Parcels located along secondary roads are often the subject of disputes over improvements—built by the adjoiners—that are located near the traveled way. Conflicts between adjoining landowners and local or state government agencies are fueled by confusion over ownership of the fee within the road corridor. Underlying title to streets is a difficult problem to address, in part because of the many possible outcomes.
The “Centerline Presumption” is a rule of construction that is frequently applied to secondary roads and highways. This rebuttable presumption— sometimes referred to as the “Strip & Gore Doctrine”—serves the public interest by minimizing the existence of narrow useless strips of land that may become the basis for later litigation. This presumption also may be applied to streams, small rivers and (in some states) railroads. As demonstrated in this article, its strength and applicability varies between states.
The justifications for this rule of construction are clearly described in the Washington decision Roeder Co. v. Burlington Northern, Inc.: 105 Wash. 2d 567 (1986): “This rule is based on a presumption that the grantor intended to convey such fee along with and as a part of the conveyance of the abutting land, generally on the theory that the grantor did not intend to retain a narrow strip of land which could be of use only to the owner of the adjoining land. The rule is also intended to lessen litigation caused by the existence of narrow strips of land distinct in ownership from the adjoining property.”
The Rule
At common law, the Centerline Presumption is qualified by two basic limitations. It does not apply (a) if the grantor did not own to the center of the road, or (b) if the grantor clearly reserves the road by express terms. Where ambiguity exists in a deed description, many state courts presume that conveyance of a lot bordered by a road represents an intent to convey title to the center.
In New Jersey, the principle was well-established as early as 1868. The headnotes of Higbee v. Camden & Amboy RR, 19 N.J. Eq. 276 (1868) include an excellent summary of the Centerline Presumption and highlight its strength: “The owner of lands bounding on a street or highway is presumed to own the fee to the centre of the street. Such presumption arises from the lots being bounded on the street, and not that any particular deed so conveyed it.”
In Arizona, a similar standard is presented, as seen in Torrey v. Pearce, 92 Ariz. 12, 373 P.2d 9 (1962): “It is an almost universal rule that if land abutting on a public way is conveyed by a description covering only the lot itself, nevertheless, the grantee takes title to the center line of the public way if the grantor owned the underlying fee, unless the contrary intention sufficiently appears from the granting instrument itself, or the circumstances surrounding the conveyance.” This decision includes both the basic rule, and the two general common law exceptions recited previously in this article.
Any discussion of fee title to a public way may seem meaningless as long as the road is maintained for public use, but it becomes relevant when government agencies make changes to the road that limit or destroy access by the adjoining property owners.
This problem is described in the Tennessee decision Hamilton Co. V. Rape: 101 Tenn. 222 (1898). Central Avenue, located in a Hamilton County subdivision was originally built by a private developer, but was later accepted for public use and was incorporated into the county road system. Contractors then changed the original road grades, cutting adjoining subdivision lots off from their legal access to the road.
County officials argued that they could alter road grades at will because they believed that the county owned fee title to the road corridor. The Tennessee court disagreed, and affirmed the Centerline Presumption: “The descriptive term, west side of Central Avenue, does not mean that the line is the margin of Central Avenue, but simply that the lots lie on the western side or direction from Central Avenue.” The destruction—by the county—of the private access by adjoiners was deemed to be an unconstitutional taking.
Common Law Exceptions
A few states—such as North Carolina—have limited the application of the Centerline Presumption to streets in recorded subdivisions, resulting in numerous decisions that sidestep the question of underlying fee of the road itself. Rulings in this state typically hold that original developer or their heirs own the fee of all dedicated streets within the subdivision.
In a limited application of the presumption, some North Carolina rulings indicate that adjoining owners might have title to the center after the original corporation that dedicated the streets no longer exists. As noted in Russell v. Coggin, 232 N.C. 674 (1950): “Where individual owners of lands subdivide and sell same by block and lot number with reference to a plat showing streets therein, they retain the fee in the streets subject to the easement thus dedicated to the public in general and to the private owners of adjacent lots in particular, and are the only parties entitled to withdraw the streets from dedication when the streets have not been used for twenty years subsequent to such dedication and are not necessary for ingress and egress to any of the lots sold.”
