What is a Right of Way Easement?
UPDATED: September 18, 2013
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A right of way easement dates back to common law principles of the right to the free flow of water, and for allowing neighboring landowners the ability to travel over another's property. A right of way is a type of easement that allows a person to pass through another's land. Typically, a right of way easement is a roadway or pathway for travel through another's property 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 specified in the easement. Although ownership rights of property are lessened by an easement, society at large benefits from the additional freedom of movement.
Understanding a Right of Way Easement
An easement is a non-possessory right to use another person's land. The land burdened by the easement is called the “servient land or estate”; the land that has the benefit of the easement is the "dominant land or estate". An easement is classified as an easement in gross (personal to the individuals) or an easement appurtenant (tied to the land). A title search would reveal an easement appurtenant but not an easement in gross. An example of a personal right of way, or easement in gross would be the following description: “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 general, the easement must be in written form. However, if someone uses part of your property over time without your permission, the person may claim a prescriptive easement. Legal action would then be necessary to determine if an easement was created.
Typical Examples of Right of Way Easements
Utility easements are commonly used for underground or above ground utilities or where the utility company is provided access to the utility lines for repair and maintenance for the electrical lines or water lines. Easements for railroad tracks are common when the railroad doesn’t actually own the land the trains travel on. Roadways over one property to another for automobiles, equipment, and cattle to travel and pass over is another example of an easement. Right of ways are also created for pipelines to transport water between neighbors.