Title Troubles In Texas, North Dakota And Montana: Right Of Way v. Fee Conveyance

If you examine titles or read title opinions, this post is for you.

I was recently examining instruments for an East Texas title opinion when I came across an instrument that, at first glance, appeared to be an easement. Scanning the document, I saw the phrases “right of way” and “road”—leading one to believe this was a simple conveyance of a right of way. However, upon closer inspection, the instrument quit-claimed a “strip of land” totaling one and three-tenths acres, “[t]he same being the additional right of way necessary for the revision and betterment of the Marshall Jefferson road.”

According to longstanding Texas Supreme Court law, “a deed which in the granting clause grants, sells and conveys a tract or strip of land conveys the title in fee, even though in a subsequent clause or paragraph of the deed the land conveyed is referred to as a right of way.” Texas Electric Ry. Co. et al v. Neale et al., 252 S.W.2d 451, 453 (Tex. 1952) [emphasis added].

Even though this instrument identifies the property as a “right of way”, the granting clause conveys “a tract”—this tiny distinction, the placement of two words, results in the conveyance of fee simple interest. Simply put, “[s]ubsequent recitals in an instrument as to use do not operate to limit the grant to a mere easement, if the granting clause conveys the land itself or the fee title thereto…” Texas Practice Series: Land Titles and Title Examination, §18.21 (Third Ed.).


Examiners: Always be careful to not get caught up in the title of an instrument.  Read through the entire text and do not be tricked or misled by the phrase “right of way” if the granting clause identifies the interest conveyed as a “strip” or “tract”, especially in Texas.

There you have it. This calls for a musical interlude.

Coming soon: How is this issue treated in Montana and North Dakota?

Topics:  Contract Drafting, Easements, Quitclaim Deeds, Title Examination

Published In: Commercial Real Estate Updates, Residential Real Estate Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Gray Reed & McGraw, P.C. | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »