Road Records, Easements, and Probate Records
In a previous article (July 2015) I explain two of the five common mistakes made by surveyors in researching the records: mistakes made in determining senior title and the deficiency existing when a forward search is omitted.
The remaining of the five common mistakes often made by surveyors are the failure to research the road records, to identify and locate easements, and to research probate records.
Surveyors often omit searching for road records even though their property is bounded by a public road. Even if a search of road records is conducted, a surveyor will often fail to find the appropriate road records. Road records are particularly difficult records to research for three reasons:
First, road records are not always found where other property records are recorded. Road records are often found in municipal offices, department of transportation offices, court records, county commissioner records, and even state archives or other historical archives. The location of road records often depends on the manner in which the roads were created (e.g., dedication, condemnation), the type of road (e.g., municipal, county, state), and the age of the road.
The second difficulty arises because there is seldom an index to help locate the appropriate road record among the plethora of government documents that exist.
The third difficulty is the trouble in identifying a particular road from the ancient description often used when describing roads found in the records. In other words, when a road record is discovered and read, the reader often finds it difficult, if not impossible, to identify what road is described and where the road exists on the face of the Earth using the ancient description.
Consider how difficult it would be to locate the following road if knowledge of the area has been lost with the passage time:
“Beginning 2 rods from Samuel Widman’s pasture fence at the turnpike road, thence through Ezekiel King’s land, N20°E 25 rods to a stake; thence N36°E, 120 rods to a stake; thence N48°E 90 rods to Jacob Denton’s sawmill lane… To be opened at four rods. 12 June 1834.”
Researching road records is not so much a matter of following a particular procedure as employing dogged determination and fortitude.
The failure to search for and locate the appropriate road record often results in the surveyor failing to properly fix the width of the road and thereby causing the client or other landowners to mistakenly build in the public right of way.
The failure to identify and locate easement records is a major source of liability for surveyors. There are numerous reasons for research difficulties associated with easements. Because some easements are public easements they suffer from the same difficulties associated with locating road records.
Other problems arise by the legal nature of the easement itself. An easement appurtenant to property that was created in, for example, 1823 by recorded grant need not be mentioned in any property records thereafter yet will still effectively burden property and benefit another property (appurtenant property).
The law presumes that an appurtenant easement is a part of the appurtenant property and passes with the conveyance of the appurtenant property even though the easement is not mentioned in subsequent records for the appurtenant property. For example, it is not unreasonable for a surveyor to stop the search of property records long before reaching the ancient property records where the deed for the easement was recorded—especially if all the boundaries to the property being surveyed were created subsequent to when the easement was created.
Another problem is that easements often arise from records that are not deeds. The sale of a lot by reference to a subdivision plan may give the lot owner an appurtenant easement in every road or other benefit shown on the plan (such as a park). Also, the call for a private road as a boundary, owned by the grantor at the time of the conveyance, may give an easement to the grantee in the grantor’s private road.
Unless the surveyor is aware of the law regarding implied easements, the surveyor may fail to research, locate, and mention the implied easement.
Some surveyors have gone their entire career without ever researching property records that may be found in the office of the probate court (also known as “family,” “surrogate,” or “orphans” court).
Probate records will often contain maps of the decedent’s property and descriptions of the property that are not found in the deeds. In some states, partition maps dividing a decedent’s property among the heirs or devisees are filed in the probate records and are found nowhere else.
Also, it is not uncommon for boundary surveys of the decedent’s property to be among the decedent’s estate documents and possibly in the probate records. As a consequence, many surveyors have overlooked valuable boundary information that is only available in the probate office.
In defense of those surveyors who have avoided performing research in the probate office, pertinent records are often extremely difficult to identify from the indices in the probate office.
For example, if the deed reads: “Being the same property Christina Small inherited from her father,” the researcher faces a difficult time finding the appropriate probate records for Christina’s father (assuming the father’s property passed through probate).
Probate records are typically indexed by the decedent’s name. Consequently, if Christina Small is her married name, the researcher would not know the decedent’s last name needed to enter the probate index.
Another problem that often arises with probate records is the difficulty in looking at the decedent’s documents. While most registry of deeds attempt to make all records available for viewing, the probate office lacks that same goal. The chances are that the probate records will never be examined once they are filed and the estate closed. Accordingly, why attempt to store the records as if these were to be examined frequently?
Finally, many easements that are evidenced by a deed are so poorly described that it is virtually impossible to locate or fix the width of the easement. These easements are often categorized as “blanket easements.” For example, “I hereby convey to William Surry an easement to install and maintain a water pipe across my property.”
Where the surveyor has stopped research prior to a grant from the government, the surveyor would be wise to inform the client of a caveat regarding the presence of easements that may not have been discovered and shown on the surveyor’s plat.
Describing typical weaknesses in the surveyor’s record search will not necessarily convince surveyors to undertake the tedious and time-consuming research necessary to overcome the limitations that were explained. At the very least, the surveyor should inform the client of the deficiency in the research so the client can pay to have the deficiency eliminated or understand the potential deficiency in the research.