Dedication for street purposes. Fee Title or Easement?

Item 4 seems to say EASEMENT, not fee title. I think its easement.

Stupid is as stupid does. There needs to be VERY CLEAR wording stating which status is intended.

Lots of folks see it lots of different ways.

Take the railroads that were dedicated Right of Way years ago by Congress. Some courts have ruled it was an easement and in the case of a vacation, underlying fee retains ownership afterwards. A lot of cases hinge on the fact that most courts view the term "right of way" as an easement. And...on the flip side, the railroad has maintained fee ownership of thousands of miles of abandoned property that was originally considered "right of way".

The key here, in my mind, is whether the grantor can still enjoy full use of his property, except for the rights he has granted. Most courts have ruled that the grantee of an easement cannot exclude the underlying fee owner from use of his property. The courts site rights of that nature are exclusive to a fee owner.

A power company a few years ago tried to stop a property owner from building within their 100' easement. Litigation ensured. The courts ruled that although the power company had the right to be there, it did not have the right to exclude the fee owner from use of his property.

I would bet money the municipality will exclude any building or improvement within the described area. Whether the grantor realizes it or not, it appears to me that fee is being transferred. But it's really not worded that properly. Just another title issue in the making, waiting for its egg to hatch...

I don't like what they are doing there, but..........

Each state is probably different, here that dedication would give the public a limited ownership, kinda between an easement and fee title, the owners of abutting lots in the subdivision will have reversionary rights, and the city would have the right to use the street for a depth common to normal utility purposes.

Mineral rights and such would be very complicated under the street, but my guess would be that the lot owners would get them, but that's a real guess.

There are some state supreme court cases that go into detail about it, probably there are some in Oregon.

"for street purposes" = limited use... so I would say Easement with reversionary rights
but you probably have some statutes way back in history that could say otherwise.

> Some in the area see the word 'dedication' and say it is fee title. Others say it can mean an easement.
I have asked this very question and have not yet resolved it to my full satisfaction. An easement is, generally, a non-exclusive use. Selling property in fee title would not normally carry reversionary rights. So I think the answer is that right of way is neither an easement nor is it fee. It's right of way. It's own special animal. A chameleon which can be either depending on circumstances.

For example, in Oklahoma right of way is treated more like an easement. The tax assessor calculates lot area out to the centerline, as you would expect if it was an easement. In Oregon the right of way area is generally excluded, and you would if it was fee.

The Oregon DOT has, on occasion, employed the subterfuge of acquiring easement for road purposes rather than right of way to avoid environmental cleanup responsibilities, as when the property being acquired is an old gas station. The road drives the same.

> In this case the private owner is still liable for what happens on their fee property, a lot of times has to pay for repairs, and pays taxes on the property.

In my county the majority of the land that the public roads occupy are owned in fee by the adjacent land owners. I have never heard of a single case, where the land owner was liable for what happens within the road easement.

:good: Agreed. If they were acquiring the property fee simple, they would have no need to limit the usuage.

A county closer to Kansas City has started operating as if they were in the metro area. Somehow they have been given the opinion that their existing county road rights-of-way do not give them all the authority they wish to exert. If Grandpa kicks the bucket and Grandma decides to sell off the house and a few acres then pass the remainder of the 40 acres to the descendants all heck breaks lose. If she has over 40 acres it is no big deal. Part of what they require to so-called subdivide the 40 is that the existing road right-of-way be clarified to grant the county all sorts of rights that extend far beyond simple road construction and maintenance. Apparently the county had wished to grant easement rights to pipelines and cable companies within their "street" right-of-way and the fee owners pitched a fit and won in court. So, to eliminate any such annoyances in the future, they demand basically all rights except full fee ownership or you can't cut up your property (if you have 40 or fewer acres total).

I read that paragraph to say "I own this, and have every right to dedicate it." Once recorded it becomes the property of the public.

I wouldn't want any part of a public right of way across my property.

And that is a great example of why it matters if its an easement or fee simple dedication. The liability thing is a non issue. The authority that manages the easement is liable for the easement. The underlying owner is only liable for people on their property for reasons other then using the easement.

One reason that some managing authorities want fee simple dedications is that not all easements are created equal. The public agencies use of the easement is subject to the exact wording of the document that created the easement and any interpretation of that wording by the courts.

One reason that some jurisdictions don't want fee simple dedication is they cant tax it. The taxing authorities I am familiar with asses the land within an easement at a lower rate then the unencumbered land, but the rate is not 0.

>

If it wasn't for the third paragraph "GRANTOR warrants that..."

it would be more typical of what I see in these parts. Which is always SO frustrating.

A "Right-of-way", as the document is titled, is an easement. It is the right to pass over someone else's property. Don't be confused by the way railroad's improperly use the term...

The document itself is horrible worded, intermixing easement language with fee title language. I have informed clients of this and told them they needed to have a properly worded document before I would participate.

This horse has been kicked to death around here. Without acceptance by somebody (agency?), there is no conveyance until the state legislates something to that effect. (good luck there) That is just contract law 101.

Then there is always the issue of who will maintain said road, regardless of title or easement.

