California Surveyors Forums

Good afternoon All,

Just would like to see what everyone's thoughts are on the following:

A deed from 1870's references a map recorded the year before. The deed says "... Hereby grant to town of.... the right of way in and over ...."

Did he grant a fee? Or an Easement?

Niether of those two words appear in the deed. And it's in cursive so that's it's own struggle haha.

Thank you all for your posts. I always enjoy reading the debates.

I am not sure I see the whole picture here to give a response? If you can provide a copy of the map and deed, that may be helpful (or not)? Are we talking about a road, or utility easement? How is the existing land used now?

In LA County the following is usually the case:

Grant is for fee title
Dedicate or Offer is for easements

An easement by definition:

CIVIL CODE - CIV
DIVISION 2. PROPERTY [654 - 1422] ( Heading of Division 2 amended by Stats. 1988, Ch. 160, Sec. 13. )
PART 2. REAL OR IMMOVABLE PROPERTY [[755.] - 945.5] ( Part 2 enacted 1872. )
TITLE 2. ESTATES IN REAL PROPERTY [761 - 817.4] ( Title 2 enacted 1872. )

CHAPTER 3. Servitudes [801 - 813] ( Chapter 3 enacted 1872. )

801. The following land burdens, or servitudes upon land, may be attached to other land as incidents or appurtenances, and are then called easements:
1. The right of pasture;
2. The right of fishing;
3. The right of taking game;
4. The right-of-way;
5. The right of taking water, wood, minerals, and other things;
6. The right of transacting business upon land;
7. The right of conducting lawful sports upon land;
8. The right of receiving air, light, or heat from or over, or discharging the same upon or over land;
9. The right of receiving water from or discharging the same upon land;
10. The right of flooding land;
11. The right of having water flow without diminution or disturbance of any kind;
12. The right of using a wall as a party wall;
13. The right of receiving more than natural support from adjacent land or things affixed thereto;
14. The right of having the whole of a division fence maintained by a coterminous owner;
15. The right of having public conveyances stopped, or of stopping the same on land;
16. The right of a seat in church;
17. The right of burial;
18. The right of receiving sunlight upon or over land as specified in Section 801.5.
(Amended by Stats. 1978, Ch. 1154.)

[802.]
Section Eight Hundred and Two. The following land burdens, or servitudes upon land, may be granted and held, though not attached to land:

One—The right to pasture, and of fishing and taking game.
Two—The right of a seat in church.
Third—The right of burial.
Four—The right of taking rents and tolls.
Five—The right of way.
Six—The right of taking water, wood, minerals, or other things.
(Amended by Code Amendments 1873-74, Ch. 612.)

CA AG Op 04-809 may shed some light on your question. Although a R/W may be either held in fee or as a servitude (see citations on page 5 of the AG Op), a full reading of the opinion provides good understanding of how rights of way have been viewed.

While the AG Op deals specifically with the question of CC 1105 and the repeal of a portion of the S&H Code, the background discussions contained within it should prove helpful.