This is a long post, but I am wondering whether this right of way even exists or if it ever did:
HISTORY:
The original parent tract was a "tract of land called Bucks Forrest originally owned by John Douglas Esquire by deed made by the Executive Council of Pennsylvania Bearing date tenth day of November 1784". The size of that tract is unknown, I do not have the original deed, it is not in the County records, and is likely located in a state archive. The first deed on record in Allegheny County is for a 74 acre part of that, conveyed from William Douglas to Samuel Douglas in 1822. Samuel Douglas then conveyed the 74 acres to McCrory in 1871, McCrory to Fife in 1873. In 1915 and 1918, the tract was bisected by a railroad. Because of cut and fills, the railroad boundary was not a straight line, but rather courses which varied between 100 and 300 feet. In 1923, Fife conveyed all to Jury (except the railroad, of course). In 1926, Jury conveyed to Reed all of the land north of the railroad. The status after this is shown in the old map below:
Note in this map that the south side of the railroad is shown as a straight line (even though it is not), while the north side is shown the same as the courses in the deed to the railroad.
Starting in 1945 or so, Jury began to give each of his children 1 acre tracts in the SW corner of his property. In 1948, Jury sold to Werner a 10 acre parcel, which was approximately in the middle of the tract:
“Beginning at a nail in the centerline of Jewel Road, 619.93 feet in from the west corner of the Frank Jury property, and approximately 1110 feet from the Washington Road; thence North 79?30?20? East, 316.94 feet to an oak stake; thence North 67?03?30? East, 68 feet to an oak stake; thence North 47?21?30” East, 81 feet to an oak stake; thence North 19?30? West, 241.89 feet to an oak stake; thence North 77?49? East 700 feet to an oak stake; thence South 12?11? East, 495.04 feet to an oak stake, thence along the northerly property line of the property now or formerly of W. M. Carrington (Donaldson heirs), South 78?54? West, 862.25 feet to a nail on the center line of the aforesaid Jewel Road; thence along said center line North 56?40? West, 166.60 feet to a nail, thence continuing along said center line North 62?36? West, 161.30 feet to the point of beginning.
Note that the 700 foot course does not reference the railroad, only the 862.25 foot course mentions an adjoiner. The other courses are between the grantor (Jury) and the grantee (Werner).
In 1954, Jury conveyed to Kaylor all of the land east of Werner. In the description, the course that is described above as “South 12?11? East, 495.04 feet to an oak stake” (which is the common line between the old Werner 10 acres and the new Kaylor tract) is “thence along Werner line North 10°59’30” West, a distance of 477.04 feet to a point on the southerly right of way line of the Montour Railroad”, then it says “thence along said right of way line N79°0’30” East a distance of 862 feet more or less to a point on line of lands now or late of Herbe…”.
This deed states the following at the end:
"In addition, the grantors grant to the grantees, their heirs and assigns, the right of way which the grantors reserved to themselves over the land conveyed to Werner. Said right of way running along the line of said Werner N77° 49E for a distance of 700 feet to the property being herein conveyed to Kaylor"
“It is the intention of the grantors herein to grant to the grantees herein, their heirs and assigns a right of way 15 feet in width running along the boundaries of the property which they now own fronting on the Library-Clifton Road, and to further grant to the grantees herein, their heirs and assigns, a right of way which said Frank jury, et ux reserved to themselves when they conveyed the 10 acre tract to Werner, which said right of way runs along the boundary line of said Werners, running North 77°49’ East a distance of 700 feet.”
That left Jury with only the portion to the west of Werner. When that was conveyed, the line common to Werner was described as: N17°16’30” West, 241.12 feet to the Montour Railroad Right of Way…
Now, Kaylor property is a subdivision, ¼ acre lots. It appears that Jury was giving Kaylor a way to get a tractor over to his part of the property for farming.
