LEGAL CONSIDERATIONS

THE MULTIPLE USE OF RIGHTS-OF-WAY, INCLUDING AIR SPACE, AND THE JOINT DEVELOPMENT CONCEPT, WHICH MAY REQUIRE ACQUISITION OF PROPERTY IN EXCESS OF THAT NEEDED DIRECTLY FOR THE TRANSPORTATION RIGHT-OF-WAY, ARE NEW SEGMENTS IN THE LAW. MOST STATES DO NOT HAVE ANY ENABLING LEGISLATION FOR SUCH ACTIVITIES, AND MOST STATE COURTS WOULD CONSIDER IT IN THE LIGHT OF COMMON LAW OR OF STANDARD EXISTING STATUTES, WHICH DO NOT PERTAIN SPECIFICALLY TO THE PROBLEM OF JOINT DEVELOPMENT ON MULTIPLE USE. THE FIRST THING THAT MUST BE DETERMINED IN ANY STATE IS WHETHER THE TITLE TO BE TAKEN FOR THE RIGHT-OF-WAY IS IN FEE SIMPLE OR IS ONLY AN EASEMENT. IF IT IS AN EASEMENT, IT IS IMPORTANT TO DISCOVER THE TYPE OF EASEMENT. IT IS ADVISABLE TO OBTAIN ACQUISITIONS IN FEE TITLE IN ORDER TO ASSURE THE HIGHEST POSSIBLE DEGREE OF CONTROL OVER THE RIGHT-OF-WAY, YET IN SOME INSTANCES THE USE OF EASEMENTS MAY BE ADVANTAGEOUS. IN SOME JURISDICTIONS IN THE UNITED STATES, IN THE ABSENCE OF STATUTORY AUTHORIZATION A MUNICIPALITY DOES NOT HAVE THE POWER TO ALLOW PRIVATE ENCROACHMENT TO BE ERECTED OVER PUBLIC STREETS. IN OTHER JURISDICTIONS, SOME CASES HAVE HELD THAT THE CITY POSSESSES THE INHERENT POWER TO ALLOW OVERHEAD ENCROACHMENTS EVEN IN THE EASEMENT SITUATION. HOWEVER, IN THE MAJORITY OF STATES, IN THE ABSENCE OF SPECIFIC CONSTITUTIONAL OR STATUTORY SANCTIONS, THE MUNICIPALITY OR STATE HOLDING A FEE-SIMPLE TITLE TO THE STREETS AND HIGHWAYS CAN PERMIT OVERHEAD ENCROACHMENT INTO THE AIR SPACES SO LONG AS THERE IS NO INTERFERENCE WITH THE USE OF THE FACILITY. THE BUREAU OF PUBLIC ROADS OF THE FEDERAL HIGHWAY ADMINISTRATION IS IN THE PROCESS OF DESIGNING A MODEL LEGISLATION THAT COULD BE ENACTED BY THE STATES TO PROVIDE A POSITIVE BASIS FOR MULTIPLE-USE AND JOINT DEVELOPMENT PROJECTS.

Media Info

  • Media Type: Print
  • Features: Figures;
  • Pagination: pp 133-143
  • Monograph Title: Joint development and multiple use of transportation rights-of-way; proceedings of a conference held November 14-15, 1968, Washington, DC
  • Serial:

Subject/Index Terms

Filing Info

  • Accession Number: 00201678
  • Record Type: Publication
  • Files: TRIS, TRB, ATRI
  • Created Date: Aug 25 1994 12:00AM