by Brian McNary

common law right of way

Today I am going to be writing about the notion that it is somehow legal to barricade a road because you own property adjacent to it. I want to apologize in advance because my experience with landowners chaining or gating roads closed comes from Idaho where the issue has been well litigated. The issue is so common that the Sheriff used to send deputies out to re-open roads closed by new property owners without any legal advice from the county prosecutor.

Roads or highways are common law right of ways which are well established. Think of them as easements. They are owned by the public which travels on them, sometimes for hundreds of years, and are used to gain access to public property.

Nephi’s Twist

We arrived from Idaho in the winter of 2019. In January of 2020, we bought a house in Trail Ridge. We had an ATV and were looking forward to riding east of our house. That’s when we discovered chains (sometimes large rocks) barricading a road south of us and another road (Nephi’s Twist) to the north of us. Now I knew this was illegal because I used to enforce laws that kept public right of ways open. We used “placing debris on a highway or obstructing traffic” codes to enforce the law. Sometimes we had to go to court. If a landowner owned all of the property adjacent to the road for the entire length of the road including the terminus and all points beyond- then we have a private road. There are giant ranches in Texas like this.

One day a few years ago, I saw a Washington County deputy near the road which was chained off to the North of us. The one that goes to Nephi’s Twist. I asked the deputy why the road was chained off. He said the landowner had done it. This was one of those moments in your life when your ego is yelling, “set this kid straight.” Instead, I chose the kindler, gentler way. I am under new management. No more arguing if I can help it. To prove or disprove my point, I would have to go to the Assessor’s Office to determine which land is privately held and that land which is in the public domain.

Legal Remedy or road obstruction

Now I have heard every landowner excuse for obstructing roads. Dumping trash, parties, people shooting, assorted vandalism, drivers tearing up fields. Each of those offenses have a different legal remedy. You still don’t get to obstruct the highway or a road and deny public access. That’s the law in Idaho and I will bet- it’s the law here.

I even called a state representative once who actually returned the call. He told me it was an issue they had been running into more frequently.

Having been a former landowner on the North Dakota/Montana border, the thought of barricading or preventing access to our land never even crossed our minds. We never even posted our land. There was no littering, no dead cattle, no shot up signage. People hunted our land which was chock full of ducks, pheasants, grouse, and deer. We had two cattle guards and no fences or gates.

waiting for the Brouhaha

I have been told that this issue has been brought to the attention of the City Council and nothing has been done. Contentious issues tend to die at places like City Hall. Wait until some landowner tries to chain off the road to Toquerville Falls. Then we’ll have a real, legal brouhaha.

The anarchist in me wants to string a couple of chains across my street, from both ends of my lot in Trail Ridge. When confronted by a Washington County Deputy, I will claim that this portion of the road is mine and that I am merely trying to protect my property from criminal activity by preventing access to it. Maybe I will even threaten litigation.

open the roads & be a good resident

The middle ground here is simple. Open the roads. Be a good resident and steward. Owning property is a first world problem and yes- like owning homes or vehicles- it requires some vigilance and maintenance. Policing land is the responsibility of landowners everywhere. Post your property along the road or fence it off. Use trail cams. But please quit trying to prevent public access to a right of way that is not yours to close.

Barricading Roads