…I believe it does. However, I've rarely seen title companies buy into this line of reasoning. Maybe because it is less risky for them, or maybe because I'm flat-out wrong?. I dunno. I was hoping some of y'all could chime in on this with your own experiences, case law, et cetera.
My initial question could be phrased “Where a parcel is conveyed by metes and bounds description to the right-of-way line, does the grantee actually own to the road centerline?”
But I'll super-size it a bit to “Where a parcel is conveyed by metes and bounds description to a line that falls short of the true right-of-way, and then describes a line that runs (somewhat) parallel to the true right-of-way, is a gap created between the true right of way and the conveyed parcel?
The four sketches below hopefully explain the situation I am seeking input on. To save time and keep this simple, there are no fences along the road, no landscaping, no farming, not lines of occupation... just bare, sagebrush covered ground stretching to the horizon:
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SKETCH 1 – 1945 & 1950:
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SKETCH 2 – 1960
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SKETCH 3 - 1980
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SKETCH 4 – 2010
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(edit - the "section corner" in the sketchs is actaully the east 1/4 corner and the "section line" is the east-west centerline of section, but you probably already figured that out)
Here are various citations I have found concerning this subject. They are mainly Oregon specific:
Oregon Revised Statutes (deed construction): 93.310(4) "When a road … is the boundary, the rights of the grantor to the middle of the road… (is) included in the conveyance, except where the road … is held under another title".
Banks v. Ogden 69 U.S. 57 (1864): "It is a familiar principle of... law that a grant of land bordering on a road or river, carries title to the center of the river or road, unless the terms or circumstances of the grant indicate a limitation of its extent by the exterior lines."
Knott v. Jefferson Ferry Co. 9 Or. 530 (1881): "It is held that the presumption of intent to convey to t:he 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."
Lankin v. Terwilliger 22 Or. 97 (1892): "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".
Cross v. Talbot 121 Or. 270 (1927): "It is a well stated rule of construction that in case of ambiguity in the conveyance the construction most favorable to the grantee must be adopted. And where there is doubt as to whether it was intended to convey land to the center of the adjoining highway, it will be presumed that it was so intended".
And here is my favorite. In the case of Buck v. Squiers, (22 VT 484, cited in the Oregon case of Cross v. Talbot 121 Or. 270 (1927)) the court said:
“’The rule itself is mainly one of policy, and one which, to the unprofessional, might not seem of the first importance; but it is at the same time one which the American courts especially have regarded as attended with very serious consequences when not rigidly adhered to, and its chief object is to prevent the existence of innumerable strips and gores of land along the margins of streams and highways, to which the title for generations shall remain in abeyance, and then upon the happening of some unexpected event, and one consequently not in express terms provided for in the title deed, a bootless, almost objectless litigation shall spring up to vex and harass those who in good faith had supposed themselves secure from such embarrassment.’”
In these metes and bounds situations I've had experience with, there is no express reservation about the road by the grantor.
Also, the situation I'm trying to depict is not one where the right-of-way is clearly owned by a party other than the grantor, such as along a State Highway here in Oregon (which are usually a fee purchase of the right-of-way by the state) or an interstate highway.
Just a quick response here. It depends. The subject is very complicated to respond to on a message board. Slightly different facts means different ownership. In my State the legislature has actually written Statutes clarifying who owns what in somewhat similar situations. I would be willing to bet that a lot of other States have done the same.
You said, "Smith thinks road is 60 feet wide". Did someone tell you that, or is it an assumption based solely on the deed.
I always think INTENT. Maybe Smith WANTED to keep a strip? I know it's doubtful, but stranger things have happened.
Why did they change the description in 1980?
A couple of controlling rules on description interpretation are that the description can only be interpreted objectively, as a whole, in light of the circumstances and meaning of words and phrases at the time.
These rules capture the policy decision scenario as well.
So it's pretty hard to comment with only the info posted. But I would certainly be looking for anything that could justify the parcel being connected to the road.
For instance, if the parcel didn't otherwise change (not a subdivision) but only the description changed, I would say the original description controls and hence title is to center of road and section or 1/4 section line (whichever you said it was).
You've laid down an excellent summary of common law rules and statutory law there, Mike. Could the courts explain the law any more clearly and consistently? How clearly do they need to state the law before we surveyors (and title officers) will believe it?
