236.4 Description Writing and Titles

Forms and Information

Affidavit of Scrivener's Error (Form 4-6.4a)

Certificate of Disbursement of Funds (Form 4-4.7A)

Execution of Documents Policy

Exhibit 236.4.6.2a

Exhibit 236.4.6.2b

Exhibit 236.4.6.2c

Exhibit 236.4.6.2d

Exhibit 236.4.6.4K2

Forms RW1, RW2, RW3, RW4, RW23, RW24 and RW44 are accessible in eAgreements

236.4.1 Property Descriptions

236.4.1.1 Spanish and French Grants

The area now known as Missouri was under Spanish control from 1763 until 1800. In 1800 France reacquired the area and retained ownership thereof until 1803. Land grants were issued by both France and Spain during their respective jurisdictions. The United States purchased this area from France in 1803 with the understanding that previous land grants would be honored.

236.4.1.2 New Madrid Surveys

The Spanish and French land grants later became known as New Madrid Surveys and are shown on county maps by survey numbers. The previously granted areas are usually large bodies of land and are not subdivided into sections, townships and ranges. When writing the legal descriptions for all or a portion of these areas, the survey number is quoted rather than section, township and range.

236.4.2 Public Land Surveys

236.4.2.1 Purpose

Prior to 1785 the method of subdividing lands by section, township, and range was nonexistent in the United States. All lands granted or sold to individuals were described from known physical objects, such as ravines, trees, rocks, etc. This type of description posed untold problems when efforts were made to establish or reestablish ownership lines. During the year of 1785 Congressional Ordinances were passed thereby authorizing the Rectangular Survey System for all public-owned lands. Most of Missouri was surveyed by contracted surveyors prior to the year of 1855. Instructions or specifications for survey work were amended from time to time, thereby causing several methods of subdividing to be employed in this State. Methods of subdividing, as used in Missouri, do not necessarily comply with instructions as recited in current textbooks.

236.4.2.2 Initial Point

A point of beginning or initial point is established for a given area. There are 35 initial points in the United States with two different initial points being located on the Fourth Principal Meridian. The locations of initial points are known by latitude and longitude as established.

All of Missouri, except New Madrid Surveys, has been subdivided from an initial point located in eastern Arkansas. The initial point is located at the point of intersection of the Fifth Principal Meridian, which extends north and south through eastern Missouri, and a baseline running east and west through central Arkansas.

File:236.4.2.4 Exhibit.gif

Exhibit 4-2.4

236.4.2.3 Principal Meridian

The principal meridian is run true north from the initial point and monuments are set every 40 chains. The discrepancy in chaining between two independent operations is not to exceed 14 links per mile. The alignment is not to deviate more than 3 minutes from true north. The principal meridian is identified by name or number and may run north or south or both from the initial point.

236.4.2.4 Baseline

The baseline is run through the initial point with the same degree of precision as the principal meridian. Monuments are placed every 40 chains. The alignment of the baseline is determined by the solar method, tangent method or secant method. The principal meridian, together with the baseline, forms the coordinate reference axis for the given area. The initial point serves as the origin. See Exhibit 4.2.4 at right for initial point on Fifth Principal Meridian, which controls all of Missouri.

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Exhibit 4.2.5

236.4.2.5 Guide Meridians and Standard Parallels

Generally, standard parallels were established by measuring north along the principal meridian for a distance of 24 miles; thence the surveyors ran a line due west for 24 miles. Markers or stones were established every 1/2 mile as the survey party measured north and west. The survey party then returned to the initial point and shot a line due west for 24 miles (establishing corners every 1/2 mile) and then turned due north setting corners every 1/2 mile for 24 miles. Theoretically, this would give a tract exactly 24 miles square; however, due to convergence, the north side of the tract was a little short of 24 miles thereby creating a jog at the first and subsequent parallels. These lines are commonly referred to as base or 24-mile correction lines. In Missouri the survey contractor did not necessarily establish 24-mile correction lines at each standard parallel, or guide meridian. See Exhibit No. 4-2.5 for scheme of standard parallels and guide Meridians (the convergence at Rolla for medians 6 miles long and 6 miles apart is theoretically 56.8 feet). Exhibit No. 4-2.5a illustrates known standard parallels (correction lines) in Missouri (it now appears that few, if any, guide Meridians were established in Missouri).

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Exhibit 4-2.5a

236.4.2.6 Subdividing 24-Mile Squares into Townships

The subdivision was commenced at the monument previously set on the baseline, which is the southeast corner of the southwest township, six miles east of the second guide meridian. The range line between Ranges 7 and 8 was run true north 480 chains or six miles, with monuments set every 40 chains. A random line was run west to intersect the second guide meridian. From the amount the random line fails to close on the monument previously set on the second guide meridian, the direction of the true line establishing the north boundary of the township known as the town line may be computed. This true line, or town line, was run back to the east and monuments placed each 1/2 mile with the westerly 1/2 mile being functional. Every attempt was made to keep lines within 14 minutes of true course but township exteriors are not considered defective unless the error exceeds 21 minutes. The boundaries of the next township to the north are established in the same manner and this process is continued successively northward to the standard parallel. The last 1/2 mile of the range line prior to intersection with the standard parallel will be fractional. The two other range lines of the 24-mile tract were run in the same manner with the exception that from the range line between Ranges 5 and 6, random lines were "shot" both west and east and corrected back to form the town line.

File:236.4.2.6 Subdivision of 24 Mile Tract into Townships.gif

Exhibit 4-2.6

In all instances the fractional 1/2 mile is placed in the most westerly 1/2 mile of the township. The procedure is the same for township exteriors both east and west of the principal meridian. We now have each township monumented on each side at every 40 chains with standard and closing corners at the intersection of each range line with a standard parallel. The west 1/2 mile of each township will carry the excess or deficiencies and the north 1/2 mile of each township bounded on the north by a standard parallel will be fractional. See Exhibit No. 4-2.6 for plat of subdivided tract (subdivision of 24 mile tract into townships). Note: Monuments set every 40 chains on each range and town line. Fractional 1/2 mile of each town line placed on West side of each township. Fractional 1/2 mile of each range line meeting a standard parallel placed on North end of range line.

236.4.2.7 The Division of Townships into Sections

Commencing at the southwest corner of Section 36, the monument being set by previous subdivision, a line is run north parallel to the east line of the township for 80 chains. A monument is set at the west 1/4 corner of Section 36 when going north. A random line is run east between Sections 36 and 25, aimed at hitting the northeast corner of Section 36, a temporary corner being set at 40 chains going east. If the random line hits the northeast corner of Section 36, it is blazed and marked as a true line and the temporary 1/4 corner is moved to a position midway between the two section corners. If the point of intersection of the random line and the east boundary line falls either north or south of the northeast corner of the section, the falling is measured and the line corrected back and rerun to the west. The north 1/4 corner is set midway between the two section corners. This process is continued northward, with corrections being made to the bearing of the west line to make it parallel to the east boundary line, until the east-west section line between Sections 12 and 1 has been established. When the northern boundary of the township is not a baseline or a standard parallel, the line between Sections 1 and 2 was run north as a random line parallel to the east boundary line with a temporary west 1/4 corner set at 40 chains north of the southwest corner of the section. If the random line intersects the corner previously set for the northwest corner of Section 1, the line is blazed back and the excess or deficiency is placed in the north 1/2 mile. In the event the random line intersects the town line east or west of the northwest corner of Section 1, the falling is measured and the line corrected back to a straight line between the two adjacent corners, with the 1/4 corner set 40 chains north of the southwest corner of Section 1. In this manner, the excess or deficiency is again placed in the north 1/2 mile.

File:236.4.2.7 Subdivision of a Township.gif

Exhibit 4-2.7

When the north line of the township is a baseline or standard parallel, the line between Sections 1 and 2 is run parallel to the east boundary of the township, a permanent 1/4 corner is set at 40 chains and a closing section corner is set on the intersection with the town line. The distance from the closing corner and the standard corner is measured. In this instance both of the north 1/2 miles as well as the west 1/2 miles of Section 1 will be fractional. The same procedure is carried on successively for each tier of sections to the west until the line between Sections 31 and 32 is to be established. The west and north boundaries of Section 32 are established as previously outlined. A random line is then run west from the northwest corner of Section 32 aimed at the northwest corner of Section 31. The falling of the line is measured and corrected back as previously outlined. The north 1/4 corner of Section 31 is 40 chains west of the northeast corner of the section, thus placing all of the excess or deficiency in the most westerly 1/2 mile. This procedure is continued northward until the township is completely subdivided.

