I. Definition of a Public Way and Easement
Perhaps the first order of business is to define a “public way” and an “easement.” A public way is defined as “a street, avenue, boulevard, alley, lane or thoroughfare open for public use.”[i] Note that the definition of a public way does not include public highways. An easement is defined as “the rights in real property as set forth in Section 49 of Title 60 of the Oklahoma Statutes,”[ii] which lists numerous land burdens or servitudes that may attach to other lands as incidents or appurtenances.[iii]
II. Closing Public Ways and Easements – The Municipality Retains the Right to Reopen
When a municipality closes a public way or easement by ordinance, many are left to question what rights, if any, the municipality, the public, and the abutting property owners maintain in the closed public way or easement. The term “close” is defined as a “legislative act of the governing body of a municipality discontinuing the public use of a public way or easement without affecting title to real property.”[iv] A municipal governing body may close the public use of a public way or easement within the municipality whenever it is deemed necessary or expedient. The procedure for closing the public way is established locally by the adoption of an ordinance or resolution setting forth the applicable procedures and, thus, may differ among municipalities. [v]
Oklahoma law requires that all municipalities give written notice of any proposed closing of a public way or easement to any holder of a franchise or others determined by the governing body to have a special right or privilege granted by ordinance or legislative enactment to use the public way or easement at least thirty (30) days prior to the passage of any ordinance providing for the closing of a public way or easement.[vi] A “franchise or others determined by the governing body to have a special right or privilege” typically consists of a utility, public service corporation, transmission company, and those with rights obtained by private contract.
The closing of a public way or easement, by definition, does not affect title to real property. In other words, the abutting landowners do not gain additional real property rights once the public way or easement is closed. Further, closing of the public way or easement does not affect the right of a franchise or others determined by the governing body to have a special right or privilege in the public way or easement from maintaining, repairing, reconstructing, operating or removing services therein.[vii] For example, suppose a municipality closes an alleyway located in the townsite. Easements across the alleyway were previously granted to the telephone company, the cable company, the gas company, and the electric company for the purpose of running their underground lines. Upon closure of the alley, these companies do not lose their easement rights. In other words, these easement holders still have the right to maintain, repair, reconstruct, operate or remove services installed across the alleyway. Further, grantees of a private right of way across the closed public way or easement shall continue to maintain their contractual rights unless the owners release those rights in writing.[viii]
Closing a public way or easement does not mean that it is permanently closed. Municipalities retain the absolute right to reopen the public way or easement without expense to the municipality.[ix] This can be accomplished by ordinance whenever the municipality deems it necessary or upon application and filing of the property owners owning more than one-half in area of the property abutting on the public way or easement previously closed.[x] Any improvements to the closed public way or easement by an abutting property owner can be destroyed at the property owner’s expense if the municipality deems it necessary to reopen the public way or easement at a future date.
III. Vacating or Reopening a Public Way or Easement
Anytime after the municipality closes the public way or easement, a property owner may commence an action to either vacate (i.e., foreclose) the municipality’s right to reopen the closed public way or easement or to have the closed public way or easement reopened. The term “vacate” is defined as “the termination . . . by judicial act of the district court, of private and/or public rights in a public way [or] easement . . . and vesting title in real estate in private ownership.”[xi] One obvious reason a property owner may desire to vacate a closed public way or easement is found in the definition itself – to vest title in the closed pubic way or easement in private ownership. However, a property owner may seek to have the public way or easement reopened for a variety of different reasons that are often determined on a case-by-case basis.