Other common law exceptions to the Centerline Presumption exist. It may not be applicable where a landowner subdivides land on one side of a proposed road, but retains ownership of the other side as a single tract. This scenario negates the argument against the creation of narrow strips of land.
This corollary is illustrated in Loeffler v. Bernier: 218-2018-CV-00074 (2018), where the owner sold lots west of the private 40-foot road but retained a large tract to the east. Lots 21 and 23 were described by reference to the plat below, with dimensions and calls that matched the west edge of the way. The court concluded that the Centerline Presumption was: “…inapplicable to the facts in that case because, among other things, the grantor held title to land on both sides of the former road and thus the presumption that he “did not intend to the narrow strip of land which constituted the road” did not apply.”
Map attached to Loeffler v. Bernier: 218-2018-CV-00074 (2018)
The outcome in the Loeffler decision was also influenced by the fact that the easement created was private and had not been dedicated to—or accepted as—a public highway.
Marginal streets represent another common law exception to the Centerline Presumption. As shown on the sketch below, marginal ways are created when a developer lays out a subdivision where a proposed road is completely within the parent tract, but the road borders the outer boundary of the parent tract.
Marginal vs. Non-Marginal Roads/Highways
In this situation, the Centerline Presumption is modified, because the lot purchasers of lots 1 and 2 (as shown on the left-hand sketch) are presumed to take title to the entirety of the road. Any other solution leaves title to half of the street unaccounted for. The right-hand sketch illustrates the classic application of the Centerline Presumption.
Remember that a public way may come into existence by many mechanisms, and land use professionals must recognize that specific circumstances can vary results. As seen from illustrations in this article, exceptions to the Centerline Presumption exist, even in states that generally recognize the concept. Other surprises may arise where the way was originally created as a turnpike, a railroad, or as a private grant of a strip in fee title.
Statutory Variations
Differences between states regarding the Centerline Presumption also are on display in their statutes. As with common law variants of the rule, states do not always apply consistent standards, as seen in the following examples.
The North Dakota legislature has incorporated a particularly powerful affirmation of the Centerline Presumption into their Century Code N.D.C.C. 32-15-03.2: “No transfer to the state of North Dakota or any of its political subdivisions of property for highway purposes shall be deemed to include any interest greater than an easement, and where any greater estate shall have been so transferred, the same is hereby reconveyed to the owner from which such land was originally taken, or to the heirs, executors, administrators, or assigns of such owner.” The apparent goal of this legislation is to create a consistent pattern of private ownership paired with a public way for travel. This law actually includes a provision to divest the state of any fee title to highways that may have been created prior to enactment of this statutory provision.
California Civil Code 831 also expresses a rebuttable standard in favor of the Centerline Presumption, though with lesser force.
In clear contrast to the examples above, laws in some states include specific provisions for transferring fee title of a dedicated street to a unit of government. One instance is found in Virginia Statute 15.2-2265, that creates a clear exception to the Centerline Presumption: “Recordation of approved plat as transfer of streets, termination of easements and rights-of-way, etc.
The recordation of an approved plat shall operate to transfer, in fee simple, to the respective localities in which the land lies the portion of the premises platted as is on the plat set apart for streets, alleys or other public use and to transfer to the locality any easement indicated on the plat to create a public right of passage over the land.” As with legislation in other states, this statute must be followed in all major particulars in order for the transfer to occur. Nor does this statute alter property titles that were vested prior to its enactment.
Florida is another state where successful dedication of streets includes statutory requirements—found in Fla. Stat. § 177.081—that are similar to those necessary to create a valid deed. The dedication must be executed by all persons, corporations, or entities whose signature would be required to convey record fee simple title to the lands being dedicated in the same manner in which deeds are required to be executed. The result of proper application of this statute is a fee title in the road that is separate from that of adjoining lot owners.
Ohio Code § 711.07 is similar in some respects to the Florida statute quoted previously and requires that a plat be subscribed and acknowledged by the proprietor or his agent before a public officer authorized to take acknowledgement of deeds: “Upon recording, as required by section 711.06 of the Revised Code, the plat shall thereupon be a sufficient conveyance to vest in the municipal corporation the fee of the parcel of land designated or intended for streets, alleys, ways, commons, or other public uses, to be held in the corporate name in trust to and for the uses and purposes set forth in the instrument.” In this case, the municipality takes title to the roads based on the operation of the statute.