I just looked @ a deed that used some language like "except the northerly 60 feet for roadway purposes".
I believe Wattles says to use "except" for when the parcel being described is to not be transferred. But in the case of the above I am tending toward saying that the "excepted" is being reserved as an easement because of the added words "for roadway purposes".
Any thoughts as to whether the excepted parcel is part of the transaction or not? Would you look at the area to help you solve the ambiguity or would you go with your decision regardless of the area? What if it didn't include an area of the parcel being transferred?
Not all road rights of way are easements. They can be fee.
> I just looked @ a deed that used some language like "except the northerly 60 feet for roadway purposes".
>
> I believe Wattles says to use "except" for when the parcel being described is to not be transferred. But in the case of the above I am tending toward saying that the "excepted" is being reserved as an easement because of the added words "for roadway purposes".
>
> Any thoughts as to whether the excepted parcel is part of the transaction or not? Would you look at the area to help you solve the ambiguity or would you go with your decision regardless of the area? What if it didn't include an area of the parcel being transferred?
To me, the conveyance isn't ambiguous. It is excepting the northerly 60 feet for roadway purposes. My thoughts are, by the written word, it is NOT a part of the conveyance.
Now whether or not the 60' was meant to be retained (or not owned by) the grantor isn't necessarily a survey problem. It is more of a title concern. In my day to day business I really hate when title companies meddle in survey affairs. I try to extend to them the same courtesy and stay out of title problems.
Not seeing the survey I could only suggest that you're going to have to survey the whole parcel, otherwise you wouldn't know where the "northerly 60 feet" is located.
IMHO I would monument all four (if it's rectangular) corners of the 60' and the original parcel. Then just note the northerly 60' as a "less and except" as noted in deed number 'yadda-yadda'.
Some things are out of our realm of "fixins". 😉
"Except" removes the strip from the parcel previously described.
> > I just looked @ a deed that used some language like "except the northerly 60 feet for roadway purposes".
> >
> > I believe Wattles says to use "except" for when the parcel being described is to not be transferred. But in the case of the above I am tending toward saying that the "excepted" is being reserved as an easement because of the added words "for roadway purposes".
> >
> > Any thoughts as to whether the excepted parcel is part of the transaction or not? Would you look at the area to help you solve the ambiguity or would you go with your decision regardless of the area? What if it didn't include an area of the parcel being transferred?
>
You won't be able to tell from your document alone. It doesn't exist in a vacuum. There are other documents which are necessary to determine whether the "for roadway purposes" is referring to an easement estate or a fee title estate with a reversion clause.
> To me, the conveyance isn't ambiguous. It is excepting the northerly 60 feet for roadway purposes. My thoughts are, by the written word, it is NOT a part of the conveyance.
There is a presumption that the word "except" refers to an exception in fee title, however ... presumptions are rebuttable. There is a patent ambiguity on the face of the document where the word "except" appears along with the "for roadway purposes." "Except" presumes fee title where "for roadway purposes" infers an easement interest. Additional evidence is necessary to determine if the roadway is owned in fee title as evidenced by a conveyance document.
If it's a fee titled strip of land, then the word "except" clearly refers to a fee title exception. If the words "for roadway purposes" appears in the title conveyance document creating the road, then the phrase could subject the conveyance of the strip to a reversionary interest in the roadway which would be considered as an appurtenance to the subject property. Appurtenances are attached to and run with the adjoining property. The reversionary interest in the roadway would be included with the adjoining property and would not be "excepted" from the conveyance.
If the roadway proves to be an easement, then the word "except" can only except the easement and cannot elevate the nature of an easement to a fee title strip of land. Granted, we would all like to have seen the words "subject to" rather than "except" but that's a common mistake made by scriveners. There would have to be a clearly expressed intent made to except the strip from the conveyance of the adjoining property. The landowner can intent to retain ownership of the strip as long as it's retained for a purpose such as the strip remaining attached to another portion of the seller's property or when followed by a conveyance of the strip to another adjoiner. It's not easy to detach a strip of land from the property without a specific purpose for detaching it. Texas has the most well-settled cases on this which reference the doctrine of "strips and gores."
