The Barn in the County's Thirty Feet
In 1958 Owen conveyed to the County 'a strip of land 30 feet wide for road purposes, being the west 30 feet of the NE 1/4 of the SE 1/4,' for nominal consideration. The county paved 24 feet and maintained it. In 1974 Owen's successor built a barn whose west wall projects 4.5 feet into the strip; the county never objected and traffic passes around it. In 2003 the county recorded a quitclaim deed of 'the west 30 feet of the NE 1/4 of the SE 1/4' to a private buyer, who has now posted the strip and demanded removal of the barn. Separately, the owner to the east has crossed the strip on a gravel driveway since 1990 with the county's oral permission and now claims a prescriptive easement.
1. Did the 1958 deed convey a fee or an easement, and what did the 2003 quitclaim actually transfer?
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The 1958 deed conveyed an easement, not a fee. The strip description is qualified by 'for road purposes,' the consideration was nominal, and nothing in the instrument shows an intent to part with the fee in the soil. A deed to a strip for highway purposes is ordinarily construed as a right-of-way; a fee requires plain language granting the land itself or a statutory dedication form.
Because the county held only an easement, its 2003 quitclaim transferred only what it held - the road easement - and a quitclaim carries no warranty and creates no fee. Two consequences follow:
- The fee in the 30-foot strip remains with Owen's successors in title, subject to the road easement.
- If the county abandoned the road, or its authority to convey the easement is defective, the buyer may hold little or nothing. The buyer is not the owner of the soil and cannot treat the strip as his own land.
2. The buyer demands removal of the 4.5 feet of barn. Analyze the competing positions.
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The barn owner does not need adverse possession: as Owen's successor he already owns the fee to the center of the strip, and his structure merely stands under the county's easement. The question is the extent of the easement, not title.
- Substantial interference. A 4.5-foot encroachment leaves 25.5 feet of the 30-foot right-of-way, and the county has maintained a 24-foot pavement and functioned for 45 years. The encroachment likely does not materially impair roadway use, so an easement holder has no basis to compel removal.
- Adverse possession against the public. Statutes commonly bar adverse possession of public property and of public rights-of-way; in any event the fee was never the county's, so the barn owner's title is not derived from possession.
- The 2003 buyer's remedy is limited to enforcing whatever easement interest he validly received, by proving interference. He cannot eject an owner of the fee from land the easement does not require.
The surveyor's role is to map the 30-foot strip, the paved width, and the barn wall with dimensions, and to note the 1958 instrument's purpose language - not to decide the title contest.
3. Can the eastern owner establish a prescriptive easement for the gravel driveway?
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On these facts, no - permission defeats prescription. A prescriptive easement requires use that is open, notorious, continuous, adverse, and under a claim of right for the statutory period. Use exercised with the servient owner's permission is not adverse, no matter how long it continues; the 1990 use, made with the county's oral leave, was permissive from the start, and the clock never began to run.
Two cautions. First, the county's permission binds only the county's easement; the fee owner in the strip is a separate servient owner, and if he never consented, the eastern owner may argue adversity against him - a genuine fact question that turns on what he knew and said. Second, permissive use can still support an irrevocable license if the user made substantial expenditures in reliance on it.
Report the driveway as a use of record, note the claim of right asserted and the permission given, and tell both parties that a written easement or a recorded boundary/easement agreement is the clean solution.