County ROW easement

We have plenty of these in Wisconsin. The attorney may be right. See this: https://www.wisbar.org/NewsPublications/Pages/General-Article.aspx?ArticleID=4529

I think that the qualifier "for road purposes" is significant. There would be no such qualification in a transfer of fee title.

Generally, the assumption is that an easement is intended. If the language is not clear, as is common, you fall back on that.?ÿ ?ÿ

I recently lost a similar argument with City of Portland staff over the wording of their standard right of way dedication deed form. I felt that it was transferring an easement only, they insisted that it was right of way. The difference being significant because it affects the square footage of the lot that can be included in F.A.R. calculations and the allowable setbacks. In the end it was apparent that both the donor and the city understood it to be right of way, so it was right of way.?ÿ ?ÿ ?ÿ

@mark-mayer

A right-of-way is an easment. Was the argument fee simple vs. easment?

Posted by: @bigd1320

I recently surveyed off a 6 acre parcel adjoining a paved county road. The county said they owned the east 63' of the NW SW section 10 which is the Road Right-Of-Way. I found the document the conveyed the transaction. The documents is titled "Easement for Public Highway.' Within that documents is the statement 'That (the owners) in consideration of the sum of $2760.70 in hand paid by the county, do hereby sell and convey unto the said county, for road purposes and for the use as a Public Highway, the following described premises...'

The parcel I created did not include the 63' ROW. I have an attorney for the buyer and abstractor claiming the newly created parcel should include the ROW because this is an easement and the current owner of the NW SW has title to the west line of section 10, which is the center of the highway. This will increase the sale of the land over $6000.

I disagree with the ROW ownership because of the statement 'do hereby sell and convey.' This is a paved county road and I believe the 63 feet of ROW should not by included in the new parcel because it is owned by the county.

These Easement for Public Highway documents have always been confusing because they say easement and sells / conveys. Can anyone shed some more light on county road easements??ÿ

Thanks,?ÿ

Dan

The attorney is probably right. A land owner can sell and convey any of the sticks in their bundle of rights. In this case they sold and conveyed an easment for "road purposes".?ÿ

?ÿ

In PA it would be an easement, unless it would be a limited access highway, then it would be in fee, despite the actual conveyance language. Fee title allows one to do whatever the owner wants with a parcel, for road purposes limits the use of the right of way and fee remains with the parent parcel, except no taxes are due on same. Essentially the tax on the ROW area not paid becomes the rent to the fee holder.

Paul in PA

@aliquot

Are you the right of way acquisition specialist at the City of Portland? Because that's what she said! As nauseum. Yes, a right of way is an easement, except ....... "the difference being significant because it affects the square footage of the lot that can be included in F.A.R. calculations and the allowable setbacks."

This pertains to Washington state, but may be similar where you are:

typical county right of ways are not owned in fee simple, and therefore are not complete ownership, but fall just shy of ownership. A county right of way is often considered a ƒ??super-easementƒ? where underlying owner does not pay taxes on the land, or has any remaining rights to the land EXCEPT right of reversion.?ÿ

Honestly, this legal interpretation creates as many problems as it fixes, and particularly creates a mess when put in the hands of those with a poor grasp of the law. In practical aspects, the right of way is owned by the county, but in legal terms, right of way often remain easements.

As far as surveying, I would Certainly exclude the lands encumbered by right of way, as you wouldnƒ??t be damaging your clients claim in ownership Post-vacation by doing so.

@paul-in-pa In Vermont, the value for real estate taxes is the value the property would bring in an arms-length transaction in which a willing seller sells to a willing buyer, and the buyer intends to use the property for its highest and best use. Since the chances of the roadbed reverting to the owner of the frontage lot is minuscule in most cases, the value would be the same whether the road is a highway easement or held in fee by the government. But if the land area in the tax records is screwed up, the land owner might have to get a survey to get the record corrected, and it might take a long time for the tax savings to pay for the survey.

Zoning laws are made by the towns and cities so whether owning the roadbed would allow greater freedom to build a larger building, or closer to the road, would depend on the local law. (Unless a court decides to interpret the law in a way contrary to the black letter text; don't know if that has happened.)

It has always amazed me at the way "controlling neighborhoods" by whatever title they have (city, HOA, etc.) make up some of the most convoluted procedures to complicate life.?ÿ They create some sort of yardstick to measure how much they can control you, then whack you with it until you submit.

Having fee ownership of a tract is one thing.?ÿ Having various easements impact that tract is quite another.?ÿ The easements may limit uses in certain places but you still own all of it and you need to transfer all of it when you deed it to a new owner someday.?ÿ Selling a tract less all areas impacted by some sort of an easement is ludicrous.?ÿ In the case of old blanket easements you would have nothing left to sell.?ÿ We have one local title company that is involved in preparing documents for closings.?ÿ They routinely add a phrase stating "less any portion thereof used for roadways" after a perfect description of the true tract owned.?ÿ I have gone round and round with them on this and they are still blind.?ÿ They may not want to insure the portion used for roadways for some reason but that does not remove it from the fee ownership that exists.

The terms "road purposes" and "use" make it an easement. A person can "sell and convey" interest to an easement, or any other interest in land.?ÿ

See definition of "fee simple defeasible"....."For road purposes", is limiting the use, so underlying rights revert when no longer used for a road in my opinion.?ÿ Fee simple absolute is very clear and if an agency wants fee simple absolute they should be very clear about their verbiage.?ÿ It seems like as surveyors we are caught in the middle on these issues.?ÿ Title companies limit their liability with disclaimers like "any rights to a public way".?ÿ Us surveyors just keep debating the issue like one of us is wrong and one is right.?ÿ Interesting topic!?ÿ Jp

In Illinois the counties say they do not own the ROW, same with the township roads. ?ÿIƒ??ve been licensed in Iowa for about 15 years but in that time Iƒ??ve only done a couple of surveys in Iowa, so Iƒ??m not really up on the norms.

I would check with others in your area as I am sure your not the first to encounter this.?ÿ Idaho has an odd code that basically says all right of way acquired prior to (sometime in the early 50s, i forget the exact year) is an easement unless the contrary is clearly identified.?ÿ Without knowing this one would come up with vastly different parcel boundaries.

Posted by: @wa-id-surveyor

I would check with others in your area as I am sure your not the first to encounter this.?ÿ Idaho has an odd code that basically says all right of way acquired prior to (sometime in the early 50s, i forget the exact year) is an easement unless the contrary is clearly identified.?ÿ Without knowing this one would come up with vastly different parcel boundaries.

I'm not sure what he would check on. The terms of the instrument are not ambiguous. It's an easement. You can't go outside of the instrument to try to determine whether it's fee or easement because there's no ambiguity.

Posted by: @bigd1320

I recently surveyed off a 6 acre parcel adjoining a paved county road. The county said they owned the east 63' of the NW SW section 10 which is the Road Right-Of-Way. I found the document the conveyed the transaction. The documents is titled "Easement for Public Highway.' Within that documents is the statement 'That (the owners) in consideration of the sum of $2760.70 in hand paid by the county, do hereby sell and convey unto the said county, for road purposes and for the use as a Public Highway, the following described premises...'

The parcel I created did not include the 63' ROW. I have an attorney for the buyer and abstractor claiming the newly created parcel should include the ROW because this is an easement and the current owner of the NW SW has title to the west line of section 10, which is the center of the highway. This will increase the sale of the land over $6000.

I disagree with the ROW ownership because of the statement 'do hereby sell and convey.' This is a paved county road and I believe the 63 feet of ROW should not by included in the new parcel because it is owned by the county.

These Easement for Public Highway documents have always been confusing because they say easement and sells / conveys. Can anyone shed some more light on county road easements??ÿ

Thanks,?ÿ

Dan

1.) I think you're mistaken.?ÿ It looks to me like it's an easement and should be included it in your map.

2.) If I was the buyer I'd tell the seller they're out of their mind if they think I'm gonna pay an additional 6 grand for land I can't even use.

In Georgia, if the County's title to the roadway arose by dedication, express or implied, it is presumed that the County acquired only an easement.?ÿ Fee simple title can only be acquired through a condemnation or express grant in a deed or other instrument. Upon abandonment of an easement interest, including prescriptive easements, the abutting owners are presumed to own the fee to the middle on the road, free of the former rights of the general public. Norhtpark Associates No. 2 v. Homart Development, 262 Ga. 138, 414 S.E. 2d 214 (1992); R.G. Foster & Company vs. Fountain, 216 Ga. 113, 114 S.E. 2d 863 (1960); Glass v. Carnes, 260 Ga. 627, 398 S.E. 2d 7 (1990).

To follow up on my earlier point above regarding the words "sell or convey", there's no intrinsic meaning in them as to whether it's fee or easement. People must pay some form of consideration for an easement, which is why they "sell" it to the Grantee, and the Grantor must "convey" that interest to the Grantee. The key terms in this case, as it is in others where there's not express use of the word "easement", is "purposes" and "use".?ÿ

I would suggest that all surveyors need to study and know the different legal parts/sections (i.e.-preamble, granting clause, habendum clause, etc) of a conveyance instrument as well as the particular legal words used to effect (not "affect" 😛 ) the conveyance. While it's true that if it's ambiguous, it's usually construed in favor of the Grantee, you must know the legalities of the language to arrive at that assumption or conclusion.

Happen to be working with such a case right now.?ÿ The DOT purchased more land than was truly needed for a significant road improvement project in recent years and are now willing to return some small pieces to the adjacent land owners.?ÿ One bizarre little tract juts out quite a distance into the surrounding owner's land (about 40' by 150').?ÿ He would like to acquire that from the DOT while going through the process on three other tracts.?ÿ The DOT used condemnation on that odd tract because the ownership was so fuzzy.?ÿ They cannot deed it to the adjacent owner because the only rights they obtained via condemnation was surface rights for road purposes.?ÿ That is straight from one of the top dogs at DOT.

@mark-mayer

I don't get how the difference could effect the calculation of area??? Unless there is something in City code to support this I would be fighting.