Roads, Streets, Alleys, and Strips of Land:

Determining Mineral Ownership

The expansion of oil and gas operations across the state of Colorado has inevitably pushed drilling operations closer and closer to urban areas.  One issue arising frequently in these urban areas is that of mineral ownership under roads, streets, alleys, and other strips of land.  In order to determine mineral ownership underlying said lands, the first step is to ascertain how the strip of land was established and the type of estate that was created thereby.  This article, though not exhaustive, discusses three primary ways that roads, streets, alleys, and strips of lands are created, specifically through conveyances, dedication, and condemnation, and outlines how to determine mineral ownership in each of these situations.

Conveyance of Fee Simple or Easement/Lesser Estate

A road or other strip of land is often created by a deed or other written instrument, through either a grant or a reservation.  Every estate in land which is granted or conveyed to another is rebuttably presumed to be a fee simple estate if a lesser estate is not specified by express words.  While clear and express language simplifies determination of the estate conveyed, unclear and ambiguous language in a particular conveyance can make determining the intended estate extremely difficult for a land practitioner.  Where a deed’s language is unambiguous, courts will construe the effect of the deed within its four corners, without considering any extrinsic evidence.  Alternatively, if the conveyance language is ambiguous, courts will construe the conveyance to ascertain the intention of the parties from the instrument as a whole,  and the conveyance language will be construed in favor of the grantee.  In Farmers Reservoir & Irrigation Co. v. Sun Production Co., 721 P.2d 1198 (Colo. App. 1986), the court discussed several cases that distinguish language creating a fee simple estate from language creating an easement or lesser estate.  A summary of the conveyance language from each case is listed below in order to aid a land practitioner in determining the estate created by a particular conveyance.

Colorado Courts have identified the following language as conveying a fee simple interest:

  1. A deed purporting to convey a strip of “land” conveyed a fee simple estate; 
  2. The language “the right of ingress and egress…to and from said land…” gives rise to a fee simple estate; 
  3. A conveyance to Grantee’s “successors and assigns forever” is a conveyance in perpetuity and indicates conveyance of a fee simple interest;
  4. Designation of the instruments as “Warranty Deeds” evidences conveyance of a fee simple interest.

Alternatively, Colorado Courts have identified the following language as conveying an easement or lesser estate:

  1. A deed purporting to convey a strip of “ground” rather than “land” conveyed only an easement;
  2. Use of the term “right-of-way” in the document title or elsewhere in the document purports to convey less than fee title; 
  3. The language “upon, over and across” indicates the conveyance of a right-of-way;  and
  4. The grant of “the right of ingress and egress along, upon, over…said land…for the purpose of cleaning, repairing, operating and maintaining…” indicates the conveyance of a right-of-way. 

Based upon the foregoing, a land practitioner should carefully review the language of the particular conveyance creating the road or strip of land in order to determine whether it conveys fee simple title or an easement or lesser estate.  If fee simple title has been conveyed, the grantee is vested with full rights to the land.  However, if an easement or lesser estate has been conveyed, the grantee becomes vested with surface ownership of the land for the purposes specified in the conveyance and the mineral estate remains vested in the grantor.  In the case where the grantor retains mineral ownership, subsequent conveyances of the road or strip of land, as well as subsequent conveyances of abutting lands also owned by the grantor, will directly affect ownership of the mineral estate.

Statutory and Common Law Dedication

Streets, roads, and alleys located in subdivisions are typically created by dedication.  In Colorado, there are two forms of dedication: Statutory dedication and Common Law dedication.

C.R.S. § 31-23-107 and § 31-2-106 provide for Statutory Dedication of streets and alleys, and state that all streets, parks, and other places designated or described as for public use on the map or plat of any city or town or of any addition made to such city or town are public property and the fee title thereto is vested in such city or town. The map or plat for said dedication must be acknowledged pursuant to the provisions of C.R.S. § 31-23-104, which requires strict compliance.  Statutory dedication to the public results in the conveyance of fee title, not an easement.  The “fee title” conveyed by a statutory dedication is limited, however, to the surface of said street or alley and only so much of the ground underneath as might be required.

Common law dedication of a public way is established by demonstrating that the property owner unequivocally intended to make the dedication and that the dedication was accepted by the governmental authority.  The public authority’s acceptance of a dedication may be evidenced by legislative act, or by the public entity’s possession, improvement, or use of the land as a public road. Common law dedication applies to dedications on a county approved plat as well as other dedications that do not meet the requirements of statutory dedication.  Note, a common law dedication grants an easement, not fee ownership.

A land practitioner should review all subdivision maps and plats contained within their target area, including vacated or replatted subdivision maps and plats, and determine if they were properly dedicated as discussed above.  Properly dedicated streets and alleys, absent language to the contrary, will be subject to the centerline presumption rule discussed below.  However, maps or plats that fail to be properly dedicated may require additional title examination and curative as it relates to mineral ownership underlying the improperly dedicated streets and alleys.

