County Roads R/W Discussion Dan Linscheid, P.L.S. Yamhill County Surveyor (retired) March 19, 2013 ODOT Surveyors Conference.

Slides:



Advertisements
Similar presentations
Project Certification & Encroachments The SR 305 Experience Project Certification & Encroachments The SR 305 Experience.
Advertisements

1 FM 2499 From: Spinks Road To: FM 1171 PUBLIC HEARING November 16, 2004.
Water Transfers in Times of Drought: Perspectives from the Ground Water User and the Power Company Presented by: Kara Brighton, Esq. Hageman & Brighton,
1 You MUST use the Loan Document forms developed by TDHCA and provided in the HBA Manual Down Payment Assistance Note (Form 1.05) Subordinate Deed of Trust.
Addition Facts
7 | Means of Egress (Life Safety Code)
AASHTO 2005 Right of Way and Utilities Conference Austin, Texas Acquisition Alternatives and Eminent Domain.
1. Parties have contractual capacity 2. Contract has legal purpose 3. Offer 4. Acceptance 5. Consideration 6. Statute of Frauds compliance.
The Surveyors Role in Utah Water Rights Utah Council of Land Surveyors February 19-21, 2014.
LEGAL ISSUES IN PROPERTY DEVELOPMENT IN CYPRUS Andrew Demetriou LL.B (Hons), Barrister at Law, FCI. Arb, Chartered Arbitrator, Partner - Ioannides Demetriou.
The Court System Lessons CHAPTER 4
Subtraction: Adding UP
Number bonds to 10,
35 ILCS 200 Article 27 SPECIAL SERVICE AREA TAXING DISTRICT Creating Community Excitement for Lake Dredging/Restoration Projects.
Chapter 13 Title Records Recording Statutes = laws that require the written instruments affecting title to real property to be entered into books of public.
Intro to Maine Subdivision Law
 Roads & rights of way  Support  Water  Fences  Air  Light.
© 2007 by West Legal Studies in Business / A Division of Thomson Learning CHAPTER 19 Land-Use Control and Real Property.
LEGAL RESPONSIBILITIES RELATING TO EASEMENTS Michael Mammen – Partner, HWL Ebsworth Lawyers.
BOARD OF COUNTY COMMISSIONERS DECEMBER 11, 2012 CELEBRATION POINTE COMMUNITY DEVELOPMENT DISTRICTS.
How do they all fit together? Land Records / GIS & Taxes.
© OnCourse Learning. All Rights Reserved. Transfer of Title to Real Property Learning Objectives  List the methods of transferring title: By descent Four.
{ Chapter 12 Property: Real Property, Leases & Mortgages.
Deeds - PAR 131 Real Estate I Mike Brigner, J.D.
Recent Developments in Joint Tenancy
 Deed ◦ Loosely translated as a “gift” ◦ Necessary as a part of property transfer  Deed Restrictions ◦ Terms and conditions attached to the transfer.
Copyright © 2004 by Prentice-Hall. All rights reserved. PowerPoint Slides to Accompany BUSINESS LAW E-Commerce and Digital Law International Law and Ethics.
Copyright © 2008 by West Legal Studies in Business A Division of Thomson Learning Chapter 49 Real Property Twomey Jennings Anderson’s Business Law and.
© 2004 West Legal Studies in Business A Division of Thomson Learning 1 Chapter 48 Real Property Chapter 48 Real Property.
Texas Real Estate Contracts 4 th Edition © 2015 OnCourse Learning.
Real Estate Principles and Practices Chapter 5 Estates, Interests, Deeds, and Title © 2014 OnCourse Learning.
Chapter 26 Estates, Leaseholds, and Regulation of Property.
Office (307) Toll Free Right-of-Way Program Right-of-Way Program 5300 Bishop Blvd., Cheyenne, WY
Florida Real Estate Principles, Practices & Law 38th Edition Linda L. Crawford Copyright © 2015 Kaplan, Inc. All rights reserved.
Chapter 28 Real Property. What Is Real Property Land- Includes not only that surface of the earth, but also the airspace above it and whatever is beneath.
Methods of Transfer and Conveyance in Real Estate.