The owner of any real estate within the corporate limits of the municipality to which a public way or easement has reverted by closing, or may subsequently revert by closing, may commence an action in the district court in the county in which the real estate is located by filing a verified petition. The verified petition must meet three requirements: (i) it must show the passage of an ordinance closing the public way or easement; (ii) it must ask for the foreclosure of the absolute right to reopen the public way or easement or ask for its reopening; and (iii) it must have attached to it a certificate of a bonded abstractor listing the names and mailing addresses of all persons required to be notified of the court action.[xii]
Notice of the verified petition must be provided by service of summons to the municipality and to public service corporations, transmission and utility companies or franchise holders that either have or may have rights in the public way or easement.[xiii] Notice must be provided by first-class mail to all owners of record of property abutting that portion of the public way or easement sought to be vacated, and other owners of record whose property abuts the public way or easement within three hundred (300) feet from that portion of the public way or easement sought to be vacated. The mailing list of property owners must be generated from the current year’s tax rolls in the office of the county treasurer.[xiv] The easiest way to obtain such a list is to provide the legal description of the public way or easement to the local abstract company servicing the county in which the public way or easement is situated and ask for a 300-foot radius report. The abstract company will need the legal description of the public way or easement in order to generate the report. Notice by first-class mail must also be provided to any person, firm or corporation, not otherwise required to be notified, that is known by the petitioner to claim an interest or rights in the public way or easement.[xv] Notice by first-class mail must be made at least 30 days before the hearing of the petition and the mailing must include a copy of the petition and a copy of the published notice.[xvi] The petitioner must also file an affidavit verifying the mailing of the petition and notice. Finally, notice to the public must be given by one publication in a newspaper of general circulation published in the county where the property is located at least 30 days prior to the hearing and said notice must provide for an answer date not less than twenty (20) days after issuance of the summons or first publication notice.[xvii]
At the hearing of the petition, the district court will inquire into the merits of the petition and take testimony. Once the district court has determined the issues, it may (i) grant the foreclosure of the right to reopen the public way or easement; (ii) grant the request to reopen the public way or easement; (iii) deny the petition; or (iv) make any proper order pursuant to the facts and the law.[xviii] The district court will not grant the foreclosure of the right to reopen if the municipality has established that it has a present or future reason to reopen or use the public way or easement as a public way or easement.
The order granting foreclosure of the right to reopen the vacated public way or easement, or portion thereof, shall vest fee simple title in and to the vacated part or portion thereof which reverted to the real estate.[xix] Anytime a public way or easement is vacated, it reverts to the owners of real estate adjacent to it on each side, in proportion to the frontage of the real estate, except in cases where the public way or easement has been taken and appropriated to public use in a different proportion, in which case it reverts to adjacent lots or real estate in proportion to which it was taken from them or dedicated. However, when any vacated public way or easement remains bounded on all sides by public ways, public grounds, or public easements, title to the entire tract vacated vests in the municipality, but may then be used by the municipality or a leasehold conveyed by act of the governing body for any lawful purpose, public or private.[xx]
Rarely, someone may request to file an action for damages against the parties obtaining a decree of vacation of a public way or easement. Such an action against the parties obtaining a decree of vacation, their heirs, assigns, or successors, may not be maintained unless commenced within ninety (90) days after the decree has been rendered or the decree has become final if an appeal has been taken.[xxi]
[i] 11 O.S. § 42-101(3)
[ii] 11 O.S. § 42-101(4)
[iii] 60 O.S. § 49
[iv] 11 O.S. § 42-101(1)
[v] 11 O.S. § 42-110(A)
[vi] 11 O.S. § 42-110(B)
[vii] 11 O.S. § 42-110(D)
[viii] 11 O.S. § 42-110 (D)
[ix] 11 O.S. § 42-110(C)
[x] 11 O.S. § 42-110(C)(1)
[xi] 11 O.S. § 42-101(2)
[xii] 11 O.S. § 42-111
[xiii] 11 O.S. § 42-112(1) & (2)
[xiv] 11 O.S. § 42-112(3)(a)
[xvi] 11 O.S. § 42-112(3)(b)
[xviii] 11 O.S. § 42-113(A)
[xix] 11 O.S. § 42-113(B)
[xx] 11 O.S. § 42-113(C)
[xxi] 11 O.S. § 42-114