Rural surveying

He is probably just trying to sell with the most expedient process. He has a buyer with $$ and/or has secured financing that is not interested in purchasing the road since it would have no viable use to him for grazing, timber and/or agriculture purpose
So,just exclude the road and collect.
Of course, the simple alternative would have been to subtract the acreage of the road from the purchase price.
Down here, rural property is difficult to finance. There are only a few lenders and they want a big $$ down to finance.
Please see diaclaimer below

This is actually the example used in the Strips and Gores doctrine. Under that doctrine, title extends to the center of the public road.

Oh, oh. John clearly kept the area occupied by the right-of-way. I really dislike encountering such problems. The intent SHOULD HAVE BEEN to the centerline of the apparent right-of-way in both cases. Bad wording creates bad problems. The surveyed description should have included the portion of roadway involved. A simple calculation could have been made to determine the USEABLE area to multiply times a dollars-per-acre rate for the total sale price if the purchase contract specifically put a zero value on the right-of-way.

The way I've done things like that is to describe the property to the existing centerline, and then add "subject to road right of way over the West XX ft" at the end of the description.

Same thing when he sells the part on the West side of the road. Problem solved.

Another way would be to formally dedicate the strip to the public via a deed or map, and the county formally accepts it. Assuming of course the county wants it.

On rare occasions the seller wants to own the roadway because it is access to other lands of interest. In some local areas around here county roads loose traffic and local owners can ask the county to be dropped from county maintenance.

Most other reasons are that the buyer does not want to pay for any land under public road. That would also include paying taxes for land under public use such as a road. In most cases, the intent of the seller is to sell all of their land and by considering intent and the rule of strips an gores, the actual boundary can be considered to be in the middle of the road.

In other areas here, I know of a few surveyors that refuse to include that area withing county roadways in a parcel of land they are surveying, claiming that portion of land cannot be bought and sold as long as it is in public use. I've never found anything that backs up that thinking.

I can think of only one agency that will not lend money on land in public roads, the TExas VLB.

I almost never exclude the road from the boundary on rural tracts. My opinion is that until some government gets a deed on that road, it has to belong to someone.

Sorry I'm out of town and don't have a cite but in Oregon there is a presumption that the grantor intended to sell to the centerline of the road unless it is clearly stated otherwise. Clearly stated otherwise mean an additional statement such as "excepting that portion under the right-of-way". Oregon courts have usually interpreted descriptions such that there are no gaps.

California Civil Code

"831. An owner of land bounded by a road or street is presumed to
own to the center of the way, but the contrary may be shown."

There you have it, kind of.

In California, anyway

Don

the fubar that you describe is one that i run into regularly and have discussed w/ many surveyors, especially Licensed State Land Surveyors, that i respect. the way i've shown the situation that you describe is to label the roadway as being "area last included" in the deed of the original owner.

the reason that i do that is that both deeds go to the right-of-way and not to the center and, besides, that's the truth of the situation.

contrary to what some preach otherwise, it's my understanding and belief that the obligation of professional surveyors is to locate the boundaries of a property based on the description and the best available evidence and not to be an arbiter of title.

does that leave it a sticky wicket(sp)? probably.

i will go a bit further and say that you as a surveyor can help fix the fubar and make a few $ in the mean time by bringing it up witn the involved parties and working with them to fix it.

regarding the taxation issue, i don't know of any taxes that are applied to areas in road use if they are brought to the attention of the taxing authority.

Roads can be vacated and reversion rights kick in, keep it clean and use the C/L as the boundary, unless the county owns the roadway in fee. Some county s would try to sell the ROW by quit claim deed if they thought they could get away with it. This county sold a RR ROW by quit claim because the RR disposed of their ROW by quit claiming to the county. Most in the county know about the title problems this could create, I advise any who are selling property that includes in part the old RR ROW to describe it separately and convey any interest in that old ROW by using a quit claim document, can use a warranty deed for the rest, but title on the ROW is questionable at best. Kind of interesting that since the RR came after the land was patented that some of the ROW was acquired with the condition that the ROW was only granted for the time that a RR office and Depot was active in Lexington, the Depot was built and maned before the RR was built. Some dusey title problems could be in the future, caused by bad advice from county counsel and the greedy actions of the County Court.
jud

Rural surveying>Dave

Look up "Derelict Fee" in your state. Here in MA there was a special statute passed to resolve this issue called the "Derelict Fee Statute."

no charge!

Dtp

...the reason that i do that is that both deeds go to the right-of-way and not to the center and, besides, that's the truth of the situation...

It is quite common for the description to run to the centerline, as does ownership. Until a road is formally dedicated AND accepted by the public agency, those people "own" the roadway per their deed. But that strip is subject to use as a roadway.

I think most states have statute that provide for road maintenance and use by the public on un-dedicated roadways. Some specify a width, some just go to travelled width. Where that gets a bit quirky is roads on Federal land that have never been patented. At least in AZ.

Pretty common issue in my area

A surveyor comes in and makes a 'right of way' that has never been formally conveyed in a deed to the county and then runs a new boundary along this right of way. They just assume because there is a roadway that there is a right of way or that they have the authority to create it.

I have even seen it in retracement surveys of large farm tracts where a new description is prepared. The prior deed calls for the center of the road and the new surveyed description runs 30 feet off the road.