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Exhibit 4-2.8

IN MISSOURI: Most of Missouri was surveyed under instructions which differ from the above in regard to the north-south section lines of Sections 1, 2, 3, 4, 5, and 6; therefore, you should check government field notes, plat books at local recorder or abstract offices to determine the difference, if any, from above. In some areas the north and south section lines were run north rather than parallel to range line - this would cause double corners at township lines. See Exhibit No. 4-2.7 for plat of township subdivision (1815 Instructions).

236.4.2.8 Section Six

This section causes much trouble for highway designers and some description writers. All north-south excess or deficiencies are corrected or accounted for in the north 1/2 of Section Six. All the east-west error is shown in the west 1/2 of Section Six. In most instances Section Six is fractional, either long or short, to the west and north. Normally the Southeast 1/4 of Section Six is standard and in such instances the 1/4 section is subdivided in the same manner as any other section. In some instances where the Southeast 1/4 and/or Southwest 1/4 are small parcels of land, they may be referred to as fractional quarters. (See U.S. field notes or plat books for additional information.) In most instances Section Six is subdivided into lots commencing 1/2 mile north of its south line and continuing with lot numbers until its north line is reached. The Southwest 1/4 is plotted commencing 1/2 mile west of the east line of section and extending to the west line thereof. Similar situations may also occur in Sections 1 through 5, 7, 18, 19, 30 and 31. See Exhibit No. 4-2.8. Note: Sections 1 through 5 are usually fractional north and south and may contain lots from 1/2 mile point north. Sections 7, 18, 19, 30 and 31 are usually fractional east and west and may contain lots from 1/2 mile point west.

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Exhibit 4-2.9

236.4.2.9 Fractional Sections

Whenever the Public Lands Surveys encountered large lakes and streams, Indian lands, park lands, mineral claims, land grants and the like, fractional townships and fractional sections may have resulted. Many times in the survey of these fractions the surveyor could not run the lines in the normal direction and no random lines were possible. One important fact to bear in mind is that there is no connection between corners on opposite sides of such a fractional section. Subdivision lines within a section should be run parallel to the appropriate section line or lines.

Meander lines traverse the "high water mark" of some streams and lakes. It may be noted that, although meander lines are shown on the plats and are used to calculate the areas of the land lots, they do not constitute property lines. See Exhibit 4-2.9, an example of a fractional section.

236.4.2.10 Subdividing the Section

File:236.4.2.10 Interior Section.gif

Exhibit 4-2.10

The government surveys end with the subdivision of the township into sections with monuments placed at all exterior 1/4 corners. It is the responsibility of the private surveyor to further subdivide the section. In order to do this correctly he must understand the previous subdivisions as they are made. Exhibit 4-2.10 shows a normal interior section such as Section 15. This section should be 40 chains by government measure for each exterior 1/4 line on the east and west side. The north and south exterior 1/4 lines should be 40 chains plus or minus by government measure. The center of the section is located by the intersection of the lines from the north to south 1/4 corners and from the east to west 1/4 corners. It must be kept in mind that due to errors in field measurement a section line is a straight line from section corner to 1/4 corner and not necessarily a straight line from section corner to section corner.

236.4.3 Fee Ownership and Rights

236.4.3.1 Fee Title

Unencumbered fee title gives its owner the right to use and enjoy the property in any manner, provided its uses are in compliance with prevailing laws and ordinances. Fee title represents the whole "ball of wax" from which many pieces or rights may be leased or conveyed. The fee shall run from center of the earth upward.

236.4.3.2 Bundle of Rights

The fee is sometimes referred to as the bundle of rights that may be used as a unit or separately. Most common rights encountered in highway work are as follows:

(a) Owners of the fee have the right to sell all or a portion of fee hold.

(b) In incorporated towns or cities the abutting owner has a vested right in existing street grades. Grades may be fixed by ordinance or usage. A change in grade, causing damages to an abutting property, is a compensable item when the property is located within an incorporated city.

(c) The owner of property is entitled to enjoy lateral support for his land. Abutting owners are obligated to protect and laterally support adjacent lands. For this reason the Commission acquires an easement to alter lateral support when slopes extend beyond the Commission-owned roadway limits. Acquired rights are referred to as slope easements. These slope easements will be constructed on permanent easements in fill sections and on temporary easements in most cut sections.

(d) Abutting fee holds will normally hold the underlying fee in easements for highways, railroads, streets and alleys. In other words, the fee is simply burdened with such uses. Commission deeds should recite "all rights, title and interest which grantors have in adjacent streets and alleys" when describing controlled access land.

(e) Owners of the fee have a right to control structures above their property. Air rights run with the property until acquired, thus the Commission, in some instances, acquires aerial rights to construct bridges, control heights of buildings, signs, etc.

(f) The fee holder controls underground activities until such time as such rights are acquired. Mineral rights may be leased or conveyed piece by piece, or in total. Oil and gas rights may be leased to one company and underground quarry rights to another, etc. The Commission may, in some instances, acquire underground easements to control excavation beneath its highways.

(g) The right of direct access to a system of highways or streets shall run with the land until acquired by conveyance or condemnation. Owners may enjoy the right of direct access, provided such access does not create a traffic hazard. Whether or not an entrance is a hazard to the traveling public is a matter of proof rather than the opinion or judgment of a given individual.

236.4.4 Title Datum and Allied Services

236.4.4.1 Purpose

Title and ownership information is needed for the development of plans. Certain title information is necessary to determine if marketable title is passing to the Commission.

Note that any reference to title companies in the following sections pertains to both title and abstract companies unless noted otherwise.

236.4.4.2 Title Information - Phase I

Prior to the development of preliminary plans, ownership information and legal descriptions of properties abutting the proposed project will be provided to district design by district right of way. The title information does not necessarily recite the entire ownership area but will, in each case, quote that portion lying within or adjacent to the proposed highway project. Required title information at this phase of a project may be secured by a qualified member of the right of way staff or purchased from a title company doing business in the county. Title information at this stage shall be provided by photocopy of last deed of record, or typewritten form showing the grantee and legal description of the property. Current county assessor's maps may also be useful. This phase of title work should be charged to the P.E. job number.

236.4.4.3 Title Information - Phase II

As the detail design plans near completion, it is then necessary to obtain more comprehensive title information. At this phase, district design is in need of owners' names and total area of contiguous lands comprising the ownership. Also, district right of way will, within a short period of time, require information regarding mortgages, special assessments, liens, taxes, etc., to enable its staff to prepare the necessary documents for title transfer. This phase of title work may be charged to the P.E. job number, or to the R job number as provided by a limited "A" date or acquisition authority.

At the phase II stage, when it is possible, commitments for title insurance are to be obtained from qualified title agencies. Representatives for the title company shall set out in the commitment any conditions which must be satisfied for the issuance of title insurance. In the event commitments for title insurance cannot be obtained, or the cost thereof is prohibitive, the district shall obtain abstracts from which its regional counsel can determine the conditions of titles. Each abstract will cover a minimum period of 30 years in all instances except where it reasonably appears that an apparent indicated ownership of the fee title of more than 30 years duration exists, in which case, such additional conveyances shall be abstracted as necessary to indicate the record owner. No less than four conveyances will be included in the submission herein above described in every instance, together with such conveyances of easements, mineral rights, or other interests, obviously less than fee title which appear of record.

The abstracts will reflect the nature of each document affecting title and if special provisions appear therein (such as retention of any estate less than fee, covenants running with the land, a deviation from the usual form of warranty or quitclaim conveyance) a copy of the document will be attached. All unsatisfied mortgages, special assessments, liens, taxes, etc., will be indicated.

When temporary rights are the only rights being acquired, it is permissible to determine ownership by use of "phase I title information." However, since a title commitment or abstract will often contain other information that is needed, it is recommended that commitments or abstracts be purchased when available. The right of way manager shall decide which type of information will be obtained before ordering "phase II title information" for a project.

