Does the clause "reserving therefrom a 25' wide strip of land off the (blank) side for roadway purposes" reserve only an easement, or does it reserve title?
If, 100 years after the deed reserving the strip was executed, no roadway has been built, does the easement still exist (assuming it is an easement, and having been occupied for at least 50 of those years by another party and their heirs)?
I've been through Blacks, and the Internet and still am confused.
Thanks!
You,ve come to the right place if you want 37 opinions, most of which will be well thought out. Here's mine: only an easement and it still exists. Stay tuned for commentary.
Don
> Does the clause "reserving therefrom a 25' wide strip of land off the (blank) side for roadway purposes" reserve only an easement, or does it reserve title?
>
> If, 100 years after the deed reserving the strip was executed, no roadway has been built, does the easement still exist (assuming it is an easement, and having been occupied for at least 50 of those years by another party and their heirs)?
>
> I've been through Blacks, and the Internet and still am confused.
>
> Thanks!
I agree with Don; taking the entire description by the four corners and taking into account the time frame in which it was written my opinion 🙂 is that the intent was to reserve an easement.
Never thought I would say it, but I also agree with Don. 😉
It depends.
:-p
Who was the grantor?
Any other docs executed at the time?
Do tax records show a change in acreage?
I also agree with Don... Yes. It's was created as an easement. The trick is figuring out what the dominant estate is. You'll need to research back to the ownership of the grantor who reserved the easement. Could be a parent parcel, or it could be an adjoining parcel in common ownership. By reserving tbe easement, it becomes appurtenant to any adjoining property owned by the grantor and would run with the subsequent conveyance of the dominant parcel.
JBS
As others have indicated, there may be issues still to be considered.
But the phrase "for roadway purposes" is a pretty strong indication of an easement. If you retain title, you don't usually don't say what you are going to do with the parcel.
Conditions, if any, for expiration of an easement that was not used could be dependent on the jurisdiction it is in.
"Occupied by another party and heirs for 50 years" could indicate a cloud on the title regardless of the status of an easement.
> Does the clause "reserving therefrom a 25' wide strip of land off the (blank) side for roadway purposes" reserve only an easement, or does it reserve title?
>
> If, 100 years after the deed reserving the strip was executed, no roadway has been built, does the easement still exist (assuming it is an easement, and having been occupied for at least 50 of those years by another party and their heirs)?
>
> I've been through Blacks, and the Internet and still am confused.
>
> Thanks!
Without the rest of the full deed and all the adjoingng deeds for context it could mean almost anything. My first knee jerk response is that the grantor reserved title with the intent for a future road. If that is the case then the neighbor may have been deeded the strip in a later conveyance. That statement alone would not imply an easement in my way of thinking, it only indicates that is what is in the mind of the grantor at that time for future consideration or use. For it to become an easement he would have had to convey it to the government at some point. Are you surveying the parcel it is excepted from? If so, then you are not surveying that strip and not much more than a note is all I would spend on it.
Yes, and to be another kink in the curve does "roadway purposes" include utility purposes. Just as a utility easement may not necessarily include roadway/access purposes.
But I would say that based on the given information that the roadway does exist, at least as an easement, and as a potential cloud if it has never been utilized for those purposes.
Another way to look at it.
Grantor clearly intended to reserved a strip of land, rather than an non-possessory interest in it. That's what the first part says.
The second part attempts to describe it. Twenty five feet off the ____ side. This is ambiguous because it does not nail down the twenty five feet to run along the boundary line or somwhere near the boundary or just anywhere in the ____ half of the parcel.
So, further language is added to clarify the location. For road purposes. Presumably, if the road were there at the time, or put there when both original parties were still there, then the intended location could be ascertained. Because that didn't happen, you now have a description that is too ambiguous to be located. At this point in time that part of the description might be declared void for ambiguity, unless there is some equitable reason to give it effect.
But, courts do like to give full effect to all parts of the deed if possible. So, they may well justify some interpretation that either makes it an easement or nails down the location or both. After that, there may or may not be an issue of adverse possession or abandonment.
Make the client aware of the possibilities. It's up to them whether to let it alone or retain an attorney or try to make a deal with the other party. Let them know you can help in the process but don't give them legal advice.
>
> For it to become an easement he would have had to convey it to the government at some point. Are you surveying the parcel it is excepted from?
The government doesn't need to be involved for an easement to exist. If that was true the majority of easements in the country would be void.
>
> The second part attempts to describe it. Twenty five feet off the ____ side. This is ambiguous because it does not nail down the twenty five feet to run along the boundary line or somwhere near the boundary or just anywhere in the ____ half of the parcel.
>
It’s not the way I would word it but it seems clear to me that "25 ft off the ___side" means it runs along the boundary line. In the absence of an existing road you would be hard pressed to convince me that there is any other reasonable interpretation.
Marc, in my area, the county and townships all say the roads are on easements and they don't own the ground under them. The county says this is the case even when they have ROW grants and plats showing the ROW. It seems the only roads I consider to actually be owned by the government would be the state highways and city streets.
In your case, it sounds like a road may not have ever been built. Was it written for access for an adjoining owner, a future public road that didn't get built? You might be able to figure it out by looking and some adjoiners deeds but probably not. What I usually do is just show it on my plat and take the verbage out of the deed word for word and put that on my plat also.
Does the clause "reserving therefrom a 25' wide strip of land off the (blank) side for roadway purposes" reserve only an easement, or does it reserve title?
If, 100 years after the deed reserving the strip was executed, no roadway has been built, does the easement still exist (assuming it is an easement, and having been occupied for at least 50 of those years by another party and their heirs)?
My opinion - based on a conversation with a dirt lawyer, a reservation effectively does nothing to create an easement. The land is encumbered with the possibility of an easement that the governing authority could seek out or try to purchase, but it has no right to claim the land by that wording. The public is put on notice that the land could be right-of-way but no rights are granted. Building within the reservation may be at the risk of the builder if the option is ever exercised by the governing authority to purchase the land. The fair market value would only be the land and not damages to improvements.
The use of "to be dedicated" is also very weak if the answer "when" is not made clear.
As soon as a specific purpose is listed (roadway, utility, etc.) then it is considered an easement.
> Another way to look at it.
>
> Grantor clearly intended to reserved a strip of land, rather than an non-possessory interest in it. That's what the first part says.
I understand where you're trying to go with this line of thinking, Duane; however, the subsequent progression of thought results in an absurdity (tending to void an expressed intent).
One problem with the logic is that, if the grantor truly intended to "reserve" fee title in "a strip of land," then they've also covenanted that the strip will only be used "for road purposes" (a non-possessory interest). The logic becomes cyclical: the grantor "reserves" title, yet covenants a non-possessory use of the strip, all while intending to prevent the reservation of a non-possessory right to an easement (which is all he ends up with either way, except he now has the right to pay the taxes).
The construction leads to a cyclical, illogical, and absurd result.
Of course, you are right in bringing up the argument, as that's the best position the "other side" will come up with in their defense of their client's estate. An ability to raise an argument doesn't mean that they'll have a snowball's chance at winning. But, that's what makes this stuff fun.
JBS
"There's nothing like the thrill of cross-examination."
Around here I would take that as an easement, unless I had other deeds, information stating something else.
That's true, what I meant was for it to become a public Right-of-Way it would have to be deeded to the government. It could still be a private roadway easement of some sort.
That takes me to another topic; If the land owners own to the centerline of a road, Is that road truly a public Right-of-Way?
> As soon as a specific purpose is listed (roadway, utility, etc.) then it is considered an easement.
Best summation yet!!!!!
>"reserving therefrom a 25' wide strip of land off the (blank) side for roadway purposes"
I was always taught that title in fee simple absolute was having the entire "bundle of rights" that go along with ownership of land.
The use of that phrase implies that the 25 foot strip only has one small stick out of that bundle.