How do easements along the road work?
July 9, 2023 12:19 PM   Subscribe

Is an easement a finite amount of space, or does it continue to widen as it's used?

If I own land that's next to, say, a county-owned road, there's an easement of X number of feet right by the road, so if the county ever wants to widen the road they have the space to do it. I can't/won't build anything on that part of the property because the county might want to widen the road one day.

Let's say they do take advantage of that easement and widen the road by X feet. At that point, is there created a new easement of X feet, so I lose the next contiguous X feet inward from the road? Could they widen the road again in 10 years, take X more feet, rinse and repeat until my land is gone?

(This is purely a theoretical question, I have no personal issues with my county government ...)
posted by mccxxiii to Law & Government (6 answers total) 2 users marked this as a favorite
Best answer: City planner husband: the easement is a finite amount of space. Generally they measure from, e.g., the center of the pavement, not the edge of the pavement. If they paved the road all the way up to the easement, and then decided they wanted 4 more feet, they'd need a new easement. (Or they'd have to do something like take it via eminent domain.)
posted by damayanti at 12:23 PM on July 9 [7 favorites]

Best answer: I took a class on property law this past spring and I concur with damayanti. There are like a jillion ways in theory to create or alter easements and my professor discussed all of them but he emphasized that almost all of the time, there's going to be a specific document which describes the easement, and that modifications are likely to be specifically agreed to. Given that American governmental entities are bound by eminent domain rules, I would expect both as a practical matter and legally that some random county is not going to obtain an expanded easement next to the road via one of the weird exceptions to easement law.
posted by Whale Oil at 1:01 PM on July 9 [2 favorites]

Best answer: Yeah, it's definitely limited and can only be expanded via eminent domain. That happens once in a while but entails an extensive public process, hearings, protests, etc etc etc so doesn't really happen very often. It does happen, just not very often and as a rule, transportation departments do their utmost to minimize any property takings because they know how unpopular it is.
posted by flug at 2:56 PM on July 9 [2 favorites]

An easement for a roadway is always declared as a right of way with a specified width, and traditionally for most roads it is a corridor that is four rods (66 feet) in width. The road is built along the centerline, say 28 feet wide, leaving 19 feet on each side for the remainder. The purpose is not normally widening the road in the future, but rather (1) control over how driveways connect, (2) installation of public utilities within the right of way, and (3) in locations where storm sewers are not installed, control over surface water flow through swales, culverts, etc. to prevent flooding.

For highways the right of way is often described as 200 feet wide.
posted by yclipse at 7:00 AM on July 10

The answer to this might be variable depending on where you live.

I live in a rural county in the Midwestern United States where the land was originally surveyed using the Township and Range method before being sold to settlers. The early landowners did not formally create right of ways. They made dirt roads were it was convenient to travel, usually in straight grid lines centered on property boundary lines where the terrain allowed for it. At some point the maintenance of the roads was taken over by the township and most of them evolved into gravel roads with ditches. These roads were never officially documented and are considered public right of way by use, meaning that they have been used as roads by the public for as long as anyone remembers and are in effect legal right of way. The road width usually includes the actual road and the ditches next to it. In many places the edge of right of way is fenced or at the edge of a crop field or back of ditch. Where I live common widths for these township roads are 50, 60, or 66 feet wide. The township road commissioner might have a map of what roads they maintain and maybe road widths, but there is no recorded legal document that says where the road is located and how wide it is.

In the mid 1900s the people in charge of roads at the county level decided to pave the most heavily used road running through my township. They officially acquired right of way which was described in road dedication documents and granted by the landowners to the people of my state. (The road was built partly with state funds.) This would have involved negotiations with dozens of landowners and chances are eminent domain laws would have to have been used on someone, but for the most part an improved road would have made it worth it to donate or sell the right of way for a reasonable price. This process would be more fraught in a developed area where people could lose their homes or find themselves living in a house now very close to a busy road.

After right of way was aquired, the new improved paved road was built. It is mostly where the old gravel roads were, but some of it was changed to avoid steep grades and remove sharp bends that were ok when people were using horses for transportation, but not that great for a smooth car ride.

This road now has a documented right of way and is maintained by the county. It is mostly 100 feet wide, but it is wider in places where the ditch slope cuts into a hillside or a bridge goes over a stream to allow for future maintenance. The right of way of the county road is marked by concrete monuments at bends in the right of way and at places were the right of way crosses section or property lines.
posted by Blue Genie at 11:54 AM on July 10

"Only expanded by eminent domain" sounds more complex than it actually is. As long as there is some vague public value, then using eminent domain is pretty easy for a municipality.

There was also a big court case about eminent domain where they actually took people's homes too for a completely private project, but it pissed so many people off that it's generally not used, and the development was never actually constructed.
posted by The_Vegetables at 1:35 PM on July 10

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