Correct, I was thinking specifically of
several occasions where the deeds trace back such that each side of the road originally had a common call of with the road.
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
Don...
Is that the California Code version of.... It depends.
😉
That's what most people want to know - where can I build something.
A bit off topic of original question, but pertains. Around here is it quite common in older subdivisions (60's & 70's) to have 12 or 16 ft public utility easements centered along the back lines, and sometimes the side lines (lot & block subs). Even if utilities aren't anywhere within affordable reach (1/4 to 3 miles) and it is still totally undeveloped.
They just want to know where to put thier fence on their couple acres to keep thier dogs, goats, horses in. I tell them along the property line, but to remember that the utility companies still have a right to use that strip and to not obstruct thier access, in the unlikely event they ever get power. But they do have the option to petion the county for abandonment. That always confuses them....
Then there are those that fence along the easement line. Always creates a mess IMO.
Thanks for the discussion guys! Keep the opinions coming.
My take on the situation is given the owner is selling the property by the acre, then it only makes sense from the sellers standpoint to convey title to the roadbed. For that matter, the area inside the "right of ways" could be significant and help to offset the cost of the survey. Anybody thought about that? If the seller only conveyed property to the right of way, what would stop the county from seeking quiet title to the roadbed on down the line?
I see no reason for the owner not to convey to the centerline of the road, I would favor writing a description to the centerline containing xx.xx acres subject to with a description and the quantity of land inside the right of way. The buyer and seller can then agree on what that area is worth.
California Civil Code
I know, Carl, it seems odd that the damn LAW says "maybe."
🙂
Don
a question for all - Rural surveying
let me pose a similar but different situation.
lets say that Joe Blow conveys off the property east of the r-o-w to J. B. Smith. the description calls for the r-o-w, monuments, and the fence along it. fifteen years later Mr. Blow conveys off to Mr. Lewd everything west of Mr. Smith including the road, and the description along the road matches Mr. Smith's to the gnats butt.
five years after Mr. Lewd bought his property to the east line of the road you are now doing a survey for Mr. Lewd to sell his property which includes the road by description. under that situation, are you going to tell me .....what?
1) that you as a surveyor are going to tell Mr. Lewd that he owns to the center of the road, or
2) that you as a surveyor are going to tell Mr. Lewd that he owns to the east line of the road?
as long as Mr. Smith adjoins and is contiguous with the road, then he has access to the road as was described in both of the deeds and therefore access is a moot point.
while i agree with what y'all said to a degree, i don't agree with the concept when there are years between conveyances.
look at given scenario and the questions.
"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?"
i'll hang and/or be hanged w/ my previous answer.
regarding the second question, my answer would be because John has had poor advice given by someone that is not a professional land surveyor regardless of how the land is priced.
p.s. sorry, seen it, and got the t-shirt!
p.s. 2-- if you think that this is "strip and gore" then you need to reread the case law regarding "strip and gore"
a question for all - Rural surveying
It is a rebuttable presumption.
Dave,
the question "If the seller only conveyed property to the right of way, what would stop the county from seeking quiet title to the roadbed on down the line?" is semi irrelevant since the county probably would have a prescriptive easement at the least to the current appurtanances that support the road use and really has no reason to "quiet title".
at least in TX, the area in road use may be conveyed to, donated to, or condemned by the gooberment. regardless of the circumstance, there has been no compensation for the area in road use that i have seen in my thirteen years w/ the county. i don't agree with it, but there it is.
when i write a description and/or prepare a map for r-o-w acquisition i always show the area in road use, the additional area required, and the total area. they get squat for the area in current road use whle the additonal is appraised at market value. like i said, i don't agree with it, but there it is.
assuming title extends to the centerline and its a precriptive easement, to calc the areas i use the fence if there is one or the top/back of the ditch line.
i try to favor the landowner regarding the area in use if there is any question, but don't tell anyone. SSShhhhhhhhhh!
a question for all - Rural surveying
no presumption, just a different perspective based on experience and advice from folks that i trust.
rebut away.
a question for all - Rural surveying
Who's John?
Seriously, I think it's too late for Lewd. Blow already conveyed to the centerline to Smith. I don't know that he can come back later and say otherwise.
Just my late night opinion.
Don
Edit: Maybe the conveyance to Smith was specific enough to overcome the presumption.
a question for all - Rural surveying
> It is a rebuttable presumption.
That's precisely right. Presumptions in law make the initial determination easy. That's the way it is, no question... EXCEPT when you are confronted with evidence that rebuts the presumption. In other words, you don't have to prove that the boundary is along the center line, you must be able to prove that the line isn't along the center line. If you can't prove the latter, the former (the presumption) holds. No assumptions are necessary.