The laws you've quoted point out two things very clearly: (1) The presumption is that title extends to the center of the way; and (2) there are only two exceptions that can overcome that presumption. In order to overcome any presumption of law, you must have evidence (usually clear and convincing) that will prove the contrary. The contrary provisions are (a) intent to retain a separate ownership (not a gap), and (b) the way is held under a separate title (fee ownership by another).
In your example, (b) doesn't apply because it's an easement, not fee, right of way. The only exception left is (a), intent. In order to prove intent, there can't be a simply assumption of intent, there must be evidence of the intent. Yes, the deed has expressed language which is supposed to express the intent, however, the language that would express the intent to retain ownership of a strip would be something like, "thence to and along a line 10' east of the west right of way." The deed doesn't say that. In fact, your deed gives no mention of the right of way at all. Your deed is silent about the matter. I don't see where numbers and points in your deed give any expressed evidence as to the parties intent with regard to the right of way which it is totally silent about. Your deed is ambiguous regarding the right of way. That latent ambiguity (discovered when you look at conditions outside the deed) allows you to open the terms of the deed and construe it in light of the surrounding circumstances.
The second way you could determine intent is to look at the subsequent actions of the grantor. Is there any evidence that they (1) continued to occupy or use the strip, or (2) subsequently conveyed the strip to another? You've provided no evidence of (2), so we'll presume that's not in play. If there is no evidence of possession or conveyance, then the grantor would still knowingly hold title to the strip. The only way left (the third way) to know what the grantor knows is to ask. When you talk to the Grantor, you cannot ask leading questions. That's violation of the rule. So, don't ask, "did you intend to retain ownership of this 10' strip?" You've just given them the answer to the question (that's a leading question). Ask, instead, "can you remember why the description was changed?" "Was there a survey performed?" Or, "when they sold the property, did they consider what impact the right of way had on the property? The answer to those questions might give you the evidence you need to overcome the presumption. The answer you need is something like, "the county was going to widen the road and I kept that strip so I would get the money from the county, not the buyer." Now you've got evidence of intent that could overcome the presumption.
Without direct evidence to overcome the presumption, the presumption stands. The title is conveyed to the center of the road. Acceptance and application of the law is the only way to, as they said, "prevent the existence of innumerable strips and gores of land along the margins of streams and highways." (Excellent quotation, by the way).
JBS
JB TENDS TO BE WORDY !!!
I THINK THE ANSWER IS "YEP"..
TDD
> You said, "Smith thinks road is 60 feet wide". Did someone tell you that, or is it an assumption based solely on the deed.
Target - It's an assumption based on the deed and research. In the real world scenario that this docu-drama is loosely based on, deeds of record indicate that no additional dedications were made since 1950.
> Why did they change the description in 1980?
To carve up the parent parcel into smaller, irregular shaped chunks, hence the metes and bounds descriptions rather than further aliquot descriptions. Like most other PLSS areas, we’ve got beau coup subsequent metes and bounds parcels to match canals, ridges, creeks, roads. etc.
thanks Ted. That's what I was thinking too, but hadn't quite convinced myself yet.
Also, planning departments tend to get kind of snippy when they find out you have partitioned land without their approval.
Your conclusion is based on the assumption that the centerline of the road is the centerline of the right-of-way. That is not always true.
If the deed calls to the right-of-way line, that is where the property line is. If the deed calls do not exactly parrallel the road centerline, that is quite common. In my area, whenever they repave county roads, the centerline tends to move. A lot.Documents of record trumph current centerline location.
The agency that maintains the roadway generally owns the property within the right-of-way. These agencies are prohibited by law from paving or maintaing roadways on private property, thus the state or county owns the land via the right-of-way maintenance and procurement proceedures.
That's the way it is in my area.
Actually Ted,
If your going to abbreviate John's initials, then it should be JS, not JB ('B' is a middle initial and there is another frequent poster who is JB not JBS or JS).
Wordy perhaps but a simple avowal of "yep" or "because" will not make clear the reasoning behind applying relevant law. Boundary surveyors should practice critical legal reasoning and vocalizing the same.
Have a GREAT weekend all!
CV
I think JB's post could only be said to be "wordy" if one finds subjects like this boring, which surveyors should not.
