Easement Crossing the Grantee's Parcel

[Robert Martin]

I am preparing a Legal Description and accompanying Plat of a proposed access easement over an existing roadway.

98% of the roadway is on the parcel owned by the grantor of the easement, while 2% of the roadway is on a separate parcel, which is owned by the grantee of the easement.

Does this small portion need to be excluded from the Legal Description? In this example the grantee owns the Southwest 1/4 of Section 34, and the existing roadway just barley clips through a portion of the Southwest 1/4 of Section 34.

I'm planning on describing the easement with a strip description (which will follow the existing roadway), and then the following exception at the end of the strip description:

EXCEPTING THEREFROM any portion lying within the Southwest quarter of said Section 34.

For some reason I feel like the exception is necessary, but there is a part of me that feels like I'm overthinking it... I have been asked to describe an existing roadway for easement purposes, and if I include that exception statement, well then, I'm not describing the entire roadway!

[Warren Smith]

I'm thinking that the existing roadway is intended to accommodate the passage of vehicles without restriction - otherwise some sort of delineation would need to be placed. If so, the grant of easement would, indeed, need to come from each underlying property owner - unless cooperation is not in the cards from the 2% parcel. The easement likely will want to account for a bit of shoulder as well.
If this easement is intended to document a prescriptive use, then both landowners will want to participate.
There may also be minimum widths for oversize vehicles such as fire equipment.

[Mike Mueller]

My first thought was that the excepting statement was not needed based on Wattles 3-2. However I would probably include it on the general basis of clarity. One would hope anyone following would understand that the easement only grants from the lands of the grantor as stated in the caption, but assuming people will be competent is a leap of faith I am finding it harder and harder to do...

Plus, if this description will ever be used reciprocally, then its easy to modify the title aspects of the caption and qualifications and leave the body alone.

Mikey Mueller, PLS
Sonoma County

[Robert Martin]

Thank you Warren and Mike for your input!

... unless cooperation is not in the cards from the 2% parcel...

Warren: just for clarification, the 2% is the grantee or the easement, so there is certainly cooperation. My concern is they are essentially granting an easement to themselves.

[Derek_9672]

How about "All that portion of the following described easement lying over the lands of the Grantor:" ?

Then describe it in its entirety, no excepting therefrom needed.

[Robert Martin]

How about "All that portion of the following described easement lying over the lands of the Grantor:" ?

Then describe it in its entirety, no excepting therefrom needed.

I agree, but I think something to this effect should be in the "DEED" portion of the easement, to be prepared by the attorney. At this point I'm planning on simply describing the roadway where it is at, and explaining to my client in writing that a small portion of the roadway is on his parcel.
Thanks,

[CBarrett]

Grantor can not give away that which they do not own (the portion included on grantee property), so granting anything outside of what they own will have no effect on grantee title, and it will have no effect on grantor title.
Including grantee portion in the description may cause some confusion later on, regarding intent. .

If configuration of grantee's land changes in the future they may have to make sure that the access area on their land stays clear - in case a third party is involved.

If you are to except anything, except exactly what is described in grantee's vesting deed, and cite the deed itself. "Excepting therefrom that portion described in a grant deed to ..... recorded .... as instrument ..... ..." that way you are eliminating possibility of two different interpretations of grantee's land (caused by your repeating or reconstructing a legal description.)