A right of way may be created by a deed to property and is commonly called “a deeded right of way.” A right of way may also be created by continuous use of the passage way for a period of 20 years and is called “a prescriptive right of way” because it is prescribed or laid down by custom.
Rights of way carry with them certain rules and restrictions which the courts have developed over time. The obligation to construct and repair a right of way is the responsibility of the user who receives the benefit of the right of way, not the owner of the land over which the right of way runs. However, if the use by the owner puts the right of way into disrepair, the user is entitled to demand that the right of way be repaired by the owner. A right of way includes such ancillary rights as are necessary to enjoy it. For example, reasonable access to a right of way must be provided to construct or repair it and the right to excavate the right of way to a reasonable grade is implied as an ancillary right.
The owner may maintain gates across the right of way to preclude use by others provided that the intended user has full use of the right of way. This is generally satisfied by providing a set of keys to the user. The owner may also prevent the user from authorizing the use of the right of way for the benefit of another property adjoining the user’s property.
The user of the right of way may increase the use of it provided it is not a radical change to the character of the use of the right of way. For example, a right of way granted by deed, or used by custom, for pedestrian traffic may not be used for vehicular traffic. In some cases, a right of way benefiting a single family home may be increased to benefit others using the property. However, if the user allows the right of way to be accessed by the public or for commercial purposes, this use is likely to go beyond what is considered reasonable by the courts.