Descriptions of the Interest Within Alabama Roads
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Descriptions of the Interest Within Alabama Roads
Oil and gas title lawyers frequently must address the ownership of the mineral estate underlying public roadways in Alabama. In the oil and gas setting, the title to the mineral estate underlying the road can be significant. For instance, consider the area under a fifty foot wide strip lying along a section of land:
264,000. square feet ÷ 43,560 sq.ft./acre = 6.1 acres
6.1 acres under a good well can be a significant interest.
When the governmental agency maintaining the public roadway has only an easement instead of fee title, the ownership of the roadway can become a significant issue between landowners in the same chain of title. The first step on roadways is to determine whether the governmental agency owns the fee or has an easement. Most courts hold that a statutory dedication of property for roads and streets operates to convey fee simple title to the dedicated property, unless the dedication statute provides to the contrary. 26 C.J.S. Dedication § 50(1956); 23 Am. Jur. 2D Dedication, § 58 (1983). The Alabama Supreme Court took the contrary position in 1913 when it construed the effect of Section 6029 of the Code of 1907 in the case of Cloverdale Homes v. Town of Cloverdale, 62 So. 712 (Ala. 1913). That statute, which is now codified in Section 35–2–51(b), Code of Alabama (Rep. Vol. 1991), creates the statutory dedication. The court wrote:
Taking into consideration the law as it had, through the entire history of this state, been declared by an unbroken line of decisions of this court to exist, we are clearly of the opinion that, when an owner of land divides his land into town lots and by his map, certified, signed, and acknowledged and recorded as required by §6029 of the Code of 1907 [now § 35–2–50], dedicates certain parts of the land to the public to be used for streets and alleys, an easement in the lands so dedicated for such purposes vests in the public but the ultimate fee in the land subject to such easement remains in the abutting landowners to the center of such streets and alleys, and that §6030 of the Code of 1907 [now § 35–2–51(b)] was intended by the legislature to so declare ...
Cloverdale Homes, 62 So. at 716 (emphasis added).
Fifty-seven years later, the Alabama Supreme Court again faced the issue in the case of Shelby Contracting Co., v. Pizitz, 231 So.2d 743 (Ala. 1970). In Shelby Contracting, a contractor was attempting to assert a mechanic’s lien against property abutting a public right-of-way. The contractor was performing work within the right-of-way and was not paid for that work. The Court refused to reverse its construction of Section 35–2–51(b) adopted in Cloverdale Homes. Instead, the Court essentially reaffirmed that construction when it wrote:
It is true that upon abandonment of the street, absolute ownership thereof will then finally vest in the owner of abutting lot, and that such owner is entitled to the oil and minerals in that part of the land which lies under the ‘street,’ but so long as ‘street’ exists, the interest of the lot owner in the 'street' is merely the right to enter it and to use in common with the rest of the public.
Shelby Contracting, 231 So.2d at 750.
When the Michie Company compiled the 1975 version of the Code of Alabama, it failed to include the Cloverdale Homes and Shelby Contracting cases in the annotations under Section 35–2–51(b). Perhaps that explains the results the dicta in the cases of Johnson v. Morris, 362 So.2d 209 (Ala. 1978) and Gaston v. Ames, 514 So.2d 877 (Ala. 1987) where the Alabama Supreme Court stated that Section 35–2–51(b) effects a fee conveyance of the dedicated land. Neither the Johnson case nor Gaston case involved a dispute over minerals or the reversionary interest that follows a statutory dedication. Instead, both cases involved disputes concerning the use of the dedicated easement land. To that end, neither Johnson nor Gaston address directly the questions raised in Cloverdale Homes and Shelby Contracting. Nevertheless, the dicta in Johnson and Gaston are now in Alabama jurisprudence. Likewise, Cloverdale Homes and Shelby Contracting have never been overruled, and for all appearances, still seem to be the law.
If the governmental agency only has an easement in the roadway, the question as to whether a conveyance of adjoining lands extends to the middle of the road will be decided in Alabama by the principles announced in the cases of Lybrand v. Town of Pell City, 71 So.2d 797 (Ala. 1954) and Town of Citronelle v. Gulf Oil Corp., 119 So.2d 180 (Ala. 1960), or Standard Oil Co. v. Milner, 152 So.2d 431 (Ala. 1962). Lybrand establishes that a conveyance of a subdivision lot by reference to the platted lot number conveys to the grantee the fee interest to the median line of adjoining streets subject only to the easement of the street. Furthermore, subsequent to the statutory dedication of the street by the recording of the plat, the fee interest in the street between the median line of the street and the adjoining lot line cannot be alienated apart from the lot. Lybrand.
The case of Town of Citronelle also involved dedicated streets, but in Town of Citronelle, the dedication was accomplished by conveyance of a lot by deed that referenced a plat showing the street. Following Lybrand, the Alabama Supreme Court in Town of Citronelle again held that the fee interest between the median of the street and the side of the lot could not be alienated apart from the abutting lots. Both Lybrand and Town of Citronelle found that the fee under the street was appurtenant to the abutting lot. In Milner, the Alabama Supreme Court distinguished those cases and held:
A conveyance of an abutting lot, in and of itself, does not convey a fee in an adjacent street, except by application of the principle of a presumed intention to pass such fee, the grantor being the owner thereof.
Milner, 275 Ala. at 112, 152 So.2d at 438.
The rule of presumed intention is:
A private conveyance of land bounded by or abutting on a highway or a railroad right-of-way, defeat which belongs to the abutting owner, is presumed to pass the fee to the right-of-way to the centerline thereof, and under certain circumstances to the opposite side.
The rule of presumed intent:
Is based on a presumption that the grantor intended to convey such fee along with and as a part of the conveyance of the abutting land, generally on the theory that he did not intend to retain a narrow strip of land which could hardly be of use or value except the owner of the adjoining land.
The rule of presumed intent, however, can be rebutted through the use of a metes and bounds description that excludes the fee situated under the right of way. For instance in Milner, the description ran to a boundary called the “southern right-of-way line” and then ran along that southern right-of-way line. If the description had run to the right-of-way and then along the right-of-way, a different result would have obtained. See 11 C.J.S. Boundaries § 35 (1938).
Under the facts of Milner, the right-of-way in issue was in existence prior to the platting of the subdivision. Therefore the facts of Milner were different from the facts of Lybrand and Town of Citronelle. Because of the devolution of title under the Milner facts, adopting the “appurtenant fee” approach of Lybrand and Town of Citronelle would have resulted in inequitable windfalls to some lot owners whose lots abutted the right-of-way but who derived their title from a completely root source.
Milner did not disturb the results of Lybrand and Town of Citronelle, but rejected the “appurtenant fee” dicta in those cases and distinguished the unrestricted application of the results of those cases. Therefore, even though Milner dealt with a railroad right-of-way, Milner seems to say that the fee title under a highway that abuts a rural tract of land can be separated from the abutting tract.
Copyright 2011 by Edward G, Hawkins. All rights reserved.