A right of way is a privilege to pass over the land of another for a particular and expressly stated purpose. The term “right of way” is typically used interchangeably with “easement”. A right of way is sometimes used to describe a strip of land over which an easement passes. It may also attach to and be incidental to the use of a parcel of land, in the same manner for an appurtenant easement. When insuring the title to property which is subject to a right of way, the right of all persons entitled to use the right of way must be excepted from the policy coverage under Schedule B.
The term “right of way” does not necessarily have legal significance since it can be either a fee title interest or an easement. The legal status of “right of way” depends on the nature of the original grant and the context of its use. Care must always be exercised when dealing with “rights of way” and proper exceptions should be noted regardless of its status as a fee interest or an easement.
The following are suggested ways to set out exceptions re rights of way:
• “Rights of the public in and over that portion of ________affecting subject property.”
• “Right of way running over the Southwest portion of subject property, as shown by survey of John Doe, date________ , 19__.”
• “Right of way of (NAME OF ROAD OR STREET) over that portion of ______ above property embraced therein.