5409.17, 10
Page 1 of 40
FOREST SERVICE HANDBOOK
Portland, Oregon
TITLE 5409.17 - RIGHTS-OF-WAY ACQUISITION HANDBOOK
R6 Supplement No. 5409.17-91-1
Effective October 15, 1991
POSTING NOTICE. Supplements to this handbook are numbered consecutively.
Check the last transmittal sheet received for this handbook to see that the above
supplement number is in sequence. If not, obtain intervening supplement(s) at once
from the Information Center. Do not post this supplement until the missing one(s)
is received and posted. After posting, place the transmittal at the front of the title
and retain until the first transmittal of the next calendar year is received.
The last R6 Supplement to this handbook was 5409.17-90-1, 8/30/90.
Document Name
Sheets)
Superseded New
(Number of
5409.17,10
40
10 - Exhibit 01 (Page 4) PAPER COPY ONLY
Page Code
10--1 thru 14.55
25
Digest:
This supplement reissues Chapter 10 to conform the format and structure of the
Handbook to the requirements of electronic directive issuance.
Only minor changes to correct spelling, punctuation, and so forth have been made.
This supplement is available in the R6FSH Information Center Service in the same
format as the paper copy.
/s/ John F. Butruille
JOHN F. BUTRUILLE
Regional Forester
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
5409.17,10
Page 2 of 40
FSH 5409.17 - RIGHTS OF WAY ACQUISITION HANDBOOK
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
CHAPTER 10 - ACQUISITION PROCEDURES AND DOCUMENTS
A critical path analysis of each right-of-way case should be set up on Form R6-FS5400-1, Road Right-of-Way worksheet (exhibit 01). The "critical path target" in
upper center is the date by which title approval and payments must be completed in
order to meet timber sale or construction contracting program requirements. This
date is normally identical with that for item 22. Once the target date is established,
the rights-of-way staff person must then set a critical path date for each step
applicable to the case. Time intervals between steps will be based upon Forest
experience, but may have to be shortened to meet the target date for a particular
case. These dates should be entered in ink.
From this point on, the Work Sheet is used to show progress of work, by pencil
notations. It is recommended that one copy be maintained by the District Ranger,
one by the Supervisor, and a third enroute between them showing the latest
notations.
As the sample indicates, a year may elapse during the sequence of steps. This form
is designed to permit the busy field person to keep a right-of-way case moving with
a minimum of backtracking.
The indicated sequence fits a majority of cases. An occasional landowner is willing
to sign an option on the strength of the road reconnaissance, and prior to steps 5
and 6. In this event the unsigned deed attached to the option may omit the right-ofway description with the latter to be inserted in the deed later, before the grantor
signs it (FSH 5409.17 section 14).
The plat in step 7 is needed in every case to orient those who review the case. For
this purpose it need be only diagrammatic. If the plat is to be an integral part of
the recorded deed, it should be complete and to scale.
The number of copies required on each item is a minimum to prevent recopying
later.
A case need not be referred to the Regional Forester until step 20, provided it meets
the requirements in FSM 5460.43. If it does not, the case should be referred under
step 11, accompanied by a complete factual statement and recommendations to
remedy.
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
5409.17,10
Page 3 of 40
10 - Exhibit 01
SEE THE PAPER COPY OF THE MASTER SET
FOR SECTION 10 - EXHIBIT 01
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
5409.17,10
Page 4 of 40
11 - FORMS OF EASEMENT CONVEYANCE.
Approved easement deed and option formats are included as exhibits 01 through 07.
Exhibit 01
Exhibit 02
Exhibit 03
Exhibit 04
Exhibit 05
Exhibit 06
Exhibit 07
Individual
Raw land
Individual
Existing Road
Corporation
Raw land
Corporation
Existing Road
Right-of-Way Easement Deed,Unpatented
Mining Claims
Option for Easement
Trails
Exhibits 01 through 07 will include the legal description (FSH 5409.17 section 14.2)
in the body of the deed immediately following the "State of
:". Long
descriptions may be attached as a separate Exhibit A and the plats labeled
Exhibit B.
Exhibits 01 through 07 may be used for partnerships. The following clauses should
be substituted for partnerships:
THIS DEED, dated this
day of
, 19
Partnership) , a partnership composed of
called "Grantor," to..., and so forth.
, by and between
, and
(Name of
, hereinafter
The final paragraph and signature block will be changed to the following format:
IN WITNESS WHEREOF, said Grantor has hereunder set its hand and seal on the day and year
first above written.
(Name of Partnership)
(Partner)
(Partner)
(Partner)
For partnership use the Acknowledgment format shown in exhibits 01 or 02.
Exhibit 07 may be used for corporations by using first and last paragraphs,
signature block, and acknowledgment shown in exhibit 03.
Use of exhibit 06 is discussed under item 4, FSH 5409.17 section 14.
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
5409.17,10
Page 5 of 40
11 - Exhibit 01
USDA Forest Service
(Individual Raw Land)
Road Name and No
RIGHT-OF-WAY EASEMENT DEED
THIS EASEMENT, dated this
day of
, 19 , from
"Grantor," to the United States of America, hereinafter called "Grantee,"
, hereinafter called
WITNESSETH:
Grantor, for and in consideration of $
, received by Grantor, does hereby grant and convey
unto Grantee and its assigns, a perpetual easement for a road over and across the following
described lands in the County of
,
State of
:
(Place land description here)
Said easement is shown on the plat attached hereto marked Exhibit A.
Said easement shall be
feet on each side of the centerline with such additional width as
required for accommodation and protection of cuts and fills. If the road is located substantially as
described herein, the centerline of said road as constructed is hereby deemed accepted by Grantor
and Grantee as the true centerline of the easement granted. If any subsequent survey of the road
shows that any portion of the road, although located substantially as described, crosses lands of
Grantor not described herein, the easement shall be amended to include the additional lands
traversed; if any lands described herein are not traversed by the road as constructed, the easement
traversing the same shall be terminated in the manner hereinafter provided.
Together with such reasonable rights of temporary use of Grantor's lands immediately adjacent to
said right-of-way as may be necessary for the construction, reconstruction, improvement, and
maintenance of said road.
The acquiring agency is the US Department of Agriculture, Forest Service.
Grantee alone may extend rights and privileges for use of the road to other Government
Departments and Agencies, States, and local subdivisions thereof, and to other users including
members of the public.
This conveyance is made subject to the following reservations by Grantor, its heirs, and assigns:
1. The right to cross and recross the easement at any point and for any purpose in such manner as
will not materially interfere with the use of the roads.
2. The right to all timber now or hereafter growing on the easement subject to Grantee's right to cut
timber on the easement to the extent necessary for constructing, reconstructing, and maintaining the
road. Timber so cut shall, unless otherwise agreed to, be cut into logs of standard lengths and
decked along the road for disposal by the Grantor.
It is agreed that the Grantor shall have the right to use the road hereinafter to be constructed for all
purposes deemed necessary or desirable by Grantor in connection with the protection,
administration, management, and utilization of Grantor's lands or resources now or hereafter owned
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
5409.17,10
Page 6 of 40
11 - Exhibit 01--Continued
or controlled, subject however, to traffic-control regulations as Grantee may reasonably impose
under 36 CFR 261.12, the bearing of road maintenance costs proportionate to use as provided in 36
CFR 212.7(d), and the sharing of the cost of construction or reconstruction proportionate to use, as
provided in 36 CFR 212.11.
If, at any time, the Regional Forester determines that the road or any segment thereof is no longer
needed, the easement traversed thereby shall terminate. In the event of such determination, the
Regional Forester shall furnish to the Grantor, its successors or assigns, a statement in recordable
form evidencing termination.
IN WITNESS WHEREOF, said Grantor has hereunto subscribed its name and affixed its seal on the
day and year first above written.
(Seal)
(Name)
(Seal)
(Name)
State of
County of
)
) ss
)
On this
day of
, 19 , personally appeared before me
, to me known to
be the identical individuals described in and who executed the within and foregoing instrument and
acknowledged to me that they signed and executed the same as their free and voluntary act and
deed, for the uses and purposes therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
above written.
Notary Public for the State
of
, Residing
at
My Commission Expires
SEAL
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
5409.17,10
Page 7 of 40
11 - Exhibit 02
USDA Forest Service
(Individual - Existing Road)
Road Name and No.
