The development of the Interstate System helped focus national attention on the social, economic and environmental factors of building high-ways. I-80 winds gracefully through the Delaware Valley Gap, which is part of the National Park System in New Jersey.
The Legal Establishment of Right-of-Way
The establishment of highways is primarily under the control of the State legislature, subject to constitutional limitations and restrictions. Except as so restricted, the legislative power is practically unlimited. The legislature may establish highways, but State highway departments, cities, counties or other political subdivisions of the State are usually empowered to locate, design, purchase right-of-way for, construct, and maintain highways and to carry out related highway functions.
Right-of-way for a designated highway may be acquired in one of three ways, or a combination of them: by donation, by purchase at the fair market value of the property taken plus damages to any remainders not taken, or by exercise of the power of eminent domain. Eminent domain, the lawful expropriation of property, is an inherent and necessary attribute of sovereignty, existing independently of constitutional provisions although subject to regulation. In order to justify the taking of land for a highway, there must exist a public necessity for the proposed road, and it must be of public utility or convenience. The road need not, however, be an absolute necessity; it is legally sufficient if it is required for public convenience or advantage.
The determination of the necessity for the proposed road is considered a legislative, rather than a judicial question, and the determination is usually made by administrative officials. Such action, however, is limited by certain common principles, among which is that property cannot be taken without due process of law through condemnation proceedings and that property cannot be taken without the payment of just compensation based on fair market value.
Early Background
Within the United States, right-of-way for overland transportation started with the forest trails along the earth’s natural contours. The trails first were followed on foot, then they became paths over which beasts of burden and ox carts could also move. At this stage, no concern was given to the acquisition of right-of-way, for the only consideration was the fastest route in getting from one place to another.
In most instances, the right of the public to maintain and use these roads was not established formally, it was simply assumed. However, as the population and the corresponding private ownership of property increased, and as overland transportation became increasingly important for commerce, communications, and conquest, right-of-way had to be established on a more formal basis to ensure the continued use of these and future overland routes.
In the latter part of the 1700’s and early 1800’s, many privately chartered turnpike companies were authorized to acquire rights-of-way for the turnpikes. Little difficulty was experienced in acquiring the needed rights-of-way. These companies eventually suffered financial difficulties from the competition by
355
