At common law, an easement is an interest in land which provides certain rights to use the land of another for a specific purpose. It does not provide rights of exclusive possession. Easements are frequently used to provide rights of access or the right to install pipe-lines or drainage works. An essential requirement of a common law easement is that the interest must benefit another parcel of land and the interest cannot be personal in nature. The land encumbered by the easement is referred to as the servient tenement. The land which benefits from the easement is referred to as the dominant tenement.

The expression "right of way" is often associated with easements. However, the concept of a right of way does not have a specific common law meaning and the term is not always used consistently. In some cases, it is used in the same context as an easement. In other cases, it describes fee simple ownership of a strip of land.

One of the shortcomings of the easement, particularly for modern public utilities, has been the requirement for a dominant tenement. Many public utilities have installed thousands of miles of pipe-lines or transmission or telecommunication lines to serve thousands of customers. Identifying which specific parcels of land benefit from an easement can be a difficult challenge that serves no real purpose.

In British Columbia a statutory variation on the common law easement has been in use since 1945. This interest, presently known as a statutory right of way, allows the creation of an interest similar to an easement without the need for a dominant tenement. This type of interest in land is available only to a restricted class of user, generally government and its agencies and public utilities.

The applicable legislation is found in the Land Title Act and its predecessor, the Land Registry Act. Prior to 1945, the Land Registry Act contained a definition for "right-of-way". However, this did not modify the common law easement requirements in any way and it was broad enough to include both easements and fee simple interests.

The statutory right of way concept was introduced by the 1945 amendments to the Land Registry Act. This legislation initially utilized the term "right-of-way" but it was modified to "statutory right-of-way" in 1978 to more accurately reflect its purely statutory basis. A further minor amendment occurred in 1980 when the hyphens were dropped. Since then the concept has been known as a "statutory right of way".

Another aspect which has changed over the years is the location where these statutory rights can be exercised. Initially the rights could only be obtained "over land". However, this was expanded in 1946 to "over or under land" and further expanded to "on, over, or under land" in 1951.

In 1945, the statutory right of way was available only for the benefit of municipalities and primarily for water, drainage and sewerage purposes. However, the legislation has been amended numerous times to modify and expand both the purposes and the types of users for whom it is available. In 1978, the list of available purposes was both expanded and simplified at the same time by allowing a statutory right of way to be used for any purpose necessary for the operation and maintenance of the grantee's undertaking.

Table 1 below summarizes the changes in the available purposes and the list of eligible users. Extracts from the Land Title Act, the Land Registry Act and the amending statutes may be viewed by clicking on the links in Table 2.

Table 1

Table 2