I'm sorry, but Stahl is the real "JB", established long ago.
-Steve Adams
I'd have said "yep," but that answer wouldn't have been worthy of the effort that Mike put into making the post. A worthy post deserves a worthy response.
JBS
JB--YOU DO MEAN WORDY RESPONSE
WISH GENE WAS HERE TO CHIME IN---HE MUST BE ON HIS WINTER "STONE CHISELING RETREAT" EH
TDD
While that's a good post JB, as well as the quotes Mike posted, they are both off point IMHO.
What was posted is a description beginning 30' from a section corner. There is no mention of a road or a right of way or anything resembling it. Therefore, there is no presumption to deal with, except that the deed means what it says.
Based solely on the information given, the presumption has to be a parcel that begins 30 from the section corner. The evidence you would need is that tending to prove otherwise.
I agree that the intent was to convey the adjacent right-of-way to each adjoining subdivided parcel. The error was in the width. To do otherwise would have prevented access to said road for those acquiring the subdivided tracts. That would not stand.
The title company may require some remedial action be taken, but, I believe it is not essential.
The only possible way retaining the strip could have been beneficial to the subdivider would have been a case where he also owned the other side of the road, planned to request closing of said road, resulting in him having a nice private road entirely on his property such that he could control it and its use.
For Oregon county roads, the counties usually do NOT own the underlying right of way but rather have an easement across the land. The county court (a commission not a court of law) was either petitioned by residents to establish a road, or the county recognized the need, and established the road by order. In some cases damages were awarded, but the right of way was not usually acquired in fee simple.
So, different states, different laws.
Okay, so what if the contract said 50 feet or 100 feet or 300 feet from the section corner? And then what if the following course ended somewhere near an unmentioned river or lake or another unmentioned road? Do we simply give away to the grantee any usable thing the grantor has that the description travels near to? And how near is near enough?
It is not up to surveyors or the parties themselves to insert subjective and new elements in order to change the clear meaning of a contract.
With nothing more in the posted scenario the judge is going to limit this conveyance to the 30 foot call. Access to the parcel would be granted based on implication, necessity or some other such means.
If the court does grant title to the road in this scenario it would only be because they are swayed by evidence that roads normally travel along these lines and it's customary to describe the parcel excluding the road and not mentioning it. Testimony, no matter how carefully the question is worded, would not be allowed to contradict the call for 30 feet. There is no latent ambiguity here, the call is clear, it would take insertion of missing elements to make it ambiguous. The elements don't exist for the presumption of granting the roadway in this scenario.
Had the description mentioned the road or right of way, then we find the 30 feet does not agree when we research or measure, then we have the analysis referred to by the court cases and JB.
You are trying to function like a judge in a court and that is not what you are.
The surveyor's responsibility is to recover and analyze established physical evidence, not preserve a record.
For instance, if you measure 16 ft. from the section line to a fence on one side and 33 ft. from the section line to a fence on the other side, the presumption that the R/W is centered on the section line is false.
If there is physical evidence that both properties have access to the road, the operative presumption is that they own to the section line, but the road occupies a prescriptive or necessity easement.
Stick with the recovery and analysis of physical evidence and leave the judges to their record evidence.
Our recovery and analysis of established physical evidence is the only method available to determine the magnitude of error in the record and we, not the courts, determine when the errors in a record need to be corrected; it is an established fact that there are 'errors' in all land description records, most of which are the result of large errors that were aceptable in the past because of the old quality of equipment and public needs.
Remember the ALTA/ACSM Accuracy standards? They outlined the surveyors responsibility:
Background
The lines and corners on any property survey have uncertainty in location which is the result of (1) availability and condition of reference monuments, (2) occupation or possession lines as they may differ from record lines, (3) clarity or ambiguity of the record descriptions or plats of the surveyed tracts and its adjoiners and (4) Relative Positional Accuracy.
The first three sources of uncertainty must be weighed as evidence in the determination of where, in the professional surveyor's opinion, the boundary lines and corners should be placed.
Note that 'occupation and possession lines' preceed 'clarity or ambiguity'.
Richard Schaut
I have to agree with Richard; a lot will depend upon the physical evidence and circumstances.
We have a responsibility to make a determination but no authority to impose it.