>
> Now whether or not the 60' was meant to be retained (or not owned by) the grantor isn't necessarily a survey problem. It is more of a title concern. In my day to day business I really hate when title companies meddle in survey affairs. I try to extend to them the same courtesy and stay out of title problems.
>
I see this as a "survey problem." Where do you show the boundary of the property? What linetype do you show for the roadway? Is the roadway "fee" or "easement"? These are all common determinations made by surveyors when they draw maps and set corner monuments. While depiction of the surveyor's opinion on the survey cannot affect the status of the title, it's still important for the surveyor to make the appropriate depictions on the map. It's not a black/white division between the title company's duties and the surveyor's duties.
I do agree that it's important to extend to them the common professional courtesies by working with them as a member of the team.
JBS
That's the way I'd interpret it Jim, it is not transferred. The wording "for roadway purposes" is for clarity as to why it is excepted. Easy to check/verify with a phone call to the local DOT jurisdiction who tracks all roadways they do "own". Then again, that call could also lead to: 1) a can of worms for some parties, 2) additional work to further identify said can-o-worms and fix it, thus being the prudent hero.
To me, reserving for a specific reason (roadway in this case) implies they are reserving it for themselves for future use. It can or can or can not be transferred, depending. How many times do you see reservations for drainage, landscaping buffers, even a family cemetery.
>Where do you show the boundary of the property?
My opinion is the southerly line of the 60' exception is the boundary of the conveyance; barring any other documentation or recorded actions by adjoiner's.
And I agree it is really not a cut and dried kind of problem. There probably exists some indication of the spirit of the conveyance in other conveyances. But given the deed description only, I would hold with my opinion that the n'ly 60' was not a part of the conveyance.
I am thinking it is ambiguous because the grantor is limiting the exception to be for roadway purposes. I think one needs to look at the surrounding deeds, the area being granted, and other evidence to resolve the intent. If he wanted to except that strip from the grant adding the purpose doesn't add clarity, it adds confusion. If he wanted it to be used as an easement he should have "reserved" it for that purpose.
You probably need to chase the history back to when the wording was first used for this parcel, and also determine if the road has been transferred in fee.
If this is a recently created description, there may need to be a correction deed filed to remove the ambiguity.
It's pretty clear to me. It says "except." Except means except.
BUT...
"for road purposes" may open it up for extrinsic evidence such as your client has improvements in the 60' strip which would tend to support it's an easement or testimony of the parties involved. I have a feeling, however, that most lay people don't really understand the difference between a Deed or easement.
As Bill said, if it's recent then you can ask the parties what they meant and maybe record a correction if they so choose. If not recent then most likely all you have is the evidence of how the property was used.
The safest course for your client is to stay out of the 60 foot strip if it's not a problem for them otherwise other action may be necessary.
Excellent response. The only thing i would add is placing this in the time line of statutes in the State we are discussing. The problem may disappear quickly.
I understand my limitations in resolving many questions but I won't shy away from professional evaluation of fact patterns...
Remember that every grant and dedication requires an acceptance. Thus the "call to the DOT". At least that's what I'd do, then cite the recording information of the acceptance on the plat. Then it is "excepted".
If they have none, I may include some verbage along the lines of "subject" to the use of the North 60 feet for roadway purposes. That doesn't fix anything, but it is a red flag for somebody else. Then again, we can't really change the old deed. But we can certainly help with the new one.
I would look at the acreage (is that what you mean by area?). If the quantity of land more closely matches one solution or the other, it could become the controlling consideration. Rules of construction are guides and sometimes the generally less specific calls end up being more indicative of the intent when all things are considered. In addition, generally the intent contained in the body of the description will control over conflicts with ambiguous clauses. But watch out for absurd results at all costs.