RIGHT-OF-WAY EASEMENT DEED
THIS EASEMENT, dated this
day of
, 19 , from
, hereinafter called "Grantor," to the United States of America, hereinafter
called "Grantee,"
WITNESSETH:
Grantor, for and in consideration of $
, received by Grantor, does hereby grant and convery
unto Grantee and its assigns a perpetual easement for a road over and across the following described
lands in the County of
,
State of
:
(Place land description here)
Said easement is shown on the plat attached hereto marked Exhibit A.
Said easement shall be
feet on each side of the centerline with such additional width as required
for accommodation and protection of cuts and fills. If the road is located substantially as described
herein, the centerline of said road as constructed is hereby deemed accepted by Grantor and Grantee
as the true centerline of the easement granted. If any subsequent survey of the road shows that any
portion of the road, although located substantially as described, crosses lands of Grantor not
described herein, the easement shall be amended to include the additional lands traversed; if any
lands described herein are not traversed by the road as constructed, the easement traversing the
same shall be terminated in the manner hereinafter provided.
Together with such reasonable rights of temporary use of the Grantor's lands immediately adjacent
to said right-of-way as may be necessary for the construction, reconstruction, improvement, and
maintenance of said road.
The acquiring agency is the U.S. Department of Agriculture, Forest Service.
Grantee alone may extend rights and privileges for use of the road to other Government
Departments and Agencies, States, and local subdivisions thereof, and to other users including
members of the public.
This conveyance is made subject to the following reservations by Grantor, its heirs and assigns:
1. The right to cross and recross the easement at any point and for any purpose in such
manner as will not materially interfere with the use of the road.
2. The right to all timber now or hereafter growing on the easement subject to Grantee's
right to cut timber on the easement to the extent necessary for constructing, reconstructing, and
maintaining the road. Timber so cut shall, unless otherwise agreet to, be cut into logs of standard
lengths and decked along the road for disposal by Grantor.
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
5409.17,10
Page 8 of 40
11 - Exhibit 02--Continued
It is agreed that Grantor shall have the right to use the existing road described herein for all
purposes deemed necessary or desirable by Grantor in connection with the protection,
administration, management, and utilization of Grantor's lands or resources now or hereafter owned
or controlled, subject, however, to traffic-control regulations as Grantee may reasonably impose
under 36 CFR 261.12, and the bearing of road maintenance costs proportionate to use as provided in
36 CFR 212.7(d).
If, at any time, the Regional Forester determines that the road, or any segment thereof is no longer
needed, the easement traversed thereby shall terminate. In the event of such determination, the
Regional Forester shall furnish to Grantor, its successors, or assigns, a statement in recordable form
evidencing termination.
IN WITNESS WHEREOF, said Grantor has hereunto subscribed its name and affixed its seal on the
day and year first above written.
(Seal)
(Name)
(Seal)
(Name)
ACKNOWLEDGMENT
State of
County of
)
)
)
ss
On this
day of
, 19
, personally appeared before me
to
me known to be the identical individual(s) described in and who executed the within and foregoing
instrument and acknowledged to me that they signed and executed the same as their free and
voluntary act and deed, for the uses and purposes therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
above written.
Notary Public for the State
of
, Residing
at
My Commission Expires
SEAL
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
5409.17,10
Page 9 of 40
11 - Exhibit 03
USDA Forest Service
(Corporation Raw land)
Road Name and No.
RIGHT-OF-WAY EASEMENT DEED
THIS EASEMENT, dated this
day of
, 19 , from
, a corporation of the State of
"Grantor," to the United States of America, hereinafter called "Grantee,"
, hereinafter called
WITNESSETH:
Grantor, for and in consideration of $
received by Grantor, does hereby grant to
Grantee and its assigns, subject to existing easements and valid rights, a perpetual easement for a
road along and across a strip of land, hereinafter defined as the "premises," over and across the
following described lands in the County of
, State of
:
(Place land description here)
Said premises are shown on the plat attached hereto marked Exhibit A.
The word "premises" when used herein means said strip of land, whether or not there is an existing
road located hereon. Except where it is defined more specifically, the word "road" shall mean roads
now existing or hereafter constructed on the premises or any segment of such roads.
Said premises shall be
feet on each side of the centerline with such additional width as
required for accommodation and protection of cuts and fills. If the road is located substantially as
desribed herein, the centerline of said road, as constructed, is hereby deemed accepted by Grantor
and Grantee as the true centerline of the premises granted. If any subsequent survey of the road
shows that any portion of the road, although located substantially as described, crosses lands of
Grantor not described herein, the easement shall be amended to include the additional lands
traversed; if any lands described herein are not traversed by the road as constructed, the easement
traversing the same shall be terminated in the manner hereinafter provided.
The acquiring agency is the U.S. Department of Agriculture, Forest Service.
This grant is made subject to the following terms, provisions, and conditions applicable to Grantee,
its permittees, contractors, and assigns:
A. Except as hereinafter limited, Grantee shall have the right to use the road on the premises
without cost for all purposes deemed necessary or desirable by Grantee in connection with the
protection, administration, management, and utilization of Grantee's lands or resources, now or
hereafter owned or controlled, subject to such traffic-control regulations and rules as Grantee may
reasonably impose upon or require of other users of the road. Grantee shall have the right to
construct, reconstruct, and maintain roads within the premises.
Grantee alone may extend rights and privileges for use of the premise to other Government
Departments and Agencies, States, and local subdivisions thereof, and to other users including
members of the public.
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
5409.17,10
Page 10 of 40
11 - Exhibit 03--Continued
B. Grantee shall have the right to cut timber upon the premises to the extent necessary for
constructing, reconstructing, and maintaining the road. Timber so cut shall, unless otherwise
agreed to, be cut into logs of lengths specified by the timber owner and decked along the roads for
disposal by the owner of such timber.
This easement is granted subject to the following reservations by Grantor, for itself, its permittees,
contractors, assigns, and successors in interest:
1. The right to cross and recross the premises and road at any place by any reasonable
means and for any purpose in such manner as will not interfere unreasonably with use of the road.
2. The right to all timber now or hereafter growing on the premises, subject to Grantee's
right to cut such timber as herein before provided.
It is agreed that the Grantor shall have the right to use the road hereinafter to be constructed for all
purposes deemed necessary or desirable by Grantor in connection with the protection,
administration, management, and utilization of Grantor's lands or resources now or hereafter owned
or controlled, subject, however, to traffic control regulations as Grantee may reasonably impose
under 36 CFR 261.12, the bearing of road maintenance costs proportionate to use as provided in 36
CFR 212.7(d), and the sharing of the cost of construction or reconstruction proportionate to use, as
provided in 36 CFR 212.11.
If, at any time the Regional Forester determines that the road, or any segment thereof, is no longer
needed, the easement traversed thereby shall terminate. In the event of such determination, the
Regional Forester shall furnish to the Grantor, its successors, or assigns, a statement in recordable
form evidencing termination.
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed by its duly authorized
officers and its corporate seal to be hereunto affixed on the day and year first above written.
by
Title
SEAL
Attest:
(Secretary)
ACKNOWLEDGMENT
State of
County of
)
) ss.
)
On this
day of
, 19 , before me the undersigned, a notary public in and for
said County and State, personally appeared
and
, known to me to be
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
5409.17,10
Page 11 of 40
the
and
of
, the corporation that executed the
within instrument, known to me to be the persons who executed the within instrument on behalf of
11 - Exhibit 03--Continued
the corporation therein named, and acknowledged to me that such corporation executed the within
instrument pursuant to its bylaws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
above written.
Notary Public for the State
of
, Residing
at
My Commission Expires
SEAL
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
5409.17,10
Page 12 of 40
11 - Exhibit 04
USDA Forest Service
(Corporation-Existing Road)
Road Name and No.
RIGHT-OF-WAY EASEMENT DEED
THIS EASEMENT, dated this
day of
corporation of the State of
of America, hereinafter called "Grantee,"
, 19 , from
,a
, hereinafter called "Grantor," to the United States
WITNESSETH:
Grantor, for and in consideration of $
received by Grantor, does hereby grant to
Grantee and its assigns, subject to existing easements and valid rights, a perpetual easement for a
road along and across a strip of land, hereinafter defined as the "premises," over and across the
following described lands in the County of
State of
:
(Place land description here)
Said premises are shown on the plat attached hereto marked Exhibit A.
The word "premises" when used herein means said strip of land, whether or not there is an existing
road located hereon. Except where it is defined more specifically, the word "road" shall mean roads
now existing or hereafter constructed on the premises or any segment of such roads.
Said premises shall be
feet on each side of the centerline with such additional width as
required for accommodation and protection of cuts and fills. If the road is located substantially as
described herein, the centerline of said road, as constructed, is hereby deemed accepted by Grantor
and Grantee as the true centerline of the premises granted. If any subsequent survey of the road
shows that any portion of the road, although located substantially as described, crosses lands of the
Grantor not described herein, the easement shall be amended to include the additional lands
traversed; if any lands described herein are not traversed by the road as constructed, the easement
traversing the same shall be terminated in the manner hereinafter provided.
The acquiring agency is the U.S. Department of Agriculture, Forest Service.
This grant is made subject to the following terms, provisions, and conditions applicable to Grantee,
its permittees, contractors, and assigns:
A. Except as hereinafter limited, Grantee shall have the right to use the road on the premises
without cost for all purposes deemed necessary or desirable by Grantee in connection with the
protection, administration, management, and utilization of Grantee's lands or resources, now or
hereafter owned or controlled, subject to such traffic-control regulations and rules as Grantee may
reasonably impose upon or require of other users of the road. Grantee shall have the right to
construct, reconstruct, and maintain roads within the premises.
Grantee alone may extend rights and privileges for use of the premises to other Government
Departments and Agencies, States, and local subdivisions thereof, and to other users including
members of the public.
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
5409.17,10
Page 13 of 40
11 - Exhibit 04--Continued
B. Grantee shall have the right to cut timber upon the premises to the extent necessary for
constructing, reconstructing, and maintaining the road. Timber so cut shall, unless otherwise
agreed to, be cut into logs of lengths specified by the timber owner and decked along the roads for
disposal by the owner of such timber.
This easement is granted subject to the following reservations by Grantor, for itself, its permittees,
contractors, assigns, and successors in interest:
1. The right to cross and recross the premises and road at any place by any reasonable
means and for any purpose in such manner as will not interfere unreasonably with use of the road.
2. The right to all timber now or hereafter growing on the premises, subject to Grantee's
right to cut such timber as hereinbefore provided.
It is agreed that the Grantor shall have the right to use the existing road described herein for all
purposes deemed necessary or desirable by Grantor in connection with the protection,
administration, management, and utilization of Grantor's lands or resources now or hereafter owned
or controlled, subject, however, to traffic control regulations as Grantee may reasonably impose
under 36 CFR 261.12, the bearing of road maintenance costs proportionate to use as provided in 36
CFR 212.7(d).
If, at any time, the Regional Forester determines that the road, or any segment thereof, is no longer
needed, the easement traversed thereby shall terminate. In the event of such determination, the
Regional Forester shall furnish to the Grantor, its successors, or assigns, a statement in recordable
form evidencing termination.
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed by its duly authorized
officers and its corporate seal to be hereunto affixed on the day and year first above written.
by
Title
SEAL
Attest:
(Secretary)
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
5409.17,10
Page 14 of 40
11 - Exhibit 04--Continued
ACKNOWLEDGMENT
State of
County of
)
) ss.
)
On this
day of
, 19 , before me the undersigned, a notary public in and for
said County and State, personally appeared
and
of
,
the corporation that executed the within instrument, known to me to be the persons who executed
the within instrument on behalf of the corporation therein named, and acknowledged to me that
such corporation executed the within instrument pursuant to its bylaws or a resolution of its Board
of Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
above written.
Notary Public for the State
of
, Residing
at
My Commission Expires
SEAL
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
5409.17,10
Page 15 of 40
11 - Exhibit 05
USDA Forest Service
(Unpatented Mining Claims)
Road Name and No.
RIGHT-OF-WAY EASEMENT DEED
THIS EASEMENT, dated this
day of
, 19 , from
*
** (a corporation of the State of
), hereinafter called
"Grantor," to the United States of America, hereinafter called "Grantee,"
* Show marital status of Grantor.
** Strike out inapplicable phrases in ().
WITNESSETH:
Grantor, for and in consideration of $
, received by Grantor, does hereby grant and convey
unto the Grantee and its assigns, including contractors, licensees, permittees, and easement
grantees, a perpetual easement for a road along and across the following described premises situated
in the County of
, State of
.
To Wit:
A strip of land **(
feet in) ** (of variable) width traversing the following
described (lode) (placer) claim(s)
. Located in
section
, T.
, R.
, W.M., (un)surveyed,
.
The said strip being **(
feet) **(from
to
) feet in width on each side of a centerline as
located and (to be) constructed on the ground, with such additional width as required for
accommodation and protection of cuts and fills, the said centerline **(and right-of-way widths) being
located and described as shown on Exhibit A which is attached hereto and made a part hereof.
(As mining claim corners cannot be identified on the ground prior to date of this instrument, Grantor
agrees to grant and convey the right-of-way shown on Exhibit A insofar as it crosses said mining
claim(s)).
If the road is located substantially as described herein, the centerline of said road, as constructed, is
hereby deemed accepted by Grantor and Grantee as the true centerline of the premises granted. (If
any subsequent survey of the road shows that any portion of the road, although located substantially
as described, crosses lands of the Grantor not described herein, the easement shall be amended to
include the additional lands traversed; if any lands described herein are not traversed by the road as
constructed, the easement traversing the same shall be terminated in the manner hereinafter
provided.)
The acquiring agency is the U.S. Department of Agriculture, Forest Service.
Together with such reasonable rights of occupancy on the Grantor's claim(s) immediately adjacent to
said right-of-way as may be necessary for the construction, reconstruction, improvement, and
maintenance of said road.
The herein granted easement and right-of-way crosses the
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
5409.17,10
Page 16 of 40
unpatented mining claim(s) owned and held by the Grantor, acceptance of this easement by the
Grantee shall not constitue a recognition by the Grantee of the validity of the Grantor's mining
claim(s).
11 - Exhibit 05--Continued
This grant is made subject to the following terms, provisions, and conditions applicable to Grantee,
its permittees, contractors, and assigns:
A. Grantee shall have the right to use the road on the premises without cost for all purposes deemed
necessary or desirable by Grantee in connection with the protection, administration, management,
and utilization of Grantee's lands or resources, now or hereafter owned or controlled, subject to such
traffic-control regulations and rules as Grantee may reasonably impose upon or require of other
users of the road. Grantee shall have the right to construct, reconstruct, and maintain roads within
the premises.
Grantee alone may extend rights and privileges for use of the premises to other government
departments and agencies, States, and local subdivisions thereof, and to other users including
members of the public.
B. Any timber which the Grantee deems necessary to cut in its use of the rights, privileges, and
authorities herein granted may be sold or otherwise disposed of by the Grantee on its own behalf.
It is agreed that the Grantor shall have the right to use the road hereinafter to be constructed for all
purposes deemed necessary or desirable by Grantor in connection with the protection,
administration, management, and utilization of Grantor's lands or resources now or hereafter owned
or controlled, subject, however, to traffic-control regulations as Grantee may reasonably impose
under 36 CFR 212.7(a), the bearing of road mlaintenance costs proportionate to use as provided in 36
CFR 212.7(d), and the sharing of the cost of construction or reconstruction proportionate to use as
provided in 36 CFR 212.11.
This easement is granted subject to the reservations by the Grantor, for itself, its permittees,
contractors, assigns, and successors in interest of the right to cross and recross the premises and
road at any placer by any reasonable means and for any purpose in such manner as will not interfere
unreasonably with use of the road.
If, at any time, the Regional Forester determines that the road, or any segment thereof, is no longer
needed, the easement traversed thereby shall terminate. In the event of such determination, the
Regional Forester shall furnish to the Grantor, its successors, or assigns, a statement in recordable
form evidencing termination.
IN WITNESS WHEREOF, the said Grantor has hereunto set its hand and seal on the day and year
first above written.
R6 SUPPLEMENT 5409.17-91-1
EFFECTIVE 10/15/91
5409.17,10
Page 17 of 40
11 - Exhibit 05--Continued
ACKNOWLEDGMENT
State of
County of
)
) ss.
)
On this day personnaly appeared before me
to me known to be the identical
individuals described in and who executed the within and foregoing instrument and acknowledged to
me that they signed and executed the same as their free and voluntary act and deed for the uses and
purposes therein mentioned.
Given under my hand and seal this
day of
, 19
.
Notary Public for the State
of
, Residing
at
My Commission Expires
SEAL
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11 - Exhibit 06
OPTION FOR EASEMENT
KNOW ALL THESE PRESENTS, that
, hereinafter called the Optionor, in
consideration of One Dollar ($1) in hand paid, the receipt of which is hereby acknowledged, agrees
with the UNITED STATES OF AMERICA, acting by and through the Forest Service of the United
States Department of Agriculture, hereinafter sometimes referred to as the Government, as follows:
1. The Optionor does hereby offer and agree to sell, grant, and convey to the United States of
America and its assigns, for a total consideration of $ , the easement described in the attached
form of deed.
2. The Optionor does hereby grant to the Government for a period of
months the irrevocable
right to accept this offer; provided, however, acceptance shall not be made until the following things
have been done:
a. The purchase of the easement has been duly approved and funds are available to pay the agreed
consideration.
b. The title to the land traversed by the easement has been reviewed by the Office of the General
Counsel, United States Department of Agriculture, and a preliminary title opinion rendered showing
that an acceptable title to the easement will have been conveyed upon the proper execution by the
Optionor of the deed, a copy of which is attached.
c. Suitable arrangements have been made to file the deed for record immediately upon its proper
execution and delivery to the Government.
d. The title company has been requested in writing to issue the final Policy of Title Insurance as
soon as feasible after said deed has been filed for record.
e. Suitable arrangements have been made to pay to the Optionor without undue delay, the agreed
consideration upon execution of said deed.
3. The delivery or deposit in the mail of written notice of acceptance to the Option or
at
by the Forest Supervisor,
National Forest or its designee,
shall constitute acceptance and satisfactory notice that all of the requirements set forth in clause 2
as a prerequisite to acceptance have been met.
4. In the event it is determined that the Optionor cannot convey acceptable title to the easement, the
Government, within the period stated, may, in lieu of meeting the requirements set forth in clause 2,
elect to accept this option and acquire the easement by Judicial proceedings.
5. The title evidence shall in part consist of a preliminary and a final Policy of Title Insurance in a
form approved by the Attorney General and the cost thereof shall be paid for by the Government.
6. The Optionor agrees to assume responsibility for payment of all real property taxes which may
have become a lien upon the underlying fee as of date of recording of said deed conveying said
easement to the Government. In the event the Optionor fails to pay said taxes when they shall have
become due and payable, the Government is hereby authorized to pay said taxes and deduct the
amount of same from the purchase price of said easement or to withhold from such purchase price an
amount sufficient to insure their payment, which amount so withheld shall be refunded to the
Optionor when satisfactory evidence has been furnished that such taxes have been paid.
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11 - Exhibit 06--Continued
7. At any time prior to the acceptance of this option, if not previously accomplished, the Government
shall have the right to enter upon the lands of the Optionor underlying and abutting said easement
for the purpose of actually locating on the ground the said easement.
8. No Member of or Delegate to Congress or Resident Commissioner shall be admitted to any share
or part of this option or to any benefit to arise therefrom. Nothing, however, herein contained shall
be construed as extending to any incorporated company, where such option is made for the general
benefit of such corporation or company.
IN WITNESS WHEREOF, the Optionor has executed this option on this
of
, 19 .
Attest:
(Add proper acknowledgment form)
day
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11 - Exhibit 07
USDA Forest Service
Trail, No.
RIGHT-OF-WAY EASEMENT DEED
THIS EASEMENT, dated this
day of
, 19 , from
, hereinafter called "Grantor," to the United States of America, hereinafter
called "Grantee,"
WITNESSETH:
Grantor, for and in consideration of $
, the receipt of which is hereby acknowledged, does
hereby grant and convey to Grantee, its heirs, and assigns, a perpetual easement for a trail over and
across the following described lands in the County of
, State of
:
(Place land description here)
The said easement is in conformity with and located upon the ground according to the survey line,
figures, measurements, widths, and other references shown on the plat hereto attached and made a
part hereof.
The acquiring Agency is the Forest Service, U.S. Department of Agriculture.
Grantee alone may extend rights and privileges for use of the trail to other Government departments
and agencies, States, and local subdivisions thereof, and to other users including members of the
public.
This easement is made subject to the following terms and conditions, provided, that nothing herein
contained shall obligate the Grantee beyond the extent of available authorized appropriations, or
contrary to the rules, regulations, and laws applicable to the Grantee:
1. The condition that the Grantee will close the trail to public use when Grantor is
conducting timber harvesting operations that would endanger trail users, provided, Grantor
furnishes temporary alternate locations for the trail satisfactory to the Grantee; provided further,
the closure will be made effective and alternate locations marked within 15 days of receipt of a
written request from the Grantor; and provided further, the Grantor shall restore the trail to the
same condition that immediately preceded said closure.
2. The condition that no building, structure, or improvements of any kind shall be
constructed, erected, or moved on the easement area, providing that nothing contained herein shall
be interpreted to preclude the right to cross the easement with a road, telephone line, electric
transmission line, water pipeline, sewer line, or other utility line normally used in the development
of a residential or commercial use.
3. The condition that no signs, billboards, outdoor advertising structure, or advertising of
any kind will be erected or displayed on the easement area by the Grantor.
4. The condition that no trash, ashes, garbage, sewage, sawdust, or any unsightly or
offensive material shall be placed on the easement area by the Grantor.
This easement is made subject to the following reservations by the Grantor, its heirs, and assigns:
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1. The right to use the trail or any segment thereof, subject only to compliance with
regulations and rules as provided in 36 CFR 261.12.
11 - Exhibit 07--Continued
2. The right to cross and recross the easement and trail at any place by any reasonable
means and for any purpose in such manner as will not unreasonably interfere with use of the trail by
the United States, its authorized users, and assigns.
3. The right to all timber now or hereafter growing on the easement subject to Grantee's
right to cut timber on the easement to the extent necessary for constructing, reconstructing, and
maintaining the trail. Timber so cut shall, unless otherwise agreed to, be cut into logs of standard
lengths and left along the trail for disposal by the Grantor.
If, at any time, the Regional Forester determines that the trail, or any segment thereof, is no longer
needed, the easement traversed thereby shall terminate. In the event of such determination, the
Regional Forester shall furnish to the Grantor, its successors, or assigns, a statement in recordable
form evidencing termination.
IN WITNESS WHEREOF, the said Grantor has hereunto subscribed its name and affixed its seal on
the day and year first above written.
ACKNOWLEDGMENT
State of
County of
)
) ss.
)
On this
day of
, 19 , personally appeared before me
,
to me known to be the identical individuals described in and who executed the within and foregoing
instrument and acknowledged to me that they signed and executed the same as their free and
voluntary act and deed for the uses and purposes therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
above written.
Notary Public for the State
of
, Residing
at
My Commission expires
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11.1 - Easements for Roads to be Constructed.
Exhibits 01 and 03 are designed to be used for raw land easements where the
Grantor would not be sharing in road construction costs and therefore may be
subject to cost recovery in due course.
Exhibit 05 is designed to provide an adequate legal description despite any of
several uncertain situations such as location of legal corners. There are three
common situations.
1. Where the claim is in either surveyed or unsurveyed land and claim
corners are found, ties should be made to claim corners as in the case of a patented
claim, and the paragraph relating to uncertain locations at the bottom of the first
page of the deed page deleted.
2. Where the claim is in surveyed land and claim corners are not found, tie to
section corners and indicate approximate claim boundaries on Exhibit A with
dashed lines marked approximate location only."
3. Where the claim is located in unsurveyed land and claim corners are not
found, ties will be made to permanent local landmarks such as a creek fork, road
junction, and so forth, or monuments established for this purpose and shown on
Exhibit A, and the approximate claim lines shown on Exhibit A as above. The
approximate 40-acre subdivision lines will be projected from current maps.
