The recorded description says this property line begins "2160 feet North" of the SE Corner of Section 6. The established fence (not new) lies at 2129.3 feet north. Without getting into an archaeological investigation, let's just say the fence and ditch (boundary between the properties) has existed since the 1950s.
The REC has placed a pole line 7' north of the fence (approx. 23' south of the described property line) to serve a member's new construction. Does the record owner of the property to the north have the right to dedicate an easement?
Very interesting question.
I would advise extreme caution in the wording of the legal description. I'm thinking something like a Quit Claim type statement to the whatever width that may be on or near the southerly line.
I'm assuming you have been tasked with the preparation of the easement.
> I'm assuming you have been tasked with the preparation of the easement.
Yes.
From what I have been able to research:
A grant of easement does not require actual fee ownership, merely controlling occupation. The best case I could find involved the owner of a 99 year lease. The nature of the lease was the center of the suit. The courts found that holder of rights, in certain cases, can assign those rights, i.e. grant easements. However in that particular case the easement only existed as long as the lessee's rights existed.
In this case I believe there exists, at a minimum, a color of title to the 30' strip. My question stems from the determination that if clear and marketable title is not required to grant an easement, can a mere color of title enable the granting of an easement.
Still looking.
BTW, the poles are in..:pinch:
Does the adjoiner to the south know of the situation? You might need to get a easement from that person, too?
I would want to see more research before moving forward. It is entirely possible the fence and boundary have been separated for a reason.
We used to lease a few acres of our pasture to the farmer next door. It made fewer turns for him and we made good money. His son was unaware and gave his friends permission to cut a road through what looked like his dad's place. It ended a good thing and few friendships.
Your part in this is likely just a Description. Even so I would inform them of the need to hit the.Court House and talk with the owners.
Agree, based on the information. Something is 30 ft or so out of whack, so get both parties on the same page and in agreement to the quickest and least expensive fixit so nobody has to move anything (like power poles, ditches, driveways, etc)
> Your part in this is likely just a Description...
That's true, but my task also includes research for apparent ownerships, among a few other things. Both sides of this fence have been owned by the same folks as far back as the on-line records indicate (1991 or so).
It is up to the client to contact their subscribers, I stay out of that unless I want to spend every Saturday for the rest of my life being a good-old-boy and surveying every piece of property upon which I write an easement.
I have turned this over to the REC's legal department. If he's not taking a nap, maybe he will return my call...;-)
Sounds like a clouded title issue. Could open a can of worms if there is any bad blood between neighbors.
If you don't know who's property the easement would be on, ie, where is the boundary between the two properties, how can either one grant the easement? If you are not hired to actually find the boundary, you are probably better off describing the easement and have both owners grant the easement.
How do adjoining boundaries fit? Does the ends of the line have an existing corner? If the fence is straight, could it have been surveyed or bowed implying possibly fence of convenience? Have you researched aerials? Have you traced the deeds back and investigated senior rights? I think additional work needs done. Involving the adjoiner to sign would create problems in my opinion.
You are one of the good ones, Paden. It takes time and effort to work through this type of issue. This is a prime example of where any local surveyor who cares about his long term reputation would solve this puzzle or set the wheels in motion to get it resolved by those who can do so. The one-and-done boys would ignore the color of title issue and create a description for the owner (by deed only) to sign over an easement to whomever the real client is. Life can be amazingly simple if you ignore all problems.
