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Easement-Railroad
I’m getting an easement over an existing road to a landlocked piece of property. On the way the county shows a railroad, now not in use. The problem is that after tracking title back to the patents there is no record of the railroad ever getting any right of way.
I can’t find it, the title company can’t find it. The county shows it as being owned by the railroad company, clearly there was a track 50 plus years ago but it’s long gone now. All the deeds show it as a railroad easement to private owners. I really hate looking for something that doesn’t exist.
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15 Replies
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There were many rails that went to sawmills, gins and other long gone enterprises that were mostly deeded to the long gone company.
Many had a statement that when the rails were pulled that the property reverted back to the land owners and some did not.
There is a sidetrack leaving the main line in the center of Naples, Texas that is still owned by a sawmill that closed 70+ years ago and home and highways are constructed on top of.
The title companies simply ignore that the deed exists…………….
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The county shows it as being owned by the railroad company
What railroad company? If the RR owned the entire property, there wouldn’t be any easement or right-of-way? They probably sold parcels off based on it being a monument but than tore up the rails. We have such things here. No records, no rail or ties, company long gone, once rural land now being developed with housing.
Interesting to me that you can buy a landlocked parcel.
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Many states, Texas included, have the opinion that if any road or any type of access was ever present for an owner to pass thru other properties to get there, there still exists access to the property.
It may be grown over and in need of clearing and is still the legal access and can be maintained by the person needing to get to their property.
Especially when there is evidence of any residence ever being on the property, like a well, remains of buildings or utilities and other improvements.
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Check with the public utilities commission. They have a lot of railroad info in some places..
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From the deeds it appears that the ranch that owns the property is the successor to the easement for the railroad strip. The property has been merged and there is no reason for an easement even if the railroad was re-activated. As long as the title company signs off this should be an “easy” project.
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Can you report back on how this turns out? I here more and more about difficulty working with title companies. Seems we as a society have entrusted land record keeping in land title insurance companies and they are becoming less responsive(?). Like to hear about the good and bad experiences. Thanks, Jp
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I will, I have to say that the title people have been great regarding this issue. I don’t know where the idea of a Railroad grant came from for this spur, but for some reason it seems to be enough of an idea that it has gotten on the GIS.
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Can you report back on how this turns out? I here more and more about difficulty working with title companies. Seems we as a society have entrusted land record keeping in land title insurance companies and they are becoming less responsive(?). Like to hear about the good and bad experiences. Thanks, Jp
I think the title companies being less responsive is more that they have changed businesses.
Title companies used to issue title insurance because they knew they were correct. Complete plants with records and indexes to efficiently trace chain of title to original patent and that there were no intervening encumbrances subsequently burdening the property. When a company issues title insurance in this method, they also provide comprehensive title research and a host of other valuable services (as a byproduct of title insurance).
Many title insurance companies now issue title insurance based on a confidence of 10 years (or different jurisdiction’s adverse possession duration) of clear title, excepting out rights of ways and other things that can’t be adverse possessed, and accepting a certain amount of payouts. This does not require extensive records, maintaining of records, understanding records, or produce comprehensive title research as a byproduct. This method of business doesn’t rely on being correct but actuarial tables and math to determine what are good bets. In effect, finding a more profitable way to offer title insurance without complete research.
While some title insurance companies have changed businesses, not everyone has noticed. I’m curious if there will be a market for providing comprehensive title research and if anyone will start offering this service (in areas where title insurance companies stop doing it). I’m also curious if there is anyone who will pay for comprehensive title research when it is not the byproduct of title insurance.
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I have the railroad drawings thru my area and it list each tract acquired. If they found the owner, they got 100 feet each side of the centerline. If it was still State of Texas land, they got 75 feet each side of centerline. If it was private but the landowner could not be found, they TOOK 50 feet each side of centerline.
James
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I have a val map for this area, it does show a right of way through the lands south of my parcel. How that right of way was ever acquired is the question. All the grants for a railroad right of way go to companies and individuals unconnected to the railroad.
One interesting factoid is that there are a number of val maps that I’ve come across, and they do not show the same right-of-way information.
Also, the deeds granted to the railroad’s main track were granted way after the track was in service, usually 30-40 years after the construction of the railroad.
