Hello all,
We currently reside on a small rural property in Washington State, owned in fee-simple, and that was created in the 1980's by an illegal subdivision of the land, by the former, and now, likely deceased, developer and their associates, of a now failed but partially completed subdivision, in an area of unplatted land (according to our surveyor, law, and public records). Upon the Southeast corner of this property (traces back to and is well prior to County Road Ownership), resides a portion of a gravel road supposedly owned by the local County, potentially fraudulently, due to the actions of the developers and their associates, including some of those, then in the County offices. The road in question was supposedly transferred after our property was sold to the first in line in title, and any interest in such road excepted therefrom its deed(believed to be a transfer of easement rights, or one right, out of the bundle of sticks that make up a property holder's title rights, and not a outright fee transfer), yet to be dedicated to the county by the developers, via an executed and pre-partially recorded right-of-way deed (A separate, but temporary, ingress and egress easement was also granted over all roads in the subdivision, until such time as they were formally dedicated to the County, to the first in line of title, which due to the situation, passed down and along in title, to likely us, as well.).
This Right-of-Way deed is what is in question here, and contains both fee and easement transfer language. Initially our hired licensed and registered public surveyor viewed it as a fee transfer, then easement, and now, views it as being a fee transfer on the basis that such says, in the granting language, that it “grants, bargains, sales, and conveys the following described parcel of land.”. Likewise, our real estate lawyer, mostly just goes along with whatever the surveyor has found, depending on their review, and in turn, has excepted out that area of land out of the survey and new legal descriptions for our property, due to the underlying title issues.
However, on the other hand, our title insurance (who has declined to do their job, despite the policy covering such, it not being a excepted claim, and it being on the insured property, but still offered some helpful input on it.) as well as the County Government department for the roads, which supposedly holds it, says its an easement and was taken as such, although, due to the actions of the Developers and their associates in the County Government at the time, also raise the question of if the dedication actually fully occurred, legally and properly, and therefore, render the whole point moot. Yet, other departments within the County Government also say it’s owned in fee, despite indicators through out, that clearly suggest that the developers (and others who later used it), only intended to convey it as an easement (i.e. the document title; the said deed only describes such by a metes without bounds legal description, along a centerline; other neighboring properties coming out to the road centerline; a restricted purpose habendum clause; public policy not favoring conveying such small strips of land via fee; etc…), let alone, State case and other law on the matter, among other resources as well. Like Wattles and other Surveying texts, along with a great wealth of very helpful information on this site from others in like similar situations, that we have also shared with our surveyor and the like, in trying to unravel this mystery and get a mostly definitive answer one way or another, with it.
To that end, we also figured we would post here, and let you all, as surveyors and the like, take a wack at it. As perhaps you all will see something we all don’t, in the deed language or the like, and can maybe help us unravel the mystery a bit, and maybe offer up some guidance on things here that we can share with our surveyor and the like, to aid in comming down to a final verdict on this. Copies of the offending Right-of-way deed in question, the County Road agreement, and the original subdividing Surveyor's maps, are linked below, but are only a small subset of the underlying records we have obtained on the issue, so as to not overwhelm everyone here with needless information.
<a href=" removed link " target="_blank" rel="noopener">Attached pdf files for review
All help, opinions, and discussions on the issue are welcome, even if only for the educational aspect of it, or mere guesses, and thank you to all, who make this excellent and enjoyable site what it is.
There's nothing to look over so all I will add with a broad brush is that where I'm from if a road deed is in fee it clearly states so. If it states a purpose, it's usually an easement.
@norm That is not 100% valid. In Idaho, any right of way obtained(pre 1953) by the state is considered easement regardless of the language in the deed. Very confusing for sure! While we do a lot of work in WA i have not had the opportunity to dive in the specifics regarding this issue. A good right of way attorney is an incredibly valuable resource here as a lot of these things are hidden in court cases and such. I think WA had a publication regarding surveying cases but dont recall the name.
@wa-id-surveyor Yes - as I said where I'm from. I would certainly suspect it to be easement if it did not say it was a taking in fee. There aren't many good boundary attorneys let alone right of way. Quite often a good right of way attorney can advocate fee or easement depending on what their client wants given all the nuances. My experience has been that the controlling authority usually prevails in what they say it is. Not always.
There aren't many good boundary attorneys let alone right of way.
100% agreed. That is the one benefit of the way idaho handles not city/state roads, with Highway Districts. Each Highway district has an attorney and we've been lucky to be involved with many districts with many great right of way attorneys.
But, yes i would agree that if say's easement it's an easement as that is the lesser of the acquisitions when compared to my example of 'fee' being considered easement pre 1953.
@norm Thanks for the insight, and generally, that is how we did view it. However, in Washington state, and most of the Western United States, it would seem that roads are often, very tricky things. For instance, you can have fee language, but it only transfer an easement, unless the document explicitly says it conveys a fee, and sometimes, just the opposite. And often times, the restrictions in the habendum clause, has to give way to the granting language clauses, and so on, as per the law of the state one is in.
Also while we have tried to link some case law, suporting articles, and the files on this exact topic, but for some reason (probably do to the moderator having to review our posts or forum limits), the links are not working, and thus, we are not able to attach anything to the post, due to forum or posting rules, from what we understand.
That said, thank you all for the responses.
Not our words, but since the links are not working, here is an article from a governmental advisory board on the topic at hand, which may give some further depth about rights of way for roads, in Washington State: -
"What is the Nature of a Public Right-of-Way?
January 2, 2014 by Bob Meinig
Category: Streets and Sidewalks
I often come across misconceptions that local government officials have regarding the nature of a city or county right-of-way – the improved part termed a “street” if located in a city and a “road” if located in the unincorporated county. These misconceptions center on the issue of ownership.
The general rule:
As a general rule, a city or county right-of-way is an easement for public travel. (An easement is a privilege or a right, distinct from ownership, to use in some way the land of another.) So, typically, a city or county does not own the fee title to the property underlying the public right-of-way; the abutting property owners have that fee title, and that title usually extends to the centerline of the right-of-way. (Because this is a “general rule,” there are always exceptions.) The right-of-way easement generally extends beyond the improved roadway and includes sidewalks, if any, and parking strips (the area between the sidewalk and the paved street or road).
While this general rule about the nature of the public right-of-way as an easement may not be clearly set out in statute statutes, it is clearly set out in numerous Washington court decisions stretching back over a century and a half to territorial days. For example:
In Rowe v. James, 71 Wash. 267, 270 (1912), the state supreme court noted the general rule that “in the absence of a governing statute or a reservation in the grant, the owner of the land on each side of the street owns the fee to the center of the street, subject only to the easement in the public.” The court further noted that “We have uniformly held that a city acquires only an easement in a street in consequence of a dedication.”
In Finch v. Matthews, 74 Wn.2d 161, 167-68 (1968), the state supreme court explained:
Since Burmeister v. Howard, 1 Wash. Terr. 207 (1867), this court has not departed from the rule established in that case, that the fee in a public street or highway remains in the owner of the abutting land, and the public acquires only the right of passage, with powers and privileges necessarily implied in the grant of the easement.
More recently, in Kiely v. Graves, 173 Wn.2d 926, 934 (2012), the state supreme court addressed the dedication of land for a public highway, stating that “Normally, the interest acquired by the public in land dedicated as a highway is only an easement”; the court then quoted from the state Bar Association’s Real Property Deskbook:
Any deed to a local government specifically for highway, right of way, or any public purpose could be interpreted as a dedication conveying an easement only. If the intent is to grant a fee interest, that intent should be clearly stated and the use should be unrestricted or, if the use is a condition, the condition should be clearly stated with a specific right of reversion.
Because a public right-of-way is generally an easement, when that right-of-way is vacated, the fee title to the property underlying that right-of-way – held by the abutting property owners - becomes “unemcumbered” by that easement. What the vacation accomplishes is the extinguishment of the right-of-way easement. Thus, one of the statutes governing street vacations, RCW 35.79.040 says, “If any street or alley in any city or town is vacated by the city or town council, the property within the limits so vacated shall belong to the abutting property owners, one-half to each.” Unfortunately, this language is somewhat clumsy because it implies that, prior to the vacation, the abutting property owners did not own the property within the right-of-way easement - which, as I explained above, is generally not the case. The state supreme court in London v. Seattle, 93 Wn.2d 657, 666 (1980), states the legal effect of a street vacation better than does the statute: “The general rule is that upon vacation of a street, the public easement is extinguished and the abutting property owners regain unencumbered title to the center of the street.” (My emphasis.)
