What is a Property Right of Way?
A property right of way is a type of easement. With common law, an easement was a right to use a part of another’s land for some specific purpose. This right of way allows a person to travel across the land of another to reach a different place. Most US jurisdictions consider such easements as property rights in themselves, and they are often included in property deeds. A property right of way can also end at a specific time or on the death of the person benefiting from the easement.
A common right of way easement is one granted to person living on property adjacent to the land of another to cross the other’s land to reach a certain spot. For instance, a property owner with land near a lake may grant a right of way that allows her neighbor to walk across her property to swim or fish in the lake. Another example would be where A and B own adjacent property, and A’s property has the only access to the nearest public road. B has a right of way across A’s land to reach the road.
Sometimes a property right of way is “permissive.” Here the landowner allows an individual or the public to cross her property to reach a certain spot, usually a place of natural beauty. The right of way may also provide access to a larger public space like a lake, park or forest. The property owner granting a permissive right of way may close it periodically, so that it does not become a permanent right of way. This is to protect the land from any claim of easement should the owner later wish to sell it.
In certain circumstances, a property right of way can become permanent. In European countries, there are many walking paths that have existed for so long they are considered public rights of way. In Ireland for instance, there are centuries-old “mass paths” which people use to cross private property to get to church. The United Kingdom has established “right to roam” laws. These statutes give the public the right to cross private land for access to wilderness and recreation areas.
In Nordic countries the right to roam is more expansive. In these countries, limited use of private land was long a common practice and developed into an accepted right. Individuals can hike and camp on private lands for limited periods, as long as the land and the owner are not disturbed. In some areas, lakes are the exclusive property of the owner, and the law prohibits boating and fishing without the owner’s permission.
Sometimes governmental authorities create rights of way through their powers of “eminent domain.” In these instances, the government acquires the property right of way, with compensation to the owner, to use the land for the public good. The government often exercises the power of eminent domain for public utilities and highways. It can also be used to create public spaces or for civic use. Rights of way are also created for railway transportation of goods and people.
If your property borders a right of way, do you need a deed that states you have access to it, or do you automatically have access to it?
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