HIGHWAY JURISDICTION

Ownership of the underlying public right of way should never be considered in issues concerning highways.

By Michael Griffin

All public highways are maintained by the government agency that has jurisdiction of the highway. The Illinois Department of Transportation (IDOT) defines jurisdiction as “the authority and obligation to administer, control, construct, maintain and operate a highway subject to the provision of the Illinois Highway Code”. The State, by and through IDOT, is the controlling agency that determines which government agency has jurisdiction over a particular highway. It also approves future changes and transfers of jurisdiction from one agency to another. The government agency (State, county, municipality or township) obtains jurisdiction through the authority of the State (605-ILCS 5/2-101).

Ownership on the other hand cannot be considered nor does it determine jurisdiction. Normally an owner of private property would be liable for alleged negligence on his property but in the case of public highways the owner is really the public and it is the government agency with jurisdiction that is responsible for its condition. Periodically jurisdiction is transferred from one government agency to another with the approval of IDOT. This is done for convenience of the government agencies in that the routes, locations and maintenance patterns can become more convenient for one or the other agency. Transfer from one government agency to another does not include any transfer of title documents or easement documents since a public highway may rest on underlying property purchased by a government agency or on property under the jurisdiction of a government agency through dedications, easements and for older routes by prescriptive easements thus creating such a collage of interests that the transfer of these various interests is not practicable and in some cases not possible.

Determining which government agency has jurisdiction of a particular stretch of highway may be as simple as making a few phone calls. One would begin by calling the various government agencies in order of authority. The first call should be to the local office of IDOT followed by the highway agencies of the county, municipality and then the township wherein the particular section of highway is located.

IDOT

Highways under direct jurisdiction of IDOT are on record and IDOT will usually confirm their jurisdiction. If however IDOT denies jurisdiction it is best to proceed to the next government agency in the order of authority, namely the county wherein the highway is situated.

COUNTIES

The county highway department wherein the highway segment is located should tell you whether that county has jurisdiction. In the event that they do not have jurisdiction your next call is to the municipality wherein the highway segment is located.

MUNICIPALITIES

The first question to the street department of the municipality is whether the location is inside the city. If they state that it is inside their limits but they declare that they do not maintain it then one must turn to the statutes. Since it has been determined that it is neither a state highway nor a county highway it therefore is under the municipality’s jurisdiction by statute. (605 ILCS 5/2-104)

TOWNSHIPS

When the location is outside the city limits and in the unincorporated territory of the township and likewise neither a state nor county highway it then becomes a township road by a similar statute. (605 ILCS 5/2-103) Both these statutes act in a similar method as the contingency clause in a will. No public road will go unattended.

SIDEWALKS

Sidewalks inside corporate limits of a municipality and on any public highway, even if they are county or state highways, are maintained by the municipality wherein they lie. In unincorporated areas the township is responsible for sidewalk maintenance.

Counties, by statute, are only required to maintain the highways for vehicular traffic (605 ILCS 5/2-214). There is no mention of pedestrians. The State has a similar arrangement. To that end the municipalities maintain these sidewalks on the state and county highways passing through their cities or towns as well as on their own local streets.

If a private property owner seeks a permit for a sidewalk on a state or county highway passing through the municipality wherein the sidewalk will be placed the municipality is added as a co-permittee. This is to insure that the sidewalk will be maintained even if the property owner moves, sells or abandons the property. Even if the sidewalk was built so long ago that there is no evidence of a permit, the obligation to maintain the sidewalk remains with the municipality.

UTILITY AND TELEPHONE POLES

Poles are on the right of way by license and the owner of the pole must and does obtain insurance for the government agency prior to the issuance of a permit.

WATER MAINS

Municipalities usually place their water mains on the shoulder area of public streets. If these mains are located on state or county highways they are there by permit with the same arrangement as other appurtenances.

TRAFFIC CONTROL DEVICES

Traffic lights and signals are under the control of the government agency having jurisdiction of the highway. Traffic lights installed at intersections where the intersecting highways are under different government jurisdictions such as a municipal street intersecting with a county highway, only one agency has control of all the traffic signals for all approaches. There is a simple way to determine exactly which agency has control by visiting the site and locating the signal control cabinet. This cabinet about the size of a short refrigerator is usually located on one corner of the intersection not far from the traffic signal poles. The cabinet or control box usually displays the logo of the government agency that controls the intersection.

HIGHWAY CONSTRUCTION PROJECTS

When highways are under construction or repair by a private contractor under contract with the government agency having jurisdiction everything changes. The private contractor must obtain insurance for himself with the government agency as named insured and also hold the government agency harmless. This is a standard requirement in the construction contracts. (Standard Specifications for Road and Bridge Construction Art. 107.27). During construction the private general contractor is responsible for all maintenance and traffic control within the construction limits of the section of highway under construction assuming traffic is permitted through the construction zone. This is a duty the contractor has to the government agency – not the public. However the contractor holds the government agency harmless and backs it up with insurance having the government agency as named insured. (Standard Specifications Art. 107.26)

Finally when jurisdiction is transferred from one government agency to another remember title is not transferred. This is primarily because possession may be by prescriptive easement, dedication, permanent easement as well as outright purchase – only jurisdiction is transferred. To that end all questions concerning the construction, maintenance, control or any other questions concerning the operation of the highway should be directed to the government agency having jurisdiction.

Michael Griffin is an engineer and former attorney with the Right of Way Bureau of the County Highway Department.