236.4.4.4 Title Information - Phase III

This phase of title information will be performed immediately prior to closing a transaction, or immediately prior to filing the condemnation petition, on all tracts. Due to a decentralized operation, it requires approximately 1 to 2 weeks from the date a conveyance is signed until the date the payment is made. During the interim period, numerous acts may occur that affect marketable title for the proposed acquisition area. To assure the Commission that clear marketable title is passing, it is necessary to execute phase III of the title search program. Phase III consists of extending to date the title commitment, or abstract immediately prior to closing or immediately prior to condemnation. Phase III may be performed by the title company or qualified staff personnel. This phase must be documented by letter or memo, signed by the person doing the final check.

236.4.4.5 Agreements Between Commission and Abstractor or Title Companies

The document referred to as Contract Services Agreement (Form RW44) (Form RW44 is accessible in eAgreements) shall be employed when obtaining commitments for title services during phase II of the title work. Any special or additional agreement with the title company must be approved by the Right of Way Section and then made part of the appropriate contract.

Form RW44 may be executed on behalf of the Missouri Highways and Transportation Commission as specified in the Execution of Documents Policy. Any changes to the above-referenced exhibits must be reviewed by CCO for approval as to form.

236.4.4.6 Escrow Services

It is the policy of MoDOT to escrow all transactions, except partial acquisitions that do not include major improvements when neither a title company nor an abstract company is available to perform the duties of an escrow agent and there is no disbursement of the funds to parties other than the fee owner. It is not required to escrow payments for temporary rights unless circumstances warrant it.

The above exception is not intended to prohibit the use of an escrow agent on all transactions. When an acquisition comes under the exception, it is at the discretion of the right of way manager to place the payment in escrow.

In cases where escrow services are unavailable from title companies, it is the policy to employ a local bank having F.D.I.C. membership to act as escrow agent. Should there be some reason why a local F.D.I.C. bank would not act as escrow agent, another firm or party may be selected to act as agent, provided prior approval is secured from the Right of Way Section. In all cases where a party other than a title or abstract company is used as an escrow agent, qualified right of way personnel will perform phase III title work prior to the escrow agent releasing any funds.

Fees for escrow services in this situation shall be established by negotiations. Right of way managers are authorized to employ escrow agents for a fee not to exceed $100 per parcel. Escrow fees in excess of $100 per parcel must be submitted to the Right of Way Section for prior approval. A letter of understanding, setting forth the escrow fee, if any, and duties to be performed by escrow agents, shall be executed by the escrow agent and retained in the project file.

236.4.4.7 Procedure for Obtaining Title Services

All contracts for title services shall comply with statutory, MoDOT and E-Verify requirements when applicable. Please refer to EPG 236.3.11 Contracting with MoDOT and E-Verify Requirements for more information.

All contractual title services shall be, when advantageous to the department, awarded on a competitive bid basis. It is not required that bid forms be sent to companies that have provided inadequate or unsatisfactory service in the past. Reasons for excluding a company from bidding must be noted in the file.

It is a requirement that all abstractors or title companies doing business with the department execute the appropriate agreement as mentioned in EPG 236.4.4.5. The only exception to this policy is set out in 236.4.4.7(b) below.

(a) Securing Title and Escrow Services

Invitations to bid will then be sent out by certified mail to all qualified title companies doing business in the counties for which services are needed and no contract currently exists.

Title companies that are not adequately staffed or equipped to perform the needed service, have been delinquent in performing past services or have not performed past work in a satisfactory manner are deemed unqualified to bid; contract file must contain documentation as to why a company was not requested to submit a proposal. Title companies must have a title plant in the county for which bids are being taken unless one of the following conditions exist:

1. There is not a title plant in the county;

2. The company that does have the title plant in the county refuses to furnish the service at a reasonable charge;

3. The person writing the title insurance for the company is an attorney.

The invitation to bid, as shown on Form RW44 (Form RW44 is accessible in eAgreements), must be amended to satisfy the calendar period needed. Agreements are not to exceed three years. The invitation to bid must be accompanied with three copies of the appropriate Proposal for Title Work, three copies of the Escrow Agreement, and three copies of the Certificate of Disbursement of Funds. All bids received shall be tabulated to determine if it is advantageous for the department to accept the bid, etc. If the bid is accepted, the acceptance thereof will be noted by the execution of the proposal as specified by the Execution of Documents Policy. One copy of the executed contract is to be forwarded to the Controller’s Office for the payment of any future invoices submitted by the title company.

All contractual title services shall be awarded to the lowest bidder, however, MoDOT is not obligated to accept the lowest bid for title services if such bid is from a company considered unqualified as defined above. In the event the district does not wish to accept the services of the lowest bidder, documentation must be in the file to state the objections and explain reasoning for same. The district should be careful not to solicit a bid from a company and then request that the company not be accepted as the low bidder.

Once the bid has been accepted, district right of way will prepare the agreement and forward it to the successful bidder for execution. After the contractor has executed the agreement, the agreement is to be executed on behalf of the Commission as specified in the Execution of Documents Policy.

(b) Securing Title Work When Competition is Unavailable

Only one title company is available in certain counties so consequently competition cannot be had. Under these circumstances, a district right of way representative shall negotiate the most reasonable fee possible and the proposal for title work completed in the usual manner.

Should the abstractor refuse to agree upon fees or for other reasons refuse to sign an agreement, qualified district personnel, if available, should be utilized to complete the necessary title work. If qualified district personnel are not available, contact the division office for guidance.

236.4.4.8 Obtaining Title Insurance

It is the policy of the department to purchase title insurance or a abstract on all acquisitions when permanent rights or temporary rights along with permanent rights are purchased. When temporary rights are the only rights acquired, the Commission will not purchase title insurance unless unusual circumstances warrant it.

It is not necessary to obtain title insurance on those properties acquired by the condemnation process.

236.4.5 Highway Plans

236.4.5.1 Description Writers

Description writers must be familiar with highway plans to the extent necessary to interpret realty and/or realty rights sought by the Commission.

(a) Title Sheet: See EPG 237.2 Title Sheet

(b) Plan and Profile Sheets: See EPG 237.4 Plan–Profile Sheets

Description writers should examine plan and profile sheets or right of way plan sheets in detail before commencing the legal description. A careful examination should be made to determine if 1/4 - 1/4 sections, townships, and ranges are accurately posted. Equation points (where stationing changes occur), angle points, or P.I.'s should be noted and marked so that each will not be overlooked when writing the description. Examine each new boundary line to determine if a station and offset are given at each "break" in the new line. A legal recorded land tie, curve data, centerline bearings, easements dimensions, angles from centerline or bearings for ditch easements on skew must be clearly shown upon the plans.

Careful attention should be given to access symbols on fully controlled access projects, controlled access routes, control of access for intersecting highways, outer roads, service roads, etc.

(c) Right of Way plans used for writing deeds should be archived and retained as a permanent record within the district.

(d) Types of Access Control: See EPG 236.13.5 Types of Right of Way

236.4.5.2 Definitions for Symbols Found on the Plans

(a) S 05° 00' 06" W

Bearing; The direction of one point or object with respect to another, where the direction of the line is expressed by the acute angle with respects to a reference meridian. The reference can be north or south and the meridian may be assumed, grid, magnetic, astronomic or geodetic.

(b) Equation

Equation means centerline stationing is not consistent and will change at this point.

(c) Tangent

A straight line

(d) P.O.T.

A “Point on Tangent” which is a reference mark previously established by the survey party.

(e) P.I.

The “Point of Intersection” or angle where the centerline changes bearing. Also referred to the point where tangents to a curve intersect.

(f) P.T.

The Point of Tangent at the end of a curve.

(g) P.C.

The Point of Curve that is the beginning of a curve for the centerline.

(h) Simple Curve

A true arc having a constant radius from P.C. to P.T.

(i) P.R.C.

The Point of reverse curve that is the end of a simple curve and the beginning of another simple curve in the reverse direction.

(j) P.S.C.

The Point of Spiral Curve that is the point where the tangent changes to a parabolic curve.

(k) S.C.

The Spiral to Curve that is the point on the centerline where a spiral curve changes to a simple curve.

(l) C.S.

