I offer for consideration a boundary problem.
A recorded subdivision plat dedicates to the public a street of 60' width as indicated by dimension shown on the plat. Recent surveys performed due to conflicts unrelated to the right of way reveal that the original monuments were set for a street width of 50'. The monuments are visible and have been relied upon by the lot owners since the plat was recorded. There are also easements adjacent to the right of way as indicated on the plat. There are buried utility lines within the area represented by the monuments.
The following principles are in conflict:
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Original monuments always control lot location.
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If proration must be applied between blocks, streets and alleys are allotted their full platted width and are not prorated.
The questions are which principle rules?
And where is the easement?
This is in Colorado where we do have guidance from the courts on original monuments (CAMB v. Morales) and proration (Whiteman v. Mattson), but not a situation such as this that I can find.
I appreciate all opinions, but what I would really like is reference to a court ruling on a similar case.
Is the "50 in a 60" row problem everywhere in the plat, or just a spot or two?
Is the road/row in question only along the front of the lots?
If so, are the rear of the lots correct, and/or does the exterior of the plat abut adjacent correctly?
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@michigan-left Everything is fine except the monumented width of the road. It is a short cul de sac in a small subdivision.
The two principles you listed can not be in conflict. The first one says the original monuments control. The second tells you what to do when you "must" proportion between blocks. Fortunately you found the original monuments so there is no reason to proportion between blocks.?ÿ
@kscott?ÿ
Are you required to monument easements?
I've seen folks put the 10' wide easement for utilities on the wrong side of the row/lot line before. (i.e. "inside" the row)
Right of way widths in a new subdivision are not set at the whim of the subdivider. At least not in the last 70 years or so. They are determined by some local planning ordinance and/or road standard. If the applicable ordinance of the day called for a certain width that is probably what you should hold for right of way width.?ÿ
Note that for?ÿ right of way to be dedicated there is a 2 part procedure. There must be an offer to dedicate, which typically comes in the form a plat submission, or a deed. Then there must be an acceptance by the appropriate public agency, typically in the form of a signature by some authorized party on the face of the document. That acceptance won't come if the map doesn't show the proper widths, and it isn't reasonable to expect the public agency to check that the monumentation conforms to the map. This is all to say that a certain right of way width, likely the one shown on the map, is a prerequisite for subdivision approval.?ÿ?ÿ
Right of ways are in the manner of an easement, not a fee boundary. As such, monuments marking a right of way line are a little different from other boundary monuments. They are essentially offsets of the centerline. It is just a question of how much.?ÿ
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30 or so years ago I came across a similar but opposite situation.?ÿ We were surveying for the design of a widening project.?ÿ R/W monuments on a State Route were found 60 feet from centerline (within reason).?ÿ Upon doing my due diligence research I got copies of the 1940s road plans and copies of the deeds granting (fee simple) right of way.?ÿ The plans called for 120 feet of right of way,?ÿ The only problem was that for a significant length of the road the right of way deeds called for "50 feet from centerline".?ÿ I noted all this and brought it to the attention of the attorney for our client.?ÿ To the best of my recollection the State claimed the 60 feet by adverse possession, or whatever doctrine would cover the sovereign.
Andy
@aliquot?ÿ
A more accurate statement of the second principle which I think is in conflict, is that the right of way always gets its full width.
@Mi-other-left
It is not required that easements be monumented. The utility companies generally rely upon the monumented common line between the r-o-w and the easement for utility location.
@Norman Oklahoma
Some of our subdivision plats actually dedicate the r-o-w in "fee simple" as required by local government. I don't have this plat in front of me (my day off) but I suspect it predates that requirement.
A good friend of ours and now retired surveyor/attorney was fond of stating that CAMB v. Morales is Colorado's survey blunder rule case. It differs from your situation in that it is between two private parties not between a government entity and private parties.
Over a decade ago I did some research on Colorado court cases and one I came across may provide some insight to your problem. It is:
Link v. Jones, 15 Colo. App. 281 (1900)
Sept. 1900 ?ú Colorado Court of Appeals ?ú No. 1802
It was a dispute between Park County and Jefferson counties regarding the common boundary as established by the Colorado Territorial Legislature in 1861. Link and Jones were the county treasurers of the Park and Jefferson counties respectively
I love the first line of the opinion, which reads:
Why the possible dispute over these boundaries has lain dormant for nearly forty years and only thrust itself on judicial attention at the threshold of the twentieth century, is past comprehension.
The fact that this is between two Colorado counties may help persuade either the county attorney or municipal attorney that monuments should also control the width of a street dedication in a manner similar to CAMB v. Morales, esp. since both are based upon a recorded subdivision plat. The attorney could then ponder and posture as to whether to recommend to the city council or county commissioners that vacating the 10 feet in the dedication would solve the problem in an equitable fashion. (I know....wishful thinking on my part.)