The use of a plat as Exhibit A is preferred to a written description. If a written
description is desired, the following format may be appropriate:
...the said centerline being more particularly described as follows:
Starting at a point 1100 fee S. 81 degrees W. of mouth of Platinum
Creek, on the approximately south line of Sunshine #1 claim, this point
being 200 feet east of the SW corner of said claim, thence N. 81 degrees
E. 1300 feet; thence S. 84 degrees 31' E. 1510 feet; thence N. 82
degrees E. 1520 feet to a point on the east line Sunshine #3 Claim
approximately 350 feet south of its NE corner.
Where the owners of a claim wish a more specific description than the evidence on
the ground permits, the claimant is responsible for establishing corner locations and
making boundary surveys. This may require a meeting at the claim site with the
claimant. Any agreement reached as to location of the claim should be in writing.
Easements across unpatented mining claims do not require title approval by the
Regional Attorney. Title companies cannot insure title to unpatented mining claims
because of recording ambiguities. However, it is the responsibility of the Forest
Supervisor to ascertain that the grantor is the owner of record and in possession of
the claim. This is not necessarily the one who originally filed on the claim, since
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mining claims may be transferred by deed the same as any other real estate. The
determination of surface-rights program of a decade ago should assist in verifying
ownership. For certain major projects, a certificate from a Forest Officer certifying
that said officer has made a search of the records regarding ownership of the claim,
from time of filing certificate of location to the present, may be justified. The
certificate would be worded somewhat as follows:
Certificate
I,
, certify that on the
day of
, 19 , a search of
the records of
County, State of
, was made and the
legal owner(s) of the claim(s) M.S. No. (s)
located in
,
section
, T.
, R.
was (were) determined to be
On placer claims, interference by a road with the operation of a claim may present a
few of the following problems:
1. Value allowance for minerals underlying the roadway which may not be
removed because of the presence of the road.
2. Future relocation of the roadway to permit mining of the original right-ofway.
3. Replacement of the road in its original position and condition after the
mining operation is completed.
4. Breaching of the roadway to permit the passage of dredging equipment.
5. Provisions for suitable bypasses to avoid interference with traffic on the
road while mining operations are in progress.
6. Questions as to the responsibilities of the grantor in connection with such
matters.
If requested by the grantor, and agreed to by the Forest Service, provisions
somewhat as follows may be inserted in a deed involving placer claims:
The right-of-way easement herein described is granted and conveyed subject to the
following rights reserved by grantor, its successors, and assigns:
Grantor reserves the right for a period of 20 years from the date hereof to breach said
Road No.
through any and all sections and parts of the road and mine within
the right-of-way and beneath the road itself, provided:
Such breaching and mining results from mining operations conducted pursuant to
the general mining laws of the United States.
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Notice in writing shall be given to the Forest Service not less than 30 1/ days prior to
each breaching of the road.
Grantor shall provide a location suitable to the grantee for the construction of a
detour past such place of breaching not less than 15 1/ days prior to any breaching of
the road.
1/ These are suggested but can be more or less if conditions such as terrain or type
of material warrant.
Construction of each detour will be to a mutually agreed standard and will be
financed as follows. The initial detour will be constructed at grantee's expense. Cost
of all subsequent detours required when the same road segment is breached a second
or subsequent time will be financed by the grantor. Grantee will release in writing
each detour road segment following replacement of each breached road segment.
Grantor has the right to breach the road as often as needed by its mining operations.
Notice of intent to breach must be given to grantee each time in writing as provided
for herein. After mining operations have been completed by Grantor in the area of
the breached road, Grantor will notify Grantee in writing that the breached road
section may be replaced. Grantee will replace the breached road at its cost only after
the initial breaching. Replacement costs will be financed by Grantor for all
subsequent breachings.
Mining activities within the right-of-way shall be conducted in such manner as to
minimize danger to and interference with users of the road.
These problems and suggested deed provisions should be considered when
negotiating for an easement deed. When faced with these or other problems
encountered when constructing a road across a placer claim, assistance from the
Division of Lands and Minerals and the Regional Attorney should be secured.
It is usually difficult to appraise values of underground minerals. Therefore,
payments for mineral values under easements will be the exception rather than the
rule. If mineral values are allowed, the easement should provide that the road will
be disturbed only at the expense of the claimant. On valuable mineral ground,
where the right-of-way is obtained for only a nominal consideration, it is proper for
the United States to assume responsibility for relocation and replacement of the
road within reasonable time limits.
If the right of the Forest Service, its permittees, or cooperators, to construct a road
or trail across unpatented mining claims is questioned, or if a right-of-way is needed
which cannot be acquired by reasonable negotiations, the matter should be referred
to the Division of Lands and Minerals for advice. At the same time, a mineral
examination to determine validity of the claim should be requested.
Exhibit 07 may be used for raw land trail easements.
11.2 - Easements on Existing Roads. Exhibits 02 and 04 are designed for use when
the Forest Service is obtaining easements over an existing road owned by grantor
and grantor is reserving the right to use without being subject to cost recovery.
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Exhibit 07 may be used for existing trail easements.
A prescriptive right-of-way relates to an existing road. It is established by virtue of
use and possession, usually over long periods, under the provisions of applicable
State laws. Rights-of-way thus established may become vested in one or more
individuals, in the public generally, or in a public road authority, such as a county
authorized by law to maintain public roads and acquire rights-of-way. It would not
become vested in the United States except as a member or the public in general.
The manner and period of time in which prescriptive rights become established and
how they may be terminated vary according to applicable State statutes. They are
usually restricted to the traveled way or ordinarily used area. Frequently, such
rights of passage are contested by landowners even after the statutory period for
establishment of the right has elapsed. Therefore, the exact status of such rights-ofway is usually uncertain.
The Forest Service will not improve or reconstruct such roads, or require timber
purchasers to do so.
The Forest Service may continue to use public prescriptive rights-of-way in the
management and protection of National Forest lands, and they may be used in
harvesting timber and other products. They may be maintained for such use.
Attempts to deny continued use of roads in which the public is believed to have
prescriptive rights and which have been maintained and used by Forest Service
users, should be promptly brought to the attention of the Regional Forester, who
will seek the advice of the Regional Attorney. In this event, the facts of construction
and prior use are of utmost importance and must be documented. Therefore,
records of use and road histories should be prepared and maintained for these
roads. See FSH 7709.15 section 14 and FSM 7711.12.
In Oregon and Washington, a prescriptive right-of-way may be established by
uninterrupted use for a period of 10 years.
Generally speaking, the following can be said regarding prescriptive rights-of-way:
1. The width of right-of-way is confined to the actual passageway or
ordinarily used area. This usually would not include the entire area from the top of
any cut slope or ditch line to the bottom of any fill slope or other ditch line, but
would be limited to the part actually used in travel unless proof could be made of
maintenance work done for the statutory period.
2. Prescriptive rights cannot be established when occupancy and use of the
right-of-way are be express permission of the landowner. For example, if the Forest
Service built a road for fire control purposes across private land under authority of a
letter from the landowner permitting such construction and limited use, it could not
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be later used as a basis for establishing a prescriptive right-of-way for the road for
log hauling or use by the general public.
3. Determination of the facts of prior use is usually a difficult and timeconsuming task. All available information dating back to original construction and
later improvement, maintenance, and use, must be documented by witness
statements and public records if the case is to go to court. An affidavit from the
former ranger or road foreman is necessary when the right is based upon the
landowner's oral acquiescence. When it is based on adverse possession, affidavits
from two or more impartial witnesses who have resided in the vicinity for at least
10 years are required. A suggested format for such an affidavit follows (exhibit 01).
A map showing the road in question should be attached to each affidavit.
4. When an easement being acquired involves an existing road with apparent
multiple-use prescriptive rights, compensation will be limited to the value of the
additional width taken. Appraisal allowances for damages and enhancement of
values, if any, will be confined to those that accrue to the additional width outside of
the prescriptive right-of-way. The deed description, however, should include the full
width of the right-of-way, including the existing road.
5. Preparation of the right-of-way plat for an existing road can be quite
simple. Refer to the Land Surveying Guide EM-7150-3.