The Curve to Spiral that is the point on the centerline where a simple curve changes to a spiral curve.

(m) S.T.

The Spiral to Tangent that is the point where a spiral curve ends and a tangent begins.

(n) Spiral Curve

A parabolic curve with radii varying from 0 to infinity.

(o) 4°

A true arc having a deflection of 2° for every 100 feet of arc distance. The greater the degree of curve indicates increased "sharpness" of curve.

(p) Forward Tangent to Curve

A straight line from P.I. to P.T. of curve.

(q) Back Tangent to Curve

A straight line from P.C. to P.I. of curve.

(r) Horizontal Curve

Curvature of the centerline, either left or right.

(s) Symbols and Definitions of Access Rights

See Legend and symbols.

236.4.5.3 Permanent Easements (EPG 236.13.5.8)

(a) Ditch Easement

Areas adjacent to the Commission’s property and encompassed by broken lines opposite the intake or outlet of a culvert are ditch easements. This easement is acquired for the purpose of construction or improving inlet or outlet ditches. Refer to culvert sections to determine if ditch is to be "V" or flat bottom, depth of ditch, slopes, etc. The contractor is permitted to take possession and retain possession of ditch easements for the duration of construction. It should be noted that conveyances recite that the Missouri Highways and Transportation Commission retains rights to re-enter ditch easement areas from time to time for the purpose of maintaining the drainage ditch. The property owner is not permitted to fence the Commission’s property line across ditch easement areas during the construction period. Most owners erect corner posts at points where the ditch easement lines intersect the Commission’s property line and then construct temporary fence from corner posts around perimeter of ditch easement. After construction is completed, the owner will then remove the temporary fencing and span the gap between two corner posts with permanent fencing. The procedure for fencing ditch easements as outlined above is not a requirement by the Missouri Highways and Transportation Commission but is a common practice by abutting owners.

(b) Channel Change Easement

This type of easement is acquired for the same purpose as the ditch easement but is on a much larger scale. Channel easements may vary in width and length from a few feet to several hundred feet.

Creek or river channels are either relocated or cleaned out and reshaped by authority of channel change easements. The contractor is entitled to possession of the easement area during the entire construction period, and upon completion of construction, the easement area will revert to the abutting owner but shall be subject to the Commission's right to re-enter the area for maintenance purposes.

(c) Aerial Easement

Aerial easements are secured to suspend bridges over private property, to control the heights of buildings, signs, etc. Within highly developed metropolitan areas, bridges are often constructed to conserve expenditures. Property rights for such structures usually consist of narrow aerial easement corridors, together with sufficient surface rights to construct and maintain the structures. The property description may be written as a three-dimensional easement, together with surface easements for footings, supporting members, drainage facilities, utilities, etc. The lower side or lower plane of aerial easement must be described from and referenced to U.S.G.S. elevation datum. As an alternate to the three-dimensional aerial easement and allied surface easements, the district may prepare the normal property description and reserve to grantors the right to use surface area after completion of highway construction, provided the users do not endanger structure or interfere with maintenance thereof.

Specific design information as set out above should be provided to district right of way prior to preparation of the property description.

An aerial right is a portion of "bundle of rights" running with fee hold and may be conveyed by deed in the same manner as land.

Given that each aerial easement is unique unto itself, the district should submit any property description containing an aerial easement to its regional counsel for review and approval.

(e) Sight Distance

A sight distance is often acquired at the junction of two highways or the junction of a highway and railroad to provide additional sight distance for the traveling public. There are three options from which the district may choose to address sight distance requirements.

Temporary Easement

During construction of the highway, the contractor will remove all structures, brush, and, in some instances, excavate the area to provide for necessary visibility. After completion of construction, the sight distance easement area reverts to the abutting owner with a covenant prohibiting any structures, crops, etc., in excess of _________ feet above ground elevation. Fencing along the Commission’s property line is permitted, provided said fencing does not impair visibility.

Permanent Easement

During construction of the highway, the contractor will perform the same activities as described in the previous paragraph. After completion of construction, the sight distance easement area reverts to the abutting owner but shall be subject to the Commission’s right to re-enter the area for maintenance purposes. Reversion to the abutting owner will also be subject to a covenant prohibiting any structures, crops, etc., in excess of ___________ feet above ground elevation. Fencing along the Commission’s property line is permitted, provided said fencing does not impair visibility.

Fee Simple Title

The sight distance area may also be acquired in fee simple title, which provides the Commission with the full control of the area.

The need for sight distance areas is generated from both new highway projects and the permitting process. During the permitting process, developers who wish to improve their access to a highway will typically donate the necessary sight distance areas.

Specific design information as set out above should be provided to district right of way prior to preparation of the property description.

(f) Underground Easement

It is necessary at times to secure, in addition to the normal land acquisition, an additional right from the fee holder, which extends into the earth directly beneath the normal land acquisition area. The desired right is termed an underground easement and is acquired to prohibit mineral excavation beneath the land area acquired. Obviously, the underground easement is an additional burden upon fee hold and must be described accordingly. Acquisitions of this nature are rather unusual and require specific authority from the Missouri Highways and Transportation Commission. In the event it becomes necessary to condemn an underground right, it is suggested the negotiator remind the right of way manager or responsible party that special resolutions must be drafted for presentation before the Missouri Highways and Transportation Commission.

(g) Utility Easement

It is necessary at times to secure utility easements on behalf of various utility companies for the purpose of relocating utilities within a corridor that lies adjacent to the Commission’s property line. Utility easements are acquired in the name of the Missouri Highways and Transportation Commission. The property description is to include a statement of the Commission’s intent to transfer the utility easements to specifically named utility companies, along with their successors and assigns.

Specific design information should be provided to district right of way prior to the preparation of the property description.

(h) Release

In certain situations, when easement rights are no longer needed, they may be released by quitclaim deed.

236.4.5.4 Temporary Easements (See EPG 236.13.5.11)

Temporary easements are not acquired for a calendar period but extend for a duration of highway construction. The conveyances or condemnation petition will recite that rights shall cease at termination of construction. This procedure will cloud titles because land records will not reveal a given date upon which the Missouri Highways and Transportation Commission rights terminate. In these cases, the temporary easement will become a "cloud" upon the remaining fee and it is necessary, from time to time, for the Commission to release the "cloud" by quitclaim deed. In some instances, a letter from the district engineer stating, "construction is complete" has been sufficient to satisfy title examiners. A letter stating, "construction is completed and the Commission no longer claims rights in easement area," or quitclaim deed will be issued at the request of fee holder or title examiner.

236.4.6 The Description

236.4.6.1 Purpose

The purpose of a property description is to accurately define certain land areas, or rights to be acquired, conveyed or leased. The description must recite specific rights being acquired, conveyed, or leased, if such rights are less than fee simple title, and be accurately described by metes and bounds, lot calls or 1/4 - 1/4 calls. Descriptions should be written in such detail that a professional land surveyor may plot the perimeter thereof and subsequently survey the tract from previously filed land records and field notes.

236.4.6.2 Methods of Legally Describing the Fee or Portion Thereof

There are numerous methods by which land or rights may be described for the purpose of leasing, conveying or acquiring. However, realty rights being acquired or conveyed by the Missouri Highways and Transportation Commission shall be described using the metes and bounds method, unless the property is acquired in its entirety. When acquiring a property in its entirety, the property description shall be written exactly as it appears on the last deed of record for the subject property.

Prior to presenting the general warranty deed, quitclaim deed, or other such document to the grantor, a professional land surveyor must review the property description contained within the document to verify that the parcel described in the property description corresponds with the right of way plans, and to verify that the right of way plans correspond with the survey information gathered by the professional land surveyor. The professional land surveyor (PLS) shall sign and affix the PLS's seal on the property description of the recordable document for each property description to be used in acquiring realty rights or conveying realty rights as outlined in EPG 238.2.17 Professional Land Surveyor Review. To avoid potential delays in the acquisition process, it is recommended that district right of way work closely with the professional land surveyor and district design to ensure that the right of way plans include tie-ins to all roadway centerlines that intersect with the new centerline, in addition to tie-ins of the existing centerline with the new centerline at both the beginning and ending of the project.

Property descriptions prepared on behalf of the Missouri Highways and Transportation Commission shall be prepared in a manner that meets the following requirements.

