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.
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.
"Unless there is something in City code to support this ..."?ÿ
For the purpose of compliance with zoning code the area exclusive of right of way is used. It may be different in other places, IDK. But I don't think so. It also makes a difference for allowable above ground intrusions (upper floor balconies, eaves, signs, awnings, etc.) into the right of way.?ÿ
This is an issue that confuses municipalities all across the country. In Portland's case, unfortunately, it appears they are right.
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 ??super-easement? 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 wouldn??t be damaging your clients claim in ownership Post-vacation by doing so.
This is how it is in most of the country, but there always are exceptions.
There is more to the underlying fee ownership than the right of reversion though, for example; mineral rights, the right to cut and collect timber, the right to pick berries, the right to kick out people trying to camp, ect.
"I felt that it was transferring an easement only, they insisted that it was right of way."
A Right of Way is an easement!
Yes, a right of way is (usually) an easement. But rights of way and easements are not exactly the same things.
