Town of Moorcroft v. Lang

779 P.2d 1180, 109 Oil & Gas Rep. 198, 1989 Wyo. LEXIS 203, 1989 WL 110951

• Court: Wyoming Supreme Court
• Decided: September 25, 1989
• Docket: 87-182, 87-183
• Status: Published

Opinions

KALOKATHIS, District Judge.

This case came before the Court upon a petition for rehearing filed on September 22, 1988. The opinion of the court was issued in Town of Moorcroft v. Lang, 761 P.2d 96 (Wyo.1988). The facts were set out in that opinion, thus it is unnecessary to repeat them in detail here. The decision held that the mineral rights underlying the streets and alleys in the Town of Moorcroft remained in the original dedicator.

Upon rehearing, the parties addressed the following issue:

Was the mineral estate underlying the dedicated property transferred to the adjoining lot owners or did it remain with the developer?

We conclude that the mineral estate remained with the developer.

The resolution of this dispute requires us to decide whether the presumed intent rule should be applied to a case involving statutory dedication.¹

The presumed intent rule is a well-established principle of property law. It holds that a conveyance by a developer of a subdivision lot includes fee title to not only the lot described, but also to the middle of the street upon which that lot abuts. The conveyance includes the mineral estate beneath the lot unless it is specifically reserved by the grantor. 11 C.J.S. Boundaries § 35 (1938); see also Annotation, Boundary — Title to Center of Highway, 49 A.L.R.2d 982 (1956).

The reason for the rule is explained in MacCorkle v. City of Charleston, 105 W.Va. 395, 142 S.E. 841, 843, 58 A.L.R. 231 (1928):

“The seller of land can ordinarily have no object in retaining a narrow strip along a line of his grant, * * *. The strip is of no value when separated from the adjoining property. * * * The retention of the strip may seriously retard the improvement and further alienation of the adjoining property, * *

Another reason advanced is the notion that the law looks with disfavor upon piecemeal ownership of small strips of land.

The presumed intent rule finds wide acceptance in those instances in which the dedication creates an easement in the public. However, in those instances in which the dedication creates a fee, in so far as we have been able to determine, the presumed intent rule has not been applied.²

Lambach v. Town of Mason, 386 Ill. 41, 53 N.E.2d 601, 604 (1944), discusses the distinction between a common law and statutory dedication in the light of the presumed intent rule:

“If it is a common-law plat, then the municipality only acquired an easement and right to use the streets. The fee is in the adjoining lot owners, and passed to subsequent grantees with the conveyance of the lots. * * * It is also true that where the fee to the streets, and not merely an easement, is vested in the municipality, it owns the minerals under the surface of the streets and lessees of the owners of the abutting lots have no right to take such minerals.”

We have determined that statutory dedication in Wyoming vests a public authority with a fee simple determinable to only the surface estate and a limited portion below ground sufficient to accommodate the various public utilities. City of Evanston v. Robinson, 702 P.2d 1283 (Wyo.1985).

This leads to the issue in the present case where the original dedicator and abutting lot owners both claim the mineral estate under the street. The developer, Lincoln Land Company, argues that the presumed intent rule should not apply to vest in the abutting lot owners the mineral estate lying below the streets. Rather, it urges us to apply a first principle of conveyancing, 1.e., that the grantee obtains title only to that estate specifically described in the deed and nothing more.

Before discussing any policy considerations, which the parties ably presented, we take time to analyze the various interests in the land at issue. It is important to explain what happens to these various interests, not only upon dedication, but also upon conveyance of an abutting lot and finally upon vacation of the street.

Most developments involve a parcel of property, owned exclusively by a developer/grantor. Unless the mineral estate has been previously reserved, the developer owns the entire estate in fee simple absolute.

The process of subdividing lots and defining the streets may be accomplished either by statutory dedication or by common law dedication:

“A statutory dedication is one pursuant to the terms of the statute, and is almost universally created by the filing and recording of a plat. A common-law dedication requires an intention to dedicate expressed in some form, and an acceptance of the dedication by the proper public authorities, or by general public user. It is distinguishable from a statutory dedication, which is in the nature of a grant, and from prescription which is based on a long period of use. Generally a common-law dedication rests upon the doctrine of estoppel. Statutory dedication generally vests the legal title to the grounds set apart for public purposes in the municipal corporation, while the common-law method leaves the legal title in the original owner.” 11 McQuillin, Municipal Corporations § 33.03, p. 640 (3rd Ed.1983).

