A right of way is a type of easement that gives a specific person, property, or company the legal right to cross or use a defined portion of someone else’s land for a particular purpose, without owning that ground. The landowner keeps title to the property and can use the rest of it normally. They just can’t block or interfere with the access the right of way protects.
Most people run into the concept when a neighbor’s driveway crosses their lot, a utility company runs lines through the yard, or a deed mentions an access path they didn’t know existed. The idea is simple. The details around who holds the right, how it was created, what it covers, and how it ends are where things get complicated.
The Two Properties Involved
A right of way always involves two sides. The property that benefits from the access is called the dominant estate. The property that has to allow the access is called the servient estate.
If your lot can only reach the main road by crossing your neighbor’s field, your lot is the dominant estate and your neighbor’s field is the servient estate. Your neighbor still owns every square foot of that field. They just can’t fence you out of the path you’re entitled to use.
Does the Right Stay with the Land or the Person?
This distinction matters more than most people realize, especially when property changes hands.
An appurtenant right of way is attached to the land itself. When the dominant property sells, the right of way transfers automatically to the new owner. If you buy a house that has a deeded right to cross the neighbor’s lot, you inherit that right without needing a new agreement, and the neighbor can’t refuse to honor it.
A right of way in gross belongs to a specific person or entity rather than to a piece of land. Utility company easements are the most common example. If a right of way in gross isn’t commercial, it usually ends when the holder dies and generally can’t be sold or transferred.
The practical takeaway: if you’re relying on access across someone else’s property, make sure the right is appurtenant and recorded in the deed. An informal personal arrangement can evaporate the moment either property changes ownership.
Common Types You’ll Encounter
Public rights of way are the ones you use without thinking about them. Roads, sidewalks, trails, and paths crossing public or private land fall into this category, established and maintained by local governments.
Private rights of way are granted to specific people or properties. A shared driveway serving a back lot with no other road access is the classic example. These often get created when a larger parcel is subdivided and one of the resulting lots would otherwise be landlocked.
Utility rights of way let power, water, gas, and similar providers install and maintain infrastructure across private land. These are usually easements in gross held by the company itself. The scope is limited to specific equipment, and the company can enter the easement area for repairs and inspections.
How Rights of Way Are Created
A right of way can come into existence several different ways. How it was created shapes how easy it is to prove and enforce.
Express Grant or Reservation
The cleanest route is a written document. The property owner signs a deed or contract granting access across a specific part of their land, spelling out who gets access, where, and for what purpose. A reservation works in reverse: when someone sells part of their land, they keep (reserve) a right of way across the portion they’re selling. Written grants and reservations create the strongest rights of way because the terms are documented and recorded.
Implication
When a single property gets divided and one piece clearly needs access across the other to function the way it did before the split, a court can recognize a right of way by implication even if nothing was written down. The use has to have been apparent before the division and reasonably necessary for the new parcel. This often comes up with subdivisions where driveways, drainage paths, or utility lines were already in place before the lots were carved out.
Necessity
When a property is completely landlocked, courts will impose a right of way by necessity across whatever neighboring land provides the most reasonable access. The law doesn’t allow a parcel to become permanently unusable. This type of right typically lasts only as long as the necessity does. If a new public road later gives the landlocked parcel direct access, the right of way by necessity may no longer be justified.
Prescription
A prescriptive right of way is earned through long, continuous, open use of someone else’s land without their permission. It’s the easement version of adverse possession. The user has to show the use was obvious (not hidden), uninterrupted over a period set by state law, and done without the landowner’s consent. Statutory periods vary across the country, ranging from as few as five years in some states to twenty or more in others. If the landowner gave informal permission at any point, the clock resets.
Eminent Domain
Federal, state, and local governments can create rights of way by taking private land for public use through eminent domain. The Fifth Amendment requires that the owner receive just compensation for the taking.1Constitution Annotated. Amdt5.10.1 Overview of Takings Clause This is how most highways, railroads, and major utility corridors get built. Governments also delegate this power to public utilities and railroad companies when the purpose qualifies as a public use.2Legal Information Institute. Takings Clause Overview
What Each Side Can and Cannot Do
A right of way entitles the holder to use a defined area for a specific purpose. Nothing more. The use can’t be expanded beyond what was originally granted. If a right of way allows foot and vehicle access to a back lot, the holder can’t start running commercial truck traffic through it or pave over a wider swath of the neighbor’s land. Courts call this overburdening the easement, and the property owner can go to court to stop it.
The servient estate owner keeps full ownership and can use their land however they want, with one hard limit: no blocking or interfering with the right of way. Building a fence across a deeded access path, parking a car to obstruct a shared driveway, or planting trees that make a utility easement inaccessible all cross the line. Everything else, including building, landscaping, and ordinary use of the rest of the property, is fair game.
Who Maintains It
The default rule in most jurisdictions is that the person using the right of way is responsible for maintaining it. If you drive across your neighbor’s land to reach your house, keeping that path in usable condition is your job, not theirs. The property owner, meanwhile, has to avoid damaging or obstructing it.
This default can be changed by agreement. Shared driveways in particular work better when both parties sign a written maintenance agreement spelling out who pays for what. If you’re buying property with a shared access point, check whether a maintenance agreement exists and get one drafted if it doesn’t.
What It Means When Buying or Selling
Existing rights of way don’t disappear when property changes hands. Appurtenant easements run with the land and bind every future owner of the servient estate, whether or not they agreed to the arrangement. That makes finding easements before you buy a house genuinely important.
A standard title search should reveal recorded easements, because they appear in the chain of deeds, plat maps, and other documents filed with the county recorder. Unrecorded easements, including prescriptive and implied ones, are harder to spot. An extended title insurance policy that includes survey coverage offers broader protection against these hidden claims than a basic policy does.
In most states, sellers must disclose known easements on a standard property disclosure form. Hiding a material encumbrance you know about can expose you to a lawsuit after closing. Buyers shouldn’t rely entirely on the seller’s disclosure either. A full title search and a careful look at the property survey are the two most reliable ways to find out what access rights others hold over the land.
Easements can reduce property value, sometimes substantially. Utility corridors with overhead power lines or large pipeline easements tend to have the biggest impact. A simple shared driveway or pedestrian path may barely register. The effect depends on where the easement sits, how much ground it covers, and how visibly it restricts what the owner can do.
How Rights of Way End
Rights of way aren’t necessarily permanent. A few things can legally terminate one.
- Merger. When the same person acquires both the dominant and servient properties, the right of way disappears. You can’t have an easement across your own land. If the properties later separate again, a new right of way has to be created from scratch.
- Release. The holder voluntarily gives it up, usually in a signed, recorded document. This is the cleanest way to remove an easement from property records.
- Abandonment. If the holder takes clear, affirmative steps showing an intent to permanently give up the right, a court may declare the easement abandoned. Simply not using a right of way for a long time is not enough. Courts want concrete actions showing an intent to walk away, and the burden of proving abandonment falls on whoever says the easement no longer exists.
- Expiration. Some rights of way are granted for a specific time period or purpose. A construction access easement that ends when the project finishes, or a right of way granted for ten years, terminates automatically when the condition is met or the clock runs out.
- Condemnation. A government taking of either the dominant or servient property can extinguish the easement, with compensation owed to whoever loses their rights.
Even after a right of way ends, it may still show up in the property records. A quiet title action is the legal tool for cleaning that up: the owner asks a court to declare the easement no longer valid and remove it from the title. That’s useful when the holder of an old easement can’t be located or when the abandonment is clear but nobody ever formally signed a release.