The transfer of the Fee is by a deed document in this state, retaining fee and granting a use to others can be by dedication or even agreement. I ran into language use issues with Planning and the Assessor here when writing Dedication clauses for Subdivision and Partition Plats. The issue was the language used to grant a public use, if worded as granting a Right of Way, fee remained with the grantor but the strip was removed from their tax liability, if the word Easement was used, it remained in the tax roles of the grantor. The use of Right of Way or Easement retained the right of the grantor to regain control and use of the strip in case of an abandonment. Have have seen lands obtained for Highway use by Easement using the words Right of Way being transferred to other Public Agencies for other uses, believe that could be challenged by the owner in Fee. The use of Right of way and Easement is intertwined throughout different government Agencies by using different definitions to the point that those terms, alone, have no clear meaning. Retracement of the creating documents has became needed whenever those terms are encountered by a Land surveyor. Without that step, we do a disservice to our clients and possibility create unnecessary liability for ourselves. Boundary's and Title issues are two different things but, although title has little to do with location, Boundary's do require that ownership issues be considered. Simple Boundary work has taken on a wide area of knowledge and review of many different areas other than case law.
jud
In my county in SW WA state, this would be considered an easement. Any statement similar to "A dedication for right of way purposes" makes it an easement to us. "For ROW purposes" implies that limited rights of use are all the rights being transferred. Also, proving that fair market value was paid for a fee taking (even if it says fee on the document) is difficult on older roadways. If it says "fee ownership for ROW purposes", it is still most likely an easement, unless we can prove it was a fair market value taking, and was actually intended to be a true fee, and not revert back to the underlying owners after vacation. Since county roads (the ones i normally work on) give the county more rights than a typical private easement, it makes them slightly higher than an easement, but less than fee ownership. Our county attorney calls them "super easements", and likes us to add language to this affect on new easements, since not all judges and attorneys are versed in such things, and will try to make county road easements the same as private ones. I spend an awful lot of time debating this issue for various roads, and it definitely depends on the specific situation. And sometimes it changes based on new information. Good luck!
Absent contrary being shown, we (here) own to the center. We have laws in place regarding liability that protect owners. In short you cannot be held liable for use of an easement unless the injured party is paying us to use it. Of course our municipalities do thier best to subvert these laws, but that's another thread entirely...
In Texas:
Pittman vs. City Of Amarillo, 598 A.W.2d 941
(Tex.Civ.App. Amarillo, 1986) n.r.e. held:
"When a road or street is dedicated to the public, the governmental entity exercising jurisdiction over the street ordinarily acquires only an easement in the street, and holds the street in trust for the benefit of the public. The easement held by the governmental entity necessarily carries with it the right to use and control as much of the surface or subsurface of the street as may be reasonably needed for street purposes. Unless the dedication states otherwise, the abutting landowner owns the "fee simple title to the center of the street, subject to the public easement. The landowner’s exercise of his fee title rights cannot interfere with or restrict the public use of the street.” (Citations omitted)
This case hinged on the fact that the subdivision plat said "dedicated to the public", I believe that why in Dallas area cities have modified their dedication language to include "in fee".
Paul in PA, post: 314149, member: 236 wrote: 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
In New Jersey all Public Roads (excluding State Highways) are easements dedicated to the public for road purposes. The fee simple runs with the adjoining property even if the deed does not include the bed of the road. The municipality can not sell the road, it does not own it. What it does hold is a dedicated easement to the public for a specific purpose. In this case a public road.
If the applicant had deeded the lot in fee simple to the municipality with no mention of a dedication for a public road, then he, or anyone else, has no right to use the parcel as a road. The parcel is private property owned by the municipality.
It all depends on how the deed was worded, dedication or fee simple sale.
Typically, it will be an easement unless the deed clearly states otherwise. Mike Berry provided a lot of good general info that would apply to most jurisdictions. As Peter said, there is also probably a statute that clarifies it. CA and OR enacted several nearly identical statutes relative to boundaries and title right around the 1870s. In CA, one of those statutes is found in the Civil Code and directly addresses the nature of the title and of the public's interest in road dedications (unless intent is clearly stated to transfer fee interest to the public agency obtaining the RW, fee remains with the granting estate), and the other is in the Code of Civil Procedure and is for the purpose of assisting the courts (and surveyors) in interpreting written descriptions. As I recall, OR has this same statute nearly verbatim. It also states that absent a different stated intent, the fee remains with the granting estate.
In the confused and contradictory terms of the deed you posted, it creates some ambiguity on the face of the deed. But with the help of applicable statute and general principle, I'd read it as an easement.