Common Law Dedication

A common law dedication does not affect the title to the fee. The developer continues to hold in fee title to the streets and also to the abutting lots. The dedication, however, creates a surface easement, specifically an easement appurtenant, for the benefit of the public to use as a street for public purposes. 2 Thompson, Commentaries on the Modem Law of Real Property, § 321 (1980 Replacement). When the developer sells an abutting lot, the common law presumes that he intended to convey not only the lot specifically described in the deed, but also to the middle of the adjoining street. This rule applies even though the deed described nothing more than a particular lot. Versions of this rule have been recognized by this court and we do not intend to modify that rule. See Coumas v. Transcontinental Garage, 68 Wyo. 99, 230 P.2d 748, 41 A.L.R.2d 539 (1951).

In common law dedication cases, the presumed intent rule operates to pass title to the middle of the adjoining street and in proper cases, to the entire street. Title thus passed includes the entire fee absent a reservation of the mineral estate. This result can be explained by the fact that an easement appurtenant cannot be created without a servient estate to which the obligation rests and a dominant estate to which the right belongs. It is necessary for unity of title to be in the same person. 2 Thompson, supra, § 323.

An easement appurtenant cannot exist separate from the land to which it is annexed. It cannot be conveyed by the party entitled to it separate from the land to which it is appurtenant. 2 Thompson, supra, § 322.

Since the survival of- an easement depends upon the existence of a servient estate, the result obtained through application of the presumed intent rule assures the fulfillment of that requirement.

Statutory Dedication

Rather than resulting in an easement to the public in the platted area designated for streets, statutory dedication creates a fee. The act of dedication produces three separate interests. The first is an estate in fee simple determinable in the surface estate conveyed to the public authority. A fee simple determinable is less than absolute. The transferor retains a possibility of reverter. Williams v. Watt, 668 P.2d 620, 629 (Wyo.1983). This possibility of reverter comprises the second interest generated. The third interest is a mineral estate in fee lying below the street, and created by horizontal severance upon dedication.

Since the dedication does not pass the minerals to the public authority, the dedicator continues to hold the mineral estate. City of Leadville v. Bohn Mining Co., 37 Colo. 248, 86 P. 1038, 1040 (1906), recognized that

“It was plainly the intention of the dedicator to part with the title to so much of its property only as was necessary to effectuate the purpose of establishing certain streets and alleys designated and described upon the plat for public use, and to clothe the city with the absolute title thereto for that purpose only, and not to vest it with any estate or interest in the ores that may exist thereunder.”

The dedicator also holds the possibility of reverter to the surface estate and should the street be vacated before any lots are sold, the fee simple determinable would revert to the dedicator. W.S. 34-12-104, supra. This result occurs if no abutting lots are sold.

If a sale occurs, then a different set of rules apply if the street is vacated. The decision to vacate belongs to the abutting lot owners. W.S. 34-12-106. Upon vacation, the fee to the surface estate in the street then vests in such lot owners. W.S. 34-12-109. Even though the legislation dictates this result, it does not explain whether the possibility of reverter was transferred along with the abutting lot, or whether the possibility of reverter simply vanished. Lambach v. Town of Mason, supra, 53 N.E.2d at 604, provides an explanation:

“Neither the possibility of reverter in the abutting lot owners, nor the title to the center of the street is an ownership separate from the ownership of the lots. It may not be detached and conveyed or leased as an interest or estate separate and distinct from the lots. It passes by operation of law to any subsequent owner of the lots.” (citations omitted)

It follows from the foregoing that the possibility of reverter passed by virtue of the deed describing the abutting lots, even though it was not specifically mentioned in the deed.

We are left to decide whether the mineral estate below the street also passed to the abutting lot owners even though the deed conveying the lot made no reference to that estate.³

It has been suggested that the abutting lot owners should be treated the same regardless of whether the development exists by virtue of common law or statutory dedication. It has also been urged that the law does not look with favor upon piecemeal ownership of land. Accordingly, we are urged to remove the developer from the picture and hold that the abutting lot owners own the minerals underlying the streets. Merely to arrive at a desired result is not in and of itself sufficient reason to decide an issue in a particular way. On the other hand, unless there is a conceptual obstacle, the fact that a result is desirable may be reason enough. These are the factors we must consider in deciding whether to extend the presumed intent rule to the mineral estate created by statutory dedication.⁴

Unlike common law dedication, in which no severance occurs, a statutory dedication involves a severance of the surface and mineral estates of the street area upon dedication. This severance occurs by virtue of the dedication statutes creating the “equivalent to a deed in fee simple to such portion of the premises platted as is on such plat set apart for streets.” W.S. 34-12-104, supra. See also, City of Evanston v. Robinson, supra.

After severance, the mineral estate enjoys an existence separate and apart from the surface estate. The severance creates two separate estates both of which are mutually dominant and servient. Each is a freehold estate separate and independent of the other. Ohio Oil Co. v. Wyoming Agency, 63 Wyo. 187, 179 P.2d 773, 778 (1947).