6. Negotiations. When roads are in place and in use, property owners
commonly accept the existing situation and usually are willing to execute an
easement during the first contact. This is especially true if rights exist by virtue of
statutes. When evidence indicates that prescriptive rights exist, it should be
tactfully explained to the landowner that it is advantageous to all parties involved if
everyone's interests are defined. Further, the Government cannot expend
betterment or reconstruction funds on a road without holding a valid easement.
Since the value of the land commonly increases in direct proportion to the quality of
access, it is usually to the property owner's interest if the Government has the
authority to improve the road. Another inducement is that market value can be
paid for the desired rights.
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11.2 - Exhibit 01
UNITED STATES DEPARTMENT OF AGRICULTURE
FOREST SERVICE
Affidavit to Establish Prescriptive Rights
STATE OF Washington
COUNTY OF Cowlitz
)
) ss
)
I, R.J. Smith , whose address is Kelso
,
Washington
, being first duly sworn say: That
I make this affidavit in connection with a certain road or trail traversing the following described
lands situated in the County of Cowlitz
, State of
Washington , to-wit:
SE1/4NE1/4, NE1/4NE1/4, E1/2SE1/4, Section 13, T. 9 N., R. 4 E., W.M.
and which road or trail involves an area approximately 66 feet in width, being approximately
33 feet on each side of a center line which traverses the above described land as follows:
As shown on Exhibit A attached
That I have resided in the vicinity of the said lands for more than 15 years previous to the date of
this affidavit and during all such time was familiar with such lands and the use thereof which was
being made; that during all said time the area involved in the above-mentioned road or trail was
used by
Forest Service
for the purposes of
(Forest Service employees - Timber)
(Operators - General Public)
Transportation of Logs
;
(Administration and Protection of National Forests - Transportation of Logs and Forest Products Access to Recreational or Other Areas)
thatsaid use was open and continuous and adverse to the rights of the owners of the lands
traversed by said road or trail.
/s/ R.J. Smith
Subscribed and sworn to before me this 10th day of December , 1983.
/s/ John D. Smith
Notary Public in and for the
State of Washington residing
at Quartzville
My commission expires 9/10/84
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11.44 - Procedure. The Region's need for acquiring easements across railroads and
altering railroad crossings is so infrequent we are unable to keep up with the
changes made in State statutes and State rules and regulations applicable thereto.
It is, therefore, recommended Forests contact the Regional Office, Lands and
Minerals, for assistance prior to commencing any negotiations with railroad
companies.
Typical procedures for acquiring proposed or existing transportation plan crossings:
1. State of Oregon. Laws applicable to railroad crossings may be found
under Chapter 763 of the Oregon Revised Statutes (ORS). Rules and regulations
applicable to railroad-highway crossings are under Division 42 (Railroad Division).
Applications are under Division 43.
a. Proposed crossings
(1) Inform railroad representative, usually local division superintendent or
representative, of the need for the right-of-way crossing easement.
(2) Prepare application to Oregon Public Utility Commission for order to
cross railroad right-of-way. Order granted by the Commissioner will stipulate
safety requirements and who will construct and maintain crossing. Prepare this
application cooperatively with local railroad representative. The Commissioner will
request both parties to comment in writing on the application. If the parties can
agree on the terms of the crossing permit, the Commissioner will issue it without a
public hearing. If they cannot agree, a public hearing will be necessary.
Applications shall be filed on forms approved by the Commissioner. Detailed
instructions for preparation of applications are available from the Regional Office.
Forest Supervisors will prepare applications in final form and forward to the
Regional Office for review and signature by the Regional Forester. The Regional
Forester will forward applications to the Public Utility Commissioner.
(3) Easement--prepare in draft form and forward to Regional Office for
review.
(4) Negotiations--handle like any other private land easement. In addition,
there may need to be an agreement between the railroad company and the
Government covering construction and future maintenance procedures.
(5) Eminent Domain Procedure will be followed if the right-of-way cannot be
secured within a reasonable length of time. This period will normally not exceed 2
to 3 months.
b. Existing Crossing. All crossings are assigned identification numbers by
the Commissioner.
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Application to alter an existing crossing will be made to the Commissioner on forms
approved by the Commissioner. The application will be prepared in final form by
the Forest Supervisor and forwarded to the Regional Forester for signature and
submission to the Public Utility Commissioner as for proposed crossings.
2. State of Washington. Laws applicable to railroad crossings may be found
under Chapter 81.53 of the Revised Code of the State of Washington Statutes,
Revised Code Washington (RCWA). State of Washington laws do not provide for the
Forest Service to make application to the Utilities and Transportation Commission
for railroad crossing permits. However, the Commissioner's safety rules will be
followed for all existing and proposed railroad crossings.
Existing and proposed crossings:
- Easement--Same as Oregon (Item a.3)
- Negotiations--Same as Oregon (Item a.4)
12 - PREPARATION AND CONTENTS OF EASEMENTS. Deeds will be typed on 8
1/2 inches by 11 inches good quality paper. The use of word processors can greatly
reduce the amount of proofreading needed to ensure accuracy in preparation. If
right margin justification is used, deed must be proofread to eliminate unacceptable
spacing in legal description and incomplete lines. References to specific deed
language in the following discussion are to the Region 6 formats (FSH 5409.17,
section 11).
12.1 - Date and Grantor-Grantee Recitation. The word "Grantor" will be used, even
when the grant is made by two or more individuals. Showing the marital status of
individual grantors is essential in Washington and California. Both husband and
wife must be named in these two States, even if title evidence shows only one as
record owner. In Oregon only those shown in the title policy need to be named, and
marital status is not required.
As a general rule all partners in a partnership must be named. The only exception
is a limited partnership. The limited partners do not have to be included.
When lands are in estate status, held in trust, and so forth, the relevant facts
regarding authority to act for the entity should be presented to the title company for
advice as to how the deed should be executed.
When the property traversed by a right-of-way is subject to a sales contract, the
purchaser must also be listed as a grantor. Frequently, such sale contracts are not
recorded and the taxes are paid by or in the name of the record owner. The
existence of a sales contract or similar instrument may be revealed through inquiry
of the owner or parties in possession.
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All individuals or groups having an interest in the fee title should be joined in a
single conveyance. When this is not feasible, separate deeds are acceptable. If
more than one deed is to be prepared for a case, care must be taken to not recite the
full amount of consideration on both deeds. The consideration recited on each deed
should be only that portion of the total consideration that is to be paid to the
individuals signing the deed. The division of the consideration is a matter between
the grantors, and the Forest Service should not become involved in the distribution.
When two or more deeds are prepared, do not list all of the grantors on each deed.
Include only those who will sign the deed.
12.2 - Granting Clause. If fencing the right-of-way is necessary and is included in
the proposed construction or reconstruction project, then provision for fencing
should be included in the granting clause. Modify the clause to read "...easement,
including the right to fence for a road...." This modification will not be used where
the fencing is to replace an existing fence.
When all or part of the timber in the right-of-way is to be acquired, one of the
following phrases needs to be added immediately after the word "road," and the
timber reservation (FSH 5409.17, section 12.41) changed accordingly.
1. "..., and all timber now or hereafter growing on the lands within the
easement,..."
2. "..., and that timber which is currently marked and designated for removal
in road construction,..."
In cases when a written description is required, the written description is
introduced thus:
"Said premises are more specifically described by a centerline description contained
in Exhibit A, attached hereto."
For variable width right-of-way, replace the first line of the clause defining right-ofway width with the following first line:
"Said easement (premises) shall be variable in width as shown in Exhibit A with
such..."
12.4 - Reservations and Covenants.
If there are outstanding rights specified in the deed, the title packet should verify in
three ways:
1. Copy of the instrument referred to.
2. Location shown on the plat or sketch.
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3. Forest's comment as to impact on the subject road right-of-way.
When a third party requests permission to occupy portions of the Forest Service
right-of-way, a Consent Agreement (Chapter 21.34--3, Exhibit 3) must be obtained
from the Forest Service. An easement for the requested use must be secured from
the landowner.
12.41 - Timber Reservation. Under Granting clause (1) (R6 FSH 5409.17, section
12.2), no timber will be included.
The following clause is applicable when the Forest Service acquires title to only the
timber to be cut during construction (Granting Clause R6 (2)).
Grantee shall have the right to cut timber upon the premises to the extent necessary
for constructing, reconstructing, and maintaining the road. Timber so cut, except
that hereinbefore granted, shall, unless otherwise agreed to, be cut into logs of
lengths specified by the timber owner and decked along the road for disposal by the
owner of such timber.
12.42 - Right to Cross Right-of-Way. The interpretation of this reservation will be
tempered by the practice in similar terrain and on similar roads (FSH 5409.13,
section 71.62d). The practice followed in the area on comparable roads by the
Forest Service and by private owners is the best guide to what is reasonable
exercise of the right.
This clause is not intended to include the right to later develop a subdivision along
one or both sides of the road, which would result in a number of approach roads or
driveways. These roads would be considered to be an unreasonable interference
with through traffic.
The grantor's access along or across an easement to be acquired by the United
States for a road can be limited or prohibited by including certain clauses in the
easement deed. Limiting or prohibiting access may be appropriate when the
easement to be acquired is located in an existing, proposed, or potential subdivision
area or other similar development and such limitations are needed for the safe use
and/or for the protection of the road.
The following are samples of clauses that can be included in an easement deed
regarding access.
R6 Right-of-Way Easement Deeds contain the clause:
The right to cross and recross the premises and road at any place by any reasonable
means and for any purpose in such manner as will not interfere unreasonably with
use of the road.
This clause allows the grantor to construct roads across the easement or to
construct connecting roads along the easement in a manner that will not interfere
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with the grantee's use of the road. The grantor has this right without reserving it
in the deed, but most grantors would prefer to have the clause included in the deed.
When the right of access needs to be limited for road safety, protection of the road,
or for other reasons, one of the clauses indicated below can be included in the deed
to accomplish this objective.
1. If the location of the access points can be determined at the time the deed
is signed, the access points can be shown on a map attached to and made part of the
deed and the following clause included in the deed:
Grantor, its successors, and assigns shall have (the right to construct, use, and
maintain roads across the easement) (and) (the right to construct, use, and maintain
access road connections at points along the easement) only at the locations shown on
the attached map marked Exhibit , and to the specifications approved by the
Grantee. Said rights shall be exercised in a manner that will not materially interfere
with Grantee's use of the road.
Either the right to construct access roads across the easement or the right to
construct access road connections along the easement, or both, may be included in
the above clause.
2. If the location of approved access points cannot be determined at the time
the deed is signed, the following clause may be used:
Grantor, its successors, and assigns shall have (the right to construct, use, and
maintain roads across this easement) (and) (the right to construct, use, and maintain
access road connections at points along this easement), only at locations to be
approved by the Grantee, in writing, and to the specifications approved by the
Grantee. Said rights shall be exercised in a manner that will not materially interfere
with Grantee's use of the road.
3. If the access points to be approved should be limited in number, the
following clause may be used:
Grantor, its successors, and assigns shall have (the right to construct, use, and
maintain roads across this easement) (and) (the right to construct, use, and maintain
access road connections at points along this easement), only at (Number)
locations, to be approved by the Grantee. Said rights shall be exercised in a manner
that will not materially interfere with Grantee's use of the road.
4. In most cases, limiting the location and number of access points along an
easement would provide sufficient control needed for the safe use and protection of
the road. However, if access must be prohibited along the easement, the following
clause would be included in the deed:
Grantor, its successors, and assigns shall not have the right to construct roads across
this easement or the right to construct access road connections along this easement.
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This clause should not be used unless there is definite need to prevent access. This
type of easement could be very costly to acquire as severance damage to the
remainder of the property could be substantial.
These clauses should not be included as standard practice in easement deeds.
However, they may be used at the discretion of the Forest Supervisor where there
exists a particular need to limit or prohibit access along the easement.
13 - DEED EXECUTION, CERTIFICATION, AND RECORDING.
13.1 - Execution.
1. Signatures. All persons cited in the first paragraph of individual deeds
must sign the deed. When a contract of sale is involved, either recorded or
unrecorded, both record owners and contract purchasers must execute the deed.
Community property states (Washington and California in Region 6) require
signatures of both husband and wife even when only one has an interest of record.
In Oregon only the signatures of the persons having the recorded interest are
necessary.
If title is held under a limited partnership, either a general partner or managing
partner must sign. Under a general partnership any partner can sign. In either
case, the signature of only one partner in the partnership is required.
When lands are in estate status, held in trust, and so forth, the relevant facts
regarding authority to act for the entity should be presented to the title company for
advice as to how the deed should be executed.
Where deeds are signed with a name different than that shown as the grantor, the
discrepancy may be corrected by an affidavit if the names and initials correspond.
If they do not, a new deed must be executed.
2. Seal. The corporate seal is not needed in the states of Oregon and
Washington. The corporate seal, if available, is required for all easements in the
State of California. In the absence of an available seal, obtain a Substitution-ofAuthority-to Sign. This is usually in the form of a Resolution issued by the Board of
Directors authorizing specific officers to sign the deed. Sometimes the signing
authorization is adequately spelled out by the grantor's by-laws.
13.2 - Certification. In Region 6 a Forest Supervisor has authority to record routine
deeds without preliminary title review by the Regional Attorney (FSH 5409.17,
section 21). This makes certification doubly important. Following is a checklist to
ensure propriety, accuracy, and completeness:
1. Name of grantor in opening clause is identical to name under which record
title is held (FSH 5409.17 section 12.1).
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2. Name of grantor in opening clause corresponds precisely to signature
(FSH 5409.17 section 13.1).
3. Marital status of individuals is shown (FSH 5409.17 section 12.1).
4. County and State where property is located is correctly shown.
5. Word "Grantor" used even though two or more owners are recited and
execute the deed.
6. Full consideration recited (FSH 5409.17 section 14.53).
7. All land subdivisions crossed by easement listed.
8. Written description if used (FSH 5409.17 section 14.2).
a. Checked by individual who is not the author.
b. Corresponds precisely to plat data.
c. Indicates length and acreage correctly.
d. Right-of-way width indicated.
e. Includes applicable statements such as, "the boundary lines.... shall be
prolonged or shortened...."
9. Plats to be recorded:
a. Contain essential date (FSM 7153 and Land surveying Guide EM 7150-3).
b. Size conforms to recording requirements.
c. Detail character is legible after recording.
10. Deed in proper format and any nonstandard conditions approved by
Regional Office (FSH 5409.17 sections 11 and 12).
11. Deed language not altered by grantor without approval of Regional
Forester.
12. Individual or partnership deeds executed by all persons named in
opening clause.
13. Acknowledgment (FSH 5409.17 section 13.1).
a. Shows State and county of acknowledgment.
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b. Notary seal legible.
c. Acknowledgment date corresponds with or subsequent to date in opening
clause.
14. Approval certification signed and dated.
14 - NEGOTIATIONS.
The first approach to negotiations for rights-of-way is particularly consequential. A
careful, planned approach will usually:
- Save time; eliminate outright refusal.
- Save money; prevent unreasonable asking price.
- Prevent necessity of condemnation.
Experience suggests the following guidelines:
- First contract should be by, or with, a Forest Service representative, such as
the District Ranger, who has the landowner's confidence.
- Find out background of the owner before meeting.
- Be businesslike but considerate. It's the owner's land that is being taken.
- Let the landowner know what is coming and why. Facts discourage rumors.
- Explain frankly the sideboards on Government negotiation (FSH 5409.17
section 14).
- Be careful with commitments, then honor them.
- One Forest Service representative should handle the negotiations
throughout.
- Do not beat around the bush. Make a specific offer.
- Keep moderate pressure on the landowner. Do not forget the state of
negotiations. Use critical path chart, worksheet, or promise card.
- Face to face negotiations are most effective. Telephone is next best.
- Letter writing has pitfalls. A letter writer should:
- Put oneself in the landowner's place; avoid antagonizing.
- Use language which cannot be misunderstood.
