Doing a survey for DOT along a county road.
About 20 years ago this office did a survey for a landowner. They owned west of the county road ROW. We sat down with the title people at the time, they didn't want to approach who owned the strip between the W. ROW and centerline. The owners to the east own East of the county road, AKA east of the centerline.
We did a Record of Survey and filed it showing the road and designed a curve and tangent for the county road and monumented the ROW.
Fast forward a decade and a subdivision was created. Unfortunately, the ROS wasn't used and a new curve and tangent was designed. It fits closely to the Record of Survey, but now there are multiple monuments.
So, it's time to address all the issues. Who now owns the strip from the centerline to the West ROW?
That deed was created in 1954 and clearly calls out the West ROW as the boundary. By 1954 the deed east of the county road was already described as east of the road.
Also does the subdivision hold or the ROS (there is approximately 1.5' difference).
As always, the State will change the answer. If the underlying owner did not have a reasonable purpose for the strip it probably passed with the deed. What you describe appears to fall short of an express reservation...
It will be interesting. I just finished another similar project. I can say that without a clear chain of title the money will be in jeopardy. I have my opinion about the ownership. But that probably won't prevail here.
The last county road I surveyed had 3 centerlines marked by monuments and record surveys. Two by the same surveyor. I used the one that was used for the deed I was retracing which happened to be the first one marked. I noted all the centerlines in the narrative. As far as who owns the ROW I might consider kicking the can down the road and just lable it road ROW. Ownership generally goes to the center of the road here unless there is a deed to the county or state recorded for the ROW.
Generally the ownership is to the center of the road, except for when it isn't.
We have a few where the road came entirely off of one property, some where something like 20 came from one property and 40 from another meaning the center line of the road is 10 feet off of the true property line, and then I can think of one case of a 40-foot road that begins fully on one property and ends up a mile away being fully on the adjoiner property. In that last case, two triangles exist and the center line only hitting the property line at the midpoint of the mile.
My experience is just based on Oregon laws and court cases so your mileage may differ.
If the road was created by the county court, via a statutory road establishment process (as opposed to strips of R/W being deeded in fee title to the county), then Oregon courts say the R/W creation is a mere easement:
“By the location of a county road, the public only acquires an easement in the land, while the fee remains in the owner, subject to the charge in the public; and when the road is vacated by public authority, the land covered by it immediately reverts in the owner, freed from the easement.”
Lankin v. Terwilliger, 22 Or. 97.{1892}
The part where it says "reverts in the owner" means it reverts in the owner abutting the land at the time of the vacation, not to whoever owned it when the road was created. That principle of law is covered in other cases that state when you convey land abutting the R/W then the R/W is included in the conveyance even if the R/W is not mentioned in the deed's language. A few of the Oregon cases that spell this out are:
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In McAdam v. Smith , (221 Or. 48 (1960)) the Oregon Supreme Court held that:
“Where the description does not mention the street, river or other similar boundary but the deed describes the parcel so that, in fact, it is adjoining, the title to the bed passes the same as (if) mentioned …”
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"It is held that the presumption of intent to convey to the center is not overcome although the land is described by metes and bounds, and the distances stated do not extend to the center of the highway. highway."
Knott v. Jefferson Ferry Co. 9 Or. 530 (1881)
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"Where land described by metes and bounds actually abuts on the highway, the grantee, in absence of intention of the grantor or otherwise to limit the description, takes to the center of the highway, even when the highway is not mentioned as a boundary".
Lankin v. Terwilliger 22 Or. 97 (1892).
--------------------------
And of course, in some situations, the contrary may be shown.
I've found Google Scholar helpful in looking for rulings like these. You can select you state and use search strings (with quotation marks) like "metes and bounds" or "right of way" or especially "road vacation" to pull up some possibilities. Road vacation cases usually bring arguments to court about who the vacated right-of-way will vest in.
EDIT: Some counties have statewide road manuals for road supervisors/county engineers/county surveyors/county assessors. You might want to check to see if your state has an association of counties that has a sub-branch for road officials. They may have a document that contains court cases pertaining to road right of way. A search for "Oregon County Road Manual" resulted in this link: https://oregoncounties.org/roads/county-road-program/county-road-manual/
That deed was created in 1954 and clearly calls out the West ROW as the
boundary. By 1954 the deed east of the county road was already described
as east of the road.
How is ownership normally described in this area? I assuming it's rural so to a section line/roadway? If it's to a section line and someone preemptively tried to take the row into account and created an orphaned strip then there might be a law that addresses that.
