When I prepare an easement document & drawing for this one particular client I always make a point to show & label any existing easements that are in the area.?ÿ Their labels are usually referenced to either the book and page where they're mentioned or created or possibly a recorded plat.
I do this mainly because the head of the engineering dept. and the general counsel are always asking me questions about the nature of these easements and RWs.?ÿ It's easier to put them all on there than to waste time on the phone and adding them later.
Some time back we ran across something that is all too common around here, especially in rural areas.?ÿ Some surveyor "subdivides" a parcel into lots and then shows a roadway accessing the lots.?ÿ We affectionately refer to these as "unrecorded plats" but most fall way short of even that.?ÿ The proper way to describe these 'lots' is still with a M&B description.
An example would be like the property descriptions run to the center of the road.?ÿ But the drawing shows a 25' offset from center line.?ÿ And in the field the pins exist at that 25' offset, leaving a 50' wide swatch where within lays utilities, mailboxes and a road used by the public including emergency vehicles, USPS and school buses.?ÿ There is usually no mention of any dedication to the public, just a dimension to a dashed line stating "25.0' ".?ÿ
The client's general counsel and I dove down this rabbit hole about a year ago over one of these "unrecorded plats".?ÿ I told him from the surveyor's point of view there is physical evidence of public use.?ÿ As far as I was concerned a Right of Way existed by prescription in the absence of no other better definition.?ÿ
He did his due diligence and research.?ÿ It's his opinion that although the existence of the R/W is defensible, there have been cases where its existence was legally challenged.?ÿ Since then he has been requiring a recorded dedication when the REC is moving to occupy any areas in these instances.
So the other day I ran into another one.?ÿ The old survey shows a 25' offset from the property line (center of road) with no instructive labeling or dedication.?ÿ The properties run from the center of the road on both sides but the property pins are all prominently set 25' back.?ÿ The road is used by the public, the mailman, emergency vehicles and a few utilities.
I labelled it "50' reserve as shown on previous survey of record - evident use is by the general public".
The REC's attorney hasn't called yet.?ÿ My question to you guys is what would you call it on your survey?
When a tall gear won??t work, go to a lower gear. Ie, granny low. Spell it out.?ÿ
Like this :
??Apparent 50?? rw, serving 14 homes, as counted by myself on March 20, 2021. Also, there are public utilities, observed by me, within this apparent rw. A supporting document is recorded at book_ page_. Goof off county public records?
It looks like a public rw to me.?ÿ
whoa! I gotta move out of the way. A ups truck is speeding down the apparent rw.?ÿ
Yeah, I think I'd say something like 'Apparent 50' ROW as shown on instrument #XYZ..."
I'm not sure how your maps/plats are treated in your state but if there is no note on the plat or linework representing an un-identified 50' strip I would just call it a monument offset 25' along the property line.
Your state law should indicate how you would identify prescriptive right of way.?ÿ In Idaho, with some differences prior to 1953, prescriptive row has a minimum width of 50' centered on the road.
In Alaska there is a common law doctrine of?ÿImplied Easements.
https://www.alaskapls.org/s/AlaskaEasementLawBeardsley.pdf
But as to what I would call it...I think your wording is good, with "...as shown on previous survey..." being important.
We have a lot of those around here. I show the boundary to centerline (or as described), monument the 25' offset (for preservation and usefulness) and show limits of the public travelway and utilities. Don't call it a reservation unless the parent grantor reserved it.?ÿ 2?
Implied easements are a tough nut to crack. Prescriptive rights are usually more straightforward, especially if a public entity has maintained the road. The only problem is, prescriptive easements are often only "ditch to ditch" so there may be issues when local regulations require minimum widths.?ÿ
If possible dedications from the land owners is a good way to clear these up, but there is always that one guy....
Is the deeds call for the plat, you will have a stronger case for an implied easment. Plat interpretation goes by the same rules as deeds and statutes; if possible they should be interpreted in a way that gives meaning to all the elements. The "road" shown on the plat, the lack of any other access, and the use of the road with no controversies all point to a clear intent and understanding by the grantor and grantees.?ÿ
I would show it as a "possible" or "apparent" easment with a note describing the situation and also show the actual limits of public use along with as much history of the use and maintenance that you can gather.
This is another good example of why we should be clear and explain everything, even when we think the meaning is obvious. This is often overlooked in the "this is the corner because I say so" style of boundary surveys.?ÿ
In order for there to be a dedication to the public there must be an offer to dedicate (you appear to have that) and the?ÿ public must acknowledge and accept it (you probably don't have that). That acceptance is usually formally documented, but can be by common use (ie/prescription). If these roads you speak of where regularly used by the general public to pass through the property on their way to and fro that might be the case. But I suspect that in most of these cases the only users are the owners of the adjacent properties. So I think that you have no public acceptance, and therefore the roadway is just an easement and not a dedicated right of way.
Mike Berry gave a very excellent presentation on this subject at the PLSO Conference a couple of years back.?ÿ ?ÿ ?ÿ?ÿ
Those little jewels are wild.?ÿ We have a lake with probably 25 different tracts that are only accessible by a lane with a couple of loops.?ÿ That lane was created by never selling it to anyone.?ÿ Everything else sold eventually.?ÿ Theoretically, the lane should follow the transfer of other lands outside of the area of small tracts, especially as the primary lane adjoins the two original remainder tracts.?ÿ There were two landowners in the early 1960's who allowed the creation of the dam/lake on their lands to supply water to a rural water district.?ÿ Then they got creative and starting selling off all of these apparently landlocked parcels.
