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What Is a Public Right of Way?

M. Lupica
M. Lupica

The concept of a public right of way is foundational to our freedom of movement in the pathways of our communities. According to the National Association of City Transportation Officials (NACTO), streets and sidewalks comprise most of the public space in cities, serving as critical public rights of way. These thoroughfares are not just conduits for travel; they are the lifeblood of urban connectivity. 

While these spaces are predominantly on municipal land, adjacent property owners often bear the legal obligation to maintain their safety, ensuring unimpeded access for pedestrians. In contrast, a private right of way, or easement, grants specific passage over private land, a distinction that carries its own set of legal nuances. Understanding the public right of way is essential for both community members and landowners alike, as it shapes the daily dynamics of transportation and property rights.

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.

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.

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.

FAQ on Public Right of Way

What is a public right of way?

A public right of way is a legal right for the public to pass over someone else's land. It can include footpaths, bridleways, and byways that are used for walking, cycling, horse riding, or driving, depending on the classification. These paths are protected by law, ensuring that they remain accessible for public use and cannot be obstructed by the landowner.

How is a public right of way established?

A public right of way can be established in several ways. Historically, many rights of way were created through long-standing use by the public, a concept known as 'prescription.' Alternatively, a right of way can be formally dedicated by a landowner or recognized through a legal order. In some jurisdictions, rights of way are listed on definitive maps maintained by local authorities, which provide legal evidence of their existence.

Can a public right of way be moved or closed?

Yes, a public right of way can be moved or closed, but this typically requires a legal process. Local authorities or government agencies can issue orders to divert or extinguish a right of way, often for reasons such as development, environmental protection, or safety. However, these changes usually involve public consultation and may be subject to objections or appeals by users or interest groups.

What are the responsibilities of landowners regarding public rights of way?

Landowners have a responsibility to ensure that public rights of way on their land are kept clear of obstructions and are identifiable. They must not interfere with the public's use of the path, and in some cases, they may be required to maintain gates or stiles. Failure to uphold these responsibilities can lead to legal action by local authorities or individuals seeking to assert their rights.

How can I find out if there is a public right of way on a property?

To find out if there is a public right of way on a property, you can consult the definitive map and statement held by the local authority or government agency responsible for rights of way in the area. These maps are legal records that show the location and status of public paths. Additionally, some jurisdictions provide online maps or databases where you can search for rights of way.

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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.