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A right of way, an easement type that’s also referred to as an easement of way, is an interest in land that gives the owner of the easement a right to pass over or through someone else’s land. It also refers to land that has a public road built on it, which is called a public right of way. Utility companies can also have an easement on private property, such as to install and maintain transmission lines. Its scope is limited, only giving the interest holder the right to cross over the land. The owner of the property that is subject to the easement is called the servient estate, and the tract of land benefited is called the dominate estate. Like any easement type, the description of the easement and its purpose are often identified in a deed or land-related documents, and the interest often passes with the land.
Easements are created in a number of ways. An easement by estoppels is created when someone believes he has the right to travel through the property and the owner of the servient estate aids that belief. One by necessity or implication is created by law when there’s an obvious and continuous use of a path that is necessary. An easement by prior use is created when the dominate estate owner can show that the intent of the previous owner was to include the easement when transferring his land.
The owner of a right of way does not own any portion of the servient estate, although easement holders are entitled to certain property rights. The interest extends to the limited use of travel, but the servient estate is said to be burdened by the dominate estate because of the easement. For example, the owner of the servient estate cannot obstruct the land or make it difficult for the easement holder to go through the property using the designated path.
Some easement descriptions include a specific path that the owner of the right of way has to travel on the property. Others include no description at all, which is referred to as a floating easement. The laws governing property rights in many jurisdictions require that the owner of a floating easement be reasonable when selecting a path to go through or cross over the servient estate.
I know a lot of the farmers in my local area have right of ways on their lands for hikers. Most of the time it's fine and they are happy to allow access to areas of the country that people would otherwise not be able to reach.
But sometimes the hikers leave litter, or tear up the ground. And then, of course, during the lambing or calving season, the animals that might be on those lands need to have peace and quiet.
I think the farmers are allowed to shut off the area in cases like that, but often the hikers don't respect the signs.
It's a shame, because it could easily be a pleasant experience for everyone.
This is the kind of thing you want to have clearly defined before you buy a property. You'd be surprised how often real estate agents and even lawyers will fudge the details, or just not mention that someone has access to a part of your land you aren't expecting, or that you don't have the access you thought you did.
I've had a friend go through this and it can be a real pain in the neck. And it's something that is very difficult to change, so better to make sure of what you are entitled to before you put any money down.
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