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Indiana Rights of Way

by Gary on March 4, 2015

The topic of rights of way lends itself to at least a full day seminar if not a semester course, but there are some important concepts that can provide a good foundation for those who deal with them in the State of Indiana.

First of all, we need to address the term ‘right of way’ itself because the way the term is used can cause immediate confusion.  Originally, a ‘right of way’ meant an easement – specifically the right of passage over someone else’s land.  It was the interest in real estate that someone held in the form of a right of way easement.  And that ‘someone’ could be anyone from the entire world (in the case of a public right of way), to a single person (as in the case of a right of way easement in gross).
Confusingly, however, the term has also come to mean the physical strip of land involved, independent of the interest in that land.  So, when we talk about a ‘right of way’ in the context of the actual strip of land, that strip could represent either a fee ownership or merely an easement.
In Indiana, rights of way created by dedication are grants of easement.  Thus, the dedication of a right of way on a subdivision plat does not create a fee interest in the jurisdiction; it creates only a right of way easement.

This is important to know when vacating dedicated rights of way because often jurisdictions want to designate who ‘gets’ the fee interest once the street is vacated.  By definition, however, an easement is an interest in someone else’s land.  So when a right of way exists by virtue of a dedication, the underlying fee ownership in the strip of land encumbered by that right of way remains in whoever granted the right of way in the first place (or his/her successors in title).

In Indiana, the underlying fee in a dedicated street attaches to, and is generally conveyed along with, the adjoining land.  So, when a lot in a subdivision is sold, the underlying fee in the street in front of that lot is normally conveyed right along with the lot – even though the conveyance says nothing about it.  Thus, when the street is vacated, who ‘gets’ the fee?  It remains in title to whoever had title to it when it was a street!  Any decision that the jurisdiction attempts to make in that regard is meaningless; the title is what the title is.

The only time that rights of way in Indiana are owned in fee by the jurisdiction is when there was actually a deed that conveyed fee interest to the jurisdiction, or if there was a condemnation that resulted in a fee interest being vested in the jurisdiction.  Otherwise, a right of way is merely an easement for passage held in trust by the jurisdiction for the public’s use.

Understanding these concepts – which can and do vary from state to state – is an important step in understanding, and the proper use of, the term ‘right of way.’