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Does a public easement for a road more the fee boundary?
I’m working on an annexation plat. Being annexed is a state highway 100 feet wide for about a quarter mile and then a parcel and the highway. The highway was a county road until a federal aid project paved it in 1937. Before the 1937 project they paid for easements with the grantee being the county. The road cuts across parcel boundaries in a North Northwest direction. So the easements were for 100 feet wide and where triangles because the parcels had north N S E W boundaries. I’m OK so far. Then in 1964 they rebuild the highway this time as an expressway with limited access sidelines. They realign a bit and the state gets deeds for the fee ownership. The part that I’m wondering about is the deeds for the fee describe the limited access lines for the new highway and go to the center of the 1937 alignment. So the question is did the easements granted in 1937 change the boundaries of the underlying fee to the center of the 1937 highway alignment? That’s how the state treated it in 1964.
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23 Replies
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No, an easement grant doesn’t move the fee boundaries.
I think you mean owner A didn’t give enough in the description and owner B gave too much (like some of A’s land)?
I would think f the State has Deeds or FOC from all relevant parties it doesn’t much matter after 51 years. They probably won’t be moved off of their freeway.
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It sounds like they did a sloppy job of acquiring the underlying fee title by not recognizing that original parcel lines controlled who owned what. This is not uncommon. Once you put a public road on top of parcel lines, it can be hard to track the underlying fee. It doesn’t help that many (including surveyors) incorrectly treat the edge of the public easement as the property line when mapping and describing the adjoining properties. As Dave says it doesn’t matter much that you might own a small triangle of the underlying fee out in the middle of the highway. The earlier easement may still be in place on that triangle as well.
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Dave Karoly, post: 351495, member: 94 wrote: No, an easement grant doesn’t move the fee boundaries.
I think you mean owner A didn’t give enough in the description and owner B gave too much (like some of A’s land)?
I would think f the State has Deeds or FOC from all relevant parties it doesn’t much matter after 51 years. They probably won’t be moved off of their freeway.
No, nobody I know is going to challenge the state’s right to the highway. I need to show the parcels for the annexation and because of the realignment there is two center lines (1937 & 1964). Some 1937 easement hangs outside of the 1964 limited access (fee) line, so that’s why I’m researching it out.
Yeah, the fee deeds are Warranty Deeds, so I suppose they guaranteed it whether they owned it or not. My mom and dad signed a couple of the deeds.
It’s a classic normal mess for this area. Because of the state road monuments I can put it all together. Almost all of the POB run ins from aliquot corners don’t hit all that close and none of the deeds fit together from their records. I should consider myself lucky for sure because I can see the highway. I’ve seen plenty of dudes that can’t seem to find the road, or the plans and monuments. You must be careful with your metal detector out in the ROW. Turn it up to high and you’ll get sucked right in to corner rebars.
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Before I moved away to Alabama, the outfit I worked for in Arkansas did a lot of road projects for the State. I remember the old surveyor pulling his hair out over both situations you are talking about. Right-of-Ways from different years that didn’t line up, and parcels along these projects that were like a jigsaw puzzle that didn’t want to fit together. I know it drove him crazy. Good luck working that all out!
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Another thing I detest is when there has been a county right-of-way of a center width then either the county or the State comes along with an improvement that requires a greater width and then buy the additional as fee, specifically excluding the original amount. It all gets treated as if it all were in fee even though that is technically untrue.
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In my area, the State acquired county roads as easements in the early part of the 20th Century. When they re-aligned any portion they had acquired, the new takes were always in fee. They wrote to the centerline of the old road so there wasn’t any left overs within the new take, providing a complete strip of fee ownership. Parcels from the early in easement road that lay outside of the newer fee alignment remain as easements unless they were quitclaimed by the State to the owner of the adjoining land.
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BajaOR, post: 351496, member: 9139 wrote: It sounds like they did a sloppy job of acquiring the underlying fee title by not recognizing that original parcel lines controlled who owned what. This is not uncommon. Once you put a public road on top of parcel lines, it can be hard to track the underlying fee. It doesn’t help that many (including surveyors) incorrectly treat the edge of the public easement as the property line when mapping and describing the adjoining properties. As Dave says it doesn’t matter much that you might own a small triangle of the underlying fee out in the middle of the highway. The earlier easement may still be in place on that triangle as well.
Also there’s the case of the little triangle of A’s land on the other side of the highway. Maybe B occupies and uses it but A has the record ownership.
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This is a situation I have. The occupation (cut bank) doesn’t go east of the old monument so it is just an imaginary R/W line:
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Berk Blake PLS CA, post: 351530, member: 7998 wrote: In my area, the State acquired county roads as easements in the early part of the 20th Century. When they re-aligned any portion they had acquired, the new takes were always in fee. They wrote to the centerline of the old road so there wasn’t any left overs within the new take, providing a complete strip of fee ownership. Parcels from the early in easement road that lay outside of the newer fee alignment remain as easements unless they were quitclaimed by the State to the owner of the adjoining land.
That’s what I have. They got easement ROW in the 1930’s. I have the deeds. In one deed they completely got the easement from one owner, Just north of that its two triangles with the boundary line crossing from one side of the road to the other. In 1964 they are realigning the road a bit and went for fee ownership. I think for the funding from the feds they could only get what was required which was the 100 feet to the limited access lines. The deeds describe the new fee as the new outer limits from the new center line (50 feet each side) and then to the center of the existing road. So the one easement totally from one grantor is now deeded in fee from each grantor on opposite sides of the road. Then the other two owners grant to the existing center line instead of from the original boundary. One side of the road takes more land outside the easement and the other side leaves the easement hanging out beyond the new fee ownership. So the road now is owned in fee and some easement. Generally for annexation they want to stay with whole parcels. An easement is not a parcel. So the annexation will only include the fee area of the road until it adjoins the private parcel which will then include the easement area between the parcel and the fee as part of the private parcel burdened by the easement.
I’m just going to show it how it was deeded and not kick the sleeping dog, but I suppose I couldn’t claim I didn’t realize the issue if it ever comes up. Its just an annexation and who really cares who used to own the fee under a state road.
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In North Carolina, the General Statutes state that if a public roadway is abandoned per the statutes, the underlying fee is conclusively (i.e. irrefutably) presumed to extend to the centerline of the roadway. It is therefore possible, in NC at least, for the fee within the roadway to change if the width of the roadway was not taken evenly from both adjoiners. I have not come across any court cases where this statute has been challenged, but I imagine the courts would probably uphold it as a matter of public convenience.
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Over the past few centuries there have been more than a few, ‘who cares if…’ or ‘what does it matter…’ questions with boundary law. Trivial has a way of becoming paramount over time. I would gather and report the evidence of road creation and amendment to the best of my ability. Get it in one place while it’s reasonably easy to do…
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Dave at 10:21am: Was the R/W deed from Joe’s Resort written in the general form “that portion of the lands of Joe’s Resort lying within the following described parcel” then the whole required R/W parcel was described? That seems to be the logical explanation given the DOT knew where the NE corner of Joe’s Resort was. Either that or they didn’t accept the tied mon. On the other hand maybe the DOT was asleep at the wheel. What do the DOT R/W maps show? Is there a transfer of jurisdiction doc between the DOT and the forest? Maybe DOT saw the top of cut was west of the property line and decided they didn’t need the “design R/W ” enough to have to deal with another state agency. You’d think transfers between members of “the same family” would be easy, but I hear it’s not.
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Holy Cow at 6:11am: If the DOT bought fee across the entire parcel frontage, then does the underlying fee (under the original easement) attach to that fee, and the easement goes away via the merger doctrine? To clearly acquire the underlying fee in cases like you describe I see Caltrans add a clause to their fee RW deeds along the lines of “together with the underlying fee in the existing public roadway”.
