Glen, Dang it!
"So where exactly does the physical evidence place the access?"
My thought exactly. In the case of a latent ambiguity, one would need to take a step back and have a closer look at the original intent? Would the evidence speak to one interpretation over another? Would one interpretation create a conflict when another would be in harmony with the evidence? Words are not always perfect, but physical actions on the ground do have a tendency to speak more clearly as to the original intent.
My .02
Carry on.
Just because I'm paranoid, doesn't mean they aren't out to get me.
> "excepting therefrom" and "together with" ingress/egress and utility easements
Critical words for interpreting what was in the original post. If the grantor was splitting his land, he could be reserving an easement located in the land he was selling, for his access to his other land he was keeping, OR he could be granting the easement, in the land he retained, to the buyer of a parcel that needed to use that route.
Nothing about it suggests centering on the boundary.
"60 FEET IN WIDTH, OFF AND ALONG COINCIDENT WITH THE NORTH BOUNDARY OF..."
It is adjacent to, and not on the property. At least in my world. 😉
>"excepting therefrom" and "together with" ingress/egress and utility easements
Those words added in a later post make all the difference, as I noted above. Those and any apparent use on the ground would greatly clarify the situation.
I think you have to look at the whole of the situation, where the physical access is, where the access would be per each deed and who granted what to whom...it sounds as though some deeds read Off the property while some say ON the property...that could make sense depending on the layout...
The use on the ground consists of two tire tracks adjacent to the fence within 10' to 12' for the most part. There are no utilities.
One of the lines has an additional fence built 60 feet away but I believe that fence was built within the past 15 years based on a mistaken interpretation of the description.
In reviewing the various deeds, "Along With" describes easements not on the subject parcel boundaries, for example departing from the northeast corner and running east to the main road. "Excepting Therefrom" describes easements that are along the subject boundaries. This kind of makes a point for centered.
I have emailed our real estate lawyer for an opinion. I hope the owner/boss doesn't get too upset when that bill comes.
> The use on the ground consists of two tire tracks adjacent to the fence within 10' to 12' for the most part. There are no utilities.
>
> One of the lines has an additional fence built 60 feet away but I believe that fence was built within the past 15 years based on a mistaken interpretation of the description.
Vern,
Please clarify which side of the boundary line the tracks are on, the subject property or offsite.
It varies. The former surveys interpret the easements on the same side as the trails but on one line there are trails on both sides. The trails would fall within a centered easement everywhere except one small area where the trail navigates around a man-made pond.
How does that clarify the location of the R/W?
:-S
> It varies. The former surveys interpret the easements on the same side as the trails but on one line there are trails on both sides. The trails would fall within a centered easement everywhere except one small area where the trail navigates around a man-made pond.
So, the preponderance of the vehicle trails are not on one side of the boundary or the other? They're equally on and off your client's property?
It doesn't. Therein lies the problem.
Yes, It is not very equal but both situations exist along my clients south, east and north boundary lines. The west boundary line is another public highway with a clear and concise deed, no issues there.
Vern,
A few things:
1. The description of the access easement is ambiguous, a patent ambiguity. Therefore, you must look outside the instrument for the best evidence to clarify it.
2. Perhaps there's a reason that the easement description is written as it is, because the actual use varies.
3. What is the best evidence of the location of the easement? The actual use and location of the vehicle tracks appear to be the best evidence.
4. Where the trail strays out of what might be the 60' wide easement (when going around the pond) as you state above, it may be that the public has acquired a prescriptive right of use there, which you are obligated to show. You stated that all of the vehicle trails would fit into a 60' easement except for the portion where there are double tracks near the pond area.
I would show the easement embracing the trails wherever they are on the ground and the additional use by the public around the pond.