@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.
Thanks to all. The lots have gained additional area as a result of the original monuments. As I stated in the op, this is all a result of a dispute not directly related to the street width. Rather, it is a dispute over an easement, tied to the easement adjacent to the street with ties to lot corners that don't fit due to the discrepancy between the platted width and the monumented width. It is a private party dispute that has potentially involved the County.
Again, this forum has proved to be a valuable resource.
The general principle is that monuments mark what they were intended to mark. If the dedication is 60 feet but for whatever reason the Surveyor marked a 50 foot width (perhaps the Plat was revised after monuments were set) then the City has a solid claim to 60 feet especially in the case where the lots are their platted depth with a 60 foot street.
This is different from the case where the Surveyor intended to mark a 60 foot street but did so with errors which are normally to be expected.
Monuments in place can cause objective uncertainty and good faith acceptance of the monuments by all involved may cause the street to be recognized as 50 feet wide.
If there's an extra five feet of lot width each side of the street the case can well be made that the monuments are witness corners 5 feet out into a boulevard of the street. An unusual way to do it.?ÿ
@dave-karoly Yeah, but I would still argue the intent was 50 feet, evidenced by the monuments set at the time.?ÿ Of course, if the monuments were not set at the time, and you can prove that, then maybe something else.?ÿ But general rule remains, the monuments set are consummation of the deal, especially when both parties accept them.
I agree, strong case for 60 foot.?ÿ We surveyors get in the middle of these things.?ÿ To me, the utilities were installed and the easement recognized by the monuments set per the deeds according to the op.
Personally/ Professionally; I would not disturb the current understanding of the boundary. Court might disagree.
What do the platting regulations in force at the time of this subdivision say. Around here the regulations for many years called for a minimum of 50' for feeder roads up until the around the late 80's/early 90's when they were changed to 60'. Before I were to draw any conclusions, I would want to know what the rules were at the time the subdivision was approved, but not necessarily monumented. I could see it happening during a transitory period where rather than go out and remonument the subdivision, they changed the width on the plat so the reviewer would check that off. If that were the case and the subdivision was approved on the basis of a 60' vs. 50' ROW, those would effectively be witness corners.?ÿ
Yeah, but I would still argue the intent was 50 feet, evidenced by the monuments set at the time.
Here is the part that seems to be continually overlooked by surveyors:
The plat is the intent of the proprietor, not the surveyor.
The proprietor has every right to conduct their land division(s) in the manner they see fit, and as long as it is "blessed" by the approving "agencies". This arrangement protects all the parties: proprietor, municipality, and grantees (lot owners).
"Assuming" there is no other evidence that shows the intent of the proprietor had changed, or there was no additional legal change to the plat, the scenario, as presented, indicates a clear error on the part of the surveyor, which would make the analysis of this case different.
I too love found monuments, but monuments only control until they don't.
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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'.
This line indicates: initial problems with the boundary, is a statement of conclusion without supporting evidence, and dismissive of subsequent scrutiny.
Why don't you just ask the surveyor or firm that monumented the plat instead of determining through subsequent surveys what is going on out there?
This sounds like a newer subdivision based on your initial description.
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.
Monuments are wrong all the time, and so are lot owners, and utilitiy companies. "Relied upon" sounds like an assumption.
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The grantor (proprietor) was clear what they wanted to sell, based upon the plat.
Does a grantee take more than a grantor can sell to the detriment of a 3rd party?
Not impossible, but not likely. A lackey surveyor that botched something sounds much more plausible than trying like hell after the fact to formulate some complicated legal theory about their potential mistake.
Ask 3 surveyors and you'll get 5 opinions.
@michigan-left The plat is only one indicator of intent; monuments are another and get more weight.?ÿ You need stronger evidence to deviate from the rules of construction than to follow them.?ÿ
The fact that something has been approved for planning purposes has no effect on the location of sale of lots, or conveyance of the right of way.?ÿ
The developer should be required to submit a revised map for approval showing the actual area of conveyance to lots and right of way.
Intent is objective and about what the parties actually did, not subjective and about what we think they thought they were going to do.
We could argue about whether monuments should be treated as they always have by the courts in the modern world.?ÿ But seems to me the rules work well in this case.?ÿ Clearly there is a 50 foot wide right of way and lots clearly marked, with a 10 foot utility easement containing actual utilities.?ÿ If that's not what was approved, that's another separate issue.?ÿ The reason (surveyor mistake or not) is irrelevant.
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@duane-frymire great explanation of how the courts usually look at things.
There would be a much stronger argument for a 60' ROW if there was no evidence of reliance, or if those monuments showed up years after the subdivision was approved, but the courts are consistent in the idea that landowners have the right to rely on original monuments. Even the Federal goverment doesn't get to claim back an error in the neighbors favor by an original surveyor (even if the error is 100's of feet).?ÿ
Of course this can all go out the window in front of a court of equity, and appeals are expensive...
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.
Not true in all cases. My mentor was a DOT surveyor who taught that the full width theory only applies when monuments and improvements (i.e, reliance, establishment) are absent. That's the way I practiced as a DOT surveyor for 47 years. From what I have seen the courts will do the same as a rule unless they are hoodwinked.?ÿ
