I recently was in a discussion with some title people about ownership to the centerline of a road.
The description in question reads all lands in NE4NW4 west of road.
The road runs generally north-south and my opinion is that west of road means west of the the centerline.
I mentioned it to the title company and their response was that they hadn't ever heard that legal principal.
So now that I have time and can see my opinion might be questioned I resolved to look at some case law and it didn't take much to call up a couple. One was a state Supreme Court case that's clear on the issue and recent 2012.
The next one up was very interesting and recent (2020).
A Florida case involving the rails to trails.
This is a summary, if you want to read it, it's an interesting case:
February 20, 2020
Federal Circuit: When Road Is The Property Boundary, Owner's Fee Goes Up To The "Centerline"
Today, in Castillo v. United States, No. 19-1158 (Feb. 20, 2020), the U.S. Court of Appeals for the Federal Circuit resolved a common issue in rails-to-trails takings cases: when a property owner holds title and her deed describes the land as bordering on a railroad line or other easement (or the property is described as a lot in a plat that shows the lot’s “property line” as adjoining a road or railroad easement), does the owner of the adjoining fee estate own the fee interest up to the "centerline" of the right of way?
Applying Florida property law, the court held yes, there is a presumption that the owner's title goes up to the "centerline." The court reversed the Court of Federal Claims's conclusion that the presumption did not apply, and that deeds describing the property as a “less and except” a right-of-way, do not convey title to the fee estate in the land under the right-of-way. Although this case was resolved by applying Florida law, the centerline presumption is present in nearly every other state's property law, and the argument is frequently made by the Government in rails-to-trails cases nationwide that the owner's property stops at the edge of the road. The Federal Circuit's opinion noted that the centerline presumption is a doctrine in every state and has been long a fundamental doctrine of property law the Supreme Court has long recognized.
Congratulations to colleagues Meghan Largent, Thor Hearne, and Stephen Davis for the win. Check it out.
Castillo v. United States, No. 19-1158 (Fed. Cir. Feb. 20, 2020)
Not sure if the link works, I only copied the article.
This conversation gets quite contentious at time. There are many thousands of miles of abandoned railroads across the US. Many of those stretches have been ignored by adjoiners mainly because the railroad created junkyards along their length, not to mention toxic waste dumps. Some have a recorded Affidavit of Abandonment while others may have a recorded Notice of Non-Interest or some such title while many others have absolutely no record since the creating record decades or centuries earlier. A relative few have been signed over to "trails organizations" rather than taking any official action of abandonment. What is left behind is an attractive nuisance. The railroads should be required to rehabilitate the area used similar to an EPA cleanup of industrial wastes and chemicals.
I am very knowledgeable of the railroads in my area. Walked many of them as a kid hunting whatever was legal. In those days there were only three or four trains a day on most of them and some had only one per day. Didn't worry about any railroad personnel giving us problems and it never happened.
I share borders with the railroad over a total of about two and a half miles all together and have my own crossing on one farm. I would hate to guess the tonnage of scrap material that could be salvaged out of just the stretches that I adjoin. This is everything from spikes, bolts and nuts to the "S" shaped flat steel driven into the ends of many ties, plus plenty of short pieces of rail strewn across the full 100-foot swath. If an old box culvert needed replaced, the chunks of demolished concrete and reinforcing rebar will be close by. Everything that has ever been spilled out/off of a railcar over the past 133 years is still there if it wasn't biodegradable. The huge amount of plastic drink bottles deposited in the grassy areas is still there if there hasn't been a railroad fire since the first litterer littered. Those were an annual, or more frequent, occurrence when I was young. Helped out many times to try to slow the spread of fire across adjacent fields. Those were really effective at burning up the scrap ties that were left over the years. In recent years the railroad attempts to recover those that are too poor to stay under the rails but still marketable in certain places. But, there are plenty left to clutter up the area between the fences because they are in bad shape. New ties have been strung out for miles recently awaiting the crews to rip out the bad ones and replaces them with shiny black new ones. That should be soon as there were more than two bus loads of workers getting started on a stretch of two plus miles adjacent to me today.
I've observed the enormous amount of scrap, too. I don't think I've ever walked through a crossing without seeing spikes and tie plates laying around. Looking for a bench mark that is slightly buried at the edge of the ROW is difficult because of the miscellaneous iron.
Side note: On our Amtrack trip a few years ago we didn't go by your place, HC, but I did note that the Kansas portion of the route had the most old 39-foot bolted rail and soft ties anywhere on our route (Chicago to Arizona, and return Grand Junction CO to Chicago). Swaying enough to scare you at times and always clackity-clack. Most parts of the route have gone to long welded rail.
One of the things on my bucket list is to take a lengthy ride on Amtrak just for the heck of it. I don't know if I could sit still that long.
