dnelson80, post: 351925, member: 9396 wrote: I can shed some light on these questions as I am the friend John mentioned.
An attorney asked me to survey the north line of his clients property. The south line of the adjoining deed reads the same. The question arose from the fact that the deeds reference the center of a 60' wide roadway, which is actually a 20' wide gravel driveway serving houses on both parcels. The deeds read "...to a point in the center of a 60 foot roadway; thence along said centerline (bearing and dist) to a point; thence (bearing and dist) to a point; thence (bearing and dist) to a point;...to the point of beginning." The reference to the centerline was only in that first course, and there was never a call that read leaving said centerline. The line closely follows the road, better in some areas than others, of course. Large trees and a bridge at one end indicate the road has not moved much, if at all, over time.
The problem came up because both deeds reference an easement 30' wide on the adjoining parcel, creating the 60' wide roadway. As others have mentioned, a road rarely follows the center of a right-of-way. But in this case, the center of the easement, may or may not be controlled by the center of the road. Hence the question.
For what it's worth, the attorney thinks the road only defines the first call, not the rest.
I would disagree with the Attorney because "thence along said centerline" signifies an intention to follow the road. Obviously both owners would like ownership to the road so that they can access it. However, the centerline of a gravel driveway can be somewhat imprecise therefore if the bearing and distance to a point lands somewhere in the gravel road I would probably hold it as the precise boundary point. Also both parties have a 30' easement on the other so access to the road isn't really an issue unless the road wanders way off the meanders. Often the purpose of such meanders is to get you onto the correct road but not necessarily control the precise location, the road does that. The best solution is to set monuments with the agreement of both owners and have them execute a boundary line agreement to nail down the boundary better.
You are fortunate the calls for the road were actually included. Sometimes in old Deeds the calls were left out and all you have is bearings and distances that just happen to fit some feature. One boundary I did involved a ridge line; I wrote up a discussion which eventually made it into the hands of the adjoiner's Property Manager and he agreed with me. The intended boundary was the ridge although the call was left out of Deed description. He said in timberland the adjoining Lumber Companies would make the ridges the boundaries because their steam donkeys dragged the logs downhill.
John1Minor2, post: 351879, member: 404 wrote: A friend has a deed that calls ÛÏto the centerline of the roadÛ thence a brg/dist. The next 6 or 7 brg/dist combinations say ÛÏto a pointÛ. The 6 or 7 calls closely follow the road. My friendÛªs question is can he use the road as the boundary or do the brg/dist calls control.
My opinion was that the road becomes a natural monument by virtue of the call to the centerline and controls over the 6 or 7 brg/dist calls. I would think differently if the brg/dist calls didnÛªt closely follow the road. There are no departing the road calls.What do you guys think? Anybody know of any similar case law?
As has been pointed out, we really don't know unless all the evidence is found and presented, including parol evidence.
That being said, why did the scrivener call to the center of the road unless the intent was to follow the centerline of the road? In this case (barring other evidence), the rebuttable presumption would be to follow the centerline of the road.
Is the road a natural or artificial monument? Does it really matter? Monuments, natural or artificial, along with just about every other form of evidence ranks higher in the rules of construction than mere bearings and distances. Why do we tend to hold the math above all other forms of evidence?
This Idaho case may shed some light on how a court looks at similar circumstances. Miller v Callear, 91 P.3d 1117 (2004), 140 Idaho 213.
OK. That clears things up tremendously. The physical center line of wherever the road appears to be does not control at all. The intent appears to have created a definite boundary following the various bearings and distances listed. The 30-foot easement on either side would be parallel with the various calls, not wherever the apparent center line of the road might be at any time in the future. My view is that the one reference to the road was an afterthought to clarify that that specific property corner happens to be on the approximate center line of a road.
Since both deeds have the same bearings and distances they control. The easement is 30' on either side and the actual driveway can be anywhere within the easement as required? In fact the driveway could be 100% on one lot or the other and not even be in the easement and still not affect the boundary. The described easement shows intent and the driveway location shows acceptance of the intent. Assume the driveway is outside the easement on Lot B and owner B wants it moved into the easement. He can do that at his own expense, unless he can show that A forcefully put it on B's lot outside the easement. That the first course is close to exact merely shows that the subdivision of the lots approval was probably based on a single driveway location at the street line. After that the municipality could sometimes care less.