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BajaOR, post: 351553, member: 9139 wrote: Dave at 10:21am: Was the R/W deed from Joe’s Resort written in the general form “that portion of the lands of Joe’s Resort lying within the following described parcel” then the whole required R/W parcel was described? That seems to be the logical explanation given the DOT knew where the NE corner of Joe’s Resort was. Either that or they didn’t accept the tied mon. On the other hand maybe the DOT was asleep at the wheel. What do the DOT R/W maps show? Is there a transfer of jurisdiction doc between the DOT and the forest? Maybe DOT saw the top of cut was west of the property line and decided they didn’t need the “design R/W ” enough to have to deal with another state agency. You’d think transfers between members of “the same family” would be easy, but I hear it’s not.
My website “clock” shows Dave at 1:21PM.
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Brad Ott, at 15 minutes ago: Ahh! But you figured out which post I was replying to. Mission accomplished!
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BajaOR, post: 351560, member: 9139 wrote: Brad Ott, at 15 minutes ago: Ahh! But you figured out which post I was replying to. Mission accomplished!
Word
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BajaOR, post: 351553, member: 9139 wrote: Dave at 10:21am: Was the R/W deed from Joe’s Resort written in the general form “that portion of the lands of Joe’s Resort lying within the following described parcel” then the whole required R/W parcel was described? That seems to be the logical explanation given the DOT knew where the NE corner of Joe’s Resort was. Either that or they didn’t accept the tied mon. On the other hand maybe the DOT was asleep at the wheel. What do the DOT R/W maps show? Is there a transfer of jurisdiction doc between the DOT and the forest? Maybe DOT saw the top of cut was west of the property line and decided they didn’t need the “design R/W ” enough to have to deal with another state agency. You’d think transfers between members of “the same family” would be easy, but I hear it’s not.
No TOJ that I have found. Formerly these were called TCP (Transfer of Control & Possession).
The preamble is limiting.
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In Arizona, you will find new r/w acquisitions often contain the sentence: “together with any and all of the Grantor’s fee interest in and to all of the highway right of way for said highway, if any”. This seems to “pick up” and easements within the new r/w parcels.
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Joe F, post: 351590, member: 2311 wrote: In Arizona, you will find new r/w acquisitions often contain the sentence: “together with any and all of the Grantor’s fee interest in and to all of the highway right of way for said highway, if any”. This seems to “pick up” and easements within the new r/w parcels.
Does the DOT appraise the property known as “highway right of way” and pay the appraised value? Typically I write descriptions for a strip along a dedicated road (by center line description) and except out the portion already dedicated. So for instance, a property owner owns 100′ of frontage in which their predecessor dedicated a 30′ strip and our Local Government acquires an additional adjoining 5′ for street improvements, my area would 500 sq ft acquired. The powers in charge insist on purchasing the property in fee which I try to explain is going to make a mess in the future if the road vacates. Personally I think if the strip is going to be taken in fee then the fee rights to the original dedicated 30′ should be purchased too, and the area in this case would be 3500 sq ft. My 2 cents, Jp
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Jp7191: As I suggested to Holy Cow above, if additional R/W is acquired in fee across the entire frontage of a parcel, the seller’s underlying fee in the adjacent public way passes as well, automatically. Since that leaves no paper trail on the underlying fee and leaves at least the appearance of title passing without payment, it’s my understanding that Caltrans pays a very small amount for the underlying fee (maybe just one dollar, whether the public easement is of record or not), and adds the “together with the underlying fee” clause. That $1 seems a fair price for a piece of land that is worthless to the adjoiner. If the R/W is abandoned/vacated the adjoiner might gets “both pieces” of R/W back, just like they would were the public rights an easement.
On the flip side, if a DOT buys a new easement they should be paying full fee price, or nearly so, since after acquisition the land is useless to the seller.RE: your descriptions, another option would be to describe the whole 3500 square feet, say “containing 3500 square feet, including 3000 sq ft now used and acknowledged as a public way”, and tell your DOT to add a buck to the purchase price. I think that’s an old Caltrans method as well.
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