Right-of-way Deed

Mon, 1 Nov 2021 23:23:43 GMT

I came across this right-of-way deed that is recorded, but it has no true description on it. No width, no station numbers. Nothing besides beginning at point A and ending at point B. It does have land lot and district info. There is a set of plans from 1957 that shows that the right-of-way does varies at different stations and varies in width. But without knowing where the intended right-of-way was to be located it makes it almost impossible to state that the right-of-way is X feet wide and goes for X distance.

The client is saying that there is no signed right-of-way. I don't necessarily agree that there is no right-of-way... but again? Hopefully someone has encountered this before and has a great answer. Thanks in advance.

Right of Way Deed

Fri, 5 Nov 2021 12:44:04 GMT

1. Check deeds in each direction.

2. Scale R/W from plans.

3. There is a R/W, its just unknown. This is when we eater the quasi-judicial realm. Plat your best considered opinion from the evidence and use.

Place a PROMINENT note on the plat stating the issue and your solution.

Wed, 10 Nov 2021 22:49:50 GMT

I am not an attorney, but, as a land surveyor and title researcher, I and we have to deal with this sort of thing all along. Lots of deeds get recorded in courthouses that are legally insufficient in execution to convey a title or interest. Government entities, especially the D.O.T. and counties, are notorious in this respect for road, highway, and interstate highway right of way acquisitions.

I assume in this case there is a road on the ground that is used by the public and maintained by the county. The description in this “deed” is blatantly insufficient, which makes it void, either as a conveyance of title to or an interest in land or as color of title. In addition, it has only one witness. The law requires two witnesses on a deed for it to be legally recorded, so the effect is this instrument, legally, is not recorded.

This is one of a series of deeds executed by the successive landowners along the route of the road. The notation at the bottom indicates there are at least 27 additional ones. Look at the others (they are often recorded consecutively in the deed book), and see if they have any better description. Mainly check to see if any of them describe right of way plans, and, if so, if the plans they describe are the 1957 plans that you mention. I note that this “deed” is dated two years BEFORE the date of the plans and was recorded five years AFTER the date of the plans. As part of the confusion that highway plans often present, they go through iterations, and the date is changed accordingly. The trick is to determine which version of the plans was used in drawing up the deed.

I wonder why it took seven years to get this “deed” recorded? Given its blatant defects and the fact that it was recorded nearly 60 years ago, title attorneys surely have noticed it and would have required a corrective deed to be executed. So check to see if there is a later, corrective deed on record.

If this “deed” and the plans are all the county has, there is no written conveyance for the right of way, and the county will have to rely on prescription for its title.

If the plans are insufficient for determining the location of the right of way, as many of them are, simply show the road as it exists on the ground. Cite the “deed” and the plans on your plat with a note that the “deed” contains a legally insufficient description and has only one witness.

If, in the end, there was no valid conveyance of this right of way, then what has been used and maintained on the ground as a road determines the location and dimensions of the right of way. If this is what you eventually have to go with, put a note on your plat stating this is what you used to determine the location and dimensions of the road, cite the “deed” and the right of way plans, and state that the “deed” is legally insufficient for the reasons stated.

Inform your client that what he or she will have to do to get the road properly defined is to execute a corrective deed, record it in the courthouse, and cross-reference this defective “deed” to it. Refer the matter to an attorney, but the best way, to avoid confusion, may be for the county to execute a blanket quitclaim deed to the landowner, and then for the landowner to execute a new deed, properly drawn, that conveys the right of way to the county. The county should be the one to pay for this since it is the county’s property.

The Georgia Superior Court Clerks' Cooperative Authority web site might be useful for obtaining some preliminary references to research a tract of land, but there are a lot of holes and other problems with it, so it should never be relied on exclusively for surveying purposes. Research in the courthouse is always necessary to get complete information.

Let is know how this turns out.

Mon, 3 Jan 2022 14:53:05 GMT

Agreed that this sort of thing is sadly not uncommon. We do a lot of surveying in Fannin County, and have ran across very similar situations. But we run across very similar situations in many other counties as well. Some more advanced counties have gone through and cleaned up situations like this whether as a good practice or in conjunction with a new project to expand the same road. Anyway, it is obviously a deficient document that lacks a lot. I respectfully disagree with Faris though. We, as land surveyors, should not make attempt to make the legal determination that due to the various flaws that the right of way deed is "legally, is not recorded". The fact that it came from the deed records makes that an embarrassing argument to try to stand behind in court. As Faris eludes, this is a matter for attorneys to ultimately cure. However, competent title attorneys who could grasp and talk about matters like this are almost nonexistent in most parts of the state, so we are often doing our clients and the public a disservice when we send them to consult with an attorney. I don't think that your client "will have to get the road properly defined", but I also don't think that it's a simple matter. Although client desires and opinions have little to no bearing on bona fide property lines (unless parole evidence comes into play, a dispute exists, etc.), this is the sort of situation where we need to consult with our clients and see how they want to proceed, and when possible also consult with the county government. There are a number of ways that you can define and depict the right of way out there that are "not wrong" (I put it that way because clearly there is no "right" way to do it, at least in the context of being clearly the right way, no further discussion needed). I think you can't ignore the 1957 plans, and if the client doesn't want to recognize them, then at least show them in a light dashed line, properly noted. You might also show the extent of prescriptive elements.

I ran across something very similar, in Fannin County, around 25 years ago. I surveyed a farm on Salem Road, in northern Fannin County, for a family friend. It was a farm next door to the farm that my mother grew up on. The client was around in the 50s when the road was built. He remembered "the road man" (couldn't remember whether state or county) came by and talked to his folks, and that they signed something before he left. A couple of years later they came and built the road. Surveys in the immediate area, including adjacent properties, shows right of way widths of 50', 60' and 100'. I found a very few right of way deeds in the area recorded, and they were recorded years later. My explanation here is that it's similar to Gilmer County where I served 2 terms as a county commissioner. New commissioners would come in and find signed right of way deeds in drawers or file cabinets, and take them to the Clerk's office to be recorded. Sometimes they had been held until everyone on the road signed them, sometimes they just got sloppy and never recorded them. In any event, they too just called for the plans that were allegedly on file down at No. 2 Capital Square. This was well before the era of GeoPI and automated plan searches. After a few phone calls and written requests, they sent me all that they had, which was an affidavit by the county commissioner that " a proper right of way of 80' in width had been obtained for said project". They had no plans, no right of way deeds, just this lone piece of paper. In the area that I was surveying, the slopes extended to somewhere between 30' and 40' from the centerline, so 80' actually fit. I discussed with the client that we could go less, but he was okay with 80' and said that he actually thought that it was either 80' or 100' that his grandfather had agreed to that day way back when. But, that's rare information that we virtually never have. In absence of that, I was going to use 80', cite the letter (which I did anyway along with note about no right of way deed found, subject to discovery of any better right of way information in the future, etc.) and consider it "the best information" that I had. This is one of the many things that I love about surveying, it's a different situation every time!
MEC