Rio Bravo Oil v. Weed (TX)
I know what you mean there, Glenn. More often than not, the line between a subdivision lot and a dedicated road is referred to as the "property line". I understand that just because it looks that way on the subdivision plat doesn't make it so and I try to explain that to the glazed-eyed public when possible. In a strictly deeded situation with a private road, no public dedication or recorded plat, I see where the presumption is that the owners of the parcels adjoining the road have easement rights to the road. What I think my mind is stumbling over is that regardless of easement rights, the "property line" between the guy on the east side of road and the guy on the west side of the road can be the easterly line of the easement if the description is written that way.
There's also an old expression something about interpreting a description not by what the parties meant to say but what they meant by what they did say. I know that doesn't always hold up, but it sounds neat.
Glenn - Rio Bravo Oil v. Weed (TX)
maybe i stated it wrong, was misunderstood, or what the what at the very beginning, but let me state for you and all of the others what i was trying to say w/out doing it forty-five times.
i agree w/ you, et al that title passes to the centerline, what i was trying to explain was how i show it on a survey sketch/map if the deed call is to a monument on the right-of-way and the following call is along the r-o-w to another monument also in the r-o-w.
what i do is show the deeded line in the r-o-w and show the area used for road puposes as being "last included in the deed to Joe Blow, Vol. xx, Page yy, Deed Records, z County, TX".
as i stated before, that is where the description takes you, Joe Blow's deed IS the last place that it is mentioned, and all of that is a truthful statement and depiction on the map. it seems that doing anymore than that makes the surveyor an arbiter of title and not a reporter of facts.
what do you and others show on your sketch/map? do you extend the lines to the centerline if the deed doesn't go there and show it as an area included in the deed? what statement of fact or law, if any, would you place on your sketch to substantiate that action to the uneducated (read here realtors, title attorneys, the public, etc)? if the side line comes in at an angle to the centerline, do you extend it straight into the ceterline or set it up at a right angle/radial line to the centerline to maintain proportions? and many more questions regarding map depiction not to mention the following conveyance to the centerline when it wasn't called for in the previous deed.
i agree w/ all that you are saying, to me it appears there are more ways to go wrong by showing the deed extending to the centerline than by just reporting the fact that the area was "last included in the deed to Joe Blow, Vol. xx, Page yy, Deed Records, z County, TX".
okay, now kick my butt some more...it won't hurt much since i'm on vacation and sipping on a tequila laced cold frosty.
Glenn - Rio Bravo Oil v. Weed (TX)
> i agree w/ you, et al that title passes to the centerline, what i was trying to explain was how i show it on a survey sketch/map if the deed call is to a monument on the right-of-way and the following call is along the r-o-w to another monument also in the r-o-w.
>
> what i do is show the deeded line in the r-o-w and show the area used for road puposes as being "last included in the deed to Joe Blow, Vol. xx, Page yy, Deed Records, z County, TX".
>
Got no problem at all with you there, Frank. Show the boundary line type down the centerline, then show both right of way lines to signify the appurtenant easement (west of the centerline) and the servient easement (east of the centerline). Show the brng/dist along the boundary and the right of way line (which the deed follows), including any monuments, so the deed calls can be traced on the survey.
> as i stated before, that is where the description takes you, Joe Blow's deed IS the last place that it is mentioned, and all of that is a truthful statement and depiction on the map. it seems that doing anymore than that makes the surveyor an arbiter of title and not a reporter of facts.
>
I don't know that I'd have any problem just showing the source of title for the property and the adjoiner, without specifically stating the "last included in..." note. But I like your idea. I'd just handle it with a simple note in the narrative explaining the sequence of conveyances and the fact that the first deed, failing to exclude the roadway to center, included it by default. I'd probably say something like, "The easterly adjoining property description, being the first conveyance of record, contains no explicit exclusion of the right of way, therefore the boundary was determined to follow the centerline."
Showing my opinion of the boundary location doesn't have any affect on the title (the surveyor isn't an arbiter of title). I'd point out the conflict, but wouldn't really draw much attention to it or make a big deal out of it. The law is designed to resolve the problem. Applying the law ensures that it will function as designed. I don't hesitate to express my professional opinion of where the boundary is.
> what do you and others show on your sketch/map? do you extend the lines to the centerline if the deed doesn't go there and show it as an area included in the deed? what statement of fact or law, if any, would you place on your sketch to substantiate that action to the uneducated (read here realtors, title attorneys, the public, etc)? if the side line comes in at an angle to the centerline, do you extend it straight into the centerline or set it up at a right angle/radial line to the centerline to maintain proportions? and many more questions regarding map depiction not to mention the following conveyance to the centerline when it wasn't called for in the previous deed.
>
All of these questions are answered in the fundamental principles associated with the partitioning of a road bed or a river bed. Same rules apply for both. The presumption (not assumption) of law is that the parcel boundary extends to its intersection with the right of way, then runs perpendicular to the centerline. It's called the perpendicular rule. Under rare circumstances, the proportionate frontage method may be more equitable. Under even more rare circumstances, the proportionate area method may work best. In a last-case scenario, the extension rule (which you mentioned above) could be applied. It's a surveyor's call, but they must have a really good reason for departing from the presumption of law, which would be perpendicular.
> i agree w/ all that you are saying, to me it appears there are more ways to go wrong by showing the deed extending to the centerline than by just reporting the fact that the area was "last included in the deed to Joe Blow, Vol. xx, Page yy, Deed Records, z County, TX".
>
I would disagree. There is always more repercussion when the boundary is determined against the rule of law than when the surveyor applies the appropriate rule of law (or no rule at all). This happens especially when the survey findings oppose the presumption of law.
