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"RIGHT OF WAY"

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(@jim-in-az)
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Anyone ever seen a City (or other political body) grant themselves a "Right of Way" over their own property via a Plat recordation? I am being asked to do so in spite of the fact that the City Attorney has advised all parties that it can not be done because of the Merger of Title Doctrine. Most unusual situation...

 
Posted : January 21, 2015 3:29 pm
(@clearcut)
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Could it be considered a right of way held in fee, i.e. a separate parcel by and of itself?

 
Posted : January 21, 2015 3:42 pm
(@frank-shelton)
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i know of a surveyor that is working w/ a city to plat some city property and the city has requested some easements to the city across the property. as i recall they were for drainage. after some discussion, our conclusion was that it was unnecessary since it would violate the legal notion of not having an easement across yourself...but, i can see where if the city were to sell the property later, then the easement would be in place.

 
Posted : January 21, 2015 3:49 pm
(@andy-nold)
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Well, who are they granting the right-of-way to? If it is to the public, that seems perfectly appropriate to me. If it's to themselves, then that is useless.

 
Posted : January 21, 2015 4:39 pm
(@holy-cow)
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If a city owns a tract and has that tract platted as a subdivision, they effectively do the same thing when they lay out streets, alleys and utility easements.

 
Posted : January 21, 2015 4:44 pm
(@williwaw)
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Another question comes to mind. Who is accepting this dedication. The city?

 
Posted : January 21, 2015 4:54 pm
(@thebionicman)
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Rights of Way for certain purposes are granted in the name of a controlling jurisdiction for use by the public. It is entirely appropriate to reserve or create them despite unity of title as the Right being separated is in fact not just for the City or County.

 
Posted : January 21, 2015 7:20 pm
(@jimmy-cleveland)
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I can see this as being a smart move if they are looking to possibly develop this area as a commercial or industrial area, and lease the property to possible industry or commercial tenants to create jobs.

Many of the local towns around here have industrial development boards that own large tracts of land, and divide it up as needed. Maybe they are trying to develop a master plan of some sort.

 
Posted : January 21, 2015 8:33 pm
(@jim-in-az)
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City is dedicating AND accepting... They are the Grantor AND the Grantee.

 
Posted : January 22, 2015 5:49 am
(@jim-in-az)
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Can you provide an example? The City I live in bought lots in several City blocks, realigned a street through them, constructed the new street, tried to dedicate a "Right of Way" across them, and were informed by their attorney that they could not do so. 35 years later there is still no "Right of Way"... I would really like to see a Plat containing a Dedication of a "Right of Way" by a City/County across land it owned in fee...

 
Posted : January 22, 2015 5:54 am
(@holy-cow)
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Fairly common practice around here. Our small cities generally are not terribly attractive to developers and industry. They have to do their own gambling. They acquire land by one means or another to where they do have fee title. They lay out a subdivision and behave identically the same as anyone else laying out a subdivision. Streets, alleys and utility easements are set forth the same way. The standard dedication is the same, indicating such is being dedicated to the public for public use. All of the dedications and sign offs are handled the same as if it was owned by a private entity instead of the city. Lawyers and title companies are involved and behave as if there is no problem.

I have laid out two residential subdivisions for one city, reviewed subdivision plats in several other cities, laid out three residential subdivisions for a different city and surveyed lots in a number of others where the city was the developer. Perhaps this is a State by State type of thing.

In two of the small cities that I work with they have an intermediary organization made up of numerous local business people who purchase the ground, do the subdivision work, then give the land to the city or sell it to them at cost. We are finishing a lot split today that is being paid for by the city on land owned today by the business group that will be deeded to the city so that the city can immediately deed one of the two new pieces to a hotel developer. The second piece will be retained by the business group until a restaurant developer is found, then it will be deeded to the city for later transfer.

One small city had need of a strip for an alley. We surveyed it so they could purchase it outright from the two owners. Then the city dedicated the strip officially as an alley.

 
Posted : January 22, 2015 6:47 am
(@andy-bruner)
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From what I've been taught (in school and in seminars), there must be both a Dominant and a Servient holder. One entity cannot be both. When and if the property is transferred they could retain any easements but could no grant themselves an easement. IF the Water Department is a separate entity then the City could grant easements to them.

Andy

 
Posted : January 22, 2015 7:05 am
(@nettronic)
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Right of way should be to provide access to a parcel that is otherwise blocked from the road.

If the city government also own the parcel that has no road access, then the far simpler (rather than trying to get the law changed) would be to combine the two parcels.

Whatever the opposite of subdivide is lol.

If the city does NOT own the blocked parcel then providing a right of way to the other parcel owner should not be any problem.

If this is for drainage, that is an easement not a R.O.W. at least if I understood what I have recently read correctly. As someone else mentioned providing that to a particular department of the City might be your best option.

--Rich

 
Posted : January 22, 2015 8:17 am
(@wayne-g)
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Jim, I've been in AZ 11 or so yrs now and was absolutely amazed at how different it is than the regulations and procedures that were common in MI. I felt like I went back in time about 20 yrs on much of it, which is fine with me.

If it is all that troubling for you to participate in a city granting themselves an easement, then just say that to them. However, that is exactly the kind of thing that happens up here in Mohave Co. If for no other reason than to put a time stamp on any potential future dealings that may crop up. Thus it does make some sense.

