Let's say it was about 100 years ago that a landowner held two aliquot parts of abutting sections. Both he and his neighbors desired for the county to build a county road across his land for a half mile to connect two existing roads. The road began at a section corner and ended at a quarter corner. However, the path was a very obvious zig zag. Roughly eight acres of land belonging to one of the sections is separated from the remainder of that aliquot by the road.
Fast forward to today. The property has changed hands a few times and apparently no one mentioned the road not being on the section line and all deeds simply refer to aliquot parts. A land auction has been scheduled but the title company is trying to figure out what to do. Everyone who wants a quick sale is demanding they refer to the crooked road as being the section line and simply continue using the erroneous description. What is especially interesting is that there is no current access to about 15 acres except by using the ain't-a-section-line road and crossing the land that is actually in the abutting section. Not even at each end where there would normally be a small bit of access. A US highway slices the overall tract in to two parts but there is no access from it.
If I'm understanding you correctly, there is a portion of one section (8 acres, mol) that resides on the opposite side of the road from the remainder of the section; with the winding county "section line road" is the physical "division".
Happens all the time down here. Most of the arguments however have little to do with the private property and center upon the "county" R/W. Since there are Oklahoma Statutes (and a wheel barrow load of case law) that provide for ripened prescriptive R/W in the case of a road wandering outside its "straight" dedicated R/W; most of the arguments center around whether the "straight" R/W still exists if the winding road has been granted prescriptive existence.
And in almost all of the instances like you describe (with portions of one section residing on the opposite side of the road) the appropriate owner has either retained ownership or formally conveyed the "cut-off" properties at some point along the way.
In any situation I would probably be of the opinion that the actual section line would remain the boundary between the properties in the sense of surveying; with full acknowledgement of "color of title" ,at a minimum, resting with the owner on that side if the road. Especially in a case where the cut-off acreage had been cultivated or used without any address of ownership by the actual titled owner of the section it was actually a part of.
In the case of the title company...I'm SURE they will just "except" anything that might arise from the fact that part of the property is on the wrong side of the road....
That wouldn't be any issue away from the flatlands.
County roads go where the topo lets them, and section lines cut across the topo, so seeing 8 acres on one side or the other wouldn't raise an eyebrow, happens all the time, and a county road not were it's "supposed" to be isn't much of an issue, the courts have spoken to that often enough. The section line doesn't follow the road IMO.
Sometimes these issues need to be addressed, but wildly bending section lines isn't the solution.
If they want the boundary to follow along the existing road, why can't the landowner's intent be honored? Might take a change in the descriptions to convey "all that portion of the sections x and y lying west of the road." Of course the section line doesn't zig-zag. Doesn't mean the boundary between them can't. The road makes a perfectly fine monument to mark the boundary between the two parcels. They can always deal with the section line road (easement) later if they choose to.
Legalization of Roads, per Oregon Revised Statute (ORS) 368.201 for county road, ORS 223.935 for City, and ORS 366.285 for state hwys. Won't be to quick but it is statute that should be used more often in Oregon. Jp
Good reason to gis. Get It Surveyed!
paden cash, post: 358984, member: 20 wrote: If I'm understanding you correctly, there is a portion of one section (8 acres, mol) that resides on the opposite side of the road from the remainder of the section; with the winding county "section line road" is the physical "division".
Happens all the time down here. Most of the arguments however have little to do with the private property and center upon the "county" R/W. Since there are Oklahoma Statutes (and a wheel barrow load of case law) that provide for ripened prescriptive R/W in the case of a road wandering outside its "straight" dedicated R/W; most of the arguments center around whether the "straight" R/W still exists if the winding road has been granted prescriptive existence.
And in almost all of the instances like you describe (with portions of one section residing on the opposite side of the road) the appropriate owner has either retained ownership or formally conveyed the "cut-off" properties at some point along the way.
In any situation I would probably be of the opinion that the actual section line would remain the boundary between the properties in the sense of surveying; with full acknowledgement of "color of title" ,at a minimum, resting with the owner on that side if the road. Especially in a case where the cut-off acreage had been cultivated or used without any address of ownership by the actual titled owner of the section it was actually a part of.
In the case of the title company...I'm SURE they will just "except" anything that might arise from the fact that part of the property is on the wrong side of the road....
The only way to have color of title is to have an instrument which covers the ground. The instrument can be defective but it has to cover the ground possessed. Otherwise it's a claim of right situation.
Dave Karoly, post: 359092, member: 94 wrote: The only way to have color of title is to have an instrument which covers the ground. The instrument can be defective but it has to cover the ground possessed. Otherwise it's a claim of right situation.
Dave I don't disagree with you.
My legal dictionary defines Color of Title as: The appearance of a legally enforceable right of possession or ownership. A written instrument that purports to transfer ownership of property but, due to some defect, does not have that effect.
It also defines color of title (note difference) as: (n.) the appearance of having title to personal or real property by some evidence...as in open, notorious, continuous and hostile possession of property.
...so basically yes, a claim of rights. Meaning I would at least have to admit the property appears to be in use by the present occupation.
paden cash, post: 359101, member: 20 wrote: Dave I don't disagree with you.
My legal dictionary defines Color of Title as: The appearance of a legally enforceable right of possession or ownership. A written instrument that purports to transfer ownership of property but, due to some defect, does not have that effect.
It also defines color of title (note difference) as: (n.) the appearance of having title to personal or real property by some evidence...as in open, notorious, continuous and hostile possession of property.
...so basically yes, a claim of rights. Meaning I would at least have to admit the property appears to be in use by the present occupation.
This may vary by State...
6 Miller & Starr Cal. Real Estate section 18:3
ÛÏColor of titleÛ defined. An adverse possession claim arises under color of title when the possessor holds an instrument that purports to convey title (ÛÏapparent titleÛ), but for some reason the instrument is defective, thus providing mere ÛÏcolor of title.Û 2
ÛÏClaim of rightÛ defined. A claimant lacking color of title can claim title by adverse possession under a mere claim of right. A claim of right means that the possessor has the intent, as evidenced by his or her objective acts of ownership, to claim the title to the property and to hold it against the world. The claimant is merely a trespasser or intruder, has no document of title or other written evidence of title, and is without any bona fide belief in title. However, the claimant is willing to defend his or her claim by ÛÏbow and spearÛ against all comers. 3
This case is fairly straight forward. Say the section line runs west for one-half mile. The road starts at the east end, heads westward about 1200 feet but at that point is several hundred feet north of the section line. Then it heads southwesterly to a point about 20 feet north of the west end. The aerial view makes it very clear.