Easement or Fee Title

Court Cases relating to what issue?

Many of the roads/highways around here are easements but we typically hold the right of way line for 1)area calculations, 2) frontage requirements, and 3) Setbacks.

I have been an advocate for using that area under the ways as suitable for septic calculations. MA has limits on bedrooms per square footage, and tis would help many folks, or hurt more?

I guess, what I'm trying to say, is what does it matter if there is an absolute and exclusive easement for a highway, (including limited access potentially) then what does it matter how it's shown on a plan?

That is common here in Oklahoma..and just as confusing.

Most of the Interstate Highway System's R/W is recorded on documents almost identical to what you've related; an easement. Technically leaving an underlying fee ownership.

County tax rolls exempt all of this area like the State has fee. The property owner only pays taxes on their usable net.

Here's the fly in the ointment: When preparing new R/W for the State we always included the existing "easement" in the description for fee conveyance. The State is aware of the "screw-up" and rectifies it every chance they get.

On the other side of the coin it gives title company fits. Although the wording of the conveyance refers to easement, the restrictive use stated on the document implies fee. There have been a number of quiet title suits I have seen that rectified this by a quit-claim to the State of the areas referred to as "easement". And yes, subsequent conveyances are written as if the easement line was a property line...hence the quiet title actions.

I do not have a specific case here at the house to quote.

On a side note, the most interesting case I remember concerning this subject actually included a utility company:

SH 3 here in central Oklahoma was built on lands dedicated as an easement to the "Oklahoma Highway Department" for construction of a highway. This was in the 1930s.

In the middle '70s the gas company wanted to put a distribution line in the ground along the "R/W" and filed for a utility permit with the Dept. of Transportation. It was approved to follow the R/W line, 5' inside.

A property owner(an attorney...imagine that) sued the State and the gas company because the original easement didn't accommodate utilities..only a highway. He prevailed, sold an easement to the gas company and was awarded damages.

Since that time the State only acquires fee for its RW. There are still a million acres of "easement" still out there.

The document is a marvel of ambiguity, but I see why you are leaning toward an easement, given the use of that word and enumeration of the rights so gained, which enumeration would not be needed if it was in fee.

Careful study of 117.20 would be in order. Eminent domain is more often used to acquire fee title. Does the law mention it being used to gain an easement?

As is common in condemnation, this is clearly an easement. The mistake or oversight was not in leaving fee and granting use, it was taking of fee where easements would suffice...

DOT will generally claim rights to the surface and not have FEE Title to any of the lands highways are built.

The mineral rights usually remain with the original property owner.

By the language given it does not appear that the state restricted access to the highway. Had they created a limited access highway, as in several other states it is a probably a fee taking. In PA limited access highways are owned in fee and regular highways are easements, no matter what the taking document says, per various court rulings.

In PA the only recorded taking document may be the filed highway maps. When I have one of those I cite the first page of the map set with the governor's signature and the particular sheet number with the surveyed parcel. Years ago I had one survey, that adjoined a limited access US Route Number to the South and a local road relocation for a crossover bridge to the North. Then a segment along the West boundary was taken for an intersection for another limited access highway. The East boundary adjoined the rear of several lots and access was over a limited area on the easterly end of the relocated road.

If I recall it may also have been made undersized by the second taking, but in PA and NJ a lot made undersize by a roadway taking is regarded for zoning purposes as having it's original area. In those instances it is necessary to reference on the map and in the description the gross, taking and net area as well as taking ordinance or some other taking document.

Paul in PA

All Minnesota highway ROWs of that era are easements as far as I know.

Having the adjacent boundary lines end at the ROW line on a drawing is common practice in MN. That's the way you're expected to do it when platting. Although the ROW is an easement, it is of an exclusive or nearly exclusive nature. The adjacent owner can't make any use of it without MnDOT's permission. Ending the boundary lines at the ROW line makes sense under those circumstances.

When there is no taking document, and the ROW was created through use, a survey drawing will typically show the fee lines underlying the ROW. There are a lot of Minnesota highways like that, but this isn't one of them.

In the 1980s MnDOT began using highway plats to define the area being taken. At that time they began acquiring the ROWs in fee. During the first few years of that program, they did not actually get fee title due to some legal technicality, according to a title attorney I once talked with. Then they modified their taking documents and procedures and really did begin acquiring fee title.

The description for a 1960s taking will probably be metes and bounds, beginning at a PLSS corner that might be several miles away. Chances are the M & B geometry will fit some line shown on the right-of-way drawing. The PLSS tie generally can't be run exactly as written, although it often works to rotate the geometry around the POB to fit local evidence.

If access was taken from your parcel, that will be spelled out in the individual taking description for the parcel. There are probably several dozen such descriptions in the body of the Final Certificate.

MnDOT will release the vague snow fence easement over "lands adjacent" on request. It takes a few months but is often a good idea, since such an easement can cloud the owner's title and mortgage lenders don't like them.

Bill

While I agree with the majority of what you say I have been involved in many eminent domain cases involving easements (mainly for water and sewer lines). I'm of the opinion also that the wording using the term "easement" pretty much makes it clear that it is not fee simple. USUALLY in the cases in which I've been involved the appraisal is either for "full value" of the property for fee simple or some percentage if it is "only" for an easement.

Andy

"By authority of Section 117.20, Minnesota Statutes, I hereby certify that the lands or rights herein described have been taken by the State of Minnesota in eminent domain proceeding for trunk highway purposes in conformity with the requirements of Chapter 117 of said statutes;........ that all damages have been paid by the State of Minnesota; that said proceedings are now complete; and that said State now owns an easement is sand lands for highway purposes, together with the following rights, to-wit:"

The property was not conveyed by this certification. The final judgement in the "eminent domain proceeding" is how the tract was acquired. The wording of the final judgement will determine the status of this parcel. The right of way certifications that I am familiar with are required to get State and or Federal funding for the project.

Mass. Highway Dept. has a fun scenario with new highway takings these days. Their policy since the 1950's or 60's has been to make takings in fee. The fun begins when there is registered land involved. The Land Court no longer allows them to write the fee takings as encumbrances to title, they are now required to prepare a full Land Court survey plan and have new title certificates written for both the taken land and the remaining private lot. Mass. Highway's answer, to save money, is to now take registered land by easement only, so they can just list the takings on the landowners' title certificate encumbrance sheets. The layout plans look the same, but the taking documents are a bit longer in specifying which parcels are taken in fee, and which as easements.

I'm much simpler in my way of thinking than some here, and can't cite any cases, or know all of the legal nuances. The key words to me are "for trunk highway purposes" and "easement". I don't think it could be anything else but a right-of-way (or highway) easement. I look for language that limits the use of the property.

It might be an exclusive easement, and the underlying owner possibly can't use it for anything at all....but it would also mean to me that the highway dept. probably couldn't use it for anything besides "trunk highway" purposes. And if they rerouted the road and ceased to use that part of the corridor one day for the highway, it would probably revert back to the underlying owner, and they probably couldn't sell it off.

I would also think that they might have some legal issues if they converted it to a side-road and it was no longer used as a "trunk highway" or in support of the mainline. ?

Thanks for the responses

I agree with Mr. Chafee's response and is what I have been doing in the past, but wanted to get some other opinions.

Sure would be a lot simpler if the State would have just taken the right of ways in fee.