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Right of way drawing of U.S. Route 25E for widening project, 1981
Right of way highway marker in Athens, Georgia

The type of right of way (also right-of-way) considered here, is an easement, granted, purchased, or reserved over land for transportation purposes. This differs from a right of way established by prescription, where the legal right has been established by use in continuous and open manner for a statutorily prescribed number of years.[1] Included are highways, railways, canals, as well as for infrastructure equipment such electrical transmission, oil, and gas pipe lines, tthat enable access to another property or properties. Footpaths and trails established by governments, private individuals or organizations, not established already by prescription, are included.[2] In some cases an easement, can revert to its original owners if the facility is abandoned. A right of way for access may be restricted to a single grantee.

The term "right of way" is also used to denote the land itself, such as the strips of land along a railroad track on which railroad companies own a right of way easement, or a trail or path.

Easement

An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B".[3] An easement is a property right and type of incorporeal property in itself at common law in most jurisdictions.

Wayleave

Wayleave is the right to access or cross land of another, especially for railways, pipelines, power lines or telecommunications.

Infrastructure networks

Julington-Durbin Peninsula Powerline Right of Way

Easements are frequently given to permit the laying of communication cables (such as optical fiber) or natural gas pipelines, or to run electric power transmission lines overhead. Communications easement are used for wireless communications towers, cable lines, and other communications services. This is a private easement and the rights granted by the property owner are for the specific use of communications. Such utility easement also includes: storm drain, and sanitary sewer easement.

In English law

Easements in English law are certain rights in English land law that a person has over another's land. Rights recognised as easements range from very widespread forms of rights of way, most rights to use service conduits such as telecommunications cables, power supply lines, supply pipes and drains, rights to use communal gardens and rights of light.

This does not generally include highways, which are legally defined in English common law, as "a way over which all members of the public have the right to pass and repass without hindrance",[4] usually accompanied by "at all times"; ownership of the ground is for most purposes irrelevant. Thus a highway encompasses all such ways from the widest trunk roads in public ownership to the narrowest footpath providing unlimited pedestrian access over private land.[citation needed]

Rail right of way

In the United States, railroad rights of way (ROW or R/O/W) are generally considered private property by the respective railroad owners and by applicable state laws. Most U.S. railroads employ their own police forces, who can arrest and prosecute trespassers found on their rights-of-way. Some railroad rights-of-way include recreational rail trails.

In Canada railroad rights of way are regulated by federal law. In October 1880 the building of Canada's first transcontinental rail line, the Canadian Pacific Railway, started. It was built by a consortium contracted by the government, and financed by C$25 million in credit and 25 million acres (100,000 km2) of land. In addition, the government defrayed surveying costs and exempted the railway from property taxes for 20 years.[5]

In the United Kingdom, railway companies received the right to resume land for a right of way by private Acts of Parliament. Resumption means compulsory acquisition of land.[6]

Designations of railroad right of way

See also: Adverse abandonment

Right of way of the out of service Pacific Electric in Garden Grove, California from left middleground to right background

The various designations of railroad right of way are as follows:

Concerns about constructions of buildings around railway right-of-way

A track runs down the middle of a narrow street, taking up half its width
Train Street, Hanoi in 2017

Construction of houses/buildings beside railway right-of-way presents a significant safety risk. For example, the Hanoi Department of Tourism in Vietnam ordered the permanent closure of cafes and shops along Hanoi Train Street for safety reasons despite its being a popular destination for foreign tourists in the city.[7]

Eminent domain

Main article: Eminent domain

Eminent domain is the term used in the United States, the Philippines and Liberia for the legal power to take private property for the construction of canals, roads, railways, pipes lines, etc.[8] This is called "land acquisition" (India, Malaysia,[9][10] Singapore), "compulsory purchase" (the United Kingdom), "resumption" (Hong Kong and Uganda), "resumption/compulsory acquisition" (Australia, Barbados, New Zealand, Ireland) or "expropriation" (Canada and South Africa).[11][12]

The most common uses of property taken by eminent domain have been for roads, government buildings and public utilities.

See also

References

  1. ^ Easements by prescription, also called prescriptive easements, are implied easements granted after the dominant estate has used the property in a hostile, continuous and open manner for a statutorily prescribed number of years. Prescriptive easements differ from adverse possession by not requiring exclusivity]. "Adverse possession", Cornell University Law School
  2. ^ Henry Campbell Black: Right-of-way. In: A law dictionary containing definitions of the terms and phrases of American and English jurisprudence, ancient and modern: and including the principal terms of international, constitutional, ecclesiastical, and commercial law, and medical jurisprudence, with a collection of legal maxims ... (West Publishing Co., 1910), pg. 1040.
  3. ^ Gray, Kevin J.; Susan Francis Gray (2009). Elements of Land Law (5th ed.). Oxford: Oxford University Press. p. 13. ISBN 9780199219728. OCLC 231883446.
  4. ^ Diplock LJ, Suffolk County Council v. Mason (1979) AC 705
  5. ^ Fleming, Sandford (1880), "Report and Documents in Reference to the Canadian Pacific Railway", Archive.org, ISBN 9780665301858, retrieved 25 January 2013
  6. ^ "Resumption definition", Law Insider
  7. ^ "Tours of coffee shops along Hanoi train street prohibited". Vietnamplus. 5 April 2023. Retrieved 2 May 2024.
  8. ^ Caves, R. Encyclopedia of the City.
  9. ^ "Land Acquisition" (PDF). Retrieved 19 October 2018.
  10. ^ "Land acquisition's chequered history". The Star. Retrieved 19 October 2018.
  11. ^ Caves, R. W. (2004). Encyclopedia of the City. Routledge. p. 216.
  12. ^ Saxer, Shelley Ross (2005). "Government Power Unleashed: Using Eminent Domain to Acquire a Public Utility or Other Ongoing Enterprise". Indiana Law Review. 38 (55): 55.