Can anyone explain how an easement is created over public property in a housing tract, to include a dedicated public street, parkway and a sidewalk? The developer (private property) has a property map performed by a surveyor that defines property lines, home ownership. This is in the deed of trust. The developer dedicates the streets to the City or County representatives, which turns private property to public property, paid for in gas taxes (transportation budget). Since a road/street is government property, paid for in maintenance by the Municipality, how can an easement be created. This is not private property, nor is the street. Therefore, the private property owners, based on the dimensions in a property map does not own fee and title (ownership) to the middle of the street. There was a law in California in 1872, where the adjacent property owner was a farm or a business in a town, residential properties were not created till 1945 in California. "The adjacent property owner California Code 831, "An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown." The contrary may be shown is expressed in the dimensions in the property map of the County/City. Its the difference between public and private property. If I dont individually own the public street, curb, gutter, parkway and sidewalk, why is their an easement required? Government owns it, no easement is required, or is there?
(Enacted 1872.)
Barry G, post: 402207, member: 12296 wrote: Can anyone explain how an easement is created over public property in a housing tract, to include a dedicated public street, parkway and a sidewalk? The developer (private property) has a property map performed by a surveyor that defines property lines, home ownership. This is in the deed of trust. The developer dedicates the streets to the City or County representatives, which turns private property to public property, paid for in gas taxes (transportation budget). Since a road/street is government property, paid for in maintenance by the Municipality, how can an easement be created. This is not private property, nor is the street. Therefore, the private property owners, based on the dimensions in a property map does not own fee and title (ownership) to the middle of the street. There was a law in California in 1872, where the adjacent property owner was a farm or a business in a town, residential properties were not created till 1945 in California. "The adjacent property owner California Code 831, "An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown." The contrary may be shown is expressed in the dimensions in the property map of the County/City. Its the difference between public and private property. If I dont individually own the public street, curb, gutter, parkway and sidewalk, why is their an easement required? Government owns it, no easement is required, or is there?
(Enacted 1872.)
The ground under the roadways, sidewalks etc are held or owned by the adjoining owners in fee. The public/municipality only has a "right of use" as specified in the dedication unless specifically stated otherwise.
I am dealing with something similar. A municipality is trying to annex a property along a corridor (just along the right-of-way) and the municipality did not get any approvals from the lots adjoining that right-of-way. It is currentlly being heard in court but I expect the owners of the adjoining lots to win.
mattsib79, post: 402774, member: 1138 wrote: The ground under the roadways, sidewalks etc are held or owned by the adjoining owners in fee. The public/municipality only has a "right of use" as specified in the dedication unless specifically stated otherwise.
That's my understanding, too. But why doesn't any subdivision plat I've ever seen show the lot as extending to the C/L and subject to an easement? I do see it for rural roads.
Because planning commissions don't understand boundary law and will not accept a plat to be recorded that shows where the fee simple title lines are truely located.
Bill93, post: 402776, member: 87 wrote: That's my understanding, too. But why doesn't any subdivision plat I've ever seen show the lot as extending to the C/L and subject to an easement? I do see it for rural roads.
Because every Tom, Dick and Barry would then think that they owned the improvements in the ROW.
mattsib79, post: 402860, member: 1138 wrote: Because planning commissions don't understand boundary law.
Not always...the planning department in county I'm sitting in right now allows a landowner to use the area within a platted right-of-way where they hold the underling fee for zoning related calculations to determine the allowable density for new development.
Mark Mayer, post: 314089, member: 424 wrote: > 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.
In my opinion, this is the practical answer to the question of easement v. fee. It is its "Own Special Animal" If courts want to classify the 1/2 street as fee, for their own technical legal reasons, whatever. They can go ahead and do this. But it doesn't fall into any logical understanding of fee because no rights (other than reversionary) are associated with it. I'm not going to go around telling my clients they own half the road (in subs where the line is depicted at edge of right of way) because it is extremely confusing and utterly meaningless. Who cares? It's irrelevant to liability, it's irrelevant for tax purposes and it's irrelevant for building setback purposes. All maps I've ever seen show the property line at the edge of the right of way when it is depicted as such on the original sub, and County Surveyors will record them this way all day long. The edge of Right of Way IS the effective property line.
roger_LS, post: 402887, member: 11550 wrote: In my opinion, this is the practical answer to the question of easement v. fee. It is its "Own Special Animal" If courts want to classify the 1/2 street as fee, for their own technical legal reasons, whatever. They can go ahead and do this. But it doesn't fall into any logical understanding of fee because no rights (other than reversionary) are associated with it. I'm not going to go around telling my clients they own half the road (in subs where the line is depicted at edge of right of way) because it is extremely confusing and utterly meaningless. Who cares? It's irrelevant to liability, it's irrelevant for tax purposes and it's irrelevant for building setback purposes. All maps I've ever seen show the property line at the edge of the right of way when it is depicted as such on the original sub, and County Surveyors will record them this way all day long. The edge of Right of Way IS the effective property line.
Sometimes there can be advantage to showing the ownership to the centerline of the right of way. One is if it technically is, that is the fact. But another might be that they owner has to have a minimum acreage for certain purchases (say a well, or there is a minimum size requirement for that subdivision I don't know0. His acreage might be based on ownership to the centerline. Yes it can be confusing, that that might not be a good reason to falsify his ownership.
Tom Adams, post: 402891, member: 7285 wrote: Sometimes there can be advantage to showing the ownership to the centerline of the right of way. One is if it technically is, that is the fact. But another might be that they owner has to have a minimum acreage for certain purchases (say a well, or there is a minimum size requirement for that subdivision I don't know0. His acreage might be based on ownership to the centerline. Yes it can be confusing, that that might not be a good reason to falsify his ownership.
Right, I can see this, they would have more gross area and may be able to develop more. My first question would be, how many of you surveyors out there routinely project property lines to centerline when the original sub does not? My second question would be, if so, has anyone had any luck getting this by a jurisdiction to justify additional gross area? My third question would be, and this may be a question for Warren, why do we allow surveys to record when they depict property line at edge of right of way in cases where this is technically wrong?
roger_LS, post: 402896, member: 11550 wrote: Right, I can see this, they would have more gross area and may be able to develop more. My first question would be, how many of you surveyors out there routinely project property lines to center line when the original sub does not? My second question would be, if so, has anyone had any luck getting this by a jurisdiction to justify additional gross area? My third question would be, and this may be a question for Warren, why do we allow surveys to record when they depict property line at edge of right of way in cases where this is technically wrong?
I wouldn't illustrate the sidelines extending into the street (don't call it "projecting the line"; the line exists there) unless it was pertinent to the project, e.g. the survey was for evaluation of parcel area as part of assessment of suitability for subdivision, or for suitability for adding structure footprint where footprint is limited to a percentage of parcel size, etc. In my part of the world, zoning codes of several jurisdictions allow the underlying fee area to be used in calculation of total lot size. The one that comes to mind says that for parcels larger than 1 acre, the underlying fee area can be included. I can't recall if the 1 acre is net or gross area. Survey products showing such a right of way line should not show it as a solid line, and should not refer to it as property line.
roger_LS, post: 402896, member: 11550 wrote: ..., why do we allow surveys to record when they depict property line at edge of right of way in cases where this is technically wrong?
It's not the job of the County recorder (or the county surveyor) to decide whether a surveyor is properly depicting the boundary. If your professional opinion is that the property line ends at the right-of-way line then it's not someone else's place to refuse to record your plat.
State and Federal Highways are usually acquired in fee-simple for full market value and they own the roadway. The main issue is when a road is "dedicated" I think.
roger_LS, post: 402887, member: 11550 wrote: In my opinion, this is the practical answer to the question of easement v. fee. It is its "Own Special Animal" If courts want to classify the 1/2 street as fee, for their own technical legal reasons, whatever. They can go ahead and do this. But it doesn't fall into any logical understanding of fee because no rights (other than reversionary) are associated with it. I'm not going to go around telling my clients they own half the road (in subs where the line is depicted at edge of right of way) because it is extremely confusing and utterly meaningless. Who cares? It's irrelevant to liability, it's irrelevant for tax purposes and it's irrelevant for building setback purposes. All maps I've ever seen show the property line at the edge of the right of way when it is depicted as such on the original sub, and County Surveyors will record them this way all day long. The edge of Right of Way IS the effective property line.
I have had the County Surveyor tell me to show the boundary on the centerline on a Record of Survey. I had it on the right-of-way. I complied in that case because he was correct.
The California Courts have stated that liability for injuries to pedestrians is not limited to the technical ownership; the premises for purposes of liability can extend beyond boundaries of the property. The Courts held a doughnut truck (like an ice cream truck I think) liable for the injuries to a 4 year old boy who was hit by a car crossing the street to get to the doughnut truck. The Court said that the truck owner was an invitor and was responsible for the safety of invitees crossing the street to get to the business even though the truck owner didn't technically own the street.
Dang Dave. A Donut Truck was my retirement plan and now I have to reconsider...
BajaOR, post: 402916, member: 9139 wrote: Dang Dave. A Donut Truck was my retirement plan and now I have to reconsider...
I know, right?
Schwartz v. Helms Bakery Limited, 67 Cal. 2d 232 (1967).