It was indeed a long ride each way. We left late afternoon from Chicago (dark in Kansas) and arrived in Flagstaff after dark the next day. We didn't spring for the roomette, and just napped in the seats. Return had nice views in the afternoon. The train had much more seat room than in an airplane, and also easier to walk around occasionally so it wasn't so bad, but a lot of people do think the upgrade is worthwhile.
There are several very short stops where you dare not get off, and only a couple opportunities to walk outside or find vending machines.
This was part of a package tour (Vacation by Rail) to see national parks of the southwest. My wife had the Grand Canyon on her bucket list, and we didn't want to deal with scheduling rooms far in advance and doing so much driving. Most tours offered 3 days in Las Vegas and a day trip to the canyon. No thanks. This one was 11 days with nearly 2 full days to explore the Grand Canyon scenery, plus short visits at Zion, Arches, Bryce (spend more time there if you can), some others, and two boat rides on the river at Lake Powell and near Moab. We thought we got our money's worth.
A trip from Chicago to Seattle would be very interesting to me. Or a trip from Seattle to LA would be another possibility. I don't know, though, how feasible it would be to stop off at points along the way. That is schedule Chicago to Minneapolis then Minneapolis to some other intermediate point a day or two or three later, depending on schedules. Repeat at other locations, if feasible. A big goal would be attempting to travel as much as possible during daylight hours. I am not good at napping. Once I'm asleep, everyone on the train would know it. I would really miss my CPAP machine.
Sixty years and more ago my grandmother took several very long bus trips. Of course, in those days there were more bus companies and far more places to see from a bus.
I think most of the routes other than commuter lines have one train per day in each direction. So the daylight scenery is fixed to certain stretches. Your intermediate stops might work but you could be getting off and on the train in the middle of the night in some places.
Since rail travel is a novelty, there are few conveniences around the stations. Only the very large cities will have restaurants or hotels nearby, if the station is downtown.
The train has a dining car and a snack shop (both expensive, of course). As cheapskates, we had backpacks with granola bars and apples to reduce the number of purchases.
My Dad and his wife have taken the Canadian National train trip across Canada a couple of times and quite enjoyed it. They tried Amtrak from Seattle to LA and said it was pretty crude, grimy, dirty in comparison.
[ . . . ] Sixty years and more ago my grandmother took several very long bus trips. Of course, in those days there were more bus companies and far more places to see from a bus.
In my twenties 40 years ago I was quite the bus rider. I went from Miami to Seattle with no layovers which curiously passed through Chicago. The route through the Columbia Gorge from Boise to Portland provides excellent sightseeing.
Also bussed extensively on a three month overland trip (except the Darien Gap of course) from Seattle to Medellin Columbia. Mexico has fabulous and economical bus infrastructure, from Second Class school bus style where you can just wave them down and pay the driver, to First Class, Deluxe and Executive which range from better than Greyhound to luxury on a budget, with roomy reclining seats, stewardesses, blankets & pillows, per seat TV, snacks and drinks; I hear even Wi-Fi on some routes nowadays.
Central America was variable, from basic and safe to the Toad's wild ride complete with highway robberies, detainment and searches at border crossings ('cuz we were Americans), spraydowns of the buses with bleach for disease control and other oddities. I'm having trouble remembering the South America trip from Cartagena to Medellin, probably because of the abrupt elevation gain.
I have taken Amtrak from Pittsburgh to DC, very scenic through the mountains but takes twice as long as driving!
My property has 700 foot of frontage on an old railroad (now the Montour Trail). This section was fee bought in the early 1900's, splitting the farm in two. He then sold the north half to someone and kept the south half, of which my tract is a portion.
So in this case there is no "reverts to adjoiner" in my opinion, it just exists as a 60' wide tract on the north side of mine.
In my neck of the woods, a legal description that reads "west of the road" would mean west of the road right-of-way. The right-of-way can exist by dedication/reservation, or by prescription. In the case of prescription, the road width is defined as top of ditch to top of ditch.
Do you have an details you can share? Almost every state has case and/or statute law that requires an explicit exclusion to not transfer title to the centerline of things like roads, railroads and rivers if the grantor has title to the centerline. Exceptitions to normal rules can be very informative and interesting.
Let's say the property owner does have title to the center of the road. If the road has been used by the public for decades, at the very least the road right-of-way exists as an implied easement. If push comes to shove, and the property owner tries to assert their right and block or occupy their portion of the road, the courts would say the road exists by prescription: top of ditch to top of ditch.
But roads do not acquire a prescriptive right automatically, it takes a court action. I would only advise my client of this, and tell him to stay away from said road, it has implied rights.
If I was doing a survey of all lands "in NE4NW4 west of road", assuming the road has been used for decades and has not been realigned, I would create a nominal "right of way" centered on the road and set corners accordingly. It protects the rights of the public, it doesn't inflate the owners entitlement as owning the road, and meets the INTENT of the description. All lands west of the road. Not lands in the roadway itself.
