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Adverse Possession or Easement Road

Visitor Question: A paved road extends from two city public streets across a privately owned lot which has been used by the public, police, fire and utility companies for well over 15 years. At some point in time two stop signs were placed to control traffic on this paved street. The street has thousands of vehicles per day using it.

At a recent city council meeting the Mayor and a couple of council members told the local newspaper and the attendees of the meeting that the road was on private property and therefore the rezoning of a piece of property would be approved even without an official site plan.

It is my understanding that this road due to the continued use by the above mentioned is now adverse possession, a prescriptive easement or possibly other terminology defined by Nevada state law. What say you?

Editors Reply: We made your question into three paragraphs. In the first part of this answer, we are going to deal with the first and last paragraphs and omit the middle part about what the mayor said.

Adverse possession is a doctrine developed from English common law to give possession of land neglected by its owner to someone who has openly used in for a period of years without any attempt by the original owner to reclaim it. Nevada and many other states stipulate that adverse possession of land or an easement (the latter sometimes being called a "prescriptive easement") occurs when the occupancy of the land is actual, open, notorious, and continuous.

All of this means that the person or entity claiming the land was not sneaking around to use the land only in the middle of the night, only when the rightful original owner was out of town, and so forth. It means that the person claiming the land by adverse possession is actually taking care of and using the land for something, and that this use can be widely seen and observed. It also means that the person or entity now claiming land by adverse possession has been taking this care continuously and not occasionally.

So in this instance, the fact that you say the road is paved and is being used by thousands of cars a day is plenty of evidence that nothing is being hidden from the original owner of the property. Presumably it also means that owner is doing nothing to stop this traffic; if that were the intention, the original owner could have put up a gate or fence.

But who is the beneficiary of this? Who is maintaining the road? Who is allowing all traffic to pass on the road? We say that the owner of this road is now the city, unless there are facts that are missing from the narrative. (For example, you didn't tell us and may not know who paid for the paving of this road. If the private owner did so and put up the stop signs, that is a whole different story that argues against the adverse possession theory.)

Or there could be a quirk of Nevada law that negates our theory too.

One other wrinkle is the apparent requirement in Nevada, as in many other states, that the person claiming adverse possession has been paying the property taxes for the required period of time. In Nevada, the period of time that must elapse to claim adverse possession is five years; other states often have longer requirements.

But then if the public entity receives property by adverse possession, governments don't pay taxes to themselves and other levels of government, so we think that angle is a moot point.

In sum, it looks to us as if the city now owns this road. Of course we are mere city planners and not attorneys!

So now let's go back to your middle paragraph. We don't have enough information about your local codes and the on-the-ground situation to judge whether the rezoning is appropriate or not. Often zoning decisions as such are not dependent on or really related to whether something is a public or private street, although some aspect of your particular zoning ordinance might be an exception to that generalization.

If this rezoning is designed to accommodate apartments or commercial use, which would be expected to generate a considerable amount of new traffic, we think the street should be required to be a public street maintained by the city, or else the rezoning should be denied. On the other hand, if the rezoning would allow five new single-family homes instead of four, our point about requiring a public street becomes petty.

Likewise we can't be sure what the term "official site plan" means in your city. Often the site plan governs placement of buildings, parking areas, driveways, and internal streets connecting parking areas to each other and to driveways exiting onto the public street, so we would think it would be more likely, not less likely, that the city would require site plan approval if the city thinks this paved street is private.

We share your puzzlement.

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