Title companies and their standard exceptions

Had a two day fight with one of those guys years ago. He simply would not believe that N 89°41'56"E and S 89°41'56"W could possibly describe the same line.

Unless I'm missing something, it appears that by law, the RWs exist whether there is a physical road within them or not, unless the governmental entity that holds the RW has taken some statutory affirmative steps to get rid of it.

I would certainly show them and, similar as to what you ended up doing, make a note that the RWs appear to be physically abandoned (are you certain that there aren't any underground utilities within any of them?), but that no record of an official vacation was found. That puts it back into the title company's court to determine the official status of the RWs.

That's he way I'd look at it. The easement exists (row) until it is vacated. Non use doesn't vacate, it needs to be done by the proper public body.

I'm not clear why you don't want to show the ROW. Am I missing something. The statute you posted says they do exist unless officially vacated. The burden of proof is clearly on someone who claims they don't exist. How are they different than any other ROW? I think you could be liable for damages if you did not show them on a survey and someone built in one. Isn't this why people hire surveyors?

Your note should read,

"Reserved ROW per Statute nnn, not in visible use."

Show what is possible.

I believe the title company is correct.

Paul in PA

I guess I was a little ambiguous in my first post. Courts have ruled in Oklahoma that the County (official custodian of all section line right-of-way) abandonment constitutes a vacation without an official act or recorded document.

One such case, Stockton v. Payne County, Ok.:

¶17 We are therefore relegated to a determination of whether an abandonment of a section line right of way can be accomplished by the action, or non-action, of the county commissioners without an applicable statute. We do not believe this to be an open question in this jurisdiction. We are committed to the rule that the laying out and establishment of a new road between two objective points, in such close proximity to the old road as clearly indicates an intention upon the part of the board of county commissioners to substitute the new for the old, ipso facto, vacates the old road. By analogy we hold this rule applicable to rights of way. See Britton v. Morris, 59 Okla. 162, 158 P. 358; Brook v. Horton, 68 Cal. 554, 10 P. 204, and Commonwealth v. Inhabitants of Westborough, 3 Mass. 406.

¶18 In the present case, the only road in use prior to 1958 had been so used for more than sixty years. We are convinced and hold that under the circumstances of this case there was an abandonment of any claim to the section line right of way, and that the title to same reverted, clear of any easement, to the adjoining property owners.

Now this case has some unique facts surrounding it, as do all, but case law has generally prevailed in ruling that abandonment by the County constitutes a vacation without an official reversionary conveyance. On the other hand, courts have ruled that the section line R/W DOES exist if there has never been a road or public use.

In my clients case the abandoned roadbeds are evident and haven't been used for almost 50 years and there are no utilities within those area. In light of several court cases similar to this, I am not convinced the R/W exists; hence my hesitation to state its existence on my survey.

In my backyard, the approach has been that once officially opened, it is open unless officially vacated. There was no all-inclusive establishment procedure. Each road had to go through a road-opening process to come into existence. Many section lines never had a road along them due to topographical challenges. In numerous other cases, a road was opened and later ignored. Some of those have been officially closed. Many others have not. Those are considered, technically, to be open.

What is fun is where there is an open, and sometimes very active road, for which no record of its opening can be found. Everyone is deceased who might have remembered when the road was opened. Hence the problem of establishing a specific road width based on what was considered a minimum legal road width in the year of its opening. This is currently an issue with a contentious plan to widen one such road leading to the largest high school in the county for safety reasons and improved surfacing.

I'm sure it varies all over.

The utility companies I work for have a habit of sending all their folks to seminars from time to time. Recently they attended a get-together where a prominent RW attorney spoke concerning this very issue.

Prior to the seminar when we prepared RW the descriptions would begin or end at the R/W on section lines. This fella got them so shook up that we now include all statutory RWs within our description. He must have been a good speaker....

I guess it's better to be safe than sorry.

BUT is the determination that a right of way exists or not a surveyor's call?? With the lack of any such documentation and with the cited court rulings, this sounds like a lawyer's call to me. So I would show the "apparent right of way" citing that no documents of record exist or any other legal evidence exists to declare the rights of way abandoned.
Drop it back in the Legal Eagle's lap where it belongs. A surveyor measures and records what is on the ground. The Attorney is the one responsible fort making any legal determinations. Do not take on his responsibilities or liabilities. He makes the "BIG BUCKS", he needs to earn them.

> Unless I'm missing something, it appears that by law, the RWs exist whether there is a physical road within them or not, unless the governmental entity that holds the RW has taken some statutory affirmative steps to get rid of it.
>
> I would certainly show them and, similar as to what you ended up doing, make a note that the RWs appear to be physically abandoned (are you certain that there aren't any underground utilities within any of them?), but that no record of an official vacation was found. That puts it back into the title company's court to determine the official status of the RWs.

Hear-hear! The title company is including the R/Ws in their *exception* schedule, hopefully with the phraseology "The effect of . . .". They are not stating the R/W is presently valid, only that they are excluding coverage on it if it is. The surveyor should show them on his/her map and reference the statute which created them. And I'd be reticent to state "appears to be physically abandoned" on the map; there's lots of twists to that, what if the public is and has been for years walking that section line to get to some hot springs up in the hollow or to some huntable State land? Or the annual livestock drive down that section line?

There's usually lots of Schedule B items with no evidence on the ground, blanket (defunct) water district easements that cover the entire County with no pipes or ditches near your client's land, high tension powerline easements that are described as beginning at point A, thence through 35 sections (no bearings of distances) to point B, and the towers are actually a half mile away from your client's land. The Title Company will still except them because of the vanishingly small liability they would assume if they didn't.

Surveyors aren't the arbiters of what a record encumbrance's effect may be, our job is to locate them (if possible) and reference the record. We are also duty bound to use our eyes and ears to report items not of record which may encumber the land, encroachments, possible prescriptive easements, the powerlines traversing your client's land with the strip description record location 100' away on John's land, ad nauseum. The Title Company will gladly reference your Record of Survey as an exception to protect themselves from the effect(s) of such wildcat encumbrances.

If there's no contemporary survey, the title company excepts from the policy using the weasel words: "any state of facts that an accurate survey and inspection of the land would show". That opens up the buyer to significant risk and is the reason buyers should Get It Surveyed even if they have a Title Policy.

I once had an attorney get upset with me for showing several unclosed streets on an ALTA survey. It was a housing redevelopment project, where an old public housing development dating back to the 1930s had been bulldozed and was being replaced with low-income, single family lots. Most of the old streets had been demolished, and the new plans changed the street alignments, but the old streets had never been legally closed by the city. In NC, the General Statutes are very clear about what it takes for a city or a county to legally close a roadway. The attorney finally cooled down a bit once I explained the law to him, and actually proceeded to take the proper steps to have the old streets legally closed (which also put the street closure on public record).