Right-of-Way

A right-of-way is the legal right to cross or use a strip of someone else's land for a set purpose. The BLM Glossary of Surveying and Mapping Terms gives three senses: "The legal right to cross the lands of another. Also used to indicate the strip of land for a road, railroad or power line. In BLM, a permit or an easement which authorizes the use of public lands for certain specified purposes, commonly for pipe lines, roads, telephone lines or power lines." On BLM land status records the abbreviation is R/W.

Rights-of-way on federal land (FLPMA Title V)

Under 43 U.S.C. 1761(a), the Secretary of the Interior for public lands, and the Secretary of Agriculture for National Forest System lands, may "grant, issue, or renew rights-of-way over, upon, under, or through such lands" for purposes that include water facilities, pipelines for liquids and gases other than water and oil and gas products, slurry pipelines and conveyor belts, electric transmission, communications, and "roads, trails, highways, railroads, canals, tunnels, tramways, airways, livestock driveways, or other means of transportation." Wilderness is excluded.

BLM's regulations (43 CFR 2801.5) define:

• Right-of-way: "the public lands that the BLM authorizes a holder to use or occupy under a particular grant or lease."
• Grant: "an authorization or instrument (e.g., easement, license, or permit)" issued under Title V, and older authorizations "for like purposes before October 21, 1976." It "does not include authorizations issued under the Mineral Leasing Act (30 U.S.C. 185)."

What a grant does and does not carry

Under 43 CFR 2805.14, "The grant conveys to you only those rights which it expressly contains. BLM issues it subject to the valid existing rights of others, including the United States." Under 43 CFR 2805.15(c), the United States retains "ownership of the resources of the land, including timber and vegetative or mineral materials." Rights-of-way granted before FLPMA were not ended by it: 43 U.S.C. 1769(a) says "Nothing in this subchapter shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted, or permitted."

Rights-of-way and mining claims

An unpatented mining claim located after July 23, 1955 is subject to the right of the United States, its permittees, and licensees to use the surface "for access to adjacent land," so long as the use does not "endanger or materially interfere" with mining (30 U.S.C. 612(b)).

Rights-of-way by use

The BLM glossary also describes a prescriptive right of way, one "based upon its adverse using extending to the limits of tradition and memory," in contrast to one by dedication, which "exists by the consent, either expressed or implied, of the owner of the land crossed." Whether and how such rights arise is state law.

Why it matters in mineral title research

• Rights-of-way cross mining claims, patented ground, and severed estates. BLM's Control Document Index includes "grants, deeds, patents, rights-of-way, and other official actions," organized by legal description, and BLM land status records mark them R/W.
• A right-of-way does not transfer ownership, but it limits what the owner or mining claimant can do on that strip (see Easement and Encumbrance).