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Acquisition of an easement over an existing road often presents some special
problems. The objective of a private timberland owner are obviously different from
those of a Federal land management agency. If the private owner is engaged in
active logging and hauling of timber, the difference in objectives is even more
marked. Among the major issues encountered are:
1. Control of heavy hauling of all parties using the road. The road owner has
exercised this control, and thereby preserved the capacity needed, prevented
damage during wet periods, collected payment of toll plus maintenance charges,
and, in a few cases, simply prohibited use at certain times by certain haulers. The
Forest Service objective, in conformity with 36 CFR 212.9(g), is to exercise control of
heavy hauling, not only to protect National Forest timber purchasers, haulers of
permittee livestock, and so forth, but also for the use and development of other
resources upon which nearby communities are dependent, including other nonFederal timber and minerals. At the same time, the Forest Service is concerned
with adequate road capacity, prevention or repair of damage, and maintenance
proportionate to use, and can employ 36 CFR 261.50(b) to exercise control.
2. Control of use by recreationists and other members of the general public.
The road owner has either prohibited such use entirely, permitted it during certain
periods such as deer hunting season, or simply taken no action to prevent it. In any
event, the owner has retained the legal right to terminate such use if and when
company management determines it is in the company's interest to do so. The
Forest Service objective is to exercise control of use by recreationists and other
members of the general public.
3. The road owner may want a much higher value than just compensation,
based upon such items as exorbitant toll rate, exaggerated concepts as to the effect
on company operations of the loss of traffic control, original construction costs long
since amortized, and so forth.
4. Consideration shall be given in each case to the needs of the owners to use
the existing roads in protection, management, and utilization of their lands and
industries. The second page of the Secretary's letter of June 10, 1963 addresses this
policy. The road owner is protected by the reservations in the easement. These
reservations go also to his successors and assigns.
5. One reservation sometimes requested is the right to continue use of trucks
wider than those permitted on State highways. To suddenly bar the road owner's
trucks from the road would be costly to them, and also to the Government in that
payment for damages would be heavy. Accordingly, the road is normally taken with
the reserved right to haul loads up to the widths and weights currently being
hauled. If the Government is to obtain full interest in the road at some future date,
the reservation should terminate on that date, or after a reasonable period during
which the grantor may amortize its investment in the oversized equipment. Refer
to FSM 7731.17 on Off-Highway Haul.
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6. Some items are noncompensable. The Federal courts have held that just
compensation does not include payment for consequential or speculative damages.
If the road owner puts forth any of the following items as warranting additional
compensation, the negotiator should respond that such damages have been judged
to be speculative, and therefore, noncompensable:
a. That increased use by recreationists will increase forest fire occurrence, and
thereby increase the road owner's fire damages and costs.
b. That increased use by recreationists will result in vehicle accidents, and thereby
will increase damage suits against the road owner's and will require it to obtain
increased liability insurance coverage.
c. That losing control of both heavy hauling and public use will result in substantial
interference with company hauling, and thereby increase its production costs (may be
compensable in a few extreme situations).
d. That removal of the requirements that other haulers carry heavy comprehensive
liability insurance covering their logging operations as well as their use of the road,
and that they indemnify the company against any damage or loss arising out of the
hauler's use of the road, will result in substantial financial loss to the company.
An option may be used in negotiations in any of the following situations:
(1) The landowner is unwilling or unable to convey the deed until payment is made.
(2) There is a substantial purchase price involved and some degree of flexibility in
funding is necessary.
(3) There are delinquent taxes.
The option format (exhibit 06 FSH 5409.17 Section 11) has been devised to provide
for agreement on the consideration, the language of the deed, a definite option
period, a letter of acceptance, and assumption of property taxes by the optionor.
The names of the optionor, in the first paragraph and signature block, will be shown
exactly the same as the Grantor is shown in the deed. The option should be
acknowledged and recorded.
As provided in option clause 2a, the Government cannot and will not give written
acceptance unless or until funds are available to pay the consideration. The Forest
Supervisor has the same dollar authority in negotiating options as the easements.
An option is a legal document and binds the optionor during the irrevocable period,
normally 12 months, even though it has not been accepted in writing by the Forest
Service. For formal acceptance of the option, the form provides for and requires
written notice of acceptance, clause 3.
The indefinite phraseology of Clause 2(d) of the option is necessitated by slow
procedures in some title companies. In the event a prospective optionor is reluctant
to rely upon 2(d), there are two other methods of completing the transaction.
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1. The optionor may make his own arrangements with the title company to
obtain prompt issuance of the final title insurance policy.
2. The Forest Supervisor may, prior to delivery of the deed, request a
supplemental title insurance policy. Immediately upon receiving it--and assuming
it reveals no additional entries in Schedule B--the deed may be accepted and
payment made. The deed should be filed for record the same day and final title
insurance policy requested promptly thereafter.
The executed and recorded option, the preliminary title insurance policy and the
three Forest's certificates should be forwarded for preliminary title approval.
After items 2(a) through (e) of the option have been completed, the optionor will be
given notice in writing that the option is accepted.
Payment of the consideration will not be made until all action prescribed by the
preliminary title opinion has been taken.
14.2 - Description. For detailed instructions on surveys and descriptions, refer to
FSM 7153 and Land Survey Guide EM-7150-3.
Only in condemnation cases are both a right-of-way plat and written description
required. For all other cases, use either one but not both. Unless the landowner
requires a written description, a plat will be used in Region 6. The description
needs to include sufficient information so a competent surveyor can reestablish the
right-of-way without referring to other supplemental information.
The validity of current deeds is protected by the statement:
If the road is located substantially as described herein, the centerline of said road
construction is hereby deemed accepted by Grantor and Grantee as the true
centerline of the premises granted.
The above statement is not permitted on condemnation cases, nor by some
landowners. Its purpose is to cover any minor changes that occur during
construction or reconstruction so a new easement is not required. It is not a
substitute for an inadequate description.
A precise written description is not required in condemning an existing road or trail
not planned for reconstruction. A simple description may suffice, particularly
where the road or trail is in a relatively straight line across the property. For
example: "Commencing at a point on the west quarter corner of said Section 6
bears northerly approximately 930 feet; thence along the centerline of the existing
road in a northeasterly direction over and across Lot 5 approximately 1,370 feet to a
point on the north boundary of Lot 5, from which the said west quarter corner bears
westerly approximately 1,005 feet.
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When the precise location of land lines is uncertain, all subdivisions which might be
crossed by a right-of-way should be listed in the easement deed. The entire 40 will
be the smallest legal subdivision cited except in cases where the Grantor does not
own.
Technically, parcels segregated as tracts (Tr.), minerals surveys (MS), homestead
entry surveys (HES), and land eschange surveys (ES), are not standard township
subdivisions. Nevertheless, it is desirable to indicate the township, range, and
section in which such parcels lie.
The sequence of listing legal subdivisions should conform to the preferred order
specified in Specification for Description of Tracts of Land for use in Land Order
and Proclamations (U.S. Government Printing Office - Stock number 024-01100117-4). When less then five subdivisions and only one section and township are
involved, the following land description format is satisfactory:
"...over and across the following described lands in the County of
State of
:
,
"lot 1, S1/2NW1/4, N1/2SW1/4 sec. 18, T. 18 N., R. 22 E., W.M."
Where two or more sections or townships or more than four sectional subdivisions
are cited, the following method of describing land will be used:
T. 6 N., R. 6 E., W.M.
secs. 3 and 4, H.E.S. No. 228, Washington;
sec. 5, lot 7 and SW1/4NE1/4;
sec. 6, lot 6, S1/2NE1/4, and SE1/4NW1/4.
T. 7 N., R. 6 E., W.M.
sec. 34, SE1/4SW1/4
"Rights-of-way will be wide enough to include all planned construction. Deed
language (FSH 5409.17 Section 11) providing for additional width for cuts and fills
is meant to cover unforeseen changes or occurrences. Normally, the following
minimum width should be acquired:
Roads:
Trails:
Telephone lines and conduits:
Fences, ditches, and pipe lines:
Stock driveways:
66 feet, or more if necessary
15 feet
10 feet
10 feet
66 feet
If a landowner insists, a narrower right-of-way may be acquired provided the rightof-way line is at least 5 feet outside the clearing limit, top of cut, or toe of fill.
14.55 - Release of Grantor's Liability. Although the government cannot "hold the
Grantor harmless," it should be pointed out to him that the landowner's liability on
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a road owned and administered by the Forest Service is substantially less than it
would be on his private road.