Items to note:
1) The supposed right of way which “Jury reserved to themselves” is never mentioned in the deed to Werner
2) While the Werner deed never mentions the railroad, the adjoiners on both sides do specifically mention the right of way line of the railroad:
--west line being North 19?30? West, 241.89 feet to an oak stake in Werner and N17°16’30” West, 241.12 feet to the Montour Railroad Right of Way in the adjoiner deed;
--east line is South 12?11? East, 495.04 feet to an oak stake in Werner and “thence along Werner line North 10°59’30” West, a distance of 477.04 feet to a point on the southerly right of way line of the Montour Railroad”
3) The Werner deed does not close by 40 feet, and nothing is called for except oak stakes (in 1948)
The one boundary that I am sure of is the railroad. I have a copy of the railroad valuation map, and I was able to recover enough evidence in the field (overpass, culvert, etc) with stationing to have that tied down quite well. So, here is a 1958 aerial with the (current, after cutting a lot out) boundary of Werner in purple, and the railroad in red:
That makes it more obvious what the “right of way” was for. The green line is the 700 foot course called for in Werner.
So, does the right of way exist? Was it meant to be on the north side of the north Werner line? Is the north boundary of Werner supposed to be the railroad right-of way of is there a gap? Here is what it looks like today:
By the way, this is not a job I am working on, it is my property where I live
My first inclination was to say, yes it exists, but the question would be who has rights to use it - if anyone. And I think the only possible user could be the lot that backs up to your corner at the railroad.
But then I'm rereading it and I'm not so sure. If the deed from Jury to Werner does not specifically mention it (and there is no subsequent deed from Werner to correct the omission), then I'm not so sure it exists.
But, if PA is like VA, you can not land lock a piece of land and you then get into the concept of easement by necessity. And the piece sold to Kaylor would be land locked until such time as it was merged into the other parcel(s) that became the subdivision.
If you are worried about cleaning it up, go to the owner of the lot in the subdivision that goes into your corner along the railroad and get him to convey all his right, title, and interest to the right-of-way (if any) and state in the deed that the purpose is to extinguish the right-of-way by vesting the interest in it to you.
My $0.04 - but I can tell you I had a similar situation with my lot and that's what we did in VA.
There may be a valid easement via some method, but not by deed. The evidence shows the grantor tried to leave a strip between the 10 acre parcel and the RR in order to retain access to the remainder. When the remainder was surveyed it was discovered that had not happened due to the actual location of the ROW. So, the grantor tried to create an easement after the fact in order to fix the mistake. Too late for that, unless the owner of the 10 acres agrees and also conveys. The most that the grantors intended fix can do is give color of title in a prescriptive claim I would think. Or a marketable title act might come into play if the supposed easement has gone unchallenged and been conspicuously used for long enough. And if it did exist at some time and was in use but is so no longer for long enough, then it might be one could claim abandonment and use the subdivision and new road as evidence of intent to abandon.
What is the significance? Who wants to use it for what?
Thanks, Dave and Duane
I doubt that anyone alive even knows that it exists, except for me. The only instrument I can find that mentions it is for that parcel that is now a subdivision. Anyone doing a boundary survey in that subdivision is going to use the subdivision plan, of course, most likely would not even look up the old deed.
The railroad was abandoned, the R-O-W is now owned by the electric company, they put in a high voltage line with high steel monopole towers. And the railroad bed itself is now the Montour Trail.
It is of no use to anyone but me. I am, however, going to be subdividing some day and I don't want that to bite me then.
Here is an aerial with contours, as you can see the trail (railroad) is in a cut through here, and the R-O-W is at the top of the cut. The easement, if it exists, would be on the south side of the R-O-W.
Maybe it is just best to totally ignore it, who is going to know? The title company did not find it, nor did they realize that the deed doesn't close. I have pretty much resolved that by using adjoiners, as there were no corners set for my tract, nor for the subdivision, which encroaches on my property by up to 5 feet. But that is another story....
"The title company did not find it"
Yeah, that's why it doesn't exist by deed. Not in the chain of title because no valid grantor.
Crazy what happens over the years sometimes.
Yeah, and everyone who was involved is passed away long ago....