I have seen lots with common driveway easements that extend a fixed distance from the roadway, yet the common driveway continues without a written easement to wherever the houses got erected.
I am surveying a parcel now that has two flag lots sharing a long 50' flag, 25' each. The lot to the East opens up farther North than the lot to the West and the easement jogs over to 50' full on the West lot with the driveway more or less in the middle. The driveway location and gate is fully on the West 25' flag and flare. However along the long flag the driveway leaves the easement on to other lands of the original owner and does not raise any hackles.
Does the 60' roadway definition imply use by other landowners, near or remote, or is it not a road at all?
The word "Road" does not force a municipality to accept same, but does allow for third party use.
Paul in PA
Holy Cow, post: 351931, member: 50 wrote: OK. That clears things up tremendously. The physical center line of wherever the road appears to be does not control at all. The intent appears to have created a definite boundary following the various bearings and distances listed. The 30-foot easement on either side would be parallel with the various calls, not wherever the apparent center line of the road might be at any time in the future. My view is that the one reference to the road was an afterthought to clarify that that specific property corner happens to be on the approximate center line of a road.
Here, I would hold the road would be held as the monument for the parcels. Agreeing with Dave K and differing totally with the attorney and Holy Cow et al.
The call ÛÏTO the C/LÛ and ÛÏthence along said C/LÛ implies the c/l of the physical road as the boundary. Plus the intent by common sense.
The B/Ds are provided to calculate acreage (more or less) such as a meander line would. Curious to know the difference in acreage difference between the two. Curoius to know if there are any PKs, nails set along the centerline.
Defining the parcels by the B/D calls would bastardize the intent and harmony
This is clearly a case of an unknowing scrivener overexplaining the intent. He introduced doubt by providing two ways to interpret the deed. The goal was a boundary line that was agreeable to both parties, that generally followed an existing roadway, and thus provided access to both parties somewhat equally. The intent beyond the words in the deed probably was to ensure that both parties were equally responsible for the maintenance of the road in perpetuity. Whether someone's estimate of the center line would differ from someone else's estimate was not in their minds at the time.
In the more common case of a call to the center of a creek the adjoiners don't care about a few inches or even a few feet one way or the other. They are far more concerned about each one staying on their side of the watery separation. Sillyass surveyors come along and screw things up by attempting to define a center line by using their tools (THE BIG HAMMER as mentioned above) because it makes them fell warm and fuzzy inside.
When specific courses are included in the originating document, they should be dominant over the more generalized approach saying "Wherever."
Holy Cow, post: 351949, member: 50 wrote: This is clearly a case of an unknowing scrivener overexplaining the intent. He introduced doubt by providing two ways to interpret the deed. The goal was a boundary line that was agreeable to both parties, that generally followed an existing roadway, and thus provided access to both parties somewhat equally. The intent beyond the words in the deed probably was to ensure that both parties were equally responsible for the maintenance of the road in perpetuity. Whether someone's estimate of the center line would differ from someone else's estimate was not in their minds at the time.
In the more common case of a call to the center of a creek the adjoiners don't care about a few inches or even a few feet one way or the other. They are far more concerned about each one staying on their side of the watery separation. Sillyass surveyors come along and screw things up by attempting to define a center line by using their tools (THE BIG HAMMER as mentioned above) because it makes them fell warm and fuzzy inside.
When specific courses are included in the originating document, they should be dominant over the more generalized approach saying "Wherever."
Ahem. Any surveyor worth the value of their stamp using a transit/tape/ and or TS or even RTK etc should be able to define a physical C/L with ease. If not, turn in the plumb bob to the appropriate authority. Sometimes one has to create record monuments in support of the physical conditions.
To repeat the adage that is used here at times, ÛÏ If not the surveyor then whoÛ
The action in the originating document clarified where the center line of the road was to be considered to be and where it should be maintained. Identical action happens with highway design. A series of courses of specific bearings and distances is prepared to define where the center line of the pavement is to be maintained. This then locks down where the easement boundaries are to stay. In the case in the original post, one would not want the roadway to wander to the point that someday a 30-foot offset would pass through an existing structure. It's called the application of common sense by common people (the adjoiners who agreed to the terms of the originating document).
