I've seen past threads related to this subject but I have a situation that's somewhat different. We are working on a survey in Connecticut and have a parcel that is landlocked except for a right of way that was given across an adjoining property. The description reads "together with a right of way forty feet wide running westerly from the above described land along the south bank of...river, with the right to erect a bridge across said...river". When describing the boundary of a parcel I would take along the bank of the river to mean the line was the bank of the river, when describing a strip of land, like a right of way, I believe the right of way would be "on" the bank. Which is defined as the strip of land between the waters edge and the top of bank where it meets the uplands. The problem being the bank of the river is 40 wide and 40 feet high, too steep to practically build a road. Did the grantor intend to grant a right of way just to the back 40 feet of the property which puts it on the steep bank or did they intend to grant a right of way along the top of the bank which would be useable to build a roadway. What does the call "along the bank" mean? Would the intent over rule the call if different.
I'm not sure I understand the problem. Why would anyone grant a right-of-way in an area where it's impossible to build a road? Obviously the intent was to have the right-of-way on the upland along the bank.
It included the right to build a bridge over the water connecting the access easement right to the area requiring access. The end of a bridge is clearly intended to be on the high ground. Thus the access to the bridge must also be on the high ground.
IMVHO, if an access easement says it is of a certain width along a bank, there is no doubt in my mind but what the intent is to allow that width of travel perennially along the somewhat flat surface adjacent to the brink of the bank, no matter how much the bank moves over time.
Unless a specific set of lines is defined to permanently mark an otherwise vague location, such as the meanders of a creek, then the more generous view is to be applied such that the one benefiting by the document must perennially be able to benefit.
Intent is always what you're looking for. Calls are evidence of intent, and the same call can mean something different in differing circumstances.
OK, we have an easement, on the bank, that is the High bank, and permission to turn, and cross the river, with a bridge, which we have to build.
Make us a picture, and we will play judge, jury, and "Across the State Line Surveyor", and we will fill your head so full of ideas, that you will have to have a cranial enema!
(bad joke)
What is reasonable intent? How would a Happy House wife interpret that? That there is access, that is not impossible to construct.
N
The basic rules are the same in every state. Sometimes the calls seem to mean different things in different states, but that's only because of differing circumstances in the cases they came out of.
Absurd results from some interpretation should be avoided.
More twist to the story. The right of way was granted to the "city" in 1921 by deed. The city engineer created a map in 1934, which was filed at the Town hall, showing deed plots of the properties in the area they acquired and also showing the right of way along the back of the property up against the water with no reference to the top of the bank. The same map was updated in 1963 showing the relocation of the river to its current location. The river was relocated to accommodate a new highway east of the property. The river was pushed onto the property in question consuming approximately 1/4 of the rear of the property. I believe that created the steep bank in question. The map does not show the right of way relocated. In 1972 a survey was performed and the map filed of the servient property showing the right of way along the steep bank. What was the intent? Did the right of way move with the river?
> More twist to the story. The right of way was granted to the "city" in 1921 by deed. The city engineer created a map in 1934, which was filed at the Town hall, showing deed plots of the properties in the area they acquired and also showing the right of way along the back of the property up against the water with no reference to the top of the bank. The same map was updated in 1963 showing the relocation of the river to its current location. The river was relocated to accommodate a new highway east of the property. The river was pushed onto the property in question consuming approximately 1/4 of the rear of the property. I believe that created the steep bank in question. The map does not show the right of way relocated. In 1972 a survey was performed and the map filed of the servient property showing the right of way along the steep bank. What was the intent? Did the right of way move with the river?
Could this be a simple case of avulsion vs accretion? I mean if the river was moved all at once, it would seem that the property lines would remain where they are.
But, would the access and ROW rights move with the river? If the city moved the river, it seems to complicate the matter even more: Can they move the ROW simply by changing the course of the river?
Interesting, please keep us updated.
Several things to consider.
Generally, a call "along the bank" is the same as specifically calling along whatever the statutory boundary is between the submerged lands and the uplands. By the federal and many state rules, that is the ordinary high water mark. some states have gone with the low water mark, and many others may recognize one or the other, depending upon whether the waterway is tidally influenced, or based upon the date or source of patent.
But as others have pointed out, the intent of the original parties is paramount and if a reading of the description by strict rules of construction renders it unfit for the stated intended use, that's a pretty good indicator that the parties had a different intent in mind and the description must be read with a reasonable interpretation that makes it suitable for the intended use.
You also have the old county engineers drawings that show the edge of the easement at the edge of the water. Even though that location is entirely unsuitable for the stated intended use, such drawings are usually considered to be pretty clear indication of what the County understood that they got in the conveyance. (leave it to an engineer to really screw up a boundary!)
You also told us that the shore location was artificially moved. Artificial influence, like avulsion, fixes the boundary at the last natural location of the shoreline.
Unless you have good facts to overcome the engineer's drawings, and evidencing that the parties intended the easement to move with the artificial change to the shoreline, I would not show the easement with its waterward edge at the top of bank simply because that's where it would work best to establish a road. It may be very difficult to build a road within a 40' strip on a steep bank, but it's not impossible.
Finding evidence of intent that it lie above the top of bank would solve the problem, but it needs to exist and it needs to be found. You can't simply assume that intent because it seems to make the most sense if one were choosing a spot to build a road. The original grantor may have intended that the road be as close to the water as title would allow.
With the facts you've given so far, the best course of action might be to get the parties to redefine, and better define where the easement lies by reforming the easement deeds in the questionable location(s). It may be a PITA, but you should not voluntarily turn the landowners' and County's predecessor's lack of precision is preparing the description into your liability. It is their problem. You are there to help them solve it, not wave a magic survey wand and make it all better.