The fee created by statutory dedication becomes the street.⁵ This is unlike the case of a street easement created by common law dedication. The street created by statutory dedication does not need a servient estate. Moreover, a street created by statutory dedication is not subject to the requirement of unity of title to both ser-vient and dominant estates. The abutting lot is severed from the adjoining street as a separate fee estate. Unlike the case of a street created by easement, there are no concepts such as the unity of title requirement which necessitate the application of the presumed intent rule to a statutory dedication. The dedication creates separate estates. The sale of the lots passes only that estate described in the deed. This rule finds expression as:

“From Alford v. Rodgers [242 Ala. 370, 373, 6 So.2d 409, 410] is the following: “ ‘ * * * [A]s a rule a grantee can acquire by his deed only the land described in it, and does not acquire by way of appurtenant land outside such description.

* * * * * *

“ ‘For in Humphreys v. McKissock, 140 U.S. 304, 11 S.Ct. 779, 781, 35 L.Ed. 473, it was said, quoting from Woodhull v. Rosenthal, 61 N.Y. 382, 390, that “land can never be appurtenant to other land, or pass with it as belonging to it. All that can be reasonably claimed is that the word ‘appurtenance’ will carry with it easements and servitudes used and enjoyed with the lands for whose benefits they were created. Even an easement will not pass unless it is necessary to the enjoyment of the thing granted.” ’ ” Standard Oil Co. v. Milner, 275 Ala. 104, 152 So.2d 431, 438 (1962).

The same principle was phrased by other courts in McConiga v. Riches, 40 Wash. App. 532, 700 P.2d 331, 337 (1985) as follows:

“ ‘That land is never appurtenant to land; * * * a fee may carry an easement or a lesser estate as an incident or an accretion, but the conveyance of the fee simple title to one piece of land will not carry as an incident or an accretion a fee of equal or greater degree and quality.’ ” (quoting Hagen v. Bolcom Mills, [74 Wash. 462] 470, 133 P. 1000 (quoting White v. Jefferson, [110 Minn. 276, 124 N.W. 373, 125 N.W. 262 (1910)])).

We would be creating a special rule of conveyancing if we were to adopt the lot owners’ views. This we decline to do. We adopt our original disposition of this case as set out in Town of Moorcroft v. Lang, supra.

We reverse the summary judgment of the district court.

1 . W.S. 34-12-104 provides: "Same; effect of acknowledgment and recording. The acknowledgment and recording of such plat, is equivalent to a deed in fee simple of such portion of the premises platted as is on such plat set apart for streets, or other public use, or is thereon dedicated to charitable, religious or educational purposes."

2 . For example, see Moeur v. City of Tempe, 3 Ariz.App. 196, 412 P.2d 878, 881 (1966), "where, as here, the filing of such plat vests the fee in the municipality, a purchaser of a particular lot acquires no interest in the streets.” Bradford v. Smith, 177 Kan. 120, 276 P.2d 366, 367 (1954), where the effect of filing a plat and dedication vests the fee to the streets and alleys in the public, "a purchaser of a particular lot obtains no interest in the street, in front or the alley in the rear of his lot." See also, Belgum v. City of Kimball, 163 Neb. 774, 81 N.W.2d 205, 212-213, 62 A.L.R.2d 1295 (1957).

3 .Much has been made of Prall v. Burckhartt, 299 Ill. 19, 132 N.E. 280, 18 A.L.R. 992 (1921). That case did not involve the application of the presumed intent rule. Prall,' the dedicator, brought an action of ejectment against Burck-hartt and Carrithers to recover possession of streets and alleys in a subdivision which he had platted. Unlike the case at hand, the streets and alleys had been vacated. The court simply applied the Illinois vacation statute which vested title to the abutting lot owners upon vacation. The court recognized that the dedication reserved to the grantor the possibility of reverter to the estate so dedicated. It was asked to determine whether the vacation statute which vested the dedicated estate in the abutting lot owners deprived the dedicator of a property right without due process. The court determined that the possibility of reverter, being a bare expectancy was not entitled to such protection. Moreover, the entire estate both surface and minerals were deemed to comprise the subject matter of the dedicated property and pass to the public authority. In Wyoming, only the surface estate becomes the subject of dedication, the minerals remain with the dedicator.

4 . It has been suggested that our holding here requires that we reverse Payne v. City of Laramie, 398 P.2d 557 (Wyo.1965). That case held that because of the dedication legislation, the city could not transfer its interest in a street to a third party because the abutting lot owner was entitled to it upon vacation. The reasoning involved here is not inconsistent with the holding in Payne.

5 . The mineral estate lying below the street remains with the grantor by virtue of the severance occurring at statutory dedication. It is, therefore, meaningless to require the grantor to reserve the mineral estate under the street because it has already been severed by virtue of dedication and need not be reserved.

In contrast, where the mineral and surface estates are one, a transfer by reference to the surface also passes the mineral estate unless it is reserved. This is so because that estate comprises a single, unsevered unit.