Holy Cow, post: 351958, member: 50 wrote: The action in the originating document clarified where the center line of the road was to be considered to be and where it should be maintained. Identical action happens with highway design. A series of courses of specific bearings and distances is prepared to define where the center line of the pavement is to be maintained. This then locks down where the easement boundaries are to stay. In the case in the original post, one would not want the roadway to wander to the point that someday a 30-foot offset would pass through an existing structure. It's called the application of common sense by common people (the adjoiners who agreed to the terms of the originating document).
The first course runs along the road, say the road wanders by rotating 15å¡ counter-clockwise (say the south end stays and the north end rotates). Do you rotate the rest of the courses or do you jog over to where the north end of the first course was then continue on the following courses.
😉
In general common driveway easements are created based on topo, lot geometry, sight distance, etc. prior to construction of the driveway.
I would say the scrivener may have been in error using the word road or roadway.
Although per zoning a common driveway may have to be built to meet roadway specifications it takes much more than that to make it a roadway, such as offer of dedication to municipality and acceptance by the municipality. The latter does not necessarily follow the former.
Paul in PA
Picture the original adjoiners who asked for this description to be prepared grabbing a hold of said document by its four corners and asking themselves, "Does this say what I want it to mean?" Further imagine that their expertise in matters of law and real estate are not nearly so fine as all of us commenting on this thread. The question is not so much "what do highly trained and experienced surveyors think this could mean" as "what did it mean to the original adjoiners".
Holy Cow, post: 351958, member: 50 wrote: The action in the originating document clarified where the center line of the road was to be considered to be and where it should be maintained. Identical action happens with highway design. A series of courses of specific bearings and distances is prepared to define where the center line of the pavement is to be maintained. This then locks down where the easement boundaries are to stay. In the case in the original post, one would not want the roadway to wander to the point that someday a 30-foot offset would pass through an existing structure. It's called the application of common sense by common people (the adjoiners who agreed to the terms of the originating document).
If there was a drastic movement of the road as you stated, then common sense would dictate that it should be treated akin to have been avulsed.
One can hypothesize endless scenarios as you have done. But IMO laying out the B/Ds will cause more problems
If the road has not been realigned since the creation of the parcels, the road is the monument.
A title company needs to know where the road easement is located so they can determine whether or not any improvement is encroaching into said easement. Driveways can wander over time by somewhat unintentional means. In this case a 30-foot wide swath on either side of the center line would then be moving with it Unintended consequences could result.
I'm betting the adjoiners knew precisely what they intended to do in the real world but did not have the legal expertise to understand that the scrivener didn't understand that intent, thus preparing a fuzzy description that causes otherwise intelligent surveyors to toss water balloons at one another.
Holy Cow, post: 351969, member: 50 wrote: A title company needs to know where the road easement is located so they can determine whether or not any improvement is encroaching into said easement. Driveways can wander over time by somewhat unintentional means. In this case a 30-foot wide swath on either side of the center line would then be moving with it Unintended consequences could result.
I'm betting the adjoiners knew precisely what they intended to do in the real world but did not have the legal expertise to understand that the scrivener didn't understand that intent, thus preparing a fuzzy description that causes otherwise intelligent surveyors to toss water balloons at one another.
We need to have all the facts.
Was the road in place when the parcels were created?
Were the parcels created before the road was built?
Did the owners say, "Gee, let's put the boundary in the center of road at these 2 points, but then the boundary shall wander away from the centerline, from side to side, according to some un-monumented bearings and distances, for the remaining boundary"? (highly unlikely)
Did the owners say "Gee, let's put the boundary along the center of the road"? (the reasonable presumption)
Did the owners say "Gee, let's put the boundary here, and then we will build a road that wanders from side to side along the boundary"? (highly unlikely)
Did the owners say "Gee, let's put the boundary here and we will build the road centered on the boundary"? (very possible)
Maybe even more importantly, what has happened since the descriptions were written, does any of the boundary establishment doctrines come into play?
I suggest we get more evidence and facts before we start getting too excited.
Holy Cow, post: 351969, member: 50 wrote: A title company needs to know where the road easement is located so they can determine ...
I'm betting the adjoiners knew precisely what they intended to do in the real world but did not have the legal expertise to understand that the scrivener didn't understand that intent, thus preparing a fuzzy description that causes otherwise intelligent surveyors to toss water balloons at one another.