Chapter 49 Real Property Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill/Irwin.
Chapter 48 Real Property.  Property that is immovable or attached to immovable land or buildings  Types of real property:  Land and buildings  Subsurface.
Chapter 50 Real Property Twomey, Business Law and the Regulatory Environment (14th Ed.)
1 Welcome to the International Right of Way Association’s Course 802 Legal Aspects of Easements 802-PT – Revision 1 – USA.
 Real property is immovable and includes:  Land and Structures: land includes the soil, and all natural and artificial structures on it (unless agreed.
Slide Set Fifteen: Real Property – Estates in Land
Real Estate Principles and Practices Chapter 5 Estates, Interests, Deeds, and Title © 2010 by South-Western, Cengage Learning.
What can a person who holds property in fee simple absolute do with the property? What can a person who holds property in fee simple absolute do with.
Applicable Documents and KRS Statutes  FHWA Utility Relocation and Accommodation Guidelines  KRS  23CFR  23CFR  23CFR
February 20, 2007 Macon County Planning Board. Structure Height Ordinance Allows construction to 4 stories or 48 feet, whichever is greater Measured from.
Understanding Legal Descriptions and the Public Land Survey System for the GIS Environment IGIC – March 7, 2006.
© 2012 Cengage Learning. Residential Mortgage Lending: Principles and Practices, 6e Chapter 2 Real Estate Law and Security Instruments.
2010©Cengage Learning. All Rights Reserved.
ABANDOMENT OF EASEMENTS PRESENTED AT IRWA INTERNATIOAL CONFERENCE 2009.
PROPERTY MANAGEMENT DATA SYSTEMS Mike Stone, Oregon Dept. of Transportation.
© 2012 Cengage Learning. Transferring Title Chapter 5.
1. Land Conservation Act (LCA) * Public Agency Webinar Public Acquisition Notification Procedure – A Step by Step Guide * LCA, also known as the Williamson.
North Carolina Railroad Company A Presentation to the North Carolina Department of Revenue 2015 Advanced Real Property Seminar September 30,
Prentice Hall © PowerPoint Slides to accompany The Legal Environment of Business and Online Commerce 5E, by Henry R. Cheeseman Chapter 28 Real Property.
©OnCourse Learning. All Rights Reserved.. Transferring Title ©OnCourse Learning. All Rights Reserved. Chapter 13.
Modern Real Estate Practice in Pennsylvania 12th Edition Chapter 9: Transfer of Title.
© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. Twomey & Jennings BUSINESS LAW Chapter 47 Real.
© 2015 OnCourse Learning Chapter 7 Transfer of Title to Real Property.
Chapter 6 State Regulation of Lending. The 10th Amendment to the U.S. Constitution reserved all powers not specifically enumerated (listed) in the Constitution.
LEGAL ISSUES INVOLVING APPARENT ROAD RIGHT OF WAY March 8, 2011 JASON P. LUEKING BAMBERGER, FOREMAN, OSWALD & HAHN, LLP Capital Center, 201 N. Illinois.
North Carolina General Statute May 2009 Gary Thompson, PLS work
Most real estate attorneys know that G.L.c. 93, §70 (“the Title Certification Statute”), requires them to certify title in certain circumstances, but.
Chapter 49 REAL PROPERTY. 2 Nature of Real Property Real property includes land, buildings and fixtures, and rights in others’ land. Real property includes.
Nature and Description of Real Estate; Rights and Interests in Land
Chapter 48 Real Property.
Chapter 48 Real Property.
Real Property: Estates in Land Interests in Land – Time and Possession
Presentation transcript:

County Roads R/W Discussion Dan Linscheid, P.L.S. Yamhill County Surveyor (retired) March 19, 2013 ODOT Surveyors Conference

We Will Cover…. Oregon History on rights-of-way origins and widths over the past 160 years Oregon History on rights-of-way origins and widths over the past 160 years Authority and applicable Statutes Authority and applicable Statutes Court Cases Court Cases Exceptions Exceptions Discussion Discussion