(a) Metes and Bounds: (See Exhibits 236.4.6.2a, 236.4.6.2b and 236.4.6.2c)

All property descriptions prepared to describe land, permanent easements and temporary easements shall be written by the metes and bounds method. Therefore, the method referred to as a “width description,” shall not be used. The preferred method of a metes and bounds description includes bearings and distances between each point referenced in the description. Therefore, if bearings and distances are included on the right of way plans, those bearings and distances are to be incorporated into the description when describing from one point to the next as follows:

...thence N32º 15’ 57”W for a distance of 235.82 feet to a point 103 feet northerly of and at right angle to the said median centerline at Station 482+23.74;...

If bearings and distances have not been included on the right of way plans, the description shall recite the general direction of the next call from the previous call as follows:

...thence northwesterly to a point 103 feet northerly of and at right angle to the said median centerline at Station 482+23.74;...

Overlapping Descriptions:

Each parcel shall be described so that the property description overlaps onto properties shown as adjoining the subject parcel on the approved right of way plans. The purpose of overlapping descriptions is to ensure that all realty rights needed are included in the acquisition document. Since individual property lines are not surveyed by or on behalf of the Commission, portions of the needed realty rights could be inadvertently omitted by merely describing the parcel to its property lines shown on the right of way plans.

Property descriptions prepared on behalf of the Commission shall be written so that the outermost limits of the description extend beyond the property lines shown on the right of way plans to points that are identified by stations and offsets. Exhibits 236.4.6.2a, 236.4.6.2b and 236.4.6.2c illustrate this method.

Even though the property description includes land that lies outside the property lines shown on the right of way plans, the quantities shown on the plans will only include the area of the acquisition lying within the property lines shown on the right of way plans. To alleviate confusion with regard to why the limits of the areas described do not correspond to the quantities referenced in the property description, the clause in EPG 236.4.6.3 shall be included in ALL property descriptions prepared on behalf of the Commission for the acquisition of realty and realty rights.

Stations and Offsets:

Each point in the description shall be referenced with its right-angle station and offset from the new centerline. Under no circumstances shall a point merely reference a point without its station and offset.

Given that individual properties along a project’s corridor are not surveyed, the right of way plans should not identify stations and offsets on property lines that intersect with the new land and/or easements being acquired by the Commission. If the right of way plans do identify a station and offset on an intersecting property line, district right of way should verify with the project manager that the professional land surveyor has surveyed the property line. If the professional land surveyor has surveyed the property line, it is acceptable for the property description to reference the point on the intersecting property line. However, if the professional land surveyor has not surveyed the property line, the right of way plans should be revised to move the break so that it does not appear on the right of way plans to be located on the intersecting property line.

Multiple Tracts:

Separate descriptions are required if the new acquisition areas are not contiguous. Existing Commission-owned property located between the areas to be acquired does not qualify as a contiguous tract. Exhibit 236.4.6.2d illustrates a situation in which separate descriptions are to be written for the two new tracts of land being acquired.

Centerline or Baseline Descriptions:

A description of the centerline or baseline shall be included in all property descriptions prepared on behalf of the Missouri Highways and Transportation Commission, unless the property being acquired is acquired in its entirety (see "Metes and Bounds" in this section). The baseline method is employed in the same manner as the centerline. When the baseline is used, it shall be referenced to the centerline.

Recorded Land Ties:

The centerline or baseline must be "tied" to a recorded land tie at the beginning, as well as ending stations. When referencing the recorded land tie in property descriptions, reference shall also include the document number, book and page, LS number, etc. of the recorded land tie. It is recommended that a single centerline or baseline description be prepared for each project, and then inserted into each property description for that project. When preparing a single centerline or baseline description for the project, the centerline or baseline shall also be tied to any other recorded land ties included on the right of way plans. References to intermittent recorded land ties within centerline or baseline descriptions, along with specific information pertaining to recorded land ties, shall be written as follows:

...thence S 55º 36’ 48” E, a distance of 114.40 feet to Station 1098+00, said Station 1098+00 being S 44º 53’ 08” W, a distance of 1,173.04 feet from the SE Corner of S6, T57N, R14W, a monument filed by L.S. #2562...

OR

thence S 55º 36’ 48” E, a distance of 114.40 feet to Station 1098+00, said Station 1098+00 being S 44º 53’ 08” W, a distance of 1,173.04 feet from the SE Corner of S6, T57N, R14W, a monument filed as Document #600-64564...

Curve Data:

When the centerline or median centerline is on a curve, the property description shall include at least three parts of the curve. The three parts to be included are:

1) Interior Angle (also known as the DELTA and Central Angle)

2) Radius or Degree of Curve

3) Length of Curve

Non-Tangent Curve or Beginning on a Curve:

In some situations, the centerline reference from the recorded land tie lies within a curve. It is best to avoid beginning on a curve; however, if beginning on a curve cannot be avoided, the following curve data must be included in the legal description:

1) Interior Angle (also known as the DELTA and Central Angle)

2) Radius or Degree of Curve

3) Length of Curve

4) Back Tangent or Chord Bearing and Distance

Limits of Centerline or Baseline Descriptions:

The beginning station of the centerline or baseline description must be in such relationship to the realty and/or realty rights being described that right angles turned therefrom would extend beyond the limits of the realty and/or realty rights being described. For example, if the highway were traversing on the bearing of N 45° 00' E and is at right angle to the centerline the westernmost limits of the property being acquired at Station 10+00, it would be erroneous to commence the description at this station. Instead, it would be necessary to commence the centerline description at a point west of Station 10+00. The same premise would apply to the easternmost limits of the property being acquired. The centerline or baseline is described in the same manner as an open traverse line; that is, it should be written so that a surveyor may plot and field survey the centerline or baseline without aid of highway plans.

Spiral Curve

In describing a spiral curve, two points are referred to a Y and X. These points have an adopted meaning:

Y = the offset from the main tangent to either the S.C. or C.S., and X = the distance along the main tangent from the T.S. to the S.C. or from the S.T. to the C.S. Both Y and X can be obtained from the curve data on the plans. Spiral curves shall be written as follows:

thence S 86° 27’ 04.4” E for a distance of 359.40 feet to T.S. 10+64.23; thence to the right on a spiral curve for a distance of 345 feet to S.C. Station 14+09.23 (said spiral curve having an X distance of 344.71 feet along the main tangent, and a Y distance of 10.381 feet offset from the main tangent); thence southeasterly on a 3º curve to the right, having an interior angle of 40º 50’ 25.7” for a distance of 1,016.34 feet to C.S. Station 24+25.57; thence to the right on a spiral curve for a distance of 345 feet to S.T. Station 27+70.57 (said spiral curve having an X distance of 344.71 feet along the main tangent, and a Y distance of 10.381 feet offset from the main tangent);

Equation Station

When traversing through or beginning at an equation station on the centerline, the equation station shall be referenced as follows:

Commencing at the SE Corner of the SW1/4 of S21, T44N, R31W; thence north 88° 12' W for a distance of 167.25 feet to a point on the centerline at Station 52+75; thence N 70° 48’ E for a distance of 821 feet to P.I. Equation Station 60+96 back equals Station 73+28 ahead; thence N 02º 15’ E for a distance of...

236.4.6.3 Types of Realty Acquired and Clauses to be Used in Property Descriptions

The following clause shall be included at the end of ALL property descriptions prepared on behalf of the Commission for the acquisition of realty and realty rights.

This conveyance includes all the realty and realty rights described in the preceding paragraphs that lie within the limits of a tract of land described and recorded with the {1} County Recorder of Deeds in Book {2} at Page {3}.

where

{1} is the county in which the last deed of record is recorded.

{2} the book in which the last deed of record is recorded.

{3} the page at which the last deed of record is recorded.

(a) Deed Heading

Property descriptions that only include a part of the owner’s total property shall begin as follows:

A tract of land located in {1}, {2} County, Missouri, lying on the {3} or {4} side of the hereinafter described {5} centerline of a highway, now known as Route {6}; to wit: (Begin description of land being acquired.)

where

{1} Section(s), Township(s), and Range(s), or Lot(s), Block(s) and Subdivision(s) in which the property to be acquired is located.

{2} County in which property to be acquired is located.

{3} Direction of the property to be acquired from the centerline (North, South, East, or West)

{4} Left or Right

{5} If the property description is referenced to a median centerline, insert “median.”

{6} Route

(b) Types of Realty Acquired (See EPG 236.13.5)

Land

If the land description begins at the recorded land tie, traverses to a point on the centerline, and then traverses along the centerline to a point that extends beyond the far end of the parcel being described, it is not necessary to include a separate centerline description. In these instances, the centerline has already been described. Exhibit 236.4.6.2a demonstrates this method.

If the description includes a separate centerline description, the description of the land may begin at the point on the centerline, as long as that point is beyond the property lines shown on the plans. However, the centerline description shall commence at the recorded land tie. This method is demonstrated in Exhibit 236.4.6.2b.

Permanent and Temporary Easements

When describing permanent and temporary easements, the description shall commence at a point on the centerline that is at right angle from the first point of the easement. From there, traverse to the first point (Point of Beginning) by referencing its station and offset.

(c) Access Control Clauses

Provisions for controlling access are generally of a stereotype pattern and may be used from parcel-to-parcel with minor alterations. The following clauses shall be used to address the various access control situations.

Clause A – Fully Controlled Access

Also, all abutters’ rights of direct access between the highway now known as Route {1}, and grantors’ abutting land in the {2}.

Clause B – Direct Access Granted at Particular Stations

Also, all abutters’ rights of direct access between the highway now known as Route {1}, and grantors’ abutting land in the {2}; except there is reserved and excepted to grantors, their heirs, and assigns, the usual right of direct access (a) to any adjacent outer roadway, if and while it may be maintained by proper authority in front of said land, (b) along it to and from the nearest lane of the thruway or public highway, and (c) at all times when no outer roadway is being so maintained, there is reserved and excepted the right of direct access to the nearest lane of the thruway over a {3}-foot entrance centered on the (CHOOSE ONE: {4}line of the above-described tract of land – OR –Missouri Highways and Transportation Commission’s existing {4} property line) opposite Station {5}.

Clause C – Outer Roadway Will Be Constructed Along Part of Landowners’ Frontage

All abutters’ rights of direct access between the highway now known as Route {1}, and grantors’ abutting land in the {2}; except there is reserved and excepted to grantors, their heirs, and assigns, the usual right of direct access (a) to any adjacent outer roadway, if and while it may be maintained by proper authority in front of said land, and (b) along it to and from the nearest lane of the thruway or public highway.

Clause D – Direct Access at Particular Station Constructed by Commission (Owner May Widen)

Also, all abutters’ rights of direct access between the highway now known as Route {1}, and grantors’ abutting land in the {2}; except there is reserved and excepted to grantors, their heirs, and assigns, the usual right of direct access (a) to any adjacent outer roadway, if and while it may be maintained by proper authority in front of said land, (b) along it to and from the nearest lane of the thruway or public highway, and (c) at all times when no outer roadway is being so maintained, there is reserved and excepted the right of direct access to the nearest lane of the thruway over a {3}-foot entrance, which shall be constructed by the Commission. Said entrance is to be centered on the (CHOOSE ONE: {4} line of the above-described tract of land – OR – Missouri Highways and Transportation Commission’s existing {4} property line) opposite Station {5}. Grantors reserve the right to widen said above-described entrance to a maximum width of {6} feet at their own expense. Such widening shall be in accordance with a permit issued by Commission on application by grantors, their heirs, successors, and assigns.

When reserving to the Grantors the right to widen the entrance at their own expense, district traffic personnel should be consulted to maintain a level of consistency with regard to the district’s Access Management Plan.

Clause E – Direct Access at Particular Station (Not Constructed by Commission)

Also, all abutters’ rights of direct access between the highway now known as Route {1}, and grantors’ abutting land in the {2}; except there is reserved and excepted to grantors, their heirs, and assigns, the usual right of direct access (a) to any adjacent outer roadway, if and while it may be maintained by proper authority in front of said land, (b) along it to and from the nearest lane of the thruway or public highway, and (c) at all times when no outer roadway is being so maintained, there is reserved and excepted the right of direct access to the nearest lane of the thruway over an entrance not to exceed {6} feet to be centered on the (CHOOSE ONE: {4} line of the above-described tract of land – OR – Missouri Highways and Transportation Commission’s existing {4} property line) opposite Station {5}. The cost of constructing said entrance shall be borne by the grantors and shall be in accordance with a permit issued by Commission on application by grantors, their heirs, successors, and assigns.

When reserving to the Grantors the right to widen the entrance at their own expense, district traffic personnel should be consulted to maintain a level of consistency with regard to the district’s Access Management Plan.

where

{1} Route

{2} Section, Township and Range (Use the smallest portion of a section that can be identified in which the property directly adjacent to the “above-described tract of land or Commission’s existing property line” is located.)

{3} Width of Entrance

{4} North, South, East or West

{5} Station Number (Use the station number that references where the center of the entrance intersects with the "above-described tract of land or the Commission’s existing property line." The station number should not be the point at which the center of the entrance intersects with the edge of the pavement.)

{6} Maximum Entrance Width

Examples to be Used When Acquiring Access Rights From Railroads

Also, any abutter’s rights of direct access which grantor may have as owner of land adjoining the South right of way line of the Wabash Railroad Company, Section ____, Township ____, Range ______, _____________ County to and from State Highway ____ from the right of way of said railroad company as it now exists or if abandoned and secured by grantor of revisionary rights; except over a ___________ foot entrance reserved to said railroad company centered at the north line of the railroad (being in common with the Commission’s south property line)at Station _______________________.

or

All of grantor’s reversionary rights, should the railroad be abandoned in and over the railroad right of way located in Section ____, Township ____, Range ____, described as follows:

(Metes and bounds description of railroad property that abuts property)

or

All abutter’s rights of direct access to and from the Commission’s property line along Route ____ and grantor’s abutting land in Section ____, Township ____, Range ____, including any abutter’s rights which grantor may have to and from Route _____ from the right of way of the _________ Railroad as it now exists or if abandoned.

(d) Permanent Easements (See EPG 236.4.5.3)

Permanent Utility Easement Clause (Use when acquiring permanent utility easements on behalf of a utility company):

An easement is hereby granted to the grantee, its successors or assigns to locate, construct, and maintain, or to authorize the location, construction and maintenance of a utility line over, under and across that part of grantor’s land and interest in a tract of land located in the...

It is the intent of the Missouri Highways and Transportation Commission to convey the above-described permanent easement rights to (name of utility company).

Permanent Easement For Drainage Controls, Drainage Ditches, Channel Changes, and Channel Controls:

A permanent easement for the construction and maintenance of {1}, which lies on the {2} side of the {3}, to-wit: Beginning…; and containing {4} {5}, more or less, of land.

The permanent {1} will be constructed on only part of said land, the extra land being included for men and machinery to work and turn on. After completion of construction and acceptance of the project, the owners of said land may fence, and shall have the free and uninterrupted possession and use of said tract; subject only to the Missouri Highways and Transportation Commission's right, if it should so elect, to enter thereon from time to time for the purpose of maintaining said {1}.

where

{1} drainage controls, drainage ditches, channel changes, or channel controls

{2} North, South, East, or West

{3} above-described tract of land or Commission’s existing property line

{4} area of permanent easement

{5} acres or square feet

Drainage Ditch Easements - Grantors Reserve Right to Underdrain

In urban areas where lands are changing to a higher and more valuable use, it is sometimes advantageous to reserve the right for construction of under drainage structures rather than forever restricting the area to an open ditch.

After completion of construction of the drainage ditch, the owners of said land, along with their heirs, successors, grantees, and assigns may fence and shall have the free and uninterrupted possession and use of said tract, subject only to the Missouri Highways and Transportation Commission's right, if it should so elect, to enter thereon from time to time for the purpose of maintaining said drainage ditch.

Grantors reserve the right, if it should so elect, to locate a drainage structure in lieu of the above-described open drainage ditch upon proper application for a permit to the Missouri Highways and Transportation Commission. The location and maintenance of said drainage structure shall be in compliance with standard engineering principles and regulations of the Missouri Highways and Transportation Commission. If and when said drainage structure is so located by the grantor, the above-described permanent easement shall cease and be no longer in effect, except that if drainage structure does not function properly, the Missouri Highways and Transportation Commission reserves the right to re-enter said easement area for the purpose of removing the drainage structure or opening and cleaning said drainage structure.

Borrow and Channel Change Easements Combined (See EPG 236.4.5.3(b))

In certain areas excavated materials from channel work are used as fill for the highway embankment. Such conditions require an additional right or rights to borrow.

Said last above-described tract is to be used for borrow and a channel change of __________ (River)(Creek)(Branch). The party of the second part seeks only an easement in said tract from which to obtain road-building materials, and construct said channel change using the materials therefrom for road-building purposes; and thereafter to maintain said channel change. After the securing of said road-building materials and the grading and surfacing of said highway and construction of said channel change, the owner shall have full, free, and uninterrupted possession and use of said tract, subject only to the right of the party of the second part to enter thereon from time to time for the purpose of maintaining said channel change.

Borrow and Drainage Ditch Easement Combined

Use the following clause when fill material is to be removed from drainage ditch easements and used in highway embankment.

Said last above-described tract is to be used for borrow and a drainage ditch. The party of the second part seeks only an easement in said tracts from which to obtain road-building materials and construct said ditch, using the materials therefrom for road-building purposes, and thereafter to maintain said ditches. After the securing of said road-building materials and construction of said drainage ditch, the owner shall have full, free, and uninterrupted possession and use of said tracts, subject only to the right of the party of the second part to enter thereon from time to time for the purpose of maintaining said ditch.

Permanent Slope or Terrace Easements

The last-described tract is to provide for the construction and maintenance of a slope or terrace. Upon completion of the contemplated highway improvement, the owner(s) shall have full, free, and uninterrupted use and possession of said last-described tract; subject to the Missouri Highways and Transportation Commission's right, if it should so elect, to enter thereon from time to time for the purpose of maintaining said slope or terrace. Owners covenant that no alterations shall be made to the slope or terrace without permission of the Missouri Highways and Transportation Commission.

(e) Temporary Easements

Channel Control

Said last above-described tract is to be used for the construction and/or control of the channel of _____________(River)(Creek)(Branch) consisting of removal of debris or other material, placing riprap or other bank protection, and the performance of such other work as may be deemed necessary by the Missouri Highways and Transportation Commission or its agents or employees in the proper maintenance and control of said channel.

Upon completion and acceptance of the project, the temporary easement rights in the last-described tract shall cease and no longer be in effect.

Borrow Easement

Under no circumstances shall a calendar terminal date be established for borrow easement area without authority from the Right of Way Section.

Said last above-described tract is to be used only for obtaining road-building materials and party of the second part seeks only a temporary easement for such purposes. Upon completion and acceptance of the project, the temporary easement rights in the last-described tract shall cease and no longer be in effect.

Temporary Slope or Terrace Easements

Said last-described tract is to provide for the construction of a slope or terrace and the party of the second part seeks only a temporary easement for this purpose. Upon completion and acceptance of the project, the temporary easement rights in the last-described tract shall cease and no longer be in effect"".

Detour Easements

Detour easements are acquired for purposes of constructing temporary detours during the period of construction.

Said last-described tract is to be used for a detour during the construction of the highway. Upon completion and acceptance of the project, the temporary easement rights in the last-described tract shall cease and no longer be in effect.

Pond Easements for Construction, Removal or Drainage

From time to time it is necessary to remove, reconstruct, or drain ponds, which are within proposed acquisition areas. Normally, temporary easements are acquired for this purpose. In some instances permanent ditch easements are also acquired through ponds lying downstream from highway to assure that reconstruction of dam will not cause flooding of the Commission’s property.

Said last-described tract is to provide for the (construction) (drainage) (removal) of a pond and the party of the second part seeks only a temporary easement for this purpose. Upon completion and acceptance of the project, the temporary easement rights in the last-described tract shall cease and no longer be in effect.

Waste Easements

In most cases, the highway contractor is charged with the responsibility of disposing of waste materials. Should it be determined that it would be in the best interest of the Commission to provide waste areas, each will be shown on the highway plans as temporary easements and described accordingly:

Said last-described tract is to be used for the permanent deposit of waste materials, and the owner hereby grants to the Missouri Highways and Transportation Commission, its agents, employees, and those with whom it contracts, the right to permanently deposit, during the construction of highway, any waste thereon, including earth, rock, gravel, or other materials. Upon completion and acceptance of the project, the temporary easement rights in the last-described tract shall cease and no longer be in effect.

Temporary Easements (Building Removals, Construction of Entrances, etc.)

Descriptions of temporary easements for removal of buildings, construction of entrances, etc., shall be followed by the following clause:

Upon completion and acceptance of the project, the temporary easement rights in the last-described tract shall cease and be no longer in effect.

Demolition of Buildings

In some instances, buildings will project outside the acquisition area thereby making it necessary to acquire temporary easements for the contractor to perform demolition work. The easements may encompass the entire remaining building or extend to a point beyond first supporting member outside the Commission’s property line. Descriptions of temporary easements for the demolition of buildings shall be followed by the following clause:

Upon completion and acceptance of the project, the temporary easement rights in the last-described tract shall cease and be no longer in effect.

Environmental Testing

In certain situations, it becomes necessary to acquire a temporary easement for the purpose of subsurface testing and investigation prior to completion of the acquisition process.

A temporary easement over lands, properties or interest, ownership of, or legal rights in which are claimed by ________________.

(Insert Property Description)

Said last-described tract is for the purpose of ingress and egress to and from the property and to conduct subsurface testing and investigation. The location of the test holes will be right or left of Station ____________'.

Upon completion of the subsurface testing and investigation, the temporary easement rights in the last-described tract shall cease and no longer be in effect.

(f) Other Clauses:

Excess Land

The Constitution of Missouri authorizes the Missouri Highways and Transportation Commission to acquire property in excess of that actually occupied by highway improvement. In some instances, it is beneficial to acquire by deed or condemnation, land or property rights in excess of normal land requirements. Right of Way Section approval is required prior to the acquisition of excess lands. The excess land shall be purchased by deed separately from the normal land conveyance.

It is understood that the above-described property is being acquired in excess of that actually needed and that the party of the second part is hereby vested with fee simple title thereto, under the authority of Article I, Section 27, of the Constitution of 1945 of the State of Missouri.

Reservations for Removal of Signs

In those instances where legally licensed signs are occupying leased areas, within the proposed acquisition limits, it is required that such interest be extinguished by Quitclaim Deed or by condemnation::.

Grantor reserves the right to remove (its)(his) sign or signs now located within the above-described tract of land, provided grantor removes such sign or signs within ______ days after the consideration stated herein is made available to grantor. Should grantor fail to remove or dispose of said sign or signs within the said _____-day period, the party of the second part may keep or dispose of said sign or signs, as it may please, without accounting in anywise to the party of the first part.

Reservation for Oil and Mineral Rights

In certain areas of the State where oil and gas leases are prevalent, which may encumber the surface as well as underground rights, it shall be necessary to effect releases to the extent necessary to construct and maintain the highway. Most leases provide that lessees may use surface of land for placing roadways, pipelines, tanks, etc., which may encumber the proposed realty and/or rights sought by the Commission. Should description writers encounter such circumstances, a Quitclaim Deed must be prepared for execution by lessees or assigns.

Oil and mineral rights in the above land are hereby reserved to the grantor, except rights to drill, erect structures, storage, or any other activity, which might interfere with the use of the same as a public highway.

OR:

This instrument is executed for the sole purpose of granting to the Missouri Highways and Transportation Commission, insofar as the undersigned can do so, a right of way for highway purposes, over and across the above-described land, it being understood that the undersigned holds oil and gas mining lease covering said land. No interest in the oil, gas, and other minerals in and under said land shall pass or be conveyed by this instrument. Said oil, gas, and mineral rights are hereby reserved, except rights to drill, erect structures, storage, or any other activities, which might interfere with the use of said land as a public highway.

Underpass

In certain cases the Commission reserves to Grantor the right to move livestock across and under Commission-owned property through culverts or bridges in order to minimize severance damages. Equipment underpasses should be handled on an individual basis with the division office.