We all put our pants on one leg at a time. But some of us don't zip up.
I hope you get the meaning of paying attention to details.
Been doing this far too long to endlessly hear attorneys, title companies and some PE-PLSs types tell a PLS to leave the description be in order to avoid unpleasantries that they perceive are caused by paying attention to detail.
The driving lanes change every time a rural road is being repaired and maintained and graded or have the ditches cleaned out.
The back of ditch or margin of the roads usually remain the same. That is what I use to locate the road and the middle of roadway usually is not the middle of the driving lane.
I will use the oldest metes and bounds description for a property line down a rural road most of the time.
A few subdivision have a couple of roads that were not built in the right place and the property lines follow the original deed calls.
We have towns in the county that the streets are not in the correct alignment and some block corners are in the pavement.
Roads are not a natural monument or reference, they are man made.
0.02
My favorite was when a surveyor located a centerline of a road as the boundary even though the deed called for a point 1 rod west of the road, thence near the road to a point 1 rod west of the road.
Then the engineer designed a road surface that increased the width of the traveled way from ~10' to 20'. They extended the excess onto the subject property.
Then another surveyor retraced the lot across the street and held the centerline of the 20' way which was about 5' off from the first surveyor. That deed did not call for the road as a monument either.
I cannot make this stuff up.
A By call makes the road a monument. If the road is not a monument, why would you hold it? Perhaps you would, but only after you completed the requisite research that would provide the preponderance of evidence that the road was intended to be the boundary.
How many surveyors does it take to confuse a thread? In this Case quite a few contributed by not reading it.
D Nelson, who was the originator of the question, chimed in with clarification.
1/ There is no road, it is a 20' gravel driveway in a 60' R.O.W.
2/ There is no evidence given that the R.O.W. passes between the entirety of the parcels. i.e. It is not a road because it goes nowhere.
3/ I know of no citation that a driveway defines a boundary.
4/ I can accept that the use of the word road in the description does not make it a public road.
5/ There are three types of road recognized by law, a public road (R.O.W. usually held by a municipality), a private road (R.O.W. usually held by another type of ownership) and a byroad or driftway (road of necessity but not laid out).
6/ Because the driveway is within cross easements and not a single defined R.O.W it may well not qualify as a private road.
7/ By and along are not defined by ACSM
8/ Per Black's "by" is defined as "close to".
9/ Per Black's "along" is defined as "by, on,.. or over. ... The term does not necessarily mean touching at all points; nor does it necessarily imply contact."
10/ I will also add per Black's "with" "A word denoting a relation of proximity, contiguity or association."
11/ Lastly from Black's; "The proper test in determining whether a road is public or private is the use to which it is put."
You have all read too much into the question and may all be too willing to corrupt the record.
Paul in PA
It appears that some kept posting without ever carefully reading the key message:
I can shed some light on these questions as I am the friend John mentioned.
An attorney asked me to survey the north line of his clients property. The south line of the adjoining deed reads the same. The question arose from the fact that the deeds reference the center of a 60' wide roadway, which is actually a 20' wide gravel driveway serving houses on both parcels. The deeds read "...to a point in the center of a 60 foot roadway; thence along said centerline (bearing and dist) to a point; thence (bearing and dist) to a point; thence (bearing and dist) to a point;...to the point of beginning." The reference to the centerline was only in that first course, and there was never a call that read leaving said centerline. The line closely follows the road, better in some areas than others, of course. Large trees and a bridge at one end indicate the road has not moved much, if at all, over time.
The problem came up because both deeds reference an easement 30' wide on the adjoining parcel, creating the 60' wide roadway. As others have mentioned, a road rarely follows the center of a right-of-way. But in this case, the center of the easement, may or may not be controlled by the center of the road. Hence the question.
For what it's worth, the attorney thinks the road only defines the first call, not the rest.
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The future wanderings of the road bed have absolutely nothing to do with the common property line. Run the wording of the description in reverse to more clearly understand why this is the case. Numerous courses are followed before encountering the one ( and only) course that is said to be along a road center line. Hence, the mention of the road was added by the scrivener to provide some reference to the fact that road easements were intended to be tied to the courses that were intended to document the existence of a road, not to serve as notice that wherever the driveway ever happens to be in perpetuity is where the property boundary is located.
This is Starting to remind me of Professor Irwin Corey a little.