Of course, every jurisdiction will be different. There are local standards that always come into play. And this is a lesson in not having ambiguity in your legal descriptions. Maybe you could say "all lands in the NE4NW4 west of the road, excepting therefrom any rights of the public to said road."
A common issue here is that an owner owns the entire northeast quarter of a section, for example, with a county road along both the north and east sides thereof. Some title workers like to add the phrase "except roads" to the true description which is : The Northeast Quarter of Section XX, Township.............
The landowner technically owns all the way to the section line because it has never been deeded away and was never intended to be deeded away. The road is an easement and only an easement. Just because an easement exists that does not convey ownership in fee to the beneficiary of the easement. Trying to educate simple-minded title workers is a struggle some times. Someone somewhere may have told them "We don't insure roads." and they have taken that to mean something that it does not mean in the real world.
I own a farm that is split by the railroad. I own all of the south half of the northwest quarter and that part of the north half of the northwest quarter lying east of the railroad My neighbor owns a tract described as: That part of the north half of the northwest quarter lying west of the railroad. In both deeds the inference is that we own to the center line of the railroad easement although the words "center line" do not appear in either deed. Note that it says I own all of the south half of the northwest quarter with no mention of the railroad crossing it. I am not taxed on the portion lying within the railroad right of way nor am I taxed on the portion of county road right of way crossing the west end of the tract. Simple-minded title workers may want to pretend I have no ownership of those strips, but I definitely do.
The court case I downloaded from the state Supreme Court is Henery v. Borushko (WY) and it went into detail; here is an brief summary:
"Appellants, James and Barbara Henry, and Appellees, George and Lucille Borushko, own adjoining properties in Fremont County, Wyoming. An irrigation canal separates the properties. In 2009, a dispute developed over the boundary between their properties. The Borushkos asserted that the boundary was the centerline of the irrigation canal. The Henrys claimed that it was at the fence along the north bank of the canal. Litigation ensued. The district court ruled in favor of the Borushkos. The Henrys appealed. We will affirm."
"[¶ 4] In 1977, the Henrys conveyed to the Mortensens:
All lands lying North of Midvale Irrigation District Pavillion Main Lateral which lie within and are portions of the S1/212NW1/414, Section 14, Township 3 North, Range 2 East, Wind River Meridian, Fremont County, Wyoming; all lands lying North of the Midvale Irrigation District Pavillion Main Lateral which lie within and are portions of the SE1/414NE1/414, Section 15, Township 3 North, Range 2 East, Wind River Meridian, Fremont county [sic], Wyoming; all containing 40.1 acres more or less."
"[¶ 8] Because the canal shared pertinent attributes with non-navigable streams and streets, the district court relied on this legal guidance for use in interpreting deeds:
In the case of non-navigable watercourses and roads and streets as boundary calls in legal descriptions, the general rule is there is a rebuttable presumption that where a non-navigable stream or a street or road is the boundary between two parcels, the actual boundary is along the thread of the stream or the middle of the street. Wilson v. Lucerne Canal and Power Co., 150 P.3d 653, 665 (Wyo.2007). 12 Am Jur Boundaries, § 17, § 29. The same rules of construction hold true with common walls. Coumas v. Transcontinental Garage, 68 Wyo. 99, 230 P.2d 748, 753 (Wyo.1951)."
"Applying this presumption, the district court concluded that the deed should be interpreted as establishing the property boundary at the centerline of the canal. It further determined that the evidence presented by the Henrys “fails to rebut the presumption” that the boundary was at the center of the canal."
As you can see the case is over a description of more or less 40 acres lying north of a canal.
What probably isn't discussed in the case (I would have to reread the case to be sure) is that canals are given statutory easements in the state. So much like a road or railroad there is an easement along the canal, the deed is not to the edge of that easement as described but to the centerline. The case further explains that if the grantor wished to describe the north bank the grantor needed to expressly say that.
It's a standard principle everywhere I know of, some states may be different, but if you read Castillo V US in the OP it seems like this is a universal principle.
No one is is questioning the right of way , but rights of way are usually easments. Someone ownes the land burdened by the easment. It is short sighted to ignore that just because the fee owners' rights are severely limited by the public right of way.
The intention of the deed is to sell everything (or a part) of what the grantor ownes, not to retain a strip under half the road. This is the reason the courts and state legislatures put the burden on the person who actually wants to retain a strip to very clearly state so.
Monumenting the right of way instead of the actual boundary in the middle of the road, ditch or stream is very often the most sensible thing to do, but your plat should make clear what you are doing.
At least the vast majority of the states have adopted this doctrine. I would be very interested if someone knows of state that hasn't.
I agree. My intention is right in setting witness corners along the side of the road, but the plat should indicate the centerline as the property line. The descriptions (assuming the adjacent description is "lands east of the road") likely didn't intend to leave a strip of land between the properties. Had I spent more time working on this particular survey, I would have come to the conclusion that the centerline is the property line. Wherever it may be at the time of survey.