Grantors, their heirs, successors, and assigns reserve the right to use as a (livestock) (livestock and equipment) underpass a certain drainage structure situated at (centerline) (median centerline) Station ___________. The extent of this reservation shall apply only to the land area herein described which lies within ___ feet on each side of the (centerline) (median centerline) as hereinafter described lying between Station _________ and Station _________.

Grantors, their heirs, successors, and assigns reserve the right to fence and maintain the last-described area, excluding the drainage structure and its appurtenances, provided such fence and maintenance shall not interfere with construction, reconstruction or maintenance of any highway or drainage facility located upon the land herein described.

Grantors, their heirs, successors, and assigns shall be liable for the construction and maintenance of the fence for the livestock underpass. Further, grantors, their heirs, successors, and assigns shall hold the Missouri Highways and Transportation Commission harmless from any and all liability for claims, which arise from grantors’ reservation in this deed. Further, the covenant to hold the Missouri Highways and Transportation Commission harmless shall be a covenant running with the land and shall remain in effect so long as the drainage structure is used as a livestock underpass.

236.4.6.4 Correcting Property Descriptions

From time to time, it may be necessary to correct a property description contained within a general warranty deed, quitclaim deed, or other such document that has been filed for public record with the Recorder of Deeds. The particular circumstances resulting in the need to correct the property description will dictate the type of document used to correct the property description of a previous conveyance.

Correction Deed (Sample Contracts)

Correction deeds are to be secured from the grantor when the limits of the acquisition have not changed, but the station, offset, bearing, section, township, range, etc., were originally depicted on the right of way plans in error. A correction deed should recite "One Dollar and other valuable consideration" and will be accepted only from same parties issuing the erroneous conveyance. Should the property have successor titleholders, it is then necessary to quitclaim the Commission's interest in exchange for a revised conveyance. The following paragraph should immediately precede the property description with the correction deed:

This deed is for the purpose of correcting the description as shown in a conveyance executed on ____________, 20___, and is of record in the office of the Recorder of Deeds for ______________ County, Missouri in Book _____ at Page _____.

Scrivener’s Error Affidavit (Form 4-6.4a)

A Scrivener’s Error Affidavit may be used when errors are the result of details included on the right of way plans being inaccurately written into property descriptions. Errors of this nature may include the transposition of numbers, typographical errors, identifying an incorrect bearing, etc. When details are written into property descriptions in error, and the right of way plans used to prepare the property description for the previous conveyance have not changed, a Scrivener’s Error Affidavit may be used to correct the error. The Scrivener’s Error Affidavit may NOT be used if the specific details being corrected are the result of changes to the right of way plans. Prior to recording the Scrivener’s Error Affidavit, district right of way shall contact the grantors to advise them of the error, and will provide the grantors with a copy of the recorded Scrivener’s Error Affidavit.

Use of the Scrivener’s Error Affidavit in any situation not described in the previous paragraph requires prior approval from the Right of Way Section.

236.4.6.5 Dedications and/or Reservations by Recorded Plat

A "dedication for roadways, streets and alleys" is a lawful conveyance by recorded plat to local governments. However, when dealing with future acquisitions by dedication in plats, or other instruments, the district is to consult with its regional counsel to make certain that the appropriate language is used in the dedication documents and the proper procedures are followed to avoid any future litigation or uncertainty as to whether a completed dedication has been accomplished. As further protection, the district’s regional counsel must approve as to form all ordinances, plats, deeds, and other conveyance documents purporting to dedicate property to cities and counties for the benefit of the Commission, in addition to all deeds by cities and counties of such property to the Commission.

(a) Future Ordinances, Plats, Deeds and Other Conveyances.

If Commission has already taken possession of the dedicated land (by maintenance, construction, or lease), no further action is required.

If the Commission has not yet taken possession of the dedicated land, but are relying upon existing recorded ordinances, plats, deeds, or other conveyances to claim title to the dedicated land, a thorough review of the wording used for the dedication is critical to ensure an effective transfer of the property.

The appropriate language must read, “dedicated to the Missouri Highways and Transportation Commission (or its predecessor title State Highway Commission of Missouri) for public use forever.” Provided the appropriate language is used, a review of the documents is needed to assure that the city or county in which the property is located has accepted the dedication from the landowner by appropriate ordinance or resolution. If the previously mentioned criteria are met, a deed must be secured from the city or county conveying the property to the Commission. The Commission’s acceptance of the dedicated land is contingent upon final approval by the Commission, as documented in a Commission Minute, and the execution of the Acceptance of Conveyance Document (RW42), (Form RW42 is accessible in eAgreements), as specified in the Execution of Documents Policy. If the wording of the plat is not proper, the Commission shall immediately enter into possession or secure a deed from the owner of the property and the city or county conveying the property to the Commission. Then the Commission must accept the deed by Commission Minute.

(b) A "reserved strip" (reserved for future widening) on a recorded plat is not a lawful conveyance. A deed with a description will have to be written for the area shown on the plat as reserved and processed like any parcel to be acquired for new land on a project. See Exhibit 4-6.4k2.

NOTE: The right of way plans should show "dedicated right of way" as existing right of way and "reserved for right of way" as new land to be acquired.

236.4.6.6 Preparing Quitclaim Deeds for Execution by Utility Companies (See EPG 236.7)

On projects where an existing utility is located on a private easement, and the limits of the new land acquired for the project will encompass the existing private utility easement, the district utility engineer will obtain a quitclaim deed from the appropriate utility company. Upon request from the district utility engineer, district right of way will prepare the quitclaim deed for execution by the utility company. These quitclaim deeds should be handled like quitclaim deeds prepared for the release of other tenant interest in the new land being acquired. Therefore, the property description contained within the quitclaim deed for the utility company should be the same description that is contained within the warranty deed prepared on behalf of the Commission for the fee owners’ execution.

236.4.7 Conveyances and Agreements

236.4.7.1 Warranty Deed

(a) The instrument as shown on Form RW3 (Form RW3 is accessible in eAgreements) represents the conveyance generally used when owner transfers land or rights to the Commission. The document recites "Grant, bargain and sell, convey and confirm fee simple title in the property described in this deed.

Fee simple title will pass to the Commission when this instrument is used, if grantors are vested with the fee, and there are no exclusions or exceptions recited in the property description for the areas being conveyed. Special warranty, corporate warranty, or other conveyances, excluding a portion of the above-described warranty provisions, are accepted only after very careful examination by the Chief Counsel’s Office.

(b) A warranty deed Form RW4 (Form RW4 is accessible in eAgreements) from the Missouri Highways and Transportation Commission to an individual or a corporation conveys fee title or rights. Warranty deeds shall only be used with concurrence from the Right of Way Section and Chief Counsel's Office.

236.4.7.2 Quitclaim Deed (to the Commission)

The conveyance as shown on Form RW2 (Form RW2 is accessible in eAgreements) is a quitclaim deed and is employed when extinguishing leasehold or other tenant interests within the areas being acquired.

The Acceptance of Liability Policy is to be followed, prior to the acceptance of a Quitclaim deed on behalf of the Commission for any purpose other than extinguishing leasehold or other tenant interest.

236.4.7.3 Quitclaim Deed (from Commission)

The conveyance as shown on Form RW1 (Form RW1 is accessible in eAgreements) shall be used when selling or releasing any realty right held by the Commission except Capital Improvement Properties (maintenance sites, office sites, etc.). A General Warranty Deed will be issued when conveying Capital Improvement Properties after it has been determined by the Chief Counsel’s Office that fee simple title is vested in Commission.

236.4.7.4 Easement for Highway Purposes (Permanent)

The conveyance as shown on Form RW23 (Form RW23 is accessible in eAgreements) is to be used for those situations in which the Commission is acquiring only a permanent easement from the grantor. Appropriate wording to describe the specific purpose of the easement is found in EPG 236.4.6.3 Forms and Clauses.

236.4.7.5 Easement for Highway Purposes (Temporary)

The conveyance as shown on Form RW24 (Form RW24 is accessible in eAgreements) is to be used for those situations in which the Commission is acquiring only a temporary easement from the grantor. Appropriate wording to describe the specific purpose of the easement is found in EPG 236.4.6.3 Forms and Clauses.