My experience is just based on Oregon laws and court cases so your mileage may differ.
If the road was created by the county court, via a statutory road establishment process (as opposed to strips of R/W being deeded in fee title to the county), then Oregon courts say the R/W creation is a mere easement:
“By the location of a county road, the public only acquires an easement in the land, while the fee remains in the owner, subject to the charge in the public; and when the road is vacated by public authority, the land covered by it immediately reverts in the owner, freed from the easement.”
Lankin v. Terwilliger, 22 Or. 97.{1892}
The part where it says "reverts in the owner" means it reverts in the owner abutting the land at the time of the vacation, not to whoever owned it when the road was created. That principle of law is covered in other cases that state when you convey land abutting the R/W then the R/W is included in the conveyance even if the R/W is not mentioned in the deed's language. A few of the Oregon cases that spell this out are:
--------------------------
In McAdam v. Smith , (221 Or. 48 (1960)) the Oregon Supreme Court held that:
“Where the description does not mention the street, river or other similar boundary but the deed describes the parcel so that, in fact, it is adjoining, the title to the bed passes the same as (if) mentioned …”
--------------------------
"It is held that the presumption of intent to convey to the center is not overcome although the land is described by metes and bounds, and the distances stated do not extend to the center of the highway. highway."
Knott v. Jefferson Ferry Co. 9 Or. 530 (1881)
--------------------------
"Where land described by metes and bounds actually abuts on the highway, the grantee, in absence of intention of the grantor or otherwise to limit the description, takes to the center of the highway, even when the highway is not mentioned as a boundary".
Lankin v. Terwilliger 22 Or. 97 (1892).
--------------------------
And of course, in some situations, the contrary may be shown.
I've found Google Scholar helpful in looking for rulings like these. You can select you state and use search strings (with quotation marks) like "metes and bounds" or "right of way" or especially "road vacation" to pull up some possibilities. Road vacation cases usually bring arguments to court about who the vacated right-of-way will vest in.
By the by, some counties have statewide road manuals for road supervisors/county engineers/county surveyors/county assessors. You might want to check to see if your state has an association of counties that has a sub-branch for road officials. They may have a document that contains court cases pertaining to road right of way. A search for "Oregon County Road Manual" resulted in this link: https://oregoncounties.org/roads/county-road-program/county-road-manual/ /p>
If you chase the title back far enough, there might be some wording that disagrees with the wording that says 'to the west of the ROW". If subsequent legal descriptions say, "being the same property" before the metes and bounds starts then somebody along the way just dropped the ball. Roads are the most challenging part of many surveys and also very interesting in the development. There are as many court cases on one side as another sometimes and at least as many opinions as there are people involved.
Awesome post Mike.
I'm of the opinion that all the landowners west of the county road own to the centerline (my opinion and state court cases resolving similar situations).
However, the task we have doing these surveys consist of researching the title, listing all the landowners and presenting the deeds to the state along with a plat. Those are used to purchase ROW and determine how to do that once the design is completed.
If (a big if in this case) it's determined that ROW needs to be in fee, that strip will become a huge issue. If ROW will be an easement the issue fades away as far as the state is concerned, cause they will simply add on an easement to the existing easements and won't have to deal with the "owner" of that strip. This early in the project no one knows what will be done.
If they do want fee they will not buy it from landowners west of the road for the strip without a clear chain of title. Also it will jeopardize funding from the feds.
What was once a minor thing to us over the years can blow up into a major one if the funding is pulled.
To some other questions this road does not follow a sectional line, it wanders across a township line in a NNW, SSE direction and all the properties along it use it as a boundary until the north end where it crosses into a single owner on both sides.
It's an unusual situation for me, all the quiet title jobs I've been involved with needed an owner to start the action. None of the landowners here have any reason to spend time or money to resolve a problem that isn't a problem for them. That leaves it up to the county? I don't see them getting involved. The State?
Maybe.
When I worked for the DOT and there was a question of title that couldn't be resolved in a timely manner and they needed a deed for the project to proceed they would get a quit claim from every party they thought might have an interest and move on. That may not be a bullet proof solution but it seemed to allow things to proceed. I should add that there was pressure placed on surveyors to make a call to title holder in these situations when it is simply not possible and beyond the scope of service. Sometimes you have to say no.
As I think about that, it's probably the best solution. Even though there are over a dozen landowners along the west ROW, there would only be one quit claim deed. Cause there's only one owner along the strip (plus heirs).
