal” roads, plus any leftover “country” roads not included in the county and state highway systems.2 R.C. 5535.01(C).
Also in 1953, the legislature codified the rule that municipalities took fee interests in their streets. Parcels of land titled to municipal corporations, including “streets, alleys, ways, commons or other public uses” were taken in fee “to be held in the corporate name in trust to and for the uses and purposes set forth in the instrument.” R.C. 711.07.
But the new statutory scheme did not codify the rule for “country” roads (now called state and county highways), which presumably continued to be granted or acquired as easements. This changed in the 1990s, when the state of Ohio shifted toward acquiring fee interests in roads. First, the Department of Transportation adopted a preference for acquiring fee interests in the land underlying their roads.3 Then the policy was codified to allow for acquisition (by purchase or appropriation) of land for state roads in fee. R.C. 5501.31, 5501.32. As a result, recent grants or acquisitions by the state are likely to be in fee, rather than as easements.
Abutting Landowners (Usually) Own to the Center of the Right of Way Unless the State or Municipality Owns in Fee
For landowners abutting a public road in Ohio, the rule has not changed: Unless the government owns in fee, their property interest extends to the center line of the right of way (often demarcated by the road). This was true during the old classification, where ownership of “country” roads extended to the center line. Schaaf v. Cleveland, M. & S. R. Co., 66 Ohio St. 215, 215 (Ohio 1902)(“The plaintiffs are the owners of improved farms which abut on this public road and their titles in fee extend to the center of the road.”); See also Dailey v. State, 51 Ohio St. 348 (1894). It continued after the 1953 reclassification with state and county roads. Miller v. Berryhill Nursery Co., 7 Ohio App.2d 30, 34 (2nd Dist. 1966) (“Frequently the abutting owner holds the fee to the center of the highway.”).
Moreover, a conveyance of land alongside a road is a conveyance to the center line. Greenberg v. L.I. Snodgrass Co., 161 Ohio St. 351, 357 (1954) (“The established inference of law is, that a conveyance of land bounded on a public highway carries with it the fee to the centre of the road…”)(internal citations omitted); Sherck v. Bremke, 2012 Ohio 3527 (9th Dist.).
Of course, this means that landowners within municipalities only own to the border of the road. But in the event a municipality vacates a road, the property is awarded to the abutting landowners, each to the center line:
The rule is well established in Ohio that upon the vacation of a street the fee thereto does not revert to the original dedicator but accretes to the abutting-lot owners, subject only to such rights as other such owners may have in the street as a necessary means of access to their property.
Greenberg v. LI Snodgrass Co., 161 Ohio St. 351, 357 (1954). This rule is demonstrated by Taylor v. Carpenter, 45 Ohio St. 2d 137 (1976). In Taylor the land for an alley was ceded to the municipality by appellee. But when the municipality vacated the alley, the underlying land was given in equal halves to the abutting landowners even though appellee still owned property abutting the alley from which the land for the alley was originally ceded.
In conclusion, the general rule is that land underlying public roads in Ohio, if not held in fee by a government entity, is owned to the center line of the road by the abutting landowners. The complicated question is determining who owns the fee interest in that land. The timing of the acquisition can provide guidance, but because of the variety of political subdivisions and their unique rules, you can’t be sure until you conduct a title search.
1 Saffer “Ownership of Minerals Underlying Rivers and Streams, Railroads and Public Roads in Marcellus and Utica Shale Development States”, see page 14.
2 Saffer 14
3 Saffer 15