Highway easements

As usual it depends... Many state highways were created by easements, "for highway purposes" and many states consider highway purposes to include transportation of anything, including electricity and information. If this is the case with the easment in question the state can unilaterally issue a permit for a utility.?ÿ

As for landscaping.... I cant imagaine that in any state a DOT permit would allow anyone who isn't DOT and doesnt have the permission of the underlying fee owner to do any landscaping, but when issuing the permit, they may not care who owns the land. All they care about is the impact to the ROW.?ÿ

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Many DOT easements are temporary for construction and have an expiration.

States have allowed utilities to follow inside public roads without requiring easements from land owners.

Talk with your DOT row manager.

I would not pay anything to maintain land under DOT control.

Highway ROW is a huge gray area that I haven't been able to fully wrap my mind around. For all intensive purposes the so called highway "easement" might as well be considered in fee ownership by the municipality or state or whatever public agency claims the road. If not, why do so many surveyors set front pins on the margin of the ROW if the property goes to the center of the road? I've never seen any notation on a plat that the front pins are merely line pins and the actual corners are in the road. You can have one deed in the chain of title that calls to the center of the road and then the next deed in that chain of title has calls along the margin of the road. I have also seen clauses in deeds that specifically except the road ROW even when the listed calls go to the center of the road. How did the convention of setting front pins along the margin of the road get started? Is it because it has the benefit of allowing a landowner to reduce their property taxes if they take the survey to the Assessor's Office? It seems the only right a landowner really has to the ROW is the right of reversion in the unlikely event that the road gets abandoned and maybe the right/responsibility to mow the grass.

Here's a strange scenario that plays out all across Tennessee. Say TDOT wants to widen/improve a state designated road. They only have an "easement" for the existing road ROW. State statute sets that ROW presumptively at 50' wide, or 25' each side of centerline, but the statute states that it is a rebuttable presumption if there is evidence of ownership that proves otherwise but only specifically mentions fences as evidence. There is no mention of front pins set closer to centerline than 25' being a rebuttal to the presumption. I would assume an old barn would have to work, too. I see it often in my neck of the woods that barns are right up on the road...okay the barn thing was a mental tangent. So, When TDOT decides to improve the road they buy a fee simple ownership for everything they need that is beyond 25' from centerline. They don't buy fee simple ownership to the center of the road even though they only have an "easement" for the existing road. So in theory there's a strip of easement from the original road, then a strip of land owned in fee by TDOT, and then the land owned in fee by the fronting landowner. It boggles the mind.

If it's a state highway then?ÿ it's probably funded by the FHWA and subject to FHWA regulations as to how the ROW can be used.

State DOTs want to use FHWA money so they have to comply with FHWA regs.?ÿ

Where the owner of the ROW is the adjacent land owner and they are not allowed to use the ROW for uses that don't conflict with the original ROW rights conveyed in the easement doc (because of regs/rules) - this has the potential for an inverse condemnation action - it's probably not worth pursing but it's an interesting concept.

From?ÿFisher v. Golden Valley Elec. Ass'n, Inc.?ÿ658 P.2d 127 (1983):

?ÿIn some jurisdictions construction of a powerline which does not interfere with highway travel is regarded as a proper incidental subordinate use of a highway easement. In these jurisdictions such construction is not regarded as an additional burden or servitude on the underlying fee.[4] The reasoning underlying this position is that electric, and telephone, lines supply communications and power which were in an earlier age provided through messengers and freight wagons traveling on public highways. So long as the lines are compatible with road traffic they are viewed simply as adaptations of traditional highway uses made because of changing technology:

The easement acquired by the public in a highway includes every reasonable means for the transmission of intelligence, the conveyance of persons, and the transportation of commodities which the advance of civilization may render suitable for a highway.

McCullough v. Interstate Power & Light Co., 163 Wash. 147, 300 P. 165, 166 (1931).[5]

"So in theory there's a strip of easement from the original road, then a strip of land owned in fee by TDOT, and then the land owned in fee by the fronting landowner. It boggles the mind."

This is very common in Arizona, but its fact, not theory. What's interesting is that private surveyors who contract with the DOT for surveys of acquisition of new ROW (fee parcels) generally do not monument the corners of the new parcels they create. When they survey a parcel across the street they do monument the parcel corners. That boggles my mind.

As a state dot surveyor I can speak for my 1 state. Our case law and statutes dictate much about this, prior to 1986 all of our highways were in easement only ( read cuka vs sd state.) Regardless of instrument used, because often warranty deeds were written.

In 1986 the legislature addressed this and allowed the state to buy land in fee.?ÿ

Our statutes also allow utilities in highways much like previous posts, the utility then has the right to stay after abandonment.?ÿ

Pluimer vs belle fourche sd 1996

A good case read that despite plays showing the lot terminating on the row line, the owner still has the fee under the road.?ÿ

Pinning the row line is common here, I use caps that say "sddot highway row" for clear intentions.?ÿ

"Fee" or "easement" is a legal question, not to be determined by a land surveyor. In PA we can respond with terms like ROW, possibly citing a deed, miscellaneous, map or highway document. A Filed Map Plan may show existing, proposed and legal ROW lines. If there is no language of dedication to a specific line, or citation of an existing transfer one should not assume that it was in fact transferred. A deed may or may not pass fee title, despite what it says, because a ROW grants rights to others beyond the municipality. As I understand it fee title allows the fee holder to do what he wants with a fee owned parcel, including a municipality selling a subdivision road to a spaghetti farmer.

I was also involved with a NJ planning board application where the prior owner had granted a fee deed to the municipality by filing a deed for a 50' wide strip without proper citation or acceptance language by the municipality. The applicant wanted to develop the filed map lots without improving a road to municipal standards claiming that it was the municipalities responsibility since they owned it. The municipal attorney asked for a pause in the meeting, went into the back room and searched the files. He returned with a copy of the deed and suggested that since the municipality owned it in fee, they should advertise it for sale to the highest bidder. The applicant quickly volunteered that he would improve the road as a part of his project. Since it was quite a stretch and involved floodplain I cannot recall that the project was ever completed.

In PA and NJ the legal area of a lot can be considered as to the centerline for purposes of zoning required area. From time to time I have had to include area to the centerline on a survey, when it was needed for zoning purposes. That way the nontechnical review people can hang there hat on your statement. If not needed it is best not to include it, even if it is true.

Back to PA, a right of way can pass by a miscellaneous document, a deed, a filed map or a highway department map, recorded or not. As to the highway department map, the sole legal requirement is that the signature of the governor appear on the first page of a set of plans. The states right to do that flows all the way back to the original patent for all land dispensed by William Penn, his heirs or the Commonwealth of Pennsylvania, with the language on the original patent, "excluding the usual 6% for roadway purposes." I have the original patent my father received for a small parcel of land in the 1970's signed by the governor under the commonwealth seal. Roads are the means of transport people or commodities, whether walking, in a vehicle or in a conduit( a pipe, a wire, fibre optics or on tracks). One has to be open in the consideration of all the facts.

Paul in PA

Posted by: Paul in PA

"Fee" or "easement" is a legal question, not to be determined by a land surveyor. In PA we can respond with terms like ROW, possibly citing a deed, miscellaneous, map or highway document.

Paul in PA

This has been an important part of my land surveying career. I am not sure who else can do it besides a court. Attorney's can't. They come to me to find out. Local and state governments can, but they usually get the answers from their land surveyors. The question of where the boundary of a parcel of land is depends on the status of the bounding ROW. That's been a core duty of many of my positions. There of course has been very ambiguous cases, where I cant determine the status, but at that point either the question is avoided or it goes to court.?ÿ?ÿ

Just like any boundary we don't have the authority to declare something a boundary, but it is certainly within our scope to issue a professional opinion. I understand why many land surveyors?ÿ don't want to give their opinions on issues like this. It is a specialized sub discipline. I, for example would never attempt a?ÿhydrographic survey without the help of a surveyor with experience.

