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fee simple

defeasible, base, or qualified fee (These are three different terms that mean the same thing.)

easement

          If a right of way is conveyed in fee simple, it is treated as any other tract of land for which the owner's interest is fee simple; that is, it is simply a tract of land that the landowners adjacent to the right of way have no interest in beyond the rights they hold in common with the general public.  If the interest is a defeasible, base, or qualified fee, the situation is the same as fee simple except the full interest in the right of way will revert to the owner of the tract of land that it originally came out of if the condition specified in the conveyance should happen.  The condition commonly specified is the full interest reverts if the land ceases to be used for the purpose for which it was conveyed.  More specifically, in most cases, the full interest reverts to the original or adjoining landowner if the land ceases to be used for street, road, or highway purposes.  If the interest in a street, road, or highway is an easement, the fee simple title remains vested in the original fee simple owner and his or her successors in title, but subject to the purpose for which the easement was conveyed.  If the original fee simple owner conveys the overall tract to someone else and the conveyance does not expressly include the right of way, the road right of way, if an easement, usually passes by implication, subject to that easement for road purposes.  If a road exists as an easement, the fee owner can use the road right of way in any way they desire as long as such use does not interfere with the use of the right of way for road purposes. 

          Until roughly the 1960s the Georgia Department of Transportation usually acquired rights of way for highways as defeasible, base, or qualified fees, or as easements.  Since then it has usually acquired them in fee simple.  In my experience, interstate highway rights of way have always been acquired in fee simple, except that they sometimes have temporary construction easements attached.  Highway, street, or road rights of way acquired by prescription or by implied dedication and acceptance are usually construed as easements.

          You should say something about limited access highways.  Generally, landowners along highways, streets, and roads have the right of direct access to them, but this is not the case for limited access highways.

          I would like to see something about curb cut permits issued by the D.O.T.  I have had little experience with them and know little about the policies.

         You might discuss the street viaducts that have been constructed over the original streets in Atlanta.  These exist under acts of the general assembly that give the Atlanta city council the power to construct them.

          Discuss specifically where the deeds, plats, and condemnation records of rights of way are kept and how to obtain them.  This will include the deed and plat records in the clerk's offices in the courthouses, highway condemnation files in the courthouses and in the appellate court files if there was an appeal, the records in city and county engineers' offices, the records in the district offices of the D.O.T., the records in the main D.O.T. office in Atlanta, and the federal highway condemnation files in the Atlanta regional branch of the National Archives in Morrow, Georgia.

          Some of the cases listed at the end of the paper are not cited within the paper.  I may be missing something, but I do not see that some of these cases have anything to do with the subject of the paper.

          You might take a look at these two Samsog Message Forum posts:

Right-of-Way Deed   https://www.samsog.org/forums/Posts.aspx?topic=1638445

Right-of-Way Deed-2   https://www.samsog.org/forums/Posts.aspx?topic=1663305

          Under 2.1 it is stated that "land may become a public right-of-way when a landowner dedicates property to public use, and the public exercises uninterrupted use over a sufficient period."  A dedication become effective THE MOMENT the public authorities begin to maintain it in accordance with the dedication, or THE MOMENT the public begins to use the land for the purpose for which it was dedicated.

          Under 2.1 it is stated that "Once dedication and acceptance occur, the owner may not repurpose the land for private use."  If a right of way results from an implied dedication and acceptance, usually only an easement passes and the dedicator retains title to the underlying fee.  If the interest the public or public authorities receive is an easement, whether acquired by deed, dedication, or by prescription, the owner of the underlying fee may use the land for any purpose that does not interfere with the purpose for which the land was dedicated.  For example, if land conveyed or dedicated for a street, road, or highway is an easement, the fee owner may construct water and sewer pipes, electrical lines, and other utilities under or over the right of way.  He or she may construct vaults or cellars under the right of way, and the upper stories of buildings may be extended over the right of way as long as they are of sufficient height so that they do not interfere with the use of the land for street, road, or highway purposes.

          Under 2.1 it is stated "However, Cobb County v. Crew clarifies that long-term public use alone, without evidence of acceptance, is insufficient to establish a public right-of-way."  Cobb County v. Crew, 267 Ga. 525, 481 S.E.2d 806 (1997) is cited.  You mis-interpret the case.  Public use, alone, CAN, in itself, constitute acceptance of an offer of dedication, but that was not the issue.  What happened in that case was a trolley line with a right of way 100 feet wide was established running through a tract of land.  Later, the owner of the overall tract recorded a subdivision plat that showed what was labeled "Marietta Street" encompassing the trolley line right of way and strips of land running along each side of the trolley line right of way, with a total width of 200 feet.  The trolley line was later abandoned.  The county paved and maintained the strip on one side of the trolley right of way, and designated it as "Log Cabin Drive."  The strip on the other side of the trolley right of way was never opened or used as a street.  The landowners on that side used that strip for various personal purposes, contrary to any interest the public may have had.  It is a general rule that when an offer is made by a landowner to dedicate land for a public use, use and/or maintenance by the public or the public authorities of any portion of the land so dedicated constitutes acceptance of the entire tract so offered.  Recording a plat showing a road or other area designated for public use can constitute an offer of dedication.  The question in Cobb County v. Crew was whether "Marietta Street" consisted of one street or two streets, given the fact that it all had one name but was divided for its entire length by the (now abandoned) trolley right of way.  The county contended that the area designated "Marietta Street" was all ONE street and the county's maintenance and the public use of the portion known as Log Cabin Drive constituted acceptance of the entire width of the 200-foot-wide right of way.  The court ruled that the owner made an offer to dedicate TWO rights of way parallel to one another, separated by the trolley line right of way.  Because the county had paved and the public had used the strip on one side for a street (Log Cabin Drive), that constituted acceptance and made it a public street.  Because there had never been any public use or maintenance of the strip on the other side, there was no acceptance of that strip, so it never became a street, and thus remained private property.

          Under "2.4 Prescriptive and Private Ways", in addition to the factors listed that are necessary to establish a prescriptive private way, it is necessary that the prescriber actively physically maintain the way.

          2.4 discusses prescriptive roads and private ways together.  These should be covered under separate discussions because the requirements to established them vary a little.  In addition, a private way is for personal use, not for the use of the general public; whereas a prescriptive road is for the use of the general public.

          I will describe some significant experiences I have had with street and highway rights of way as a surveyor.

          A large subdivision was platted on Wilmington Island, near Savannah, in the 1890s.  Initially few of the lots were granted, and most of the platted streets were never opened or used.  In the 1920s the case Tietjen v. Meldrim, regarding those streets, came before the Georgia Supreme Court.  It was ruled that the unopened and unused platted streets were abandoned and no longer, or had never, existed as streets.  When we surveyed lots in that subdivision, we were always careful to label the unopened and unused streets as abandoned and as incorporated into the adjacent lots (as so ruled by the court).  And we always cited Tietjen v. Meldrim on our plats.  The other surveyors in the area, being unaware of Tietjen v. Meldrim, show the platted streets as if they are open, public streets, and this has created confusion for landowners and conflicts between the surveyors and closing attorneys, the latter of whom are well aware of the case ruling.  Some landowners in the subdivision have improvements and landscaping in the platted but nonexistent street rights of way, for which some surveyors show as encroachments into "public streets".  The full case citation is Tietjen v. Meldrim, 169 Ga. 678, 151 S.E. 349 (1930); 172 Ga. 814, 159 S.E. 231 (1931); 175 Ga. 843, 166 S.E. 186 (1932).

          Barrington King died in 1866 owning land in Hucks Tything, Percival Ward, of the Savannah Township.  The property was just outside the city limits of Savannah and consisted of about 50 acres.  His administrator had the tract subdivided into nine tracts numbered from north to south and with platted streets running between them.  Some of the platted streets were never opened or used as streets.  In 1901 the city of Savannah annexed the area.  The Savannah city engineer attempted to open the platted but unopened streets so as to make them available for public use.  The landowner objected and litigation ensured.  In Mayor & Aldermen of Savannah v. Bartow Investment Co., 137 Ga. 198, 72 S.E. 1095 (1911), the court ruled that the platted but unopened streets had never been used or maintained as streets so that any rights the public may have had in them had thus been abandoned and therefore the platted streets remained private property.

          Starland Dairies acquired several acres of the property on which to conduct its operations.  In the 1980s it was set to sell the land.  We were hired to survey and subdivide the land into two parcels.  The two parcels were under contract to be sold to two different entities.  The land, including the platted street rights of way, was covered with two- and three-story buildings and other improvements.  The two buyers had each hired an attorney, respectively, to handle their purchases.  One of the closing attorneys was Sol Clark.  Clark had formerly served on the Georgia Court of Appeals and was one of the most respected attorneys in Georgia.  Upon reaching the mandatory retirement age for appellate judges, he had returned to private law practice.

          I researched the property that we were to survey.  There was ABSOLUTELY nothing in the deed chain of title about the Georgia Supreme Court case that had declared the platted streets abandoned.  However, having read the case sometime before, I recognized the connection.  The plat we made showed the tract divided into the two tracts requested by the clients, outlined the abandoned street rights of way, labeled them abandoned, and cited the case--both the superior court case file and the Georgia Supreme Court decision.  In the meantime, unbeknownst to us, the two closing attorneys, having researched the title to the property and being unaware of the court ruling, were negotiating with the city of Savannah to get quitclaim deeds from the city for the street rights of way shown on the original plat but that had never been opened.  The city engineer took the position that the city could execute the quitclaim deeds, but that the purchasers of the property were obligated to pay full price to the city for the platted rights of way.  When the two closing attorneys received our plat with the case cited on it, they dispensed with the negotiations with the city and asserted that the city had no interest in the platted streets--to which the city, after consulting with the city attorney, conceded.  Every time after that, when I ran up with Sol Clark, he complimented us (me) for making the case known, saying it prevented a lot of complications and expense.

          The property was redeveloped and is well known locally to this day as the "Starland Dairy District" consisting of "vibrant, artsy, funky shops, galleries, vintage stores, studios, and creative vibe."  It is in the vicinity of West 40th and West 41st Streets in Savannah.  The situation illustrates why, when there is a court decree regarding title to land or the location of a property boundary, a copy of the judgment should be recorded in the deed records so as to alert title researchers.  The report of the case is online at https://babel.hathitrust.org/cgi/pt?id=mdp.35112103085470&seq=234  Plats of the subject property that otherwise are not recorded in the plat books in the courthouse are on file in the superior court and appellate court case files.

          A subdivision consisting of about 100 small lots and streets was platted in the early 1900s for a tract of land near Savannah.  Only a few of the lots were sold and most of the streets shown on the plat were never opened or used for streets.  Except for the small number of lots that were sold, the tract remained intact and was passed down through a succession of owners.  In the 1980s a person bought it for the purpose of constructing an industrial park.  The streets and lots of the industrial park would have a configuration nothing like what the old subdivision plat showed.  We were hired to do the design work and layout on the ground.  The first thing we did, with the permission of the developer, was to go to the county attorney, explain the situation, and request that the county quitclaim the streets that were platted but that had never been opened.  We cited the cases that establish the principle that under the circumstances the county had no interest in the streets.  The county attorney was already familiar with that and readily drew up the quitclaim deed and had the county commissioners to sign it.

          A subdivision was laid out on Whitemarsh Island near Savannah in the 1940s.  The restrictive covenants contained the provision that the developer retained fee simple title to all the streets in the subdivision.  Each deed out of the developer contained the same provision.  A person bought two adjoining lots and built a convenience store on them.  The two lots were on the corner of two intersecting streets that were shown on the subdivision plat.  One of the intersecting streets had become a major highway and the other street had apparently never been opened or used as a street.  More recently the owner of the convenience store, at a cost of several thousand dollars, had a large heating and air-conditioning unit installed within the unopened street and connected to his building.  If the unopened street had merely been an easement, the owner of the convenience store would have owned to the center line and would have owned unencumbered fee simple title since the street had never materialized.  But because the original developer had retained fee simple title, the heating and air-conditioning unit had to be treated as an encroachment and it had not been there long enough for the owner of the convenience store to claim title by adverse possession.  I don't know how the matter was ultimately settled, though the heating and air-conditioning unit is still there.

          U.S. Highway 17 was one of the first national highways to be constructed after Congress passed the Federal-Aid Road Act in 1916--the act that established the national highway system.  Initially, the widths of the rights of way were standardized at 75 feet except where wider widths were needed.  And, initially, monuments were not placed along the edges of the rights of way.  The centers of the pavements, and the shoulders and ditches, were the only "monuments" made available.  There is a section of U.S. Highway 17 in Chatham County at N 31º 59' 27", W 81º 16' 52" for which the alignment was shifted about 2,000 feet at a later date.  We have never been able to find the original plan of that old section of right of way.  A D.O.T. right of way plan made in 1941 of the shifted portion shows the old right of way leaving the shifted portion as having a width of 75 feet and coming back in to the shifted portion a mile and a half down as having a width of 100 feet.  No record is known to indicate where the width of the old right of way changes from 75 feet to 100 feet.  The present staff at the D.O.T. has no idea where the change occurs.  The old right of way is still very much maintained and used by the public as a highway.  To be safe, when we surveyed tracts of land along the old right of way, we informed the person we were doing the work for of the problem, obtained his/her permission, and we put a 100-foot-wide right of way in throughout.  We put a note on the plat explaining what we had done.