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Thanks for the feedback Protracted, I concur. Our system is broken if someone is not responsible for comprehensive title research, and I don’t think the average surveyor is capable of abstracting title as they were 20-30 years ago. We entrusted that in the title companies and now they have bowed out on that part leaving the land surveyor exposed. I am surprised it is not more of a hot topic in the survey community. Jp
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I wondered that too. The area which is now pasture once was a townsite with probably near 1000 people living there. There was a ball field, a park, a movie house, a trolley and a railroad. There were even areas of the “town” segregated by race. Where the Italian workers lived was called “Macaroni Flats”, there were less politically correct names for other enclaves.
Of course there was a school and some churches, the trolley ended at a suspension bridge you walked across to a park on the low side of a river oxbow where there was the ball field and grandstand.
In the 50’s the townsite was sold to an individual and by the 70’s everyone was gone. Houses, railroad, trolley, movie house, ball field, all gone. The 5 acre parcel in question was created in 1911 and the railroad easement and town roads were the access. The problem was that the entire town was owned by one company or person and although there were roads there was never a plat or dedication. Now there is a ranch and one other owner to cross to get to the 5 acre parcel. The railroad easement is owned by the ranch and there is no legal access along the existing road except by long use.
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The problem that one faces in your situation is that rail roads obtained ROW in several forms. One is a nonpossessory easement. Such an easement allows the burdened land owner to enjoy the land until the railroad needs more of the easement for expansion, of if something changes in the operation of the railroad, the road might have to evict the burdened owner. Anything within the easement line is still an encroachment, although an allowable one.
Another is a possessors easement. In this type encroachments are not allowed by the burdened landowner and road will, most likely, evict you.
The last is fee simple. Railroads out west were often give land grants by the Feds for building the roads. The treatment of such a ROW is like any other fee simple ownership.
The problem you have in this instance is a matter of title, and that is not the province of the Land Surveyor, but a Lawyer. It will require some legal research to determine the original type of ROW, which will also tell you how your must treat the problem from a Surveying viewpoint. If the ROW easement is presumptive ( a situation I encountered near Bryson City) and there are no rails, or other appurtenances of a rail road, then I would say the easement has been extinguished. The other two types would not be so simple. The solution to the problem will start with a title search. The County listing the RR as a property owner is not sufficient. If it’s in an eastern state which had few, if any land grants to rail roads, the easement is highly likely to be nonpossessory, and probably extinguished since there is nothing there according to your prescription. Possessory easements may have reverted to the properties they were originally taken out of. If it’s fee simply, and ther is no conveyance of record, then the original RR, or its successor, owns the land.
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Many of the people that did very good work in the title companies are not there any more.
They have either retired or gone to work where they were more respected and left places that they were given guidelines they were not satisfied with.
The turnover rate of local title companies is that most every few months there are new faces there and only the senior examiner remains and they have not time to train and work at the same time.
The few law firms that issue title opinions are under the same demands.
I have noticed an increase in the number of “corrected deeds” being recorded to correct minor problems like missing decimals and other common typos.
It has become a dirty word to even ask for a copy of the Title Commitment, now I insist the client to contact the bank or other agency to get that to me.
The excuse sometimes is that they are awaiting the survey to issue the report, lol.
I spend more time at research and running down leads of names involved in a property’s past than I spend on measuring the land because no one at the title companies take the time to look for what all is needed any more.
The Appraisal District offices have many holes in their maps and some can not even say where a property actually is on the ground or put on the map because of the lack of an actual survey and a property description that refers to only names with no deed reference for volume and page and most of the time those names are not listed in the clerk’s directory of grantor and grantee.
The days of law firms and title companies having someone as being their “investigator” that specializes in tracking down this information are also mostly gone.
Every time I see the note attached to a survey, “this survey was done without the information contained in a Title Report”, my spidy senses see red flags appearing because I know that they only looked up and noted the name, deed reference of volume and page and never read the adjoining property descriptions or looked into the history prior to the last deed.
Believe me, that note will not help a surveyor that finds themselves facing their BOR with a long list of questions.
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Job is finished, title never granted anything to the railroad for lands I’m crossing except for a grant to the railroad for one 40 acre parcel that was later granted from the railroad to a private company; the railroad reserved the right-of-way in that 40 but it’s only clips the NW corner and my access road doesn’t get near it.
Hopefully, like in other places, the county GIS can be adjusted to reflect the actual ownership. Possibly someone misread one deed that was a bit confusing. You had to look at it closely to understand what it actually meant.
Also the 40 year +1 rule comes into effect at this point and that covers this parcel since there was a grant in the 60’s then one in the 70’s.
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