I seem to recall that the rules allocating portions of vacated streets and alleys to the adjacent landowners was changed, but this is not something that I do in my practice so I may be having another senior moment about something I vaguely recall.
It just seems to me to be the easiest fix to this, but what the heck do I know.
Good luck, Scott.
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A footnote: Calling David Karoly to the white courtesy phone; David Karoly to the white courtesy phone please! 🙂
I would really like is reference to a court ruling on a similar case.
157 Iowa 237; 138 N.W. 448
Cottage Grove avenue has been fully improved with paving, gutters, curb, and parking, and these improvements have been adapted to the encroachment, if such it is. If the monuments upon the ground are controlling as to the property owners, there is nothing in this record to indicate that they are not likewise controlling upon the city. In this view, the mistake or discrepancy, if any, has operated equitably upon all. It does not appear that any property owner has been deprived of any dimension or suffered in location. The sum of the whole trouble seems to be that there is a loss of width to Cottage Grove avenue, and a gain to University avenue.
It does appear that Cottage Grove avenue is only approximately sixty-two feet wide, whereas it is supposed to be, according to the plat, sixty-six feet wide.
In such a case the law seems to be well settled that the survey upon the ground as ascertained by monuments then made to mark the boundaries of the lots is controlling, and the paper plat and field notes must give way thereto.
@norm Thanks. That helps.
I'll throw some Brown into the discussion...
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Calling David Karoly to the white courtesy phone
@aliquot?ÿ
A more accurate statement of the second principle which I think is in conflict, is that the right of way always gets its full width.
@Mi-other-left
It is not required that easements be monumented. The utility companies generally rely upon the monumented common line between the r-o-w and the easement for utility location.
@Norman Oklahoma
Some of our subdivision plats actually dedicate the r-o-w in "fee simple" as required by local government. I don't have this plat in front of me (my day off) but I suspect it predates that requirement.
But that is not more accurate. The principle as expressed by the courts was accurately stated in the OP.?ÿ See the excerpt from Brown above. For some reason surveyors themselves have translated that to your second version.?ÿ The Courts as pointed out by Norm, have not often agreed with that translation.?ÿ
I think one reason surveyors have made this transition is because of our dealings with DOTs. They often bluff their way to what they want. Often it's much easier for surveyor and client to just go along.?ÿ
Andy's situation is a good?ÿ example of public prescriptive rights in action, but prescriptive rights require actual use, which it sounds like you don't have.?ÿ
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@mike-berry yep. The important part of 6.24 that is often ignored?ÿ is "in the absence of monuments".
@aliquot?ÿ
Exactly. I had sent that for reference to our legal counsel in regards to a dust up over a county road R/W width of 40 vs. 60. The 1920s order of establishment stated 60, but there were differences with some previous documents along with homesteaders' improvements on the ground. Original monumentation was centerline PIs as was the custom at that time, so legal determined the documented 60' held since the abutters had not relied on monumented widths.?ÿ
Generally, the municipality or government agency is treated with the same rules as private parties in land boundary issues.?ÿ Things can become slightly different if a taking is involved.?ÿ Of course jurisdictional specific statutes can change things, so have to be careful.?ÿ
Here's one I used for proposition that State is treated the same as individuals in evaluating a land boundary.?ÿ In this case the monument(s) were much less clear than in your case.
My understanding is 10 feet of ROW is ??missing? as monumented. ?ÿI??m not clear where the 10 feet went? ?ÿAre the lots longer or was the 10 feet never there? ?ÿFor example if the lots were suppose to be 200 feet deep on each side are they now 205 feet. ?ÿIn my opinion if the 10 feet was never there the ROW should be 50 feet.
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I know Lucas has pointed out at couple of court cases where towns have lost ROW. ?ÿHe is saying they don??t always get their platted ROW, they can be subject to prorating, adverse possession etc. ?ÿThe reason there isn??t a lot of court cases is people don??t have the money to fight the government in court normally.
City of Leadville v. Bohn Mining Co., 37 Colo. 248, 86 P. 1038, 1040 (1906).
Not what you're looking for concerning the width question but it does discuss Colorado street dedications and how Colorado treats public ownership of the street. It may be difficult to find a case that exactly answers the question of ROW widths.?ÿ
A dedicated subdivision with original lot corners would override the width, but the city losing 10 feet will be an extreme example. As David Livingston asks above are the monuments creating an extra 5 feet of Lot width? That could well show that they are 5' out in the ROW and were never meant to monument the lot corner. If the lots are monumented with the correct width and the plat has total width dimensions labeled, where did the 10 feet go?
Locally there are streets with large discrepancies between the platted and monumented widths, but mostly they give extra to the city and are usually along two merging subdivisions. Always, found original monuments along a street make the street width vary from the platted width.?ÿ
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@mike-berry Thank you. I'm embarrassed that I didn't find that.