> okay, now kick my butt some more...it won't hurt much since i'm on vacation and sipping on a tequila laced cold frosty.
>
Now that sounds like a good one! Nothing like a frosty tequila beverage to make the clothes fall off!
Enjoy the vacation... ;o)
JBS
Rio Bravo Oil v. Weed (TX)
>What I think my mind is stumbling over is that regardless of easement rights, the "property line" between the guy on the east side of road and the guy on the west side of the road can be the easterly line of the easement if the description is written that way.
>
> There's also an old expression something about interpreting a description not by what the parties meant to say but what they meant by what they did say. I know that doesn't always hold up, but it sounds neat.
That's right, Steve. There's no problem with construing the deed in accordance with it's expressed language. It describes to and along the right of way. After that construction is complete, however, we are left with the application of another rule of law (separate from the rules of construction) that can be stated, "when title to a parcel of land adjoining a right of way is transferred, the transfer includes the fee title to the center of the roadway."
Two different laws are at play. Step one deals with the rules of construction, while step two deals with a presumption of law regarding parcels which abut a right of way. Step two adds the half-width to the parcel determined in step one. It's not as if we're changing the expressed language of the deed. We're simply recognizing an appurtenant right attached to the property being described. We can only ignore that appurtenant right when it is explicitly excluded from the parcel.
JBS
Glenn - Rio Bravo Oil v. Weed (TX)
a question & assumption.
we have all seen the statement at the end of descriptions..."save and except any portion included in a public r-o-w" or some such language.
my understanding is that statement does not exclude the road but only gives notice that there is a r-o-w involved and the area therein is still included in the conveyance.
my question/assumption is, after applying Glenn's postulate of explicit language, that i have the right idea unless i see something along the lines of "EXPLICITLY EXCLUDING ANY AREA WITHIN THE PUBLIC RIGHT-OF-WAY". would that be correct?
p.s. i like the "The easterly adjoining property description, being the first conveyance of record, contains no explicit exclusion of the right of way, therefore the boundary was determined to follow the centerline."
with what i do that may become a common item included on the sketch.
PPS==SENDING SWMBO TO THE BLENDER AGAIN!
Glenn - Rio Bravo Oil v. Weed (TX)
> a question & assumption.
>
> we have all seen the statement at the end of descriptions..."save and except any portion included in a public r-o-w" or some such language.
>
> my understanding is that statement does not exclude the road but only gives notice that there is a r-o-w involved and the area therein is still included in the conveyance.
That's pretty common around here as well. The statement is usually added on the tax assessor's role, because the land under the right of way is considered as having no taxable value.
> my question/assumption is, after applying Glenn's postulate of explicit language, that i have the right idea unless i see something along the lines of "EXPLICITLY EXCLUDING ANY AREA WITHIN THE PUBLIC RIGHT-OF-WAY". would that be correct?
>
I would tend to look for something that explicitly excludes the "fee title" in the roadbed. The real question I'd be asking my client is, "Are you sure you want to retain the underlying fee of a roadbed? What's the point of creating a situation that is contrary to common practice and common law? They might have a good reason. It's their land. I'd just want them to make an informed decision.
> p.s. i like the "The easterly adjoining property description, being the first conveyance of record, contains no explicit exclusion of the right of way, therefore the boundary was determined to follow the centerline."
>
> with what i do that may become a common item included on the sketch.
>
> PPS==SENDING SWMBO TO THE BLENDER AGAIN!
That's the life! Margarita's and a pool girl! Just don't push your luck or you won't get lucky! ;o)
JBS
It would take more specific exclusionary language to limit these conveyances to the right of way line. Both go to the center of the road because they touch the monument (the road).
Well, it looks as if I cannot add anything to what JB has said.
"The presumption (not assumption) of law is that the parcel boundary extends to its intersection with the right of way, then runs perpendicular to the centerline. It's called the perpendicular rule."
I would say that although I haven't read much case law on the perpendicular vs. projection/extension v. proration etc. options, I can't imagine that there are just as many, if not more cases where it would have to be a projection/extension of the side lines to the center of the road, depending upon the roadbed being acquired as an easement interest or fee. The reason being is that before the public acquired an easement for roadyway purposes, that tract's sidelines WERE on that projection/extension. I can't see why an easement for a road would eliminate it's original shape. To me it seems counterintuitive to go perpendicular, knowing that the original title goes on a projection.
However, if a road was acquired in fee, I could see going perpendicular. Gotta run, wish I could discuss further.
>I can't see why an easement for a road would eliminate it's original shape. To me it seems counter-intuitive to go perpendicular, knowing that the original title goes on a projection.
>
Glenn, you're right on with a good example where the presumption can be overcome by evidence. In your example, there is an existing perimeter boundary that crosses the road prior to the sale. The parcel cut out on one side of the road, being described now as running along the right of way line, would include fee title to the existing sideline boundary and would create a new boundary along the centerline. The original boundary would be unaffected and the new corner would be created at its intersection with the centerline.
The easiest way for any of this confusion to be eradicated is for the surveyor to understand the law when cutting out the original tract. The original description should eliminate all of this ambiguity.
JBS
JB, seems like many surveyors never look at the document that created the tract, they want the newest and latest, never looking at the chain of title for conformity with the original intent. Had one of those in the office last week, good construction surveyor but must be closely watched when doing boundary work. His attitude is a choice he made, knowing many find fault with. Maybe I have gotten him to the point of looking at the document which created any tract he will be surveying in the future, time will tell.
jud
