Paul W. Mortensen: Is there a right-of-way?

By on December 16th, 2016 in Blog, Easements


Rights-of-way can arise by several means.

Express easement.  An express easement most often arises by an express grant by or an express reservation in a deed.  E.g. express grant:  Grantor hereby deeds to Grantee Lot 1 together with a ten foot right of way across Lot 2 for access.  E.g. express reservation: Grantor (owning all of Lot 1) hereby deeds the south half of Lot 1 to Grantee, reserving to Grantor a ten foot right of way across the south half of Lot 1 (to provide access to Grantor’s retained north half of Lot 1).

Implied easement.  An implied easement may arise where there have been 1) unity of title followed by severance (splitting part of the property off from the prior whole); 2) the easement was apparent, obvious and visible at the time of the severance; 3) the easement was reasonably necessary to the enjoyment of the land benefitted by the easement; 4) the use of the easement was continuous rather than sporadic.

Way of necessity.  A way of necessity is an implied easement that arises when a severance leaves a portion of the property completely landlocked, necessitating that there be an implied way of necessity to access the otherwise landlocked portion.  Example:  Seller grants a deed to the northwest quarter of a parcel of property with Seller retaining the remaining property.  The northwest quarter is landlocked as it is surrounded by the property reserved by the Seller and as there is no other way of access.  Because public policy disfavors useless land (which would result if the Purchaser could not access the northwest quarter), a way of necessity across Seller’s remaining land arises.

Equitable easement.  An easement may arise by misleading someone to believe that there is an easement and then pulling the rug out after the misled person has relied to her detriment.  A clear example is displaying a map or plat that shows streets accessing lots while selling lots shown on the map or plat.  Having, by the map or plat, represented to lot purchasers that there would be streets to the lots, and the lot purchasers having relied thereon, the dedicator of the plat is estopped (equitably barred) from thereafter asserting that the streets were not included in the deal.

Land use ordinance-imposed easements.  Modern land use planning laws declare as a matter of law that streets shown on dedicated plats are established rights-of-way.

Prescriptive easement.   An easement by prescription arises by twenty years of open, notorious, adverse, continuous use.  The continuous use must be without permission as permissive use by definition cannot be adverse.  A prescriptive easement usually inures to the benefit of private individuals whose lands are benefited, rather than to the public as a whole.

Public thoroughfare.  A public right-of-way may arise from ten years of open adverse continuous use over private land by the public.  The creation of public thoroughfares by adverse use is governed by law set forth in Utah Code § 72-5-104 and related court cases.

Right-of-way across State lands.  Because the State is sovereign, a right-of-way across state lands cannot be established by prescription (private adverse use) or under the State public thoroughfare statute.  However, the Utah Rights-of-Way Across State Lands Act, Utah Code § 72-5-201 et seq., authorizes rights-of-ways were established prior to January 1, 1992.  If a use over state lands prior to January 1, 1992 cannot be proved, an express easement or permit must be obtained from the State or from the private party who has since acquired title to the state land

“Private” condemnation under applicable Utah condemnation statute.  Private individuals may bring an action to establish a public right-of-way, with the duty to pay just compensation for the right-of-way if they can prevail.

Right-of-way across federal lands (or formerly federal lands).  Public Law R.S. 2477 provided that rights-of-way could be acquired over federal lands.  Enacted in 1866, R.S. 2477 provided that private or public rights-of-way could be established on federal lands on essentially the same rules as private or public rights-of-way could, under state law, be established over private lands.  This law was repealed in 1976, leaving only those vested rights-of-way that had by historical use been established prior to 1976.  Although a right-of-way could arise by operation of law due to the continuous use of federal lands (prior to 1976), federal authorities typically dispute any claim, requiring parties to sue in federal court to establish the historical fact of the alleged right-of-way. Or, if the federal government has since deeded the involved land to private owners, then the private landowners will fight the alleged right-of-way, requiring the right-of-way proponent to prove the pre-1976 established use.

Permits across governments lands.  Under federal laws individuals can apply for Bureau of Land Management or US Forest Service for access permits, which if granted will involve payment of fees.  Applications can also be made for permits to cross Utah State lands.

During my career, I have represented clients regarding all of the foregoing forms of access, except private condemnation.

The foregoing does not constitute legal advice.   Legal advice can only be given with respect to specific fact situations and requires complex factual and legal analyses.