How utilities acquire right of ways from private and public sources.

• Author: Robinson, Russ

A crucial part of a utility project such as a fiber-optic network or natural-gas pipeline is acquisition of real-property interests to form a corridor that will contain the wires, cables or pipes, which will, in turn, deliver services to end users. The real-property interests that form a utility corridor are generally referred to as right of ways. Most often, these right of ways are easements granted by landowners to the developer, giving the utility permission to run its wires, cables or pipeline across the landowner's property. Right of ways may also be licenses granted to a utility from the holder of another right-of-way easement. It is common for a utility to enter into individual agreements with hundreds of landowners both private and public, in the development of a corridor. If a landowner does not wish to grant a right of way and the utility has the power of eminent domain, the right of way may be acquired through condemnation.

This article examines basic legal principles behind right of ways. It reviews sources of right of ways that a utility developer must consider as it seeks to develop a right-of-way corridor.

Right to pass over land

A right of way has been defined as simply the right belonging to a party to pass over the land of another. Black's Law Dictionary states: "It is only an easement, and grantee acquires only right to a reasonable and usual enjoyment thereof with owner of soil retaining rights and benefits of ownership consistent with the easement." More specifically, courts have held that a private right of way to lay underground pipes is an easement that must be governed by the rules of law that govern ordinary easements of way.

In real-property terms, when a landowner grants an easement to a utility, the landowner holds the servient estate as to that parcel of land and the utility holds the dominant estate.

A compensable interest

A 1935 Supreme Court case raised fundamental issues regarding a right-of-way property interest. A pipeline company had acquired easements from property owners to install underground pipelines. The state highway commission asserted its governmental power over land for highways and requested that the pipeline company relocate the pipeline right of ways to align with a new highway system. The state was not willing to pay compensation to the pipeline company for this relocation. The Supreme Court ruled that a private right of way is an "easement" and constitutes an interest in land. The pipeline...