Terrafirma is seeing more right of way (ROW) disputes. Here are some things to keep in mind:

• Increasingly third parties are unilaterally expanding and creating ROWs without discussing it first with land trusts and landowners. These uses can have adverse conservation consequences. Here are some examples: improving old grassy track ROWs into paved roads; creating brand new ROWs and allowing third parties to use the ROWs, sometimes for unenumerated purposes.  
• More challenges by third parties who may have intermittently used an existing dirt road to obtain legal prescriptive access rights also are on the increase. Don’t assume that silence by these parties to your cease and desist equates to acquiescence. It usually indicates that they are preparing litigation.
• Be sure to timely file claims regarding any demands regarding access.
• Increasingly third parties usually seeking to develop adjacent land are demanding access across conservation land. While this might seem benign especially if there is an existing dirt track or even a road, the problems associated with ROWs are numerous and serious not the least of which is adverse conservation impact and impermissible private benefit.
• ROW litigation is steadily on the rise to expand existing ROW that have vague or nonexistent written agreements.
• Land trusts need to do their due diligence and investigate if ROWs legally exist and under what terms. Historical or currently unused ROWs could still be used at any time.
• Remember, it is the land trust’s responsibility to include ROW locations in easement documents so that they can be identified in the field per Standard 9D.      

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