Beginning at a pipe at said Main Street and a street 40’ wide to be laid out next to land of Smith, thence running northerly by Main Street 200 feet to a pipe at my land; thence running easterly by my land 150 feet to a pipe at my land; thence southerly by my land 200 feet to a pipe at the new street to be laid out; thence by said new street 150 feet to the point begun at.
The description is from 1910 and hasn't changed. The new road was never laid out. The remainder of the lot has been subdivided, and all lots have frontage on another subdivision road. One lot is using the "new street" as their driveway, (even though they have frontage on the subdivision road), and the "new street" is actually depicted as part of that lot, with no mention of it being a road, on the subdivision plan.
Questions:
Does locus (lot in the above description) have an easement/right to use the "new street"?
Do any of the other lots have rights to use the "new street", including the lot that it's part of?
Who actually owns the fee in the "new street"?
If the "New Street" was never platted and dedicated to the public use then "New Street" belongs to lot 3. I don't think a call for an adjoiner of "New Street" is sufficient to create that street. Just my opinion based on 42 seconds of research (reading your post). Further research may prove otherwise.
James
Was the street ever dedicated? If not, the fee of the street may actually lie with the original developer. Without looking at the genesis of the subdivision, then it's impossible to say on a message board.
No dedication, just called for in the creating deed.
The remainder of the parent tract was sold a few times, using the original description, no mention of the locus being sold. The subdivision was created in the 70's. So the "new street" was probably created for future access to the remaining land, but was never used in that manner.
Then it would appear that you have your answer.
Hypothetical questions are never hypothetical.
> Does locus (lot in the above description) have an easement/right to use the "new street"?
It is a by call to a road. That could very well have passed along rights within the road, unless those were specifically exempted in the deed.
> Do any of the other lots have rights to use the "new street", including the lot that it's part of?
Depends on their deeds.
> Who actually owns the fee in the "new street"?
Looks like Lot 3.
I have an actual example that is quite the opposite, but I will use your example to describe it. If Locus was conveyed by Lot 3 without any description of "New Street" then the owner of Lot 3 created a private road over this area abutting Locus, then Locus would not enjoy a right of way in the street.
This is a question of quality of title and not of location of title. The correct answer will vary from state to state, and attorney to attorney...
Thanks for your input.
It seems, based on two answers above, that in TX, that rights are dependent on whether the street was ever dedicated.
I'm not in TX, though, and I agree with your opinion that locus would have rights over the parcel.
I am also wondering about the ownership, as the description has two bounds on the grantor, and the other in the street, meaning that he's not considering that his land. Also, when bounding on a road, generally you own to the middle, or in this case, the far edge (since the other abutter is not part of the original tract).
I don't know if dedication or actual construction of a road necessarily changes an intention of a deed after the fact.
Yes, a lawyer would probably be a good idea in this case. I wouldn't go off and tell the owner of locus that he owns it and do whatever he wants with it.
Well, I said, "kind of"
in my town, I know of 3 private roads where the developer owns the fee and the others have rights to pass and repass (no parking). if i looked it up, I could probably find several more. while the general rule is that the owner owns to the centerline, this fails in many cases.
take early subdivision law where you could build a road without a buffer. the abutter on the other side of the road may not have rights in the road. more importantly, they would not gain the fee even if they had rights unless this fee was specifically granted.
Ok, it's getting a little muddled now.
It was called out as a new street in the deed. Had it been called a ROW or easement, I would believe that the grantor retained ownership. But since he called it a street, usually as lots abutting the street are sold, his fee in the street gets sold also - unless there is language excepting it - and there isn't here.
So that is why I have a question about ownership of the parcel.
I have little doubt that locus has rights over the parcel. I just wonder if he has more than just access/use rights.
> Hypothetical questions are never hypothetical.
well...hypothetically speaking maybe. 😛
For me, instead of prefacing my "problem" with something like "Assuming I did complete and adequate research, and assuming I found all of the existing monuments, and assuming I found all of the physical evidence, and assuming there is nothing else wrong with the background, and ....blah, blah, blah; I am trying to keep focused on the problem or question I have. Not whether I did the appropriate back-work (without having to either think of all the disclaimers, or have answers that skirt the question at hand).
I read this yesterday, and thought I had the right answers right away.....but something just struck me. That is that the first deed from 1910, is sold based on a "promise" or contingency of an intent to build or dedicate a road.
It seems as though that land, by virtue of the first deed, is reserving a portion of their land as an easement, or public access as a condition on the transfer, and that you would have a right to make that claim, as though it were at least an easement in your favor. (?)
Just another thought on the topic anyway.
Somebody needs to say it:
"What would it be like if there were no hypothetical questions?"
The grantor was creating a flag lot or a "street" for Lot 3, so that Lot 3 could have an access to Main Street.
Anyway; that's how it looks to me and from what you've posted, that is what has occurred. Don't get too hung up on awkward phrasing in the chain, although it can get frustrating.
I don't agree.
If it had just been intended for Lot 3, then the grantor wouldn't have called it a road, and it would have been merely a 40' piece between locus and Smith.
I also wouldn't call it awkward wording, as it's straight-forward and unambiguous.
I believe that it was intended to serve the entire remainder of the lot. 60 years later a different owner used another access for a subdivision road. I think that they just tacked the piece onto Lot 3 because they didn't know what to do with it.
But none of what happens subsequent should have any effect on rights or ownership which occurred when the locus deed was executed.
If it had just been intended for Lot 3, then the grantor wouldn't have called it a road, and it would have been merely a 40' piece between locus and Smith.
I must be missing something.
Isn't this what happpened?
It wasn't attached to other property as an easement, nor was it dedicated to the public, so it never became a street.
The deed says to be not has been, so if the to be never happened then this is a 40 foot strip that is still a part of Lot 3.
Then it goes back to the question of whether the grantor conveyed his fee interest in the new street in the 1910 deed.
The fact that the street never got constructed or dedicated to the public shouldn't have any effect on what occurred at the time of the deed.
I think that at a minimum locus has easement rights over the parcel.
Thanks for the discussion.
