R/W or Easement? Help me understand the difference, please

The assumption, in the simple case, is that a right-of-way somehow involves human access for transportation reasons. A sewer, water, electric line does not involve human access for transportation reasons. Rights-of-way are easements, but not all easements are rights-of-way.

Holy Cow, post: 386895, member: 50 wrote: The assumption, in the simple case, is that a right-of-way somehow involves human access for transportation reasons. A sewer, water, electric line does not involve human access for transportation reasons. Rights-of-way are easements, but not all easements are rights-of-way.

It sounds like they should have me call it a Pedestrian Access right of way and a sewer easement.

Yup.

Maybe there isnt an easement for the sewer.

ekillo, post: 386890, member: 773 wrote: I am working on a project that is requiring that the landowner dedicate a Pedestrian Access Easement as a condition of rezoning, a preliminary PDF was submitted and approved for the preparation of the final plat on mylar. The plat stated and showed that the Pedestrian Access Easement adjoined the existing sewer right of way. We prepare the final plat, get the mylars made and submit with all the required signatures and it get rejected because on their second review I am told to change the wording on the existing sewer right of way to easement and was told that sewer lines run in easement and not right of ways. The sole purpose of the plat was to give the city the requested Pedestrian Access Easement across the property paralleling the sewer line. The recording information for the sewer line has not been found from a title report or from the city records. I hate doing things twice, I wish that I could find the recorded document so that I could match the wording on it. I think that 23-30 years ago that calling a sewer right of way a right of way was common in our area.
What would be the difference in my case here?

Thanks,
Ed

I use a ____RW___ linetype for sewer easements and road right of ways and haven't been called on it yet Ekillo. It depends on who's looking and what mood they are in I reckon.

Why are you showing a ROW if you have no documentation? Is it a city sewer? If so, they should be able to find the creating document and your plat should match that document and call for the document. If they can't find anything then why would you show a ROW? Just show the sewer line.

aliquot, post: 386912, member: 2486 wrote: Why are you showing a ROW if you have no documentation? Is it a city sewer? If so, they should be able to find the creating document and your plat should match that document and call for the document. If they can't find anything then why would you show a ROW? Just show the sewer line.

I wouldn't typically show improvements on a plat. I also wouldn't typically show an easement or ROW if I didn't have the underlying document that created it. There are always exceptions though.

Around here ROW usually denotes fee ownership and an easement is a right of some sort over another person's property. The main water district in our area has both. They prefer to own the land their mains run it but if they can't buy it they will get an easement from the land owner they are crossing.

I wouldn't show an easement or row for the sewer line either. You don't have any documentation to its existence. In our area utilities were commonly granted row, it's just semantics at that point. Now the correct terms are used. Row for permanent dedication for public uses and easement for limited use of lands

The Law DictionaryFeaturing Black's Law Dictionary Free Online Legal Dictionary 2nd Ed.

What is RIGHT OF WAY?
The right of passage or of way is a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, or horseback, or in a vehicle, to drive beasts of burden or carts, through the estate of another. When this servitude results from the law, the exercise of it is confined to the wants of the person who has it. When it is the result of a contract, its extent and the mode of using it is regulated by the contract. Civ. Code La. art. 722. ‰ÛÏBight of way,‰Û in its strict meaning, is the right of passage over another man‰Ûªs ground; and in its legal and generally accepted meaning, in reference to a railway, it is a mere easement in the lands of others, obtained by lawful condemnation to public use or by purchase. It would be using the term in an unusual sense, by applying it to an absolute purchase of the fee-simple of lands to be used for a railway or any other kind of a way.

Jon Collins, post: 386917, member: 11135 wrote: I wouldn't show an easement or row for the sewer line either. You don't have any documentation to its existence. In our area utilities were commonly granted row, it's just semantics at that point. Now the correct terms are used. Row for permanent dedication for public uses and easement for limited use of lands

I agree I do not show easements that I do not have documentation for, but in this case the city and landowner have agreed that the maintained width of the city sanitary sewer easement is 20' wide and my map will become the easement for this section of the sewer line. The city engineer stated that once the city accepts my map that it will supersede any other records of easement for this section of line.

On my drawings and descriptions, I use the wording found in the Recorded Instrument, not my place to correct the author unless a correction has been filed.
All the people that bring out the red tape, pencils and ink pens can mark what they will.
The fuss rarely brings me to change anything.
Not going to change something of record.

