Rights of Way: The Good, the Bad and the Ugly

This article is being republished courtesy of the North Dakota Planning Association Winter 2018 Newsletter.

by Nancy MH Simpson, Minot, North Dakota

Traversing has always been a necessity for humans. Throughout history the quality of ground transportation has greatly improved, from using just our feet, to wagons and bicycles, to our present-day automobiles. Following improvements in modes of transportation, improving the surfaces they move along was a must.

As humans began to settle and systems of property rights developed the need for providing rules for traversing arose. With nearly all people needing to get from one place to another and, ensuring safe and free passage is paramount. Ancient civilizations had roads, medieval kingdoms had roads, and modern societies have roads. But how were they governed and regulated? How did leaders and governments ensure safe and free passage?

Today urban planning is one such method of governing and regulating routes of transportation. Urban planning is said to have begun around 4,800 BCE in Banpo, China. But, most modern-day planning practices and styles stem from the Greco-Roman Empire leading into the European Renaissance. The first known use of the term “Right of Way” was in 1768 (https://www.merriam-webster.com/dictionary/right-of-way).

Dictionary.Law.com defines Right of Way as “1) a pathway or road with a specific description. 2) the right to cross property to go to and from another parcel. The right of way may be a specific grant of land or an ‘easement,’ which is a right to pass across another's land.”

It is important to note that Right of Way and Easement are often used interchangeably. Dictionary.Law.com defines easement as “the right to use the real property of another for a specific purpose. The easement is itself a real property interest, but legal title to the underlying land is retained by the original owner for all other purposes.” The first known use of this term was in the 14th Century (https://www.merriam-webster.com/dictionary/easement). Judging from the manner in which most Right of Way laws are written, it seems like the original intent was for an easement to exist on specified areas that are intended to be made into roads in the future. The Dakotas are prime examples. Around the time when the Dakota Territory split into North and South in 1889 (americaslibrary.gov), the federal government surveyed the land and created section lines which made a grid pattern. This method, while efficient, has some flaws. The grid does not account for topography, thus causing difficulties when building roads on section lines. The North Dakota Century Code calls for a 33-foot Right of Way on either side of the section line. There are many areas where the topography would make building a road exceptionally difficult. In these areas, most times the statutory Right of Way is vacated to the adjacent landowners or the landowner is granted a variance to Right of Way dedication.

Rights of Way and easements ensure that access is granted when needed when roads are built, improved, or expanded. In most cases, Rights of Way are essentially an easement, a promise from the landowner to the governing body that when or if a road needs to be built or improved the space is available for that purpose without much difficulty. This is where things can be a little bit uncertain, especially in rural, slowly developing areas of the country. It’s difficult to see 50-100 years in the future and make policy decisions now. A dedicated Right of Way is just that: Dedicated; this particular swath of land is set aside for a future road, railroad, power transmission line, etc.  Until that time comes, the landowner can still use that land for temporary uses. When traffic volume or demand for electricity, etc., increases, that Right of Way or easement ensures the developer has access to that land.

If or when a time comes that proves the Right of Way or easement is not necessary any longer, it can be vacated back to the adjacent landowners.

“The[Washington] state supreme court in London v. Seattle, 93 Wn.2d 657, 666 (1980), states the legal effect of a street vacation better than does the statute: “The general rule is that upon vacation of a street, the public easement is extinguished and the abutting property owners regain unencumbered title to the center of the street.” (mrsc.org)

The court case above is a common practice across the nation. The future cannot be predicted, so that’s why preparing for any possible situation is necessary. Right of Way dedication is important for ensuring safe, free passage for travelers and future travelers. If a Right of Way dedication is later deemed unnecessary, it can be vacated. But, sometimes the way laws and ordinances are written do not convey the true intent very well.

When listening to arguments about Right of Way issues, opponents usually invoke the word “take;” “They’re taking my land!” Then they will yell about the unconstitutionality of dedicating Right of Way. To be exceptionally technical, the Constitution does not once use the term Right of Way or easement. The Fifth Amendment takings clause states: “…nor shall private property be taken for public use, without just compensation.” As was defined above, neither Rights of Way nor Easements allude to “taking” land from anyone. Yet opponents are persistent that Right of Way dedication is unconstitutional. But, these arguers tend to leave out a portion of that last line: “without just compensation." Most would assume that “just compensation” refers to money, but that is not expressly stated. So, one could argue that “just compensation” is having access to emergency response vehicles, school bus service, or mail delivery. In North Dakota, when Right of Way is dedicated, the landowner still possesses the underlying fee, but the land is not taxable. So, there is indeed a monetary compensation in the form of tax savings. Nevertheless, this last line of the Fifth Amendment is the basis for modern day Eminent Domain laws, thus rendering their argument moot.

In most cases, policies and regulations are put in place for a reason – typically in reaction to something negative that has happened to prevent it from happening again. When it comes to Rights of Way, this is most likely the case. Seeing as how the term Right of Way did not appear until 300 years after easements, this would suggest that easements alone were not sufficient for guaranteeing safe and free passage. In modern times, one incident is not basis for a law or ordinance change. The incident must be pervasive for amending laws and ordinances. When these new laws and ordinances are implemented, they are intended to benefit the community as a whole. To quote the Constitution, “We the People of the United States, in Order to form a more perfect Union,  … promote the general Welfare, … do ordain and establish this Constitution for the United States of America”. Rights of Way are just one method governing bodies within the United States help “promote the general welfare.” It is within the “general welfare” of our communities to ensure safe and free passage along our roadways.


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Nancy is the Planning and Zoning Administrator for Ward County, ND. She has a Bachelor of Arts in Economics with a minor in Public Management and Policy, concentrating in Urban Development and Quality of the Environment, and Economic Development, Georgia State University: Andrew Young School of Policy Studies.

Never in the wildest dreams of this Georgia Peach, did I ever think I would live in North Dakota. But, I fell in love with an Air Force Officer and in April 2015, Uncle Sam told us to move to Minot. When my husband and I drove across the Montana-North Dakota border, it was kind of magical. Seeing firsthand what pioneers saw: rolling hills and endless possibilities. These past two-and-a-half years have been wonderful, filled with new experiences and opportunities I never imagined. I started my position as Ward County Planning and Zoning Administrator in June this year with only three months of planning experience from an internship with the City of Minot and a year of AmeriCorps under my belt.

Published May 2018 (This article is being republished courtesy of the North Dakota Planning Association Winter 2018 Newsletter.)