That's some rough wording in the first paragraph, but I think @Lurker makes the best point.?ÿ As far as various mineral rights being retained I don't think that necessarily indicates a fee or easement.?ÿ In my home state of North Dakota I remember my grandparents selling farm land while keeping the mineral rights, so it seems like the sort of thing that can vary by region.
Beware I am not a Lawyer but I play one on Surveyor Connect.
That is a fee transfer with a Deed restriction...doesn't get much clearer than "grant, bargain, warrant and convey."?ÿ Usually anything in the paragraph at the bottom is given a lot less weight, that might be a habendum clause.
However, an Indiana Real Estate Attorney should be asked for an opinion on this.?ÿ The County Counsel will probably have an opinion too, perhaps they have already issued an opinion on this.
However, an Indiana Real Estate Attorney should be asked for an opinion on this.?ÿ The County Counsel will probably have an opinion too, perhaps they have already issued an opinion on this.
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@dave-karoly Playing lawyer as well, I looked up what "acquired" would mean in a legal sense in Black's.?ÿ Several definitions indicate gaining ownership.?ÿ But, the last one indicates title does not have to change hands.
There is always talk of needing clear and unambiguous language in a description, but even something that seems as clear cut (in my opinion) as acquire doesn't necessarily mean what it seems it should mean.
The Appellate Courts have weighed in extensively on reading Deeds regarding what title or interest was transferred. I??m pretty sure fee vs easement is a question of law so I would be careful before telling a client what this is.
Where the boundaries are located is a question of fact and that is our job here.
@dave-karoly Out of curiosity, if that verbiage is not sufficient, what would be necessary to grant, bargain, and convey easement rights only?
Whether it is actually an easement or not, there's nothing wrong with simply labelling that area as "right of way" and citing the document number.
95% of the time I have some sort of title report. I will stick with whatever language they use in there when referring to encumbrances, exceptions, etc. etc.
@lurker easement documents here usually have EASEMENT in bold letters at the top so that it is explicitly clear.
Further down the document, it states that only the right to build a highway is conveyed. That clearly indicates an easement.
Here (Oregon) I'd definitely argue easement because it states it is for a "public highway" and a "right of way" and the consideration in your deed states "no charge - ground dedicated".?ÿ
A 1929 Oregon supreme court case, Rall V. Purcell, dealt with exceptions and/or reservations of narrow strips of land in deeds for "roadway purposes". An "excepting-the-north-25-feet-for-roadway-purposes" type of deed is a bit different from your deed but in our case law Rall and other similar cases establishes that a statement in a deed that the land is for road or highway purposes then it's a strong indication that the intent was for an easement, not a fee taking (unless the contrary can be shown in the four corners). That's why the Oregon DOT, which buys all right-of-way in fee, never states that the strip of land is for "right-of-way" or "roadway purposes" or "highway purposes" et cetera. They'll just title the takings as "Fee Parcel 1", "Fee Parcel 2" and describe them with no mention of their purpose anywhere in the description or the rest of the deed.
I have a 1972 Oregon AG Opinion on Rall v. Purcell to which is attached a 1980 memo about this subject from a Linn County, Oregon official to their road department. One case discussed in the 1980 memo is an Illinois case:
In Magnolia Petroleum Co v. West (1940) 37 Ill. 516, 30 NE2d 24, the grantor conveyed to the grantee a specifically described strip of property (which separated grantees land from a road) which was "to be used for road purposes". The court held that on the basis of the Illinois Conveyancing Act, only an easement had been conveyed. This Act provided that if an instrument did not contain any words that at common law would convey an estate of inheritance it is a conveyance of a fee simple estate unless limited by express language or not granted on the basis of construction or operation of law
The 1980 memo goes on to examine cases in other states that run contrary to this principle and concludes by enumerating Oregon cases that have determined that a conveyance of property for road purposes "is only a conveyance of an easement and not a conveyance of the fee".