I'm not a big proponent of lawyers, but it could be time to bring one in (at other peoples expense)

> This horse has been kicked to death around here. Without acceptance by somebody (agency?), there is no conveyance until the state legislates something to that effect. (good luck there) That is just contract law 101.
>
> Then there is always the issue of who will maintain said road, regardless of title or easement.
>
> I'm not a big proponent of lawyers, but it could be time to bring one in (at other peoples expense)

Usually when I see this horse kicked around, it is from an old document (50-100 yrs old).
This example was recorded within the last month. When the local jurisdiction should know better. In this day and age it should be clear. As I said this one is better than most because of the 3rd paragraph.

>... In this day and age it should be clear. As I said this one is better than most because of the 3rd paragraph.

The third paragraph IS telling. Other than warranting ownership for "dedication" (as opposed to a conveyance), asking a grantor to warrant title for an easement is, well...I can't think of a professional way to say it... it's chickensh*t.

Probably 80% of my work is R/W and easements. The one thing my clients and I spend a good deal of time with is making sure that the grantor actually has the ability to grant an easement. This includes my client's legal department and several local title companies.

After reading the document again and mulling it over in my mind, I believe the wording is a good indication that whomever prepared the document doesn't really know what they're doing. It appears as though they know just enough to be dangerous. And that's all we need in this business is someone purposely lobbing land mines at the general public's land title.

I smell a young attorney that is over impressed with his "Ctrl-C & Ctrl-V" abilities.

I used to think it was a principle of common law that a dedication for R/W created an easement, but I think it depends on the state you practice in.I've seen in road vacation discussions on this board where in some states the dedicated strip reverts to the governing body rather than the adjoiners per state law. If it vests in the adjoiners, then that means they held fee title.

A few cut/paste entries from some Ore. Court cases and other documents-

“While a highway exists there is nothing more than a mere suspension of the abutter’s right.”
A Treatise on the Law of Roads and Streets, Byron K. Elliott (1890)

“Dedication is an appropriation of land by the owner for a public use.”³

(³. Id. See: Muzzy v. Wilson, 259 Or. (1971) Magic v. Basquin, Ohio Com. Pl., 102 N.E.2d 42, 44: “the word ‘dedicate’ means a grant of an interest in land for public use.” See: 26, 27 Am. Jut. 2d, Em. Dom., 56 Am. Jut. 2d; Municipal Corp., Counties, subsec 532 et seq Henderson v. Frio County, Tex. Civ. App., 362 S.W.2d 406, 408: “Instruction properly defined ‘dedicated as public road’ to mean road devoted or appropriated to public use as a public road by owner, by some unequivocal acts or conduct manifested an intent to appropriate it to such use.” )

“the rule is that where land has been dedicated or appropriated for a public street, the fee in that street remains in the original owner subject only to the public easement.’’²⁵⁴

(²⁵⁴. Id. cit.: Huddleston v. City of Eugene, 34 Or. 343; Kurtz v. Southern Pacific Company, 80 Or. 213; See: sec 56-716, Oregon Code (1930). )

The fee passes to the purchasers of abutting lots in accordance with the intent of the grantors.²⁵⁵

(²⁵⁵. McQuaid v. Portland & V. Ry. 18 Or. 237, 22 P. 899; Huddleston v. Eugene, 34 Or. 343; 43 L.R.A. 44. See: 70 A.L.R.; C.W. Nell et al v. Independent Realty Co.,317 Mo. 1233 (cited in Oregon cases).)

In City of Burlingame v. Norberg and DeCastello v. Cedar Rapids the effect of a dedication was held to be:
... not to deprive a party to title to the land, but to estop him or her, while the dedication continues in force, from asserting that right of exclusive possession and enjoyment which the owner of property has. The dedication involves rather a right to the use of the land against interference from the dedicator.

EDIT: our DOT does purchase R/W in fee. The deeds are not captioned with the word "dedicate" and they make sure NOT to say the fee parcel is for "roadway purposes", "public right-of-way", et cetera. I understand the feds also purchased R/W in fee for the interstate highways.

The Problem With Fee Simple Roads Is...

...that the owning entity has the right to sell the fee to any other person for any other purpose. That is the municipality could sell the road right of way to a spaghetti farmer who could exclude the adjoiners from traveling across his farm.

Saw an excellent example of why that should not happen at a Planning Board Meeting in New Jersey years ago. An applicant wanted to subdivide a lot on an unimproved right of way. That applicant was insisting the municipality had to build a road, the planning board insisted that the applicant had to build the road. Finally the applicant offered that that only applied to subdivisions where the applicant owned the right of way prior to dedication. He insisted he did not have to do this since he had deeded the right of way to the municipality many years before. At that point the municipal attorney stopped the meeting and went to the municipal records with the municipal clerk. They indeed found a fee deed to the municipality on file. The attorney then said since the municipality had never accepted the parcel as a road the municipality was free to offer it for sale or could build a park since it was so near the river. The applicant's slight of hand many years ago was to his detriment. The applicant quickly agreed to cover road construction.

After that matter was settled the municipality then got into the details of wetlands and other planning issues. Still is no there road today, but the attorney got the most important point settled and on the record.

Paul in PA

The Problem With Fee Simple Roads Is...

Peter's post nailed it above. The key is "for Street purposes", which is an easement interest only. Not to mention the later item that discusses the "easement" area being free from encumbrances.

Pretty simple.