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.
Well said! I have to ask have you ever seen one of those parcels that has title in fee simple absolute. I'm pretty sure I've never run into one.;-)
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> 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?
It is (more "truely" than if it is owned in fee).
In fact the original legal meaning of "right of way" is that it is a "right" of passage. (Not that I'm a lawyer). Right-of-Way later became sort of a "slang" term for a corridor even if it was owned fee-simple. It is now an accepted term for a fee-simple highway or railroad corridor. In your scenario, the public would have a "right of way" across someone else's land.
If the corridor was purchased at full value as a fee-simple purchase, it is in the "right-of-way" corridor. The legal description should not contain words such as "for right-of-way purposes". If it did contain that language, it would probably make it be for a specific purpose only and the owner would still own the underlying fee ground (which would be pretty much unuseable to them.)
You might want to look up "right of way" in Black's Law for a cleare and better explanation.
Yes, I agree if this were involving the offer of a public easement. Then it is much like a road shown on a subdivision map. It's an continuing offer. However, there is law that says these offers do expire at some point. Otherwise they would violate the rule against perpetuities. I'm not sure the same argument works in the case presented. But could be.
JB
Why is it absurd to want ownership? It reduces the chance of all kinds of disagreements with the true owner. The seller may have not wanted the buyer to be able to use the strip of land and thereby interfere with the sellers exclusive use of it. In addition, if the seller owned a large parcel the strip is leading to, then only an easement would be a problem for future development due to over expansion of the use of the easement. Even if the language about the use is taken as exclusionary covenant (which I'm not sure it would be in this context); retaining title allows the use of a roadway for more than simple access by one user currently contemplated.
I don't think this is a cut and dried issue. Other evidence could absolutely swing the outcome one way or another.
I've seen the argument on the issue in a survey during 2010. Not sure if it's been resolved yet. Several surveyors involved over the course of 60 years or so. Parcels subsequent to the description in question described as certain distance off the easerly boundary (uh, oh). Yep, some measured from original and some from 25 feet over. Can't remember which side I argued for, but the argument necessarily has to include actions of the parties at the time and subsequent to the description in question along with the parties respective conditions at the time of the description. As always, what was intended by the parties (especially the grantor) at the time? And, if evidence can't clear it up, should we fall back on ambiguity in favor of grantee? But what is favor? Maybe the grantee side gets more benefit from the easement scenario but maybe they benefit more from the other way.
Fun stuff.
> Why is it absurd to want ownership? It reduces the chance of all kinds of disagreements with the true owner. The seller may have not wanted the buyer to be able to use the strip of land and thereby interfere with the sellers exclusive use of it.
Agreed, however, if the grantor wanted to retain "ownership" of the strip, why saddle himself with an imposed "for road purposes" covenant?
>In addition, if the seller owned a large parcel the strip is leading to, then only an easement would be a problem for future development due to over expansion of the use of the easement.
That's precisely why I suggested determining the scope of the dominant estate. It's not defined in the reservation language at all. The argument of "expansion of use" could certainly arise if the grantor attempted to acquire property adjoining the dominant estate and attempting to access it through the dominant.
>Even if the language about the use is taken as exclusionary covenant (which I'm not sure it would be in this context); retaining title allows the use of a roadway for more than simple access by one user currently contemplated.
Because the language is contained in the body of the grant description, I don't see how it could be construed any other way than a permanent covenant (if it is indeed a strip of land in fee). If it were contained in a habendum clause, it could be construed as a personal covenant between the grantor and grantee, perhaps not running with the strip.
> I don't think this is a cut and dried issue. Other evidence could absolutely swing the outcome one way or another.
Any time you've got an easement created by a document, ambiguity in the language is too common (just as in this case). There seem to be few conditions imposed, (i.e. who constructs, who maintains, what surfacing is allowed, etc.). And, there is no description given for the dominant estate. Both are big down-the-road problems with easements (or fee strips). While we should be able to rely upon the general meaning and usage of terms such as "Reserving Therefrom" and "Excepting Therefrom," the commonly misunderstood meanings and often misused application of the terms results in a potential for conflict and controversy.
The term "Reserving" generally applies to property rights or interests in real property, while the term "Excepting" generally applies to "title." Given the use of the terms and the potential for ambiguity, I'd go with their general meanings and usage which, in this cases, implies reservation of an easement right limited to road purposes.
JBS