Provisional roads ( ) Public roads shall be opened twelve feet wide, clear of trees, logs and other obstructions, the stumps cut low, and sufficient bridges and causeways; and the space of ten feet on each side of the road shall be considered as appropriated to the use of said road. Leg. Act June 22, 1844 (32 minimum statutory width) Public roads shall be opened twelve feet wide, clear of trees, logs and other obstructions, the stumps cut low, and sufficient bridges and causeways; and the space of ten feet on each side of the road shall be considered as appropriated to the use of said road. Leg. Act June 22, 1844 (32 minimum statutory width)

1849 – 1850, all Territorial roads to be 60 wd. unless a lesser width be determined. unless a lesser width be determined – Maximum width to be 80, minimum – All territorial roads declared to be county roads. 60 statutory width except under prayer of petitioners for lesser width, to be not less than 40 nor more than 80 wd – All county roads to be 60, not less than 30 nor more than – County roads to be not less than 30 wd – County roads to be 50 wide, not less than 30 wd., and not to exceed one mile in length.(!)

Authority & Statutes Acceptance of dedication or donation Acceptance of dedication or donation Acquisition via purchase, etc. Acquisition via purchase, etc. Eminent Domain Eminent Domain Road Viewing process: ORS Road Viewing process: ORS Prescription Prescription Common law dedication Common law dedication Resolution (City, County or OTC or Leg.) Resolution (City, County or OTC or Leg.) Forest roads Forest roads

Authority & Statutes ORS states, "Rules for construing description of real property. The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful, and there are no other sufficient circumstances to determine it: (4) When a road or stream of water not navigable is the boundary, the rights of the grantor to the middle of the road, or the thread of the stream, are included in the conveyance, except where the road or bed of the stream is held under another title."

Oregon Court Cases Questions on r/w deeds to the public: Questions on r/w deeds to the public: Warranty or dedication deed? Eminent Domain? Damages paid? Warranty or dedication deed? Eminent Domain? Damages paid? Was the deed accepted on behalf of the public by the county or city? Filed in the Clerks office? Was the deed accepted on behalf of the public by the county or city? Filed in the Clerks office? Clause for roadway purposes, street purposes, etc.? Clause for roadway purposes, street purposes, etc.?

Oregon Court Cases McQuaid v. Portland & V. Ry Co. (1889) - The public acquires only an easement in a street which has been dedicated or condemned for its use., and The public, as a mass, does not have the capacity to accept the fee, so fee either remains with the underlying lot owner or the original dedicator.

The court went on to say, The court may have an irrevocable right to the use of the street; but how can it acquire the fee to the land? The fee must vest in someone having a legal capacity to take it. It must be a natural or artificial person, must be someone having a legal entity. The declaration that the fee in such case is in the public, meaning the general mass of the people, without regard to any legal organization, although often made use of, is to my mind absolutely absurd.

Cappelli v. Justice (1972) - Facts: warranty deed, containing, Excepting therefrom reservation of 30 foot right of way… (not a public r/w) The Court said, In common parlance, the term right of way signifies an easement. In the absence of special circumstances indicating a contrary meaning, the courts have generally concluded the term in accordance with the common usage. Oregon Court Cases

Meyer v. Portland Cable Ry. Co.- A common law dedication does not pass legal title to the property dedicated, it merely transfers the use… under statute of this state the land in the street goes to the adjoining lot owners when it is vacated…. Oregon Court Cases

Buell et ux v. Mathes et ux - …a grant of land described as bordering on, along or by a highway, will, by legal implication, carry the fee to the center of the road. But this presumption may be rebutted, and if it plainly appears, from the language used and the nature of the property, the grantor meant to limit the grant to the line of the road, and to reserve unto himself the fee in the roadbed, subject to the use of it by the public as a highway, then, of course, this plainly expressed intention must prevail.

Oregon Court Cases Buck v. Squires, 22 Vt. 484 (prior to 1900) - Buck v. Squires, 22 Vt. 484 (prior to 1900) - The rule… is to prevent the existence of innumerable strips and gores of land along the margins of streams and highways, to which title for generations shall remain in abeyance, and then upon the happening of some unexpected event, and one consequently not in express terms provided for in the title deed, a bootless, almost objectless litigation shall spring up to vex and harass those who in good faith had supposed themselves secure from such embarrassment.

Newhem Subdivision – 1910 Amended Plat 20 ft. Public Road

Exceptions Military roads under Provisional Govt. Military roads under Provisional Govt. The public jurisdiction holds fee to adjoining property The public jurisdiction holds fee to adjoining property Eminent Domain takings may maximize the estate being taken. Eminent Domain takings may maximize the estate being taken. County roads previously held in fee by ODOT. County roads previously held in fee by ODOT. City charter surrenderings, if in fee City charter surrenderings, if in fee

Exceptions ORS Taking fee simple title. In all cases where title to real property is acquired by the Department of Transportation either by donation, agreement or exercise of the power of eminent domain, a title in fee* simple may be taken. * Usually used today on limited access roads adjoining state highways or freeways

Exceptions Oregon Court of Appeals Realvest Corp. v. Lane County (2004) – 1946 Bargain and Sale deed for R/W to Lane County contained the clause, All that portion of an 80 ft. R/W… Bargain and Sale deed for R/W to Lane County contained the clause, All that portion of an 80 ft. R/W… additional R/W deed excepts out the 1946 R/W and adds a building restriction on the parcel: that no building shall ever be erected thereon additional R/W deed excepts out the 1946 R/W and adds a building restriction on the parcel: that no building shall ever be erected thereon Lane county vacates the 1948 dedication and the roadway constructed in the 1952 conveyance Lane county vacates the 1948 dedication and the roadway constructed in the 1952 conveyance. Now a 110 unit appt. complex, 66 room motel and restaurant lie on both sides of the old alignment. Now a 110 unit appt. complex, 66 room motel and restaurant lie on both sides of the old alignment.

REALVEST Lane County / Sooy

Exceptions Realvest Corp. v. Lane County (2004) – While it is accurate that the conveyance represented by the 1946 deed is a narrow strip of land and the conveying instrument refers to it as a right of way, the language of the deed as a whole indicates that it is more likely that the words right of way are surplusage and refer to the purpose for which the land conveyed will be used by the grantee rather than as a limitation by the grantor on the nature of the estate conveyed…. Ultimately we are persuaded that the parties intended the county to receive the 80 foot strip in fee While it is accurate that the conveyance represented by the 1946 deed is a narrow strip of land and the conveying instrument refers to it as a right of way, the language of the deed as a whole indicates that it is more likely that the words right of way are surplusage and refer to the purpose for which the land conveyed will be used by the grantee rather than as a limitation by the grantor on the nature of the estate conveyed…. Ultimately we are persuaded that the parties intended the county to receive the 80 foot strip in fee

Exceptions Not really an exception… in 1976 the City of Baker attempted to vest the Nly portion of vacated Park Ave to owners of Lots 300 & 400. Not really an exception… in 1976 the City of Baker attempted to vest the Nly portion of vacated Park Ave to owners of Lots 300 & 400.

Exceptions Original dedication was all from one owner lying within the subdivision, so all of Park Avenue went back to the subsequent owners of the underlying fee.

Discussion

Discussion 1.Warranty Deed -30 x 70 2.To City of Newberg 3.No stated purpose Is the fee with the City? Could this be vacated? Is there a dedication? If so, how?

Myths 1.Warranty deeds not used for easements. 2.Wording such as for public road or for county road always limit use to that of an easement. 3.Grant and convey always denotes transfer of fee simple absolute. 4.The intent of the Grantor outweighs that of the Grantee.

Citations 1. Barton v. Portland 74 Or Buck v. Squires, 22 Vt Buell v. Mathes, 186 Or Fossi v. Meyers 271 Or Fowler v. Gehrke 166 Or Highway Comm. V. Pac. Shore Land Co. 201 Or Huddleston v. Eugene 34 Or Knott v. Jefferson Ferry Co. 9 Or Kurtz v. Southern Pacific Co. 80 Pac Lankin v. Terwilliger 22 Or McQuaid v. Portland & V. Ry. 18 Or Menstell et al v. Johnson et al 125 Or McAdam v. Smith 221 Or Neil v. Independent Realty 317 Mo NW Nat. Gas v. City of Portland 300 Or Portland Baseball Club v. Portland 142 Or Realvest Corp. v. Lane County 196 Or App Siegenthaler v. N. Tillamook San. 26 Or App 611 Other: