I am hired to do a boundary survey with new legal description to clean up some issues.?ÿ One of which is the R/W.?ÿ As I read the attached R/W grant, I am inclined (at this time) to call the R/W secured to be an easement.?ÿ Therefore, my new description will go to the centerline of the road (also the design line and section line).?ÿ I would only describe the parcel to the R/W line IF the R/W was granted in fee (therefore now owned by the county and no longer the grantor).
My reasoning for the conveyance only being an easement is based on: (1) mineral rights are expressly not conveyed; (2) timber rights are expressly not conveyed; (3) only the right to make, construct, and maintain the proposed highway (road) is conveyed (a limited interest).
In your opinion, is it an easement or conveyance in fee??ÿ
Would you handle this differently?
Can you guess what the jurisdiction thinks it is?
I could see it being argued either way.?ÿ One interpretation is as you have outlined already.
Another would be the particular placement of the comma (those darn things cause so many arguments).?ÿ "...proposed by the County of Marion to improve, hereby grant, bargain, warrant and convey to the County of Marion for Right of Way, lands as described below..."?ÿ With the comma where it is, the purpose is clear - right of way, but what was conveyed seems to be lands.?ÿ Not right to use lands, but lands.?ÿ In addition, the decision to cut timber is placed with the county.?ÿ They are allowing the original grantors the option to cut it themselves if they choose to.?ÿ That doesn't even seem to pass to successors the way it is written.
Do you have any statutory language in Indiana to address right of ways such as this?
That is a common right-of-way document widely used to acquire only an easement.?ÿ Some attorney drafted it and it was used a million times.?ÿ It very clearly is not a deed conveying the full bundle of rights.?ÿ I have seen documents labeled "RIGHT OF WAY DEED" that were not intended to be deeds, but, merely easement rights.?ÿ People who do not know what they are doing frequently make mistakes in legalese.?ÿ The land owner and the entity gaining the easement know, at the time, what they are intending to do, but use a poorly worded document.
Easement in my area, without doubt.?ÿ
I am not aware of any statutory language addressing this.?ÿ
Yes, it is a common document.?ÿ I have seen different versions and versions were language was typed in or struck out (typewriter days!) to make it clear that the R/W was a conveyance of title.?ÿ I just don't think this is the case here - it is an easement!
I am inclined to agree with you based on the language in the deed. On my last job overseeing boundaries for the Navy in the Southeast, it became apparent that road right-of-ways are obtained differently in different states. In some states, they are considered easements and fee in others.?ÿ Of course, the exact wording is important. In Florida even on roads without deeds, the title is considered to transfer to a municipality for the area maintained after a number of years. How the surveyor is suppose to know these conditions have been met seems somewhat vague. In a case where the answer is unclear, I would suggest showing the Right of Way as a separate tract and showing the area for both tracts. This way you have located the boundary as per the deed and left the matter of title up to the attorneys. I let attorneys say what it is, but I tell them where it is.?ÿ
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We have both road right of way easements and road deeds here.?ÿ The wording of the document is normally clear as to which portion of the full bundle of rights is being conveyed.?ÿ I would go with easement in every case that is CLEARLY NOT a deed.?ÿ Let the entity involved argue whichever direction they chose for their interpretation before a judge.?ÿ Surveyors should not make that decision in their favor simply because they are paying the survey invoice.
Although the language is not great as has been pointed out, it appears that the intent is to grant rights rather than convey a parcel in fee simple. Reversion rights would almost certainly apply anyways.
The only time that I have seen fee vs easement really cause a fuss was for mineral rights - specifically some of the richer areas down in Texas shale. Roads could make up a not-insignificant chunk of each unit, so those landowners really wanted them to be easements, while the State wanted them to be fee conveyances...that's when they really got into fights over every single word.
Though I do not feel compelled to side with my client b/c they are paying me, I do feel compelled to make a decision one way or the other based on the language in the conveyance document.?ÿ
The issue for this survey is that the title company wants to clean this issue (and some others) up with a new legal description.?ÿ Good!?ÿ So, in this case I include the R/W as part of the parcel in the legal description (subject to all easements and rights-of-way of record CYA...) and depict the R/W on the survey plat as being inside the overall parcel (as opposed to hanging onto the outside).
Sounds like we are all on the same page, and I am not crazy ( ???¦ ).?ÿ Thanks all for your confirmations - I'll consider this matter closed.?ÿ Good to have a sounding board when you are a one pop shop.
You are taking the proper approach.
We have a problem with one specific title company that always adds "except roads" to the end of our descriptions and omits any mention of area involved.?ÿ This is a case where the title company is preparing the deed descriptions for a conveyance of fee simple interests.?ÿ I have debated this with them for years and (thank the deity of your choice) they have now retired.
Based on my experience as a justice of the peace, who sits on a board that handles disputed assessed value for property tax purposes in my town in Vermont, there may be issues about the area of the property. If you only show area including the area between the center of the road and the edge of the right of way, the people who assess property value may value that area as if the owner had full use of it. It would be helpful to state both the area with, and excluding, the area covered by the right of way.
How can it be anymore clear, "It is further understood and agreed that this conveyance transfers only the right to make, construct and maintain such highway on said lands..." There is no argument against that. They went to the effort to further define the intent. This phrase cannot be dismissed.
I would argue easement.?ÿ What is the standard of practice in your area for like deeds??ÿ Jp
