There are many questions that arise when referring to right of way. Who has ownership? What is the difference between fee simple and common law ownership?
First of all, Right of Way can be defined as follows: The land, interest therein, acquired for and devoted to a highway. The problem in this definition can be what constitutes ‘acquired’. I will address this issue with respect to the state of Illinois; Check your local and state regulations before making any kind of final decision on right of way.
Right of Way can be dedicated to a highway authority through a statutory or common law process. Statutory dedication would of course be the preferred method. This would consist of a platting process, and the end result is the fee simple (ownership) interest in the public jurisdiction to which the right of way is dedicated. The landowner and highway authority will agree to a purchase price, and the process is recorded to make it legal.
Common law dedication occurs when there has been public use over a prolonged period of time. Many times this may consist of privately owned property. This would actually result in a right of way easement: the landowner still owes (and pays taxes on!) the property, but has transferred the authority to the highway authority for as long as it remains a road. Some landowners do not realize this. They think that by owning this, THEY have authority over the property. Utilities can be an exception here. When a utility company wants to install or repair utilities on ROW, they must contact and may even have a permit from the highway authority. If the property in question is of a common law dedication, they MUST also have the permission of the land owner.
The land in a common law dedication may be quit-claimed to the highway authority, making the public body the landowner for that property.
Before doing any work in the right of way, the local highway authority MUST approve of any work performed. This includes fences, culverts, mailboxes, signs, and even plants. Each state or local agency may have its own rules for ‘setbacks’, or how far from the right of way construction should be.
To find out what the right of way is contact the proper highway department. Many times a township may not know what the answer is, and might consult with the County Engineer for their county. A search should be done for any dedicated right of way. Some counties have mapping systems, or GIS, that map out where the right of way is. In Illinois, the Illinois Department of Transportation has a field report record for every road that shows the right of way. There can be conflicts between one or all of these methods, and the final answer can be engineers judgement at times. To be conservative, I would say in case of conflict, use the smallest right of way. In Illinois, the absolute minimum right of way by law is 40 feet. This is for both dedicated and prescriptive right of way. I have seen subdivision plats showing 30 feet, but that is in violation of the law, even if accepted by the local government.
I hope this has cleared up the differences in the kinds of right of way. It is not always an easy answer, or one that a landowner wants to hear.