If a city or a county actually owns the fee title to the property underlying the right-of-way that is vacated, the city or county would still own it after the vacation, despite the statutory language in RCW 35.79.040. Though, the city or county could then sell the property to the abutting property owners, since it would presumably no longer have use for that property.
Exceptions to the general rule:
Note that I have been talking about city and county rights-of-way; I have not been talking about state highway rights-of-way. And that is because the state typically owns the fee title to the property underlying the right-of-way for a state highway. See chapter 47.12 RCW.
Another exception to the general rule involves acquisition of the fee title to the property, either when a property owner gives or sells property to a city or county for use as a public right-of-way with the clear intent to convey fee title (see the quote from the Real Property Deskbook above) or when a city or county, by exercise of – or by threat of - its condemnation (eminent domain) authority, specifically acquires the fee title to the property for use as a right-of-way. It’s my understanding that some cities have a policy of acquiring the fee title when condemning property for right-of-way purposes, rather than acquiring just an easement. I’m not sure why, but there must be a reason.
There are also exceptions, when the right-of-way is an easement, to the corollary general rule that the abutting property owners own fee title to the centerline of the right-of-way. In some circumstances, the abutting property owner on only one side of the right-of-way may own the fee title to the property underlying the entire width of the right-of-way. That was the circumstance in London v. Seattle, 93 Wn.2d 657, 666-67 (1980):
The general rule, however, is subject to control by the particular circumstances of the case when one abutting owner is shown to have had no fee interest in the street and another the entire fee therein. In that instance, the abutter that had no underlying fee interest does not take to the center of the street upon its vacation.
Final thoughts
Keep in mind that, even though abutting property owners may own the fee title to the property underlying the public right-of-way, they can only use that property, if at all, subject to the easement for public travel. They cannot obstruct such public travel over the right-of-way - either vehicular travel on the improved roadway or pedestrian travel on the sidewalk. So, for example, a number of cities require their approval before property owners plant trees in the parking strips, to ensure that such trees are not of the type whose roots could damage the street or sidewalk or interfere with utility lines that are permitted within the right-of-way.
If the right-of-way has not been opened and so is not improved, obstruction of public travel is, of course, not an issue, and the property owner is not subject to the same restrictions as when it is open and improved. Typically, property owners can use the unopened, unimproved right-of-way as they can the rest of their property, but subject to the possibility of it being opened and improved at some point in the future.
There a many nuances to this issue that I haven't touched on, but I just wanted to present the general rules here. And I hope this post has provided some clarity - if that was needed - to this issue of the nature of a public right-of-way.
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About Bob Meinig
Bob wrote extensively on the state Open Public Meetings Act, municipal incorporation and annexation, and a wide variety of other legal topics. He is now retired." - Article from mrsc.org, Retrieved Dec 18, 2024) -
If images are allowed here is the easement in question. Click on to enlarge.
The legal profession makes great money on "it depends" cases. My home county (not in Washington) has a road that was vacated in 1973 that certain landowners feel is still open and make sure it has that appearance, as much as they can. Coincidentally, I was asked about the history of that road by certain county employees earlier today.
Frequently these situations don't have clear, definitive answers. In such cases you have two options - go to trial or negotiate a settlement. Negotiating will probably be far cheaper. Get everybody who might have a claim to relinquish whatever they might have in return for a definitive document that dedicates what they can agree on. Good Luck.
Image of the Original subdividing Surveyor's 1983 map above(click to enlarge), with a close up of the area in question, from the final amended survey in 1985, with no known changes in the area in question:
Click to enlarge
Given the overtone of the OP it seems the opportunity to get together has come and gone. Sometimes starting over isn't the worst thing though.