County Roads R/W Discussion

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

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

3. Provisional roads (1843-49) • “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)

4. 1849 – 1850, all Territorial roads to be 60’ wd. unless a lesser width be determined. 1889 – Maximum width to be 80’, minimum 40’. 1903 – 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. 1915 – All county roads to be 60’, not less than 30’ nor more than 80’. 1931 – County roads to be not less than 30’ wd. 1947 – County roads to be 50’ wide, not less than 30’ wd., and not to exceed one mile in length.(!)

6. Authority & Statutes • Acceptance of dedication or donation • Acquisition via purchase, etc. • Eminent Domain • Road Viewing process: ORS 368.161 • Prescription • Common law dedication • Resolution (City, County or OTC or Leg.) • Forest roads

7. Authority & Statutes ORS 93.310 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."

8. Oregon Court Cases • Questions on r/w deeds to the public: • 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? • Clause “for roadway purposes”, “street purposes”, etc.?

9. Oregon Court Cases McQuaid v. Portland & V. R’y 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.”

10. 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.”

11. Oregon Court Cases 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.”

12. 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….”

13. 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.”

14. Oregon Court Cases • 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.”

15. Newhem Subdivision – 1910 Amended Plat 20 ft. Public Road

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

19. Exceptions “ORS 366.360 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

20. 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….” • 1952 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”. • 1972 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.

24. Lane County / Sooy REALVEST

25. 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”

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

27. 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.

28. Discussion

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

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

32. Citations • Barton v. Portland 74 Or 75 • Buck v. Squires, 22 Vt. 484 • Buell v. Mathes, 186 Or 160 • Fossi v. Meyers 271 Or 611 • Fowler v. Gehrke 166 Or 239 • Highway Comm. V. Pac. Shore Land Co. 201 Or 142 • Huddleston v. Eugene 34 Or 343 • Knott v. Jefferson Ferry Co. 9 Or 530 • Kurtz v. Southern Pacific Co. 80 Pac 213 • Lankin v. Terwilliger 22 Or 97 • McQuaid v. Portland & V. Ry. 18 Or 237 • Menstell et al v. Johnson et al 125 Or 150 • McAdam v. Smith 221 Or 48 • Neil v. Independent Realty 317 Mo 1235 • NW Nat. Gas v. City of Portland 300 Or 291 • Portland Baseball Club v. Portland 142 Or 13 • Realvest Corp. v. Lane County 196 Or App 199 • Siegenthaler v. N. Tillamook San. 26 Or App 611 Other:http://www.ormap.net/index.cfm?opt=mappingspecs