Frank's example provides a clear reference to the a sequence of deeds which depict the intent to include title to the roadbed entirely with the second parcel. The intervening years between the first sale and the remainder sale does raise an situation which is contrary to the common law (the first sale should go to the center line, not the side line).
The action that caused the intervening problem is that the surveyor who creates the first parcel description should have done two things:
1. They should have informed the owner that retaining ownership of the full roadway is contrary to the "norm" and contrary to common law. This can cause a problem. The surveyor could have posed the question, "What's the point of retaining ownership in half of the roadway?"
2. The surveyor should have clearly expressed in the first description that the fee title underlying the roadbed was specifically "excluded."
JBS
a question for all - Rural surveying
Presumption is a legal word of art.
In most States there is a rebuttable presumption that property owners own to the center of adjoining roads.
A common example where the presumption is rebutted is where the road came all from one title such as on the margin of a subdivision which dedicated all of the road right-of-way.
Let's just say in your case the presumption is rebutted due to the way the Deeds were written although the first grantee may disagree.
However, just because the Deed in the OP gives bearings and distances along the R/W does not necessarily mean ownership is not to the centerline of the road. Some cases have treated the calls along the R/W as being similar to a meander line because a call to a monument (the road) is a call to the centerline of the monument.
The presumption effectively shifts the burden of proof; you have to prove that the intention was NOT to hold the centerline, not the other way around.
a question for all - Rural surveying
I agree, when adjoining properties have deed calls for the same described location by a described natural or man made object or location, then the intent is for that to be the boundary and there is no strip or gore to consider, even when it is as you say "the east r/w of the road".
:good:
In my area
The assumtion would be just the opposite, east of the road would be to from the Streetline east, not to the centerline of the road. At least in most towns I work in.
There are a lot of roads theat have been around so long that, while there isn't a deed to the town, it is customary to give calls to the streeetline that has been adopted by the town.
Rio Bravo Oil v. Weed (TX)
JB and a few others have it correct. As far as Frank's last example, it's not difficult to me. The first tract conveyed east of the road included title to the center of the road because it was not specifically excluded from the conveyance (for a Texas case, see Rio Bravo Oil v. Weed, a landmark case). The second tract attempted to convey everything west of the first tract including all of the road, which was specifically mentioned. The second conveyance doesn't pass title of the entire road to the Grantee, only to the centerline. The simple reason is, is that the Grantor cannot convey something he doesn't own. Since the Grantor has already conveyed the east half of the road with the east tract, he cannot convey it again.
Rio Bravo Oil v. Weed (TX)
Weird. You can't grant fee title to the road to whomever you want? I believe you but it surprises me.
Rio Bravo Oil v. Weed (TX)
> Weird. You can't grant fee title to the road to whomever you want? I believe you but it surprises me.
Sure you could. The way to do it is to explicitly state that any title in, and to the road is excluded from the first conveyance. In the example above, the first tract sold (to the east of the road) did not explicitly exclude it, therefore title to the center of the road passed with the conveyance. So.....in your question, you would want to explicitly exclude title to the road from the first conveyance and explicitly state and describe the road in its' entirety on the second conveyance.
Did I miss something?
Rio Bravo Oil v. Weed (TX)
No, I'm apparently the one that's missing something. Just saying "I hereby grant you the portion of my property east of the road right of way" is not enough unless I say "...and I really mean it, no road for you!!"
Rio Bravo Oil v. Weed (TX)
Does not exclude access to the road, if a public road. Does convey fee to the ROW the road is now occupying and reversion rights would be effected in the event of a vacation, probably that vacation would not extinguish the rights to use the land for ingress and egress without some unique conditions in the vacation documents.
jud
Rio Bravo Oil v. Weed (TX)
> No, I'm apparently the one that's missing something. Just saying "I hereby grant you the portion of my property east of the road right of way" is not enough unless I say "...and I really mean it, no road for you!!"
Steve, yes, you are essentially correct. There's such a plethora of case law on title passing to the center of a roadway unless specifically excepted, that you really have to spell out in no uncertain terms what you are trying to convey. It's definitely an assumption at law unless the contrary can be proven. as JB et al have said.
You know the old expression, "Say what you mean, & mean what you say", except I would add "Say what you mean, EXPLICITLY".
It irks me that many surveyors I talk to don't know this area of the law. Many do not, and are ignorant of the distinction between fee title in the road, and just right-of-way/easement. I think that the nomenclature is part of the problem. Lay persons use the term right-of-way as a fee title term, or at least think that they are one and the same. A lot of surveyors think this way too, erroneously. Since they don't pay taxes on the R.O.W. and their subdivision plat is drawn such that their lot is drawn to the R.O.W., they assume that the title to their property stops there. Of course, they don't know that the language in the plat dedication is what defines the City, County, Government interest, whether the streets and alleys are "dedicated in fee simple" or "dedicated to the public use forever".