I know I found a rule or law about this 2-3 years ago, but I'm drawing a complete blank on it now. I'm wondering if anyone here can get me going in the right direction again. Here's an example situation where it would apply:
A farmer owns a 40 acre aliquot part. The county has a prescriptive easement for a roadway across the north 25 feet. The farmer goes to sell the land and incorrectly assumes he never owned the land in the right of way, so the deed he has written up says "X aliquot part less the north 25 feet".
Like I say I remember finding some sort of rule that said no, a 25 foot strip of no man's land isn't created here.
Does anyone remember what this rule is called?
You might find what you need looking at spite strips. But 25' seems rather large to be considered a spite strip.
@lurker Yeah, I don't think it counts as that.
I think it more than likely qualifies as abandoned real estate, in Idaho anyway, but I could have swore I found some language that addressed situations where it was done in error and/or the land wasn't usuable. Huh, maybe I'm mistaken.
We have a ton of such orphans near here. A title company employee wrote a few thousand descriptions of rural tracts and always excepted out any road right-of-way. That was all that his company would insure. I have found many deeds where I wrote the description and he would then add "except road right-of-way" to the description appearing on the deed/mortgage/etc. He finally retired and turned the business over to his son. You can guess who is now writing all the descrptions with the "except" added.
Wouldn't it create an unfortunate situation where he still owns the strip, entirely burdened by the easement?
It's in effect an illegal subdivision by excluding the portion encumbered by the easement. I've run across a few of these and they effectively split the estate from a title perspective. The original owner technically still owns the real estate underlying road easement. Unless you want to track down all of the heirs to get them to sign off, your sort of stuck with it.
Just because I'm paranoid, doesn't mean they aren't out to get me.
There is also a principle that says it is assumed that a person intended to sell all of a parcel including any small accidental omission that is not a useful tract by itself. Does that apply here?
This issue was dealt with in some detail by Mike Berry in his presentation at the PLSO (Oregon) Conference this week. In it he quoted the Oregon case of Cross v. Talbot (1927), among others, which quotes a still earlier Vermont case:
In the case of Buck v. Squiers, 22 Vt. 484, the court said:
"The rule itself is mainly one of policy, and one which, to the unprofessional, might not seem of the first importance; but it is at the same time one which the American courts especially have regarded as attended with very serious consequences when not rigidly adhered to, and its chief object is to prevent the existence of innumerable strips and gores of land along the margins of streams and highways, to which the title for generations shall remain in abeyance, and then upon the happening of some unexpected event, and one consequently not in express terms provided for in the title deed, a bootless, almost objectless, litigation shall spring up to vex and harass those who in good faith had supposed themselves secure from such embarrassment."
The answer you seek undoubtably lies in a similar ruling among the case law of your state.
Sloppy surveyors can create orphan tracts with ease. Example: A fellow owns the north half of the northwest quarter of a section, nominally 80 acres. He sells the east 40 acres to Joe. Much later he sells the west 40 acres to Jack. Each surveyor made each tract precisely 40.00 acres. The parent tract actually contained 86 acres. Whoops!
Here to second (or third or fourth) @bill93 @norman-oklahoma and apparently @mike-berry (sorry to miss that presentation!).
Here in Oregon we have dozens of deeds in chains of title that say, "...except road right of way" and when that road is vacated, does it go back to the last person who did not include "...except road right of way" (perhaps the patentee)? No, it goes to the current underlying proprietary owner. This is because courts and common sense have determined that the intention of all those grantors was to convey that (almost worthless) underlying proprietary right unless it can be specifically shown that it is being separated out (thoughtlessly retained is not specifically shown that it is being separated out).
It only applies in situations of doubtfulness, but ORS 93.310 (4) gives us: "When a road or stream of water not navigable is the boundary, the rights of the grantor to the middle of the road, or the thread of the stream, are included in the conveyance, except where the road or bed of the stream is held under another title."
To separate that title out in Oregon you would probably need a deed that says something like, "...except road right of way, to which that underlying proprietary right is being specifically retained by grantor to pass on to heirs." Or two deeds, first a deed conveying only "the underlying proprietary right of the road right of way" and a second deed conveying "...except the underlying proprietary right of the road right of way described in recording ####." All these examples are ridiculous, which the situation is, it is one whole piece of land unless there is intention to make it separate.
All of the above qualified with an: ...in Oregon, you'll need research and support to see if it is that way in your state too.
I quote @bill93 since this principle goes back to English common law and thus found itself in most State law too. Same with intent which really underlies all this.
There is also a principle that says it is assumed that a person intended to sell all of a parcel including any small accidental omission that is not a useful tract by itself. Does that apply here?