Easements Explained
An easement is an agreed-upon use of land by a party other than the landowner. This can include access to natural resources on the land, development of necessary utility pipelines or construction and maintenance of a water storage facility. There are two types of easements: gross and appurtenant.

Gross Easement - Typically held by a specific individual, a gross easement allows use of property without the benefits of ownership. Since gross easements can be held by a third party, it‰Ûªs necessary to research whether this is the case prior to starting a project or real estate transaction.
Appurtenant Easement - Often issued for the benefit of adjoining lands, an appurtenant easement automatically transfers when a property is sold. If a property‰Ûªs deed has an appurtenant easement attached, it‰Ûªs important to find out when it was originally included and the reason for inclusion.

Right of Way
Rights-of-way differ greatly from easements because they do not allow other parties to use the land, but simply pass through. A right of way allows others to travel on private property to get to a different destination. For example, a deed with a right of way may permit individuals to travel on a driveway, through a back yard or on another area of property. Typically, rights-of-way are issued to allow access to an adjoining property.

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ekillo, post: 386930, member: 773 wrote: I agree I do not show easements that I do not have documentation for, but in this case the city and landowner have agreed that the maintained width of the city sanitary sewer easement is 20' wide and my map will become the easement for this section of the sewer line. The city engineer stated that once the city accepts my map that it will supersede any other records of easement for this section of line.

I have done the same for the a few cities and towns around here. They requested a dedication statement on the plat and had the owners sign it.

In order to understand the intent of of the easement or right of way, you must read the deed and see what is being conveyed. What the document is called is less important than what it does. What rights did the Grantee receive? What rights if any does the Grantor retain? I have seen "Right of Ways" that were not fee simple, "Right of Ways Easements" that were fee simple and easements that were not fee simple but gave the property owner zero rights within the easement (except to pay taxes). We can all agree on what the meanings should be, but that does not mean the deed is going to be in line with our understanding. Our job would be so much easier if everyone used the same definition for words. In the case of an unrecorded sewer, I would show the line and note that no easement was found or provided. I will note that the County claims a ___ foot easement. This is to put parties on notice that the County has stated they will defend this area. Without the supporting document, the sewer is just there. Of course, a case may be made for a prescriptive easement. Assuming that everybody involved is thinking the same way we do is a recipe for disaster.

ekillo, post: 386890, member: 773 wrote: I am working on a project that is requiring that the landowner dedicate a Pedestrian Access Easement as a condition of rezoning, a preliminary PDF was submitted and approved for the preparation of the final plat on mylar. The plat stated and showed that the Pedestrian Access Easement adjoined the existing sewer right of way. We prepare the final plat, get the mylars made and submit with all the required signatures and it get rejected because on their second review I am told to change the wording on the existing sewer right of way to easement and was told that sewer lines run in easement and not right of ways. The sole purpose of the plat was to give the city the requested Pedestrian Access Easement across the property paralleling the sewer line. The recording information for the sewer line has not been found from a title report or from the city records. I hate doing things twice, I wish that I could find the recorded document so that I could match the wording on it. I think that 23-30 years ago that calling a sewer right of way a right of way was common in our area.
What would be the difference in my case here?

Thanks,
Ed

Once again, according to Black's Law, a Right-of-Way is ASSUMED to be an easement and not fee simple. See Black's Law.

I've always thought of a right of way as a right for ingress egress for vehicular purposes, and maps I've seen tend to label pedestrian access as an easement. These definitions posted indicate a right of way can be for pedestrian or horseback etc. so maybe I'm wrong. I think jurisdictions tend to differentiate between the two for setback issues.

Kris Morgan, post: 386950, member: 29 wrote: Once again, according to Black's Law, a Right-of-Way is ASSUMED to be an easement and not fee simple. See Black's Law.

That's correct. An easement is a right to use another's land for some specific designated purpose. A right of way is a type of easement who's purpose is for ingress and egress. An easement for a sewer line wouldn't be a right of way, it would be an easement for the purpose of installing and maintaining a sewer. I've noticed the right of way term does get frequently misused when talking about railroads. It's commonly said the "railroad right of way" when in many or most cases it is fee simple title that they have.

Jurisdictions usually acknowledge a distinction between rights of way for the purpose of vehicular travel vs. pedestrian easements when calculating net and gross areas of parcels. So as noted by orher posts maybe you could consider a pedestrian easement a right of way but that is not common notation.