Acquiring Express Rights-Of-Way: Drafting Considerations

Much of our commerce depends upon the use by one person of land owned by another. Heavy transportation, including air and rail transport, uses or imposes limitations upon the lands of others, and our utility services, including the exchange of electronic information, require the limited use of another's land. The extractive industries in particular require access to lands owned by other parties either to prospect for and exploit the mineral estate or to move the products of their labor and capital from place to place.

Generally speaking, all of the commercial uses mentioned, together with a myriad of other, unnamed uses, manifest themselves in the form of easements. Easements, in turn, compose an almost unlimited category of uses, ranging from those providing for the uninterrupted passage of air through, over, and across one building or parcel into an adjacent structure to easements for the emplacement and construction of transcontinental railroads and natural gas pipelines.

As a widely accepted general rule one may obtain or create these various easements through prescriptive use, by implication, or by express grant.3 This paper, however, limits its purview to one particular set of easements: rights-of-way across private land created by express grants. It will not consider, except perhaps in passing or by contrast, licenses or rights-of-way created either by