Condemnation

C.R.S. § 38-1-101 et seq. provides for eminent domain or condemnation of private property to furthering a public use. C.R.S. § 38-1-105 (4) states that the petitioner shall become seized in fee unless a lesser interest has been sought.  Said statute, as well as C.R.S. § 43-1-208 (providing for eminent domain for state highways purposes), states that no right-of-way or easement acquired by condemnation shall ever give the petitioner any right, title, or interest to any vein, ledge, lode, deposit, oil, natural gas, or other mineral resource found or existing in the premises condemned, except insofar as the same may be required for subsurface support. 

Related to the provisions of the condemnation statutes above, the court in Dept. of Transp. v. Gypsum Ranch Co., 244 P.3d 127 (Colo. 2010), stated that the provisions related to non-takings of the oil, gas, and mineral estates were not effective until the legislative changes took place, being effective August 5, 2008.  Prior to 2008, C.R.S. § 43-1-208 granted the Transportation Commission the power to condemn “land” for state highway purposes, without expressly placing any limitation on taking the subsurface estate.  Thus, a court order for a condemnation action for a state highway, executed prior to August 5, 2008, that does not expressly reserve the oil, gas, or mineral estates, effectively conveys the oil, gas, and minerals underlying said parcel to the Department of Transportation.

When reviewing a condemnation action in favor of the Department of Transportation or other condemning party, a land practitioner should first look for any express mineral reservations in the court order for said action.  If there are no express mineral reservations, the land practitioner should review the effective date of the court order.  If the court order is dated subsequent to August 5, 2008, the mineral estate does not pass to the Department of Transportation or other condemning party.  However, if the court order is dated prior to August 5, 2008, absent any express mineral reservations, the court order will pass fee title of the mineral estate to the Department of Transportation or other condemning party.

Centerline Presumption

The second step in determining mineral ownership for roads, streets, alleys, and strips of land is to determine the effect of subsequent conveyances of the land itself, as well as the abutting parcels of the road, street, alley or strip of land.  The necessity of reviewing conveyances to land abutting the strip of land is based upon the general rule known as the “centerline presumption.”  At common law, a conveyance of land abutting a road or highway, or which references a map or plat that shows a highway boundary, is presumed to carry title to the center of that roadway to the extent the grantor has an interest therein, unless a contrary intent appears in the face of the conveyance, or unless the language of the deed clearly states an intention to restrict the boundaries of a conveyance.  The centerline presumption is intended to effectuate the presumed intent of the grantor, but the presumption applies only where the grantor owns the fee underlying the right-of-way.   The centerline presumption does not apply absent evidence that the abutting landowner’s title derives from a grantor who owned the underlying right-of-way in fee.  The rule naturally includes not only roads and streets but also alleys.

In order to fall within the centerline presumption rule, it is not necessary that the conveyance describe the land as bounded by a street or highway, provided only it is actually so bounded.   Nor is the presumption of intention to include the grantor’s title in the street necessarily overcome by a description by metes and bounds which stops at the side thereof.   And when the description is by a lot of a plat, which shows the lot to be bounded by a highway, street, or alley, the grant extends to the center of the public way, if the grantor owns that far, in the absence of a clear intention to the contrary.  For example, in Overland Machine Co. v. Alpenfels, 69 P. 574 (Colo. 1902), the centerline presumption rule was recognized, but an exception was found when the common grantor platted the block and separately quitclaimed the adjacent street in the same instrument, and subsequent conveyances of the platted block alone did not include the street.

Vacations

When a public street or roadway owned in fee is vacated, title vests in abutting property owners by statute.  C.R.S. § 43-2-302 states that whenever a roadway has been designated on the plat of any tract of land or conveyed to or acquired by a county, town, city, state, or political subdivision for use as a roadway and thereafter is vacated, title to the vacated roadway shall vest in the owners of the abutting land, in the manner prescribed for each circumstance delineated by the subsections of said statute.

In regard to streets and alleys, “whenever any street or alley designated on the plat of any city or town, or any lands laid out as the site of a city, town, or village, and whether the same be within the limits of any municipal corporation  or not, shall be vacated, the fee of the lands included within such street or alley, or so much thereof as may be vacated, and all right, title and interest of the state, or the inhabitants thereof, or such municipal corporation, shall be deemed and taken to vest in the proprietors of the abutting lots and parts of lots, each abutting owner taking to the center of the street or alley.”

Thus, as a general rule, title to the mineral estate underlying a road, street, or alley that has been vacated will likely pass to the abutting tract owners, again, subject to any express intention otherwise as previously discussed.

Practical Application

A land practitioner is faced with several challenges when determining mineral ownership underlying roads, streets, alleys, and strips of land, as each tract requires its own review and determination.  The following guidelines may assist a land practitioner in determining mineral ownership and effectively leasing roads, streets, alleys, and strips of land in their chain of title.

