10.006 Ownership of Road

Top  Previous  Next

Requirement 10.006

Ownership of Road

 

 Ownership of Road:  By warranty deed dated May 24, 1971, and recorded in Deed Book 1, page 15, Jennifer Houston and others appearing to be the descendants of Sam Houston conveyed Tract 3 to James Bowie.  By virtue of the particular wording of the description of that deed, the grantors retained the west half of the Goliad-Yorktown public road that abuts Tract 5.  Approximately two years after the conveyance to Bowie, Jennifer Houston and others appearing to be the heirs of Sam Houston conveyed Tract 4 to Stephen F. Austin by warranty deed dated June 4, 1973, and recorded in Deed Book 2, page 15.  The description in the deed to Stephen F. Austin appears to convey to Austin the portions of the Goliad-Yorktown public road that we have shown as being in Tract 3.

 The Alabama Supreme Court has struggled for at least 70 years over whether deeds to a specific tract of land also pass the grantor’s encumbered title to adjoining roads.  Although the court’s most recent decisions clearly hold that the grantors in the Jennifer Houston - Bowie deed retained title to the west half of the Goliad-Yorktown public road  adjoining Tract 3, the conflicts and inconsistencies in the court’s positions do not permit us to determine absolutely that Stephen F. Austin acquired title to the west half of the road that we have shown in Tract 4.  Therefore there is a risk that Jennifer Houston and the other heirs of Sam Houston own that portion of the Goliad-Yorktown public road .  If Stephen F. Austin did not, in fact, acquire that portion of the road from the heirs of Sam Houston, Lease 4.01 would not cover the west half of the Goliad-Yorktown public road.

 In our opinion, any risk of title failure in Lease 4.01 as to the west half of the Goliad-Yorktown public road  in Tract 4 is a reasonable business risk.  If you are unwilling to accept this risk, you should obtain correction deeds from all the descendants of Sam Houston  conveying that portion of the road to Stephen F. Austin.

 Requirement:  If you are unwilling to accept the reasonable business risk of title failure as to the west half of the Goliad-Yorktown public road  road adjoining Tracts 3 and 4, you should obtain a correction deed from the heirs of Sam Houston conveying that portion of the road completely to Stephen F. Austin.

Copyright 2011 by Edward G, Hawkins. All rights reserved.