I would be interested in that case law. But of course that could lead this thread off for quite some distance in a different direction.
A road commissioners' proceeding, as Kevin suggests, or a condemnation with a legal description of the entire ROW, would most likely transfer any gaps to the city. But that question might be better put to whatever attorneys are involved.
It would be possible to write legals for each party with the parent descriptions in remainder form, i.e. Smith could convey "All that part of Lot 1 which lies north of the south 55 feet thereof, west of [new ROW line], and east of [existing road plat].." Jones could convey "All that part of Lot 1 which lies south of the north 85 feet thereof, west of [new ROW line], and east of [existing road plat].." Whether this is sound in a legal sense I don't know, and some of the grantors and/or attorneys might not go for it.
I know your example isn't in Texas but perhaps this operation exists in Oklahoma. In Texas there is the doctrine of strips and gores that assumes any small piece of land not specifically reserved by the grantor is presumed to have been intended to go to the grantee. In your example if the lot was called to be 140 and 85 was sold first and the lot actually only measured 139 then the second buyer getting the called 55 would only get 54. If there were 141 then the first would get 85 and the second would get 56 with the presumption being the grantor wasn't looking to keep a 1 foot strip unless he specifically said so in the deed.
What about the Hess Triangle?
You're going to want to avoid that....:snarky:
The Doctrine of Strips and Gores..
..is alive and well in Oklahoma also.
I am a metes and bounds writer myself and the DOT way of writing descriptions gives me brain flips
Never seen one that can be called a metes and bounds because they do not call or reference a Headright monument, adjoiners or centerline monuments. Only centerline stations, bearings, distances and offset distances.
Have seen where a change in station number that would apparently create a gap or overlap solved by using an "EQUATION" at the point of change.
Example: 143+75.62 BK = 143+78.54 AH
0.02
What would be wrong with something like:
Together with or except any portion of the west 17 feet of lot 1 thereof, wthin a gap or over lap that may be created because of the poorly written deed of the aforesaid property.
Taking for roadway purposes an 8.5 foot strip along the easterly sideline of Road "A" ( 33 feet wide) from the southerly line of the southerly 55 feet of Lot 1, Plat "?"; thence
northerly 55 feet, more or less, to the common lot line of the northerly lot line of the southerly 55 feet of Lot 1 and the southerly lot line of the northerly 85 feet of Lot 1, creating a 25 foot wide right of way from the centerline of Road "A" and parallel to same.
No gaps nor laps.
Unless you are engaged to fully survey the lot in question and those to the North and South you can do no better.
Despite what you think no fee title passes, because the taking party is not free to do anything they want with the land. They cannot sell it for farming or minerals, it is and must remain an access roadway. It may be abandoned as a roadway in which case it goes to the adjacent land owners.
Paul in PA
> I know your example isn't in Texas but perhaps this operation exists in Oklahoma. In Texas there is the doctrine of strips and gores that assumes any small piece of land not specifically reserved by the grantor is presumed to have been intended to go to the grantee. In your example if the lot was called to be 140 and 85 was sold first and the lot actually only measured 139 then the second buyer getting the called 55 would only get 54. If there were 141 then the first would get 85 and the second would get 56 with the presumption being the grantor wasn't looking to keep a 1 foot strip unless he specifically said so in the deed.
My take on it too, Shawn.
It's a problem. No one will want to take care of resolving the problem or paying for the resolution.
Possibly you can describe across the gap for both acquisition descriptions. That would in a way, get title to the only two parties that might ever claim they own it.
Another possibility is that you write a description for the gap (possibly the whole lot with two exceptions.)
If you think about it, it's not really a survey problem but a title problem. Write the description for the gap area and request a title commitment. The title company should be the ones guaranteeing title on the small area. (but I can see it now, the title company refusing to do a commitment).
By the way, I am experiencing a similar problem. We are searching title back a ways, and planning on figuring out who has the last recorded title to our gap (ie who had the last title to the larger piece that sold off the piece that doesn't cover that sliver what was left of their land. Someone else should be getting involved to finding the last known title holders or their heirs and figuring out how to get clear title to the land they want.
The owners can only convey what they own. If there is a gap, there is a gap. This is not a right of way issue it's an ownership issue. I have experienced this exact scenario on a couple of occasions and have prepared the acquisitions up the ownership limits, identified the gap on the maps, and made the clients aware of the situation and moved on. In both instances they did nothing to resolve the gap and everything moved forward. For me, it falls into the out of scope category and the client can pay me to attempt to resolve it or they can choose to ignore it.
of course using a call for an abutter will remove any potential for a gap. Use your dimensions but throw in there, "and bounded on the north by whomever."
> ...thence northerly 55 feet, more or less, to the common lot line of the northerly lot line of the southerly 55 feet of Lot 1 and the southerly lot line of the northerly 85 feet of Lot 1...
I'm kind of liking this suggestion, Paul.
We are working on a similar project right now. Fortunately the heir lives on one of the three parcels that abut the gap. Right now everybody drives over the gap. I hope they choose to clean it up.