@dave-o Yes, which is why I thought there was a rule created exactly for addressing the situation.
There is also a principle that says it is assumed that a person intended to sell all of a parcel including any small accidental omission that is not a useful tract by itself. Does that apply here?
I think so, yes, and that is the rule I'm trying to track down here.
The Strips and Gores rule, but I think it applies to Texas, you might check to see if a similar rule exists in your state.
An attorney researched it for a client we were doing a boundary for and the attorney decided it's not valid in this state.
So a quiet title action was done. Fortunately, it was all done by title people and I only needed to give them a drawing and a description.
I would say that your issue would only be resolved by a quiet title action in my state. However, the grantor could simply grant a quit claim deed to the strip and get it into the record. Not as definitive, but over time it will become more authoritative.
The Strips and Gores rule...
That must have been what I was looking at; great find.
The situation I've got going on is a little different than the example I originally posted, but I'm confident it can be cleaned up with a record of survey and some fresh deeds.
For what it's worth, in Massachusetts, there's what's commonly called the "Derelict Fee Statute," enacted in 1971, Massachusetts General Laws Chapter 183, Section 58:
https://malegislature.gov/Laws/GeneralLaws/PartII/TitleI/Chapter183/Section58
In Massachusetts, it's typical that metes-and-bounds descriptions and plans (plats) depict the boundaries of parcels at the edges of rights-of-way, rather than at the centerlines, and the municipal tax assessors consider the taxed areas to not include what's in the roads' rights-of-way.
One attorney's discussion of the statute is:
https://www.mbmllc.com/derelict-fee-statute-massachusetts.html
Oregon case of Cross v. Talbot (1927)
Further from Cross v. Talbot....
"We are of the opinion, and we take it, that the weight of authority is to the effect that where the land described by metes and bounds actually abuts upon the highway, the grantee, in the absence of some clear intention on the part of the grantor to otherwise limit the description, will take to the center of the highway to the same extent that he would had the highway been actually mentioned as a boundary.
The rule is thus stated in 9 C.J. 199, —
"The general rule that the grantee of land bounded by a street or highway takes to the center thereof is not affected by the fact that the land is not described in the deed as bounded on the highway, provided it is actually so bounded. The presumption that it was not the intention of the grantor to withhold his interest in a street or highway to the middle of it, after having parted with all his right to the adjoining land, is just as strong as if the conveyance had expressly mentioned the street or the highway as a boundary.
"It is a well settled rule of construction that in case of ambiguity in the conveyance the construction most favorable to the grantee must be adopted. And where there is doubt as to whether it was intended to convey land to the center of the adjoining highway, it will be presumed that it was so intended.
"The presumption of an intent to convey title to the center of a street or highway is not overcome by the fact that the land conveyed is described by metes and bounds, and that the distances stated in the description of the deed do not extend to the center of the street or highway."
We take it that there is no difference in principle between the land abutting upon a public highway and upon a stream. Many of the cases which we have examined seem to treat the principle in the two instances as the same."
In Colorado -
Exception in deed, the exception of highway right-of-way in tax deed did not exclude that portion from fee … simply an acknowledgment of the right-of-way existence Balser v Board of Gilpin County (2004)
…widely accepted principle that a grantor is never presumed to intend to retain any land beneath a right-of-way when he conveys the last remaining portion of his land adjoining that right-of-way.” And "Finally, we note that is no evidence that at any point in the subsequent decades any heir of any of the grantors of these deeds stepped forward to claim any interest in the land underlying the railroad right-o-way." This further indicates that the grantors intended to convey whatever they owned. Hinojos v Lohmann (2008)
It's nice that all of these places are using common sense to answer the question, but if you're faced with recording a survey where this situation exists are you gonna put the boundary on the ROW line where the deed says it is, or are you gonna go out on a limb and put it where it's supposed to be? 😏
Certainly not letting a deed constrain the location of the boundary lines based on the evidence found. The deed allowed me to find the land to be surveyed and then the evidence found determined the boundaries of that land. The boundaries thus will include the portion with the ROW.
Sounds like the Farmer still owns the 25' strip, put the boundary on the "prescriptive right-of-way line"?
A deed that reads the aliquot part excepting the ROW would be the full aliquot part with an easement for the highway. A deed that reads the aliquot part less the north 25' is more problematic.
The best way to correct it would be a corrective deed, however, that would hinge on the chain of title and circumstances of remaining grantors. Barring that a quit claim deed for the strip, or a quiet title action. Every state treats this differently, I would research it and then defer to a good title attorney.