Daily Development for
Monday, December 23, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

The reporter for today's Daily Development is Professor Daryl Wilson of the Stetson Law School.

DEEDS; BOUNDARIES: An owner of land bounded by a road, street or highway is presumed to own to the center of the way unless a different intent appears from the deed transferring title. Pluimer v. City of Belle Fourche, 549 N.W.2d 202 (S.D. 1996). This case is very fact intensive and calls for an interpretation of the state constitution as well as several statutes. The City constructed a sidewalk next to the curb of a highway and assessed the cost against the plaintiff's lots. The plaintiff claimed the special assessment was void because his lots did not front or abut the sidewalk.

The history of the land transfers leading to the highway development tended to support the plaintiff's assertions. Prior to the plaintiff's coming on the scene, certain property owners granted to the state a specific lot (the "highway lot") by deed. The plat of the highway lot showed a right-of-way to be acquired for highway purposes and a certificate of ownership indicated the lot was dedicated to the public for a public highway and road but that the dedication was not to be taken as a grant or donation of the fee. Plaintiff later purchased six lots in a newly platted section immediately west of the highway lot.

Three opinions were drafted, two dissenting, ultimately upholding the trial court's summary judgment for the city on the grounds that the plaintiff "owned his six lots and also owned to the center line of the adjacent highway right-of-way described as [the highway lot] . . . and . . . that [plaintiff] is therefore an abutting and fronting owner. . . " within the meaning of the relevant statutes. Plaintiff argued that the state owned the lot in fee. The court noted, however, that the state constitution provides that fee title to land taken for highways remains in the landowners. Thus the court found the plaintiff is statutorily presumed to own the property, and the language in the deed of the highway lot to the state indicated that an easement was intended. Furthermore, the state did not claim ownership of the highway lot. Thus despite the language of the deed stating it "grants, conveys and warrants" the highway lot to the state, the court held that the plaintiff's land lay abutted the highway "easement" area and was property assessed.

Reporter's Comment: The two dissents raise relevant questions if not (dispositive points) that were unfortunately ignored by the majority. The primary problem is that the majority fails to indicate how the plaintiff obtained any ownership interest in the highway lot. If the language of the deed is overcome by the constitutional provisions then the original vendors own the fee in the highway lot and should have been billed accordingly. The court simply declares that the plaintiff has an ownership interest based on statutory presumptions. At best the court may have been thinking that his lot(s) extend to the center of the highway and met the ownership interest extending from the highway lot thus abutting at that point, but clearly the plaintiff's lots fail to abut the newly constructed sidewalk. As one of the dissents says, a case of this import and complexity is surely not a matter for summary judgement. The case fails to indicate whether the vendors of the highway lot were also assessed any cost of construction.

Editor's Comment: The editor thinks that he agrees with the decision, but there is considerable ambiguity in the statement of facts. The majority states that the plaintiff and the state acquired their interests from a common grantor, but when it names the grantors on the plaintiff's deed, they are different from the grantors of the state deed (but common names among the grantors suggest a division of a family farm.) One of the dissenters suggests that there was a gap between the property deed to the state and that deeded to the plaintiff, but this, also is unclear.

If we assume that indeed the plaintiff and state had a common grantor, then the question arises whether that common grantor intended to convey to the plaintiff the "reversion" in the adjacent property. Such an intent normally would not be assumed if the parties did not express it, but in this case the court was aided by the statutory presumption that owners of property abutting highways own to the center line of the highway.

It makes little sense from a practical standpoint, or from the standpoint of probable intent of the parties, to view the vendors of a highway easement as the owners of the reversion in that easement even after the vendors have sold all their remaining abutting land. The owners of the abutting parcels are the appropriate parties to hold the reversion. A broad reading of the statutory presumption, as the court does here, seems quite appropriate.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.