The question of whether a deed conveying a parcel of land "for road purposes" grants fee title or only an easement was first considered by the Oregon Courts in Wason v. Pilz (1897) 31 OR.9, 48 P. 701. In Wason, a deed conveyed "a parcel of land, for the purposes of a road twenty feet wide, across the center, running east and west over and across the following described real estate ??The said strip of twenty feet, so herein conveyed for a road as above stated, is to be enclosed by a good, substantial board fence?? " The court held that only an easement and not the fee was conveyed stating that "The words ??a parcel of land for road purposes? are indicative of an easement only, and are controlling as the measure of the estate granted". The court cited the case of Robinson v. Railroad Company, 59 Vt. 426, 10 A. 522 wherein the grantor had conveyed ??a strip of land four rods in width across my land, and being the same land now occupied by the St. Albany and Richford Plank Road Company for their road, for the ??use of a plank road." The court in Robinson found the words "for the use of a plank road" as decisive of the estate conveyed, which was determined by the court as being merely an easement.
Although Wason vas decided in 1897 it has not been reversed or modified. In Bernards et ux v. Link and Haynes (1953) 199 Or. 579, 248 P. 2d 341, 263 P 2d 794, the court, on a set of similar circumstances to that in Wason, recited the facts and the holding in that case and declared "We believe that the Wason decision is determinative of the issues under consideration and hold that the deed, which we have quoted, granted an easement. The grantors retained the fee."
In addition, Wason has been cited as recently as 1975 in Fossi v. Myers (1975) 271 OR. 611, 533 P2d 337, in which all the parties agreed, with Wason as the basis for their consensus, that a deed conveying property "for street purposes for the benefit and use of the public?? " was only a grant of an easement.
It would appear then that Oregon has sided with those jurisdictions that have determined that a conveyance of property for road purposes "is only a conveyance of an easement and not a conveyance of the fee.
Given the contra-cases from other areas that the 1980 memo examines, Oregon law may differ from other states on this issue.
{edit - in Illinois case changed "Hagnolia" to Magnolia Petroleum Co. }
Even very good attorneys make errors.?ÿ They work with deeds and easements on occasion.?ÿ We work with them weekly, if not daily.?ÿ This is why there is a need for legal education being a part of the method required to be eligible to sit for the surveying examination.
I had to revise some descriptions last week that had been drafted by the County Counselor.?ÿ He sent them back to me this morning for my review after correcting the original descriptions he had prepared.?ÿ Close, but not close enough.?ÿ In one of the three descriptions a key portion was inadvertently omitted.?ÿ Adding the words "450 feet" in the middle of the text was essential, as you might assume.
While at the barbershop this afternoon, the other chair was occupied by one of the premier attorneys in the State and someone I have known since my early days in 4-H.?ÿ Those waiting for their turns to come up were in stitches as he and I swapped stories involving the legal profession.?ÿ They didn't know us at all, but they really enjoyed the free entertainment.
You picked up on the "no charge" issue also (only one other I have spoken with has). It is a common presumption that changes in title stemming from written means only happen for "the sum of $ Dollars and other valuable consideration." This was one of the reasons I maintain this is an easement.
Good citations - thanks.
it is actually the ??ground dedicated? phrase in this Frankenstein of a deed ?ÿthat lends credence to it granting an easement. A public road dedication creates a mere easement in favor of the public. In it??s clunky way the abomination of an Easy-Peasy dedication deed is trying to create a public easement with key words like "public highway" and "right-of-way" and "dedicated", along with having the county commissioners sign it for acceptance, (a key element to a valid public dedication), but it??s still a mess. I??ve seen similar documents here that were from the same circa 1960s era. Must have been a trend for public entities to have a one-form-fits-all road right-of-way acquisition document you could tear off of a sheaf, give to a secretary to type in the blanks and hey presto! you??ve got your right-of-way.
Some view compensation shown as suggesting it is a fee transaction.?ÿ The compensation figure actually was tied to the expense in moving fences and driveways and a loss of future income that would be derived from that bit of extra land.?ÿ In one specific case I saw, compensation was provided to replace a water well that had to be eliminated.
The compensation figure actually was tied to the expense in moving fences and driveways and a loss of future income that would be derived from that bit of extra land.?ÿ
That's a ten four, Devine Kine. In commissioners' journals for a county road establishment, researchers will see?ÿ payments for "damages" and believe that means compensation for a fee taking of R/W.?ÿ??Damages? were payments for loss of revenue (such as crop production) or improvements (fences, buildings, etc.) that would be impacted by the road. The payments for damages were not for a fee taking of the right-of-way. The road viewers would assess damages and many of the settlers would not be paid anything if no financial damages were to result from the new road. Those who were paid for damages did not sell the road to the county. Many folks initially don't "get" this concept... even title officers and law dogs.