  1. Review all documents creating strips of land and determine if a fee title interest or an easement was conveyed.  If an easement was conveyed, review all conveyances of the strip of land, as well as all conveyances for abutting tracts of land to determine either fee title ownership or ownership based upon the centerline presumption.
  2. Review all subdivision maps and plats for proper dedication and the boundary lines of each subdivision.  The centerline presumption applies only where the grantor/plat dedicator owns the minerals in fee underlying the roads, streets, and alleys dedicated in the subdivision plat, or where said grantor/plat dedicator has been shown to be the fee owner of a non-dedicated street or alley lying adjacent to said subdivision that has not otherwise been dedicated.  In applying this rule to a section of land with multiple subdivisions, the centerline presumption should initially be limited in application to the boundaries of the platted subdivision.  A land practitioner should be careful to not apply the centerline presumption when the subdivision plat’s boundary lines do not encompass the abutting street, road, or alley, but rather said streets or alleys are encompassed within the boundary lines of another platted subdivision.  It should further be noted that some subdivisions encompass all of a street, road, alley, or strip of land, rather than to the centerline thereof.  In this case, the abutting lot owners would own the entire road, street, or alley, and not just to the centerline thereof.  In the event a subdivision abuts a non-dedicated street, road, or alley, but the grantor/plat dedicator of the abutting subdivision has been shown to be the fee owner of said non-dedicated street, road, or alley, barring any intervening interest, the centerline presumption rule would then apply to said non-dedicated street, road, or alley as it relates to the abutting subdivision.
  3. When leasing the roads, streets, alleys, or strips of land, be sure to include a Mother Hubbard provision in the leases covering said lands, as well as the leases covering the tracts of land abutting said strips of land.  The Mother Hubbard clause will effectively lease all strips of land abutting or adjacent to the tract being leased, as well as those lands subject to the centerline presumption rule.  Note, a sample Mother Hubbard clause reads: “This lease also covers and includes, in addition to that above described, all land, if any, contiguous or adjacent to or adjoining the land above described and (a) owned or claimed by lessor by limitation, prescription, possession, reversion or unrecorded instrument, or (b) as to which lessor has a preferential right of acquisition.”

Due to the increased land acreage attributable to roads, streets, alleys, or strips of land within urban and developed areas, leasing the proper mineral owners of said tracts has become imperative.  Consequently, although onerous, taking the time to correctly identify and lease the proper mineral owners of roads, streets, alleys, or strips of land increases a land practitioner’s certainty of title and decreases the risk of future conflicts and litigation. 

Julie Palmer

Julie K. Palmer, LLC

970-484-1756

 

  1. See Board of Cnty. Comm’rs v. Morris, 362 P.2d 202 (Colo. 1961); Radetsky v. Jorgensen, 202 P. 175 (Colo. 1921).
  2. See O’Brien v. Village Land Company, 794 P.2d 246 (Colo. 1990).
  3. See Percifield v. Rosa, 220 P.2d 546 (Colo. 1950).
  4. See Clevenger v. Continental Oil Co., 369 P.2d 550 (Colo. 1962).
  5. See Radetsky V. Jorgensen, 202 P. 175, (Colo 19210). 
  6. See Farmers Reservoir & Irrigation Co. v. Sun Production Co., 721 P.2d 1198 (Colo. App. 1986).
  7. See Clevenger v. Continental Oil Co., 369 P.2d 550 (Colo. 1962).
  8. See N. Sterling Irrigation Dist. V. Knifton, 320 P.2d 968 (Colo. 1958). 
  9. Id.
  10. Id.
  11. See Board of Cnty. Comm’rs v. Morris, 362 P.2d 202 (1961).
  12. Id.
  13. See Leadville v. Coronado Min Co., 86 P. 1034 (Colo. 1906).
  14. See Buell v. Redding Miller Inc., 430 P.2d 187 (Colo.1961).
  15. See Leadville V. Bohn Mining Co., 37 Colo. 248 (1906).
  16. See City of Northglenn v. City of Thornton, 569 P.2d 702 (Colo. App. 1982). 
  17. See Town of Center V. Collier, 144 P. 1123 (Colo. 1914).
  18. See Near v. Calkins, 946 P.2d 537 (Colo. 1997). 
  19. See Asmussen v. United States, 304 P.3d 552 (Colo. 2013).
  20. See Olin v. Denver & Rio Grande R.R. Co., 53 P. 454 (Colo. 1898); Overland Machine Co. v. Alpenfels, 30 Colo. 163 (1902); Schweizer v. Level 3 Communs., Inc., 2006 Colo. App. LEXIS 2190.
  21. See Asmussen, 304 P.3d 552.
  22. Id.
  23. Id.
  24. See Near v. Calkins, 946 P.2d 537 (Colo. 1997).
  25. Id.
  26. Id.
  27. See Bothwell v. Denver Union Stockyard Co., 39 Colo. 221 (1907) (quoting Mills’ Ann. St. § 4370).
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