What is a "right of way"?

A right of way is a type of easement that allows a person to use another person's land to travel or pass through. Typically, right of way easement is a roadway or pathway for travel through the lands of another that benefits a particular person or benefits another parcel of land. This type of easement allows reasonable use for the passage and right of travel to the person holding it, or for the land whose benefit the right of way easement was established. The owner of the land keeps the benefits and privileges of ownership as outlined in the easement.

The principles of a right of way easement date back to common law which governed, for example, the free flow of water or allowed neighboring landowners to travel over another’s property. This travel created an informal road system. Although ownership rights of property are lessened by an easement, society at large benefits due to the additional freedom of movement.

Types of Easements

An easement is a non-possessory right to use another person's land. The land burdened by an easement is called, in legalese, the “servient land or estate.” The land that has the benefit of an easement is the "dominant land or estate." A recorded right of way is an easement in gross (personal) or an easement appurtenant (tied to the land).

A good example of a personal right of way, or easement in gross, could be described as follows: “John Jones is permitted to travel across the land for hunting and fishing purposes only and for his use.” A right of way that’s tied to the land, or easement appurtenant, consists of recording an easement over one's land as follows: "the lands currently owned by John Jones located at 125 Eighth Avenue, San Ramon, California to travel over to obtain access to this property over the lands of the grantor."

A right of way easement can be described precisely by way of a surveyor's description, or it can be general. A generally described right of way is called a floating easement. A floating easement may read: “the right for the owner of parcel “A” to pass over the land of parcel “B” to get to the stream for fishing.”

In order to be valid, easements must be in written form. The exception to this is if an individual claims a prescriptive easement. A prescriptive easement arises when someone uses part of your property without your permission. In this case, the claim will be decided by the court after litigation.

Common Examples of Right of Way Easements

There are several common examples of right of way easements. Roadways over one property to another for automobiles, equipment, and cattle to travel and pass over is one example, while pipelines for transportation of water between neighbors and allowance of access for repair and maintenance is another. Utility easements are commonly used for underground or above ground utilities, where the utility company is provided access to the utility lines for repair and maintenance for the electrical lines or water lines. And finally, easements for railroad tracks are common when the railroad doesn’t actually own the land the trains travel on.