Often the answer is easily determined by statute or deed language. In this case your boundary survey should indicate the situation. Not doing so, leads to trouble down the road, with taxation, zoning, environmental regulations, the results of vacations, and the permitted use of the ROW area.?ÿ

In Alaska for example, an issue that often comes up is the right of adjoining owners to cut timber for fire wood within the ROW. They of coarse can when the ROW is an easement, but cant if it is a state ROW held in fee.?ÿ I cant imagine not providing a client with this information when the boundary survey I did for them required the research that would answer this.?ÿ

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Aliquot,

No matter what is said, a State cannot hold a right of way in fee, without certain restrictions on the State. Fee title or fee simple implies the Fee owner has an absolute interest in the title, whereas right of way implies that the interest is limited by use of others. Interstate highways are limited access right of ways that restrict adjoiners from entering the highway anywhere they please, so they can generally be treated as fees, but the State cannot sell a limited access right of way to a third party and restrict any access that is required, only limit where it is. Thus they are in fact not fee simple owners.

Even a fee simple owner can be affected by claims of access by need of others, the questions to be answered are not "IF" but "where" and "how much"?

Paul in PA

Posted by: Paul in PA

Aliquot,

No matter what is said, a State cannot hold a right of way in fee, without certain restrictions on the State. Fee title or fee simple implies the Fee owner has an absolute interest in the title, whereas right of way implies that the interest is limited by use of others. Interstate highways are limited access right of ways that restrict adjoiners from entering the highway anywhere they please, so they can generally be treated as fees, but the State cannot sell a limited access right of way to a third party and restrict any access that is required, only limit where it is. Thus they are in fact not fee simple owners.

Even a fee simple owner can be affected by claims of access by need of others, the questions to be answered are not "IF" but "where" and "how much"?

Paul in PA

Paul, I think you might be over applying your experience in your part of the country to the rest of the country. I have no reason to doubt that what you said is true in PA, but it is most definitely not true in other places.?ÿ?ÿ

In AK the only restriction on portions of highways that the state holds in fee is that they have to offer the adjoiners a chance to purchase it, before offering it to the general public at auction.?ÿ

In my experience many states obtain fee title for new construction in urban areas, and other areas where the size of the ROW is large in comparison to parcel sizes, and I have never seen a state that didn't allow these new parcels to be sold to third parties if no longer needed.?ÿ

No owner anywhere has an "absolute interst" in a parcel. You know the whole bundle of rights thing...

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There are three main types of road ownership in my state. Easements, dedicated (fee simple determinable) and fee.?ÿ

a very quick explanation from the supreme court:

"If it is a common-law plat, then the municipality only acquired an easement and right to use the streets. The fee is in the adjoining lot owners, and passed to subsequent grantees with the conveyance of the lots. * * * * It is also true that where the fee to the streets, and not merely an easement, is vested in the municipality, it owns the minerals under the surface of the streets and lessees of the owners of the abutting lots have no right to take such minerals."

[??8.] We have determined that statutory dedication in Wyoming vests a public authority with a fee simple determinable to only the surface estate and a limited portion below ground sufficient to accommodate the various public utilities. City of Evanston v. Robinson, 702 P.2d 1283 (Wyo. 1985).

Fee ownership grants the city/county/state the surface, subsurface (as much as the grantor owned unless reserved), and there is not adjoining ownership to the center of the street found in a dedicated street.?ÿ

Posted by: aliquot

Paul, I think you might be over applying your experience in your part of the country to the rest of the country. I have no reason to doubt that what you said is true in PA, but it is most definitely not true in other places.?ÿ?ÿ

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I think that the state may own a strip of land in fee and use it as a roadway, but that is not a "right of way" in the strictest sense of the phrase, even though it might be commonly called that.?ÿ

Posted by: Norman Oklahoma

Posted by: aliquot

Paul, I think you might be over applying your experience in your part of the country to the rest of the country. I have no reason to doubt that what you said is true in PA, but it is most definitely not true in other places.?ÿ?ÿ

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I think that the state may own a strip of land in fee and use it as a roadway, but that is not a "right of way" in the strictest sense of the phrase, even though it might be commonly called that.?ÿ

Well we certainly can argue semantics, but the term ROW doesnt have a precise legal defintion. The important thing is whether or not it is a highway (or transmission line, or pipeline....) and what the State's interest is.

Not calling it a highway ROW becasue it is held in fee is contrary to how most use the term and makes talking about these things very difficult.?ÿ But if we agree on that definition I guess this discussion is moot.?ÿ