Quick answer

An easement of right of way allows the owner of an estate that is surrounded by other lands and has no adequate outlet to a public highway to pass through the neighboring estates to reach the road, upon payment of the proper indemnity. Because it is a legal (compulsory) easement, it can be demanded even against the neighbor's will when the requisites are present. The requisites for a compulsory easement of right of way are: first, the dominant estate (the one needing the passage) is surrounded by other immovables and has no adequate outlet to a public highway; second, there is payment of the proper indemnity to the owner of the servient estate through which the way is granted; third, the isolation was not due to the acts of the owner of the dominant estate (a person cannot claim a right of way if they themselves caused the lack of access, for example by selling off the part that had road access); and fourth, the right of way claimed is at the point least prejudicial to the servient estate, and, insofar as consistent with this rule, where the distance to the highway is shortest. Of these, the controlling standard when choosing the route is least prejudice to the servient estate, and only secondarily the shortest distance; if the shortest route would cause great damage, a longer but less injurious route may be required. The indemnity depends on whether the passage is permanent and its extent. The easement is discontinued when it is no longer necessary, such as when the dominant estate gains adequate access to the highway. So an enclosed owner has a right to demand passage, but only if all four requisites are met and by paying indemnity.

What It Grants

An easement of right of way lets an owner of land enclosed with no adequate road access pass through a neighbor's land to reach the highway, on payment of indemnity. As a legal easement, it can be demanded even against the neighbor's will.

The Four Requisites

Least Prejudice Controls

When choosing the route, least prejudice to the servient estate is the controlling standard, and only secondarily the shortest distance. The easement ends when it is no longer necessary (the estate gains adequate access).

Practical Takeaways

Frequently Asked Questions

What is an easement of right of way? A legal easement allowing the owner of land surrounded by other lands with no adequate outlet to a public highway to pass through neighboring estates to reach the road, upon payment of proper indemnity.

What are the requisites for a compulsory right of way? The estate is surrounded with no adequate outlet to a highway, payment of proper indemnity, the isolation was not caused by the dominant owner's own acts, and the way is at the point least prejudicial to the servient estate.

Is the right of way always the shortest route? No. The controlling standard is least prejudice to the servient estate, and only secondarily the shortest distance. A longer but less injurious route may be required if the shortest would cause great damage.

Can I demand a right of way if I caused my own lack of access? No. One requisite is that the isolation was not due to the acts of the dominant estate's owner. A person who caused the lack of access, such as by selling off the part with road frontage, generally cannot demand it.

This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.

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