To date, several of the tract owners have taken upon themselves to solicit money from time to time from all landowners to pay for more road rock and hauling/spreading fees.?ÿ It has somehow managed to last nearly 60 years so far.?ÿ All mailboxes are along a rail on the county road at each end of the main lane.?ÿ The school bus does not drive on the lane.?ÿ UPS and FedEx do deliver directly to the houses.?ÿ There is a dumpster conveniently located for trash.?ÿ Apparently the same people who collect for road maintenance also collect to make sure the trash hauling company gets paid on time.
FYI--bizarre side note:?ÿ One fellow who lives there and is married to a local gal happened to live in Wasilla, Alaska when he was in high school.?ÿ He went on one date with a classmate whose name we all learned several years back when she was a contender to be Vice-President of the US.
It might be called "Legal Right of Way" as a recognition of the visible use but no offer of dedication is made. The survey markers are placed at 16.5', 25' or 33' from center lines and I have encountered multiple sets while surveying some lots. This avoids the typical RR spikes in or near the centerlines. More hazardous since I have had to remove up to 6" of asphalt to locate an existing RR spike. The lot owner owns to the centerline, by deed description and law, but does not pay taxes on the right of way portion. Both total area and area outside the right of way are shown.?ÿ Total area is important zoning wise if the total area exceeds the zone requirement and the net area is less. With sufficient gross area, by state law, the lot must be considered conforming, which saves on needing a variance to do typical building additions, etc. It also helps to meet the 10 acre minimum for farmland assessment. If the homeowner is knowledgeable he may want otherwise. On one farm survey, the State Highway Construction Plans showed a 60' ROW with the Governor's signature on the first page of the plan set, indicating it was a taking, but the DOT now says it has a 33' right of way. I gave the owner a choice and he chose the smaller net area to marginally reduce taxes. because he was subdividing a 10 acre agricultural lot whose entire western line was in a stream,I did make sure there was 10 acre of dry land. Another owner chose I show no right of way area and I set a RR spike on centerline because he owned on both sides of the road and had farmland assessment.
I am surveying a lot now with an adjacent subdivision showing 2 30' wide access easements from the Township Road to the rear of the frontage lots and then a second tier of lots with only a common driveway dashed in on the North side of the second tier. The actual driveway wanders around following terrain and not parallel to the straight lot lines, which does not affect me since my PQ access is to the eastern easement. Got a complaint yesterday that the former PQ lot owner never contributed to the cost of repaving that access, but then he was the original farm owner that created that subdivision in the first place. I will leave future payments up to other minds to agree.
All in all "Unless it may be shown otherwise."
Paul in PA
I'd call it an "Implied Appurtenant" easement. ?????ÿ
Question from less experience person here....
Do you use RW R/W or ROW interchangeably or do these differ from region to region?
?ÿ
R/W is just a left over from my drafting days when we used to sling ink.?ÿ I have no idea where it came from but that's what the boss wanted.?ÿ I've just retained it all these years.?ÿ To me it's all the same as RW or ROW.?ÿ
Thanks for the infill. I never put a throttle on my learning because too much info is easily remedied.
Not enough causes issues.
Some say right of way and some insert dashes to be right-of-way as all three words make a single term.?ÿ Some expert on writing techniques probably has decided which is correct.?ÿ Also, if there is more than one being mentioned, it is correct to add the 's' to right to form rights instead of adding the 's' to way to form ways.
Does adding dashes make it a single entity so the plural would go on the end?
Rights of way and right-of-ways ?
Adding the hyphens make it a single word, such as mother-in-law.?ÿ Mother is the operative term so the plural fits there.?ÿ If you were a bigamist you would have two mothers-in-law, not two mother-in-laws.
I'll accept that.
But in a way I did have two mothers in law at once, with only one wife: her adoptive mother and then we also got to know her birth mother.?ÿ And my stepdaughter's other grandmother also insisted in including me in some gatherings so that almost makes three MIL at once.
Fortunately, I have nothing bad to say about any of them.
In order for there to be a dedication to the public there must be an offer to dedicate (you appear to have that) and the?ÿ public must acknowledge and accept it (you probably don't have that). That acceptance is usually formally documented, but can be by common use (ie/prescription). If these roads you speak of where regularly used by the general public to pass through the property on their way to and fro that might be the case. But I suspect that in most of these cases the only users are the owners of the adjacent properties. So I think that you have no public acceptance, and therefore the roadway is just an easement and not a dedicated right of way.
Mike Berry gave a very excellent presentation on this subject at the PLSO Conference a couple of years back.?ÿ ?ÿ ?ÿ?ÿ
You are correct. If the offer of dedication is not formally documented as you've mentioned, it is usually evidenced by improvement by a governmental entity (City, County or State), maintenance by same, franchise utility infrastructure installation and use, and use by the public for pedestrian and/or vehicular traffic. Keep in mind that in States like Texas, even though a subdivision plat has been approved and executed by the local government, and subsequently filed of record, that is not an express acceptance of the offer of dedication. Adjoining land owners may acquire private rights into the road or access way, but that doesn't mean that local government, on behalf of the public, has accepted it.