Easements vs. Rights-of-Ways: What You Need to Know For Your Next Big Project

Rolling hills, wide-open skies and a small herd of cattle, llamas and donkeys grazing on abundant pasture—these are the words a 2016 article in the San Antonio Express-News used to describe a property in Texas that sounds like the quintessential Texas landscape at its finest.
However, there is one notable exception, the article later detailed: The property was nestled between a city and prolific aquifers that water utility officials hoped would soon provide up to 20% of its supply.
To do that, a pipeline needs to be built and, to do that, a group of private companies needs to acquire limited rights to a swath of land reportedly 142 miles long and 85 feet wide—a large radius that, yes, included the discussed property.
The rights that needed to be acquired are called easements—or are they called rights-of-ways?
It was a sticking point for the landowners, the paper explained. Instead of signing off on a deal that they felt lowballed them and told what they could and could not do on the land they paid taxes on, they hired a lawyer to weigh their options.
They weren’t the only ones. Other private landowners along the route took a similar wait-and-see approach, with some lawyering up to clarify what these agreements entailed—and didn’t.
You see these types of headlines all the time—easements, rights-of-ways, landowners versus public interest, with the winner banking on the law to prove them right.
Which brings us to this: What is an easement? What are rights-of-ways? How are they the same—and different? What do they give the grantee permission to do—and not do?
It depends, of course, on a case-by-case basis, which is why you need an experienced right-of-way contractor.
In the meantime, here are a few high-level pointers to help guide you.
What is an Easement?
An easement is a legal agreement that gives one party—like an underground or aboveground utility—the right to use the other party’s movable or immovable property.
It does not—and this is key—transfer ownership of the land. Ownership remains with its original owner.
But to landowners, it might not feel this way.
The easement grantee can exercise control over parts of the property covered by the easement.
Let’s dig in more.
Types of Easements
There are two well-known types of easements: Gross and appurtenant. The former applies only to individuals or entities, like specific landowners.
For instance, if they move out or sell the land, the easement agreement ends. It’s only an agreement between the specific owner and the user.
Not so for the latter. An appurtenant easement legally binds two specific parcels and remains in effect even if the property ownership changes.
Easement Categories
Easements generally fall under two distinct categories: Affirmative and negative.
Affirmative easements allow the grantee to do something on another party’s privately-owned land, like building a road or installing utility lines.
Alternatively, a negative easement prevents the landowner from doing something specific on their land—or using it in a certain way. For instance, the owner under such an agreement could not construct something that would interfere with a neighbor’s view.
What Are Right-of-Ways?
In the Texas land case, easements were needed by the private parties looking to construct the planned water pipeline, not a right-of-way, correct?
Legally, this is where it gets tricky. The two differ in one particular and essential way.
A right-of-way is, in itself, an easement. It’s a type of affirmative easement. But while a conventional easement gives the grantee the legal go-ahead to use the property for an agreed-upon purpose, a right-of-way only allows the grantee to cross over—or under—another owner’s property. 
In other words, all rights-of-ways are easements, but not all easements are rights-of-ways.
With an easement, the ways you can use another person’s property are broader, zeroed in only by what the contractual agreement entails. Rights-of-ways, however, are more specific, allowing entities to enter a property and use it as a passage to move something—such as vehicular traffic, resources, or a service—from Point A to Point B, with no possessory interest in a portion of real property used.
So, in several ways, a right-of-way, too, sounds like it applies to the real-life Texas scenario played out in the newspaper clipping above.
But the devil, as they say, is in the details. High-level views are just that—high level. Cases like this are full of legal twists and turns and complicated, fine-print jargon and asterisks, which is why the private landowners in the Texas case study sought professional, legal advice.
The pipeline’s project owners and managers certainly did likewise to protect their investment and plans for expanded water supply to the city in the coming years.
Easements and rights-of-ways—their differences, which parts of the debated land are included and how those parcels are used, and even why—are extremely sensitive manners, legally and personally. How the legal process unfolds, financially and emotionally, will impact both parties and many others in the case of a city.
The legal technicalities of easements and rights-of-ways are why infrastructure project managers must seek out and hire a well-qualified, rights-of-way contractor. Such a contractor will have the two things projects need to move forward: the construction chops to get the job done efficiently and the legal know-how to soothe all interested parties and stay out of the daily headlines.
Posted: 8/4/2021 2:10:04 PM