Right-of-Way Easements


This article looks at right-of-way easements in Maine. Right-of-way easements are a common type of easement in the state, and this article is meant to provide a basic overview of this legal right, how the right comes to be, who holds it, what it provides and how this right can be lost. An easement, at its most basic, provides a non-owner of a piece of property certain rights over that property. There are several different types of easements, they can be created in different ways, and they can be extinguished as well. An example of a right-of-way easement would be when the general public is allowed to cross over private property to access a shoreline. In Maine, often people are unaware that the reason they are able to reach a shoreline (be it the ocean, a lake, or a river), is because of a legally established right.

Someone looking to purchase or sell land in the Maine should ensure that a proper title search is done to find out if there are easements over the land, or if the property enjoys easement rights over another property. It is better to know beforehand if there easements involved with the property so that all parties to the transaction are aware of any implications the easements might have. It is more cost affective to address the issues of easements before the transaction, than attempt to resolve them in court later on.

Establishment of a right-of-way easement

There are two basic ways a right-of-way easement can be established, first by express consent by the property owner, and second by prescription.

An express right-of-way is recorded in the deed of the property over which the easement is granted. This often occurs when the property is transferred, typically either by sale or gift, or after the owner passes away and is property is transferred with the easement pursuant to their will.

The express right-of-way will be described in the deed, though often with archaic language, and sometimes without fully setting out the exact nature of the right-of-way. References in the deed to certain landmarks on the property are meant to provide the location of the right of way, perhaps citing metal rods driven into the ground. However, other times the deed might state that the right-of-way is over the property with language such as “as has always been travelled.” Either way, as time passes these markers and traditional ways might be moved or changed. Legal disputes arise when, years after the right-of-way easement was granted, new owners or residents want to restrict the easement rights, or the easement holder attempts to expand or alter the right-of-way.

The second way an easement can be established is by prescription. A prescriptive easement is acquired through the continuous use of a right of way for a over a certain amount of time, and in a certain manner. The law on this issue is complicated, and establishing a legally enforceable right-of-way easement is very fact specific.

To establish a prescriptive easement the party must show that they have used the right-of-way continuously for at least twenty years, under a claim of right, though adverse to the owner of the land, but with the owners knowledge and acquiescence. Someone who has been using a right-of-way for over twenty years, and wants to make sure they will have the right to do so in the future, will typically require judicial action. Often this comes up when a property owner attempts to stop the use of the right-of-way, and the parties cannot agree on their own to allow the usage of the right-of-way.

With the nature of prescriptive easement, in particular the twenty year requirement, establishing the facts is essential. Anyone concerned about a right-of-way they have been using, or have let people use, should consult with an attorney before taking actions that might be seen as hostile to the other party. Wrongly assuming you have acquired an easement by prescription can lead to trespassing charges; and denying someone access to an easement they have acquired can result in fines.
What does a right-of-way easement provide?

A right-of-way easement grants the holder only the right to cross the land, but not to change the nature or location of the right-of-way. For instance, if a right-of-way was granted to allow foot traffic down to a beach, the foot path may not be converted into a paved road. While the holder of the easement can do basic maintenance of the right-of-way, they may not cause an undue burden to the land owner.

A right-of-way easement can only be moved if both parties agree, unless the deed indicates otherwise. While a right-of-way easement provides access simply from point A to point B, the exact route of the right-of-way can become an issue, even though over time the route may established by actual use. As noted above, even the express right-of-way easement may not be clear as to it’s exact location.

Disputes over the location and permitted use of the right-of-way are very fact specific. Important issues in determining the legal extent of the easement are the history of use of the right-of-way and the original intent in granting it.

Who holds the easement right?

An important issue concerns who exactly holds the easement right. When it is an express easement, the deed should specify who can use the right-of-way, and it can be granted to the general public, to a specific group of people, or even just an individual. The reasons for granting the easement can help in understanding who is to benefit from it, and the grantor’s intent can become important if legal disputes arise later.

Aside from access to waterways, easements are often used to access public roadways. A common situation where easements arise is when a piece of property is divided, and only one of the sections has access to a public road. In this instant, an easement is granted so that the owners of the piece of property that does not have road access, can cross the other property to get to the road.

In a situation where a landowner needs to cross another’s land, typically the easement will pass to new owners of the land, but that is not always the case. There are two ways an easement can be held, either “in gross” or “appurtenant,” the former meaning it is limited to an individual, or specific group, the latter is tied to whoever owns the land that needs access.

In a case where a new owner acquires land in which the past owner relied on a right-of-way to access, but the easement is “in gross,” the new owner may not be able to use that right of way. In this instance, unless the new owner can show a “strict necessity,” meaning there is no viable alternative, than they will have to find a new way to access their newly acquired land. This is a great example of why it is crucial for anyone looking to buy land has a thorough title search done to ensure that the right-of-way comes with the land.

Abandonment of the easement

An easement right acquired expressly or by prescription can be lost. However, it takes a clear intent to abandon the right-of-way, including non-use, and the property owner needs to take action to show they are not permitting the right-of-way anymore. Both of these must occur before the easement is abandoned, absent a recorded written agreement of both parties removing the right-of-way.

An actual example of an abandoned right-of-way occurred when a property owner constructed a house on top of the right-of-way, which had not been used for years, and the easement holder did not object. Abandonment was found in that case, though generally the courts have been reluctant to make a finding that an easement has been abandoned.


It is crucial for land owners and perspective buyers of land to be aware of the issues involved with right-of-way easements. These easement are found all over Maine, they provide a way for people to enjoy access to areas, often public areas, that otherwise would be limited to private land owners. While property owners may be wary of allowing others to cross their land, in a state such as Maine where there is an abundance of natural resources, it ultimately benefits everyone to provide access to these special places.

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