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Right of Way - What is It and Who owns It?

by Gary on October 2, 2015

Did you ever get confused when someone representing a jurisdiction mentions that they “own” a particular right of way?  I do, so I always ask them to elaborate on what it is they are saying because the term “right of way” has at least three very different meanings.

The first meaning is not one that causes confusion, but it is worth mentioning because it is not unrelated to the topic. In this context, the term “right of way” means the right of, for example, a vehicle or pedestrian to proceed uninterruptedly in a lawful manner in the direction in which it or the individual is moving in preference to another vehicle approaching from a different direction into its or the individual's path. In other words, from that perspective, “right of way” simply means precedence in traffic.

It is the other two meanings, however, that cause the problems.  The following, taken from portions of the Colorado Supreme Court’s 2010 decision in Dept. of Transp. v. Gypsum Ranch Co., LLC (244 P. 3d 127), address the confusion very well [emphasis added]:

In the context of real property generally, the term "right-of-way" is perhaps most commonly used to describe a limited property right. This limited property right may be a type of easement. "In the absence of additional descriptive language, `right-of-way,' when used to describe an ownership interest in real property, is traditionally construed to be an easement."

Especially in the context of railroads and highways, however, the term is also commonly used more broadly in reference to the strip of land on which the highway or railroad tracks will be constructed.  That is, the land itself, not a right of passage over it.

In this sense, the term is merely descriptive of the purpose to which the land is being put, without reference to the quality of the estate or interest the railroad company or highway authority may have in the land. It is a matter of common knowledge that the strip of land over which railroad tracks run is often referred to as the `right of way'.....

American Jurisprudence states it even more succinctly [emphasis added]:

A right-of-way is an easement and is usually the term used to describe the easement itself or the strip of land which is occupied for the easement. (25 Am. Jur. 2d Easements & Licenses, §§ 1 and 8.)

An Ohio court (Akers v. Saulsbury, 2010 Ohio 4965 - Court of Appeals, 5th Appellate Dist. 2010) also captured the essence [emphasis added]:

"right-of-way" is a general term denoting land, property, or the interest therein, usually in the configuration of a strip, acquired for or devoted to for transportation purposes.

So, when someone says they own the right of way, that statement begs some questions. Are they saying they own the strip of land over which the street lies? Or are they saying they “own” (typically on behalf of the public) the easement rights associated with that street?

The answer is straightforward when the jurisdiction actually purchased the land in fee from the owner, in which case, it does in fact own the strip of land.

But when the street exists by virtue of a dedication, the answer depends on the state. The Washington Supreme Court explained this in its 2012 decision in Kiely v. Graves (271 P. 3d 226) in which it cited cases from Illinois, Mississippi, New York, Oklahoma, Montana and Utah:

The title or right acquired by the public in a statutory dedication depends upon the language of a jurisdiction's dedication statute. In many jurisdictions, a statutory dedication conveys a fee interest to the public. However, in other jurisdictions a statutory dedication may confer no further right than a mere easement. [internal citations omitted]

According to the Indiana Land Title Association, a statutory dedication of a street on a subdivision plat in Indiana results only in an easement interest (Indiana Land Title Association Real Estate Handbook, Volume 1, P. 153).

So, to summarize, when someone says they own a right of way (or a street, for that matter) - depending on the purpose of the statement or of the inquiry that provoked the statement - it would be worth asking a few more questions for clarity.