In Kentucky the property will extend to the centerline barring a sufficient reason to not run it to the centerline. The property may be subject to a right of way in the easement for passage sense, but barring a deed of conveyance or dedication and acceptance by plat the boundary is still to the center of the road.

Pretty common issue in my area

The boundary will extend to the original boundary from which the ROW was taken, not always the C/L.
jud

> Question: What happens to the title to the property between the right of way, and why would John want to retain title to same if selling the property priced by the acre?

The answer has already been given. It has been told and retold by the courts since time immemorial. Why do surveyors not pay attention? Why do we not believe? The answer involves simple rules which surveyors apply (or should be applying) on a daily basis.

In this example, the road is in the form of an easement. It is "undocumented," (presumably), and maintained (apparently) as a county (public) road. The intent to sell "all that part east of the road," is an intent to sell to a MONUMENT (the road). Any conveyance to and along a monument is presumed to run to and along the CENTER of the monument. What the surveyor does in running his line (along the side line) of the road is a common (irrational) practice that surveyors often do. Their irrational practice doesn't create the boundary and cannot frustrate the owner's intent nor the common law.

It is common practice for surveyors to place monuments next to or along the right of way (which isn't created by a fee title conveyance in this case). Placing an offset monument and running an offset line, again, doesn't frustrate the intent of the owner or the presumption of law. Excluding the area within the roadway from the acreage doesn't frustrate the intent or presumption of law. It's common practice to only assess the owner for the useable acreage which excludes the area under the roadway (highway or river).

Another common law presumption sustains the same result. The use of the easement is appurtenant to the property, therefore it is attached to, made a part of, and runs with the land. The underlying fee, subject to the public easement, is included with the adjoining property.

Another common law presumption is that the owner would not intend to retain ownership of a long, narrow strip of land which has no practical value to himself or any adjoining parcel.

Presumptions of law are a tool that the surveyor can count on to answer these types of questions. It requires no "stretch of imagination" or any "liability incurred" to follow the presumption. The presumption is the law. That's the way it is. The surveyor can be certain of it. The only liability to be incurred happens when the surveyor fails to follow the presumption. UNLESS the surveyor is confronted by substantial evidence that can prove a contrary intent, the presumption stands.

What evidence do you have that title to the road was intentionally retained by the grantor, contrary to common law? What evidence do you have that the road was conveyed (in fee) to the public? That evidence will be found in the title record. If it's not there, then the common law presumption stands in spite of what the surveyors (who should have known better) have done.

JBS

Frank:

Frank:

> contrary to what some preach otherwise, it's my understanding and belief that the obligation of professional surveyors is to locate the boundaries of a property based on the description and the best available evidence and not to be an arbiter of title.
>

Your understanding and belief of the obligation of professional surveyors is on track, but possibly has not crossed the finish line. The obligation of professional surveyors is to show the landowners where their property boundary line is. In other words, show 'em what they own. Doing so does not make us arbiters of title. It does make us arbiters of the location of the property line. That is your place in this crazy, mixed up world. Own it.

> does that leave it a sticky wicket(sp)? probably.

Self-evident, no?

Stephen

JB, that is a great answer and I agree. I will say, however, that I think that is a good thing for the landowners to know the extent of their domain, or should I say the useable extent. Towards this end, I don't think it's such a bad thing to have a legal description running along the edge of the right-of-way, which of course includes monuments. That is what the landowners are interested in, where they can build and occupy to, where they can control. I think this is best dealt with by including wording in the description to include what is obviously true, that they own to the center of the road.

In Georgia, it is plain from a good sampling of case law, that ownership goes to the centerline, unless the road is owned by a separate entity, such as a dedicated subdivision or a state right-of-way. It is irrelevant whether the legal description runs along the r-o-w edge, the owner still owns to the center.

In Alabama, it's much less clear, but as you say, the presumptions of law are very clear.

Stephen

Stephen, it does not matter a whit what you or the owners want, both can be educated, It is a title issue and its chain of title that we are charged with preserving. There is much more to boundary surveying than what is commonly taught in school by those who often have never spent much time in boundary surveying or have seen what comes down long after we have left the scene. What we do can have detrimental effects on those people involved with the land who are not even born yet. Leave good tracks, not muddy ones.
jud

If the descriptions had been written as "East of the road" and "West of the road" it would make more sense to presume that the intent was to the center of the road. It sounds like in this case, the descriptions were consciously written to exclude the "right of way" which may be defined by the back of ditch to back of ditch. Why would it be improper to interpret these descriptions as they are written, excluding the road right of way from the conveyance?

In California, this sort of question is just about irrelevant as to any conveyance of a portion of property since the 1972 Subdivision Map Act. Of course, before that, there were all kinds of squirrely descriptions that people wrote, which was what (for one reason) prompted the Map Act to require the parcels to be created be approved by a local agency and clearly mapped showing the extent of each parcel to be conveyed. Some agencies have ordinances and policies that allow, even require, that roadways be retained by the subdivider, especially if they are attached to a remainder of property beyond the parcel(s) being conveyed. That configuration is known as a flagpole with the narrow strip of roadway attached to the parcel at the end of the road. Some jurisdictions flat-out prohibit such a layout with the roadway easement made a part of one or both of the parcels that it crosses. At least when it's shown on a recorded map, there's no question (usually) like the subject of this thread.