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What Is a Public Right of Way?

M. Lupica
M. Lupica

A public right of way is a public right to travel unhindered over a piece of land, even if that land is privately owned. Generally, this term is in reference to sidewalks and streets that are located on city or town property. However, even if the public right of way is on such public property, any landowner adjacent to the right of way may have a responsibility to keep the public right of way safe for travel by pedestrians. A public right of way can be differentiated from a “private right of way,” which is usually referred to as an “easement.”

The most common examples of a public right of way are sidewalks and public roads. A public right of way does not have to be at ground level, however. City maintained power lines that go across someone’s property or sewage pipes that run underground across private property may also be considered public rights of way. The public necessity for such infrastructure gives the city or town an implied right to run such infrastructure across private property with or without the express consent of the owner.

Easements enable the public to legally travel across a portion of private land.
Easements enable the public to legally travel across a portion of private land.

Even though public rights of way are technically owned by the city in which they are situated, adjacent property owners generally are responsible for the immediate safety for travel along the right of way. This does not mean that a property owner must refill potholes that develop on the street in front of his or her house, but he or she has a responsibility to make reasonable upkeep. For instance, if there is a snowstorm, he or she usually has an obligation to shovel the sidewalk and make sure that it is not dangerously icy. Additionally, he or she may be responsible for the removal of any dead branches hanging from trees on the public right of way that run the risk of breaking and harming passers-by.

A private right of way is usually called an “easement.” Easements are private grants by a landowner to another party — which may be a private party or the government — to use his or her land for a stated purpose. For example, the owner of a farm may grant a neighbor the right to drive across his or her land for the purpose of entering or leaving a property. This is a common grant in situations where the neighbor has no easy way to reach a public road through his or her own land. Unlike a public right of way, easements are generally revocable unless otherwise stated in the easement grant.

Can a Public Right of Way Be Closed?

If there is a public right of way on your property, you may not do or build anything that would prevent the public from using it. However, some circumstances allow for temporary or permanent closure of a public right of way.

Temporary Closure

When you own property with a right of way, you have a right to use your land as you wish, so long as you do not infringe upon the right of way. This can be inconvenient if you want to make improvements that would require the temporary closure of the right of way, such as paving a road. It may be possible to carry out your project, but you must obtain permission first.

Permanent Closure

Property owners often find it difficult to revoke rights of way. However, you may be able to go to court and have the right of way removed if it is abandoned or being misused.

Property owners must not assume that a right of way is no longer in place simply because it is unused or the property has changed owners. A public right of way is attached to the deed to the property; it does not change when the property is sold, nor is it automatically relinquished if it isn't used. The only way to permanently close a public right of way is through legal procedures.

In some cases, the city or town may decide that the right of way is no longer necessary. In these cases, the agreement can be canceled with very little trouble. Sometimes, the original agreement specifies an expiration date, which also simplifies the process. However, most rights of way do not expire.

Who Maintains a Public Right of Way?

When it comes to maintaining and repairing a public right of way, both the property owner and the holder of the right of way have rights and responsibilities.

Routine Maintenance

Most jurisdictions have laws and ordinances about property maintenance. Property owners must maintain public rights of way per these regulations, just as they do the rest of their property.

For example, if your city has an ordinance that requires homeowners to keep their lawns mowed and free of weeds and litter, you may be responsible for picking up trash and mowing grass on and around the public right of way.

Major Improvements

Major repairs and improvements are generally the responsibility of the city or town. The city is also responsible for preventing and repairing damage to private property. For example, if the power company removes trees around a public utility right of way and the tree removal results in erosion of your land, the city or town is responsible for repairing it.

As the property owner, you are also allowed to make improvements to the right of way as long as you don't interfere with its use. For example, you may build a fence around a public footpath on your property, but you may not install a locked gate that would prevent people from accessing the path.

Who Owns a Public Right of Way?

A public right of way is a space in which members of the public are permitted to travel; however, not all public rights of way are located on public property. Often, this term refers to roads and paths located on private property.

In these cases, the property owner owns the land on which the right of way is located. The city or town owns the right to use the right of way and bears some responsibility for its upkeep but does not own the land itself.

Is a Public Right of Way the Same as an Easement?

A public right of way is a type of easement, but the two terms are not interchangeable. Not all easements are public rights of way, and not all public rights of way are easements.

An easement is an agreement between a property owner and another party, the easement holder, that grants the easement holder a right called nonpossessory interest. This means the easement holder may use the property for a specific purpose but does not own any part of it.

A public right of way, on the other hand, is a specific type of easement that allows public roads or utilities to pass through private property. It is different from a private right of way, which is limited to a specific person or group of people, such as a neighbor.

The term may also refer to any town- or city-owned land accessible to the public, such as a sidewalk. These rights of way are not easements, as they are not on privately owned property.

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    • Easements enable the public to legally travel across a portion of private land.
      By: Barbara Helgason
      Easements enable the public to legally travel across a portion of private land.