What is the definition of a highway?
Highway Law §2 defines highway: “A highway within the meaning of this chapter shall be deemed to include necessary sluices, drains, ditches, waterways, embankments, retaining walls and culverts….” The Highway Law definition must of necessity include the right of way or else the term has no meaning. That section is really just focused on the portions of the land not normally used for vehicular travel and to make clear that those portions nonetheless are within the definition of a highway (i.e. drainage and slopes).
Vehicle and Traffic Law §118 defines “Highway” as “The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” which by its terms includes the right of way however measured or acquired.
A recent case helpful on this is Groninger v Village of Mamaroneck, 17 NY3d 125 (2011). There a pedestrian slipped and fell on ice in a parking lot owned and maintained by the Village and the Village said that its prior written notice law barred the action. The injured party argued that a parking lot was not within the meaning of the term “highway” as used in the written notice law and therefore that law did not bar her case. The Court of Appeals disagreed reasoning:
“The parking lot here serves the ‘functional purpose’ of a ‘highway,’ which Vehicle and Traffic
Law § 118 broadly defines as ‘[t]he entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of
vehicular travel.’ ”.
17 NY3d at 129.
In essence, the Court adopted the Vehicle and Traffic Law definition of “highway” even though the written notice law was not in the Vehicle and Traffic Law.
In our new liability manual, we cite a case that "A dirt shoulder .... is considered part of the “highway” for purposes of written notice statutes - Gutierrez v Ramapo, 210 AD2d 636 (3rd Dept 1994).
The logic of these cases may also apply to statutes other than written notice statutes.
While many people could have different opinions of these definitions (and do), there are some things that are clear. Each case will be unique and the facts need to be reviewed carefully, but the road surface and shoulders are part of a highway as are many of the items needed for drainage of the highway.
For roads by use, the actual width may depend upon case law and a municipal attorney should always be involved if there is any question. Even if there is a deed or other paperwork, the municipal attorney should be involved if there are any concerns. People get very passionate about land rights and ownership so treading lightly is a good policy.