JurisdictionUnited States
Mineral Title Examination III
(Feb 1992)


David S. Dale
Meridian Oil Inc.
Englewood, Colorado





Right of Way

General Propositions or Rules

Rights-of-Way Acquired from the United States


Charter Rights-of-Way, The "Pre-1871

1875 Railroad Right-of-Way Act

The 1922 Abandonment Act

Non-Railroad Rights-of-Way-Highways, County Roads, Private Roads, Reservoirs, Canals and Laterals


Title to the Mineral Estate Under Rights-of-Way Acquired from the United States

Title in the United States

Title in the Patentee

The 1930 Railroad Right-of-Way Leasing Act

Right-of-Way Acquired from the States or it Political Subdivisions

Right-of-Way Acquired Across Private Land

By Deed

General Principles

Other Than by Deed


Adverse Possession

Title to the Minerals Under a Right-of-Way Easement

A Bisecting Right-of-Way

A Boundary Right-of-Way

Abandonment of a Right-of-Way

Effect of Abandonment

What Constitutes Abandonment

Case Law of the Jurisdiction in which Right-of-Way Located






New Mexico

North Dakota

South Dakota


Dedication of Streets and Alleys

[Page 6-ii]

Rivers, Streams, Lakes, Ponds and Island

Navigable or Nonnavigable Bodies of Water

Effects of River Movement on Ownership of the Bed and Banks of a River


Lands Between Meander Line on Survey and River or Lake

Boundary Location

Parol Agreement


Adverse Possession

Fence Not on True Boundary Alleys

Protection Leases and the Need for Mother Hubbard's Skirts



[Page 6-1]


The subject of this paper is title to the mineral estate under strips or threads of land, including lands beneath bodies of water, which lie within or adjacent to the land under examination and the leasing of such minerals for oil and gas development. We will consider mineral ownership and leasing rights under:

1. Rights-of-Way — crossing or adjoining the tract under examination

a. Railroad Rights-of-Way.

b. Non-Railroad Rights-of-Way — highways, county roads, streets, private roads, reservoirs, canals, ditches, laterals.

2. Rivers, Streams, Lakes, Ponds and Islands — navigable and nonnavigable bodies of water, both within the tract under examination or forming part of its boundary.

3. Boundary location — strips created by variance between on the ground boundary location, including fences or other improvements on the land, and boundaries established by property description in title documents.

Our review will consider whether the ownership of the land under examination was federal, private or state at the time the strip or thread of land was created.

The existence of these strips or threads of land within or adjoining the land under examination may be brought to the title examiners attention by examination of the documents including plats and maps on file with:

1. The Bureau of Land Management

2. The State Land Office

3. The Records of County in which the land is located

or a survey on the ground or an inspection of the surface of the land under examination.

[Page 6-2]

CAVEAT: This paper will not attempt to give an in depth study of all of the legal issues which can arise when considering title to the minerals under these strips and threads but rather will attempt to point out the matters which should be considered by the title examiner and discussed in a title opinion covering a tract of land which includes or adjoins any such strip or thread of land. An excellent paper demonstrating the application of many of the rules and issues discussed in this paper to particular factual situations was presented by Richard H. Bates at the 32nd Rocky Mountain Mineral Law Institute.1


Ownership of the mineral estate under both railroad and non-railroad right-of-way depends on how the right-of-way was acquired. Within a single section of land, the minerals under different segments of the right-of-way may have different ownerships. The ownership may even change within the width of the right-of-way since it was not unusual for a railroad or the state to obtain supplemental rights-of-way from subsequent owners, particularly where they desired to change the location or widen of the railroad roadbed or highway. For example, in Montana in a section of land owned by the State of Montana, the railroad acquired by deed a strip of land 150 feet in width (75 feet on each side of the proposed center line) from an individual who was purchasing the section under a contract of sale from the State. Thereafter the railroad acquired a 300 foot wide easement (150 feet on each side of the same center line) from the state and the individual land owner, as the contract purchaser, approved such grant. The section was then conveyed to the individual pursuant to his contract. Who owns the minerals and leasing rights under this right-of-way?

[Page 6-3]

General Propositions or Rules

Before discussing the sources from which rights-of-ways may be acquired and the interest acquired, we would like to state some general rules or propositions concerning rights-of way:

1. Rights-of-way are acquired from the federal government and state governments, including counties and municipalities, pursuant to special or general statutes, and from private landowners by conveyance, condemnation, and adverse possession.2

2. If a fee simple absolute title to the strip of land constituting the right-of-way is acquired, it cannot be lost by abandonment, and the owner of the right-of-way retains its title to the strip of land and the oil and gas leasing rights therein after abandonment of the right-of-way for its intended purpose.3

3. If the right-of-way is merely an easement, the owner of the right-of-way did not acquire title to land, the mineral estate or the oil and gas leasing rights, and the same remain in the owner of land burdened by the right-of-way easement. The abandonment of the easement has no effect on title to the land or leasing rights but merely removes the easement as a burden on the use of the surface.4

4. If the deed conveying the strip of land constituting the right-of-way granted a defeasible fee, either a determinable fee or a fee simple subject to a condition subsequent, then upon abandonment of the right-of-way for its intended use, or more properly upon the happening of the condition stated in the deed which causes the reversion or right of reentry to occur (usually abandonment for intended use), the title to the strip of land either:

[Page 6-4]

(i) automatically reverts to the grantor in the deed conveying the right-of-way, or his heirs, successors or assigns (determinable fee); or (ii) becomes subject to the power of termination by the grantor in the deed, or his heirs, successor or assigns (condition subsequent). The party to whom the interest reverts may be the grantor in the deed conveying the right-of-way or his heirs, or it may be the present owner of the lands adjoining the right-of-way.5

5. If the right-of-way is only an easement, then to determine title to the strip of land subject to such easement, you must review the conveyances of land subject to the easement from the time of the grant of the easement down to date and determine how those conveyances are construed by the courts having jurisdiction.6

Rights-of-Way Acquired from the United States
Railroad Rights-of-Way
Charter Rights-of-Way; The "Pre-1871 Rights-of-Way"

The Charter rights-of way are those granted by the Pacific Railroad Laws and are sometimes referred to as the Section 2 grants because in the Pacific Railroad Laws as seen in both the Union Pacific Act7 and the Northern Pacific Act8 , the right-of-way was granted in Section 2 of the Act and the odd sections of land (grant lands) were granted in Section 3 of the Act. The railroad right-of-way when located on the ground traversed both the odd (grant land) sections and even sections and it has been held that the Section 2 right-of-way when located in an odd section does not merge with the title to grant lands patented to the railroad under the Section 3 grant.9 The interest obtained

[Page 6-5]

by the railroad in Charter right-of-way was originally characterized by the United States Supreme Court as an unrestricted right-of-way grant that was presently effective, not subject to substitution of other lands by reason of settlement and preemption, and one to which all persons acquiring a portion of public lands after the passage of the Act took subject to.10 Some forty years later the Supreme Court decided that the Charter right-of-way grants contained an implied condition that the land continue to be used for railroad purposes and it was therefore subject to the implied condition that if the right-of-way ceased to be used as a railroad right-of-way, it would revert to the United States.11 Furthermore, the railroad could not convey its interest to another for non-railroad purposes and the right-of-way could not be lost, or even a part of it lost, by adverse possession. However, the court did indicate that the right-of-way received by Charter railroad was a fee simple interest effective upon filing a map of definite location or actual construction. In 1957 the Supreme Court again reviewed the Charter right-of-way in United States vs. Union Pacific Railroad Company12 in which the United States brought suit to enjoin the railroad from drilling for oil and gas on a Charter right-of-way. The court held that the mineral lands exception found in Section 3 of the Act applied to the Section 2 Charter right-of-way so that minerals were excepted therefrom. From this decision it appears that the Charter right-of-way created only an easement; however, since coal and iron were excepted from the mineral lands exclusion it would appear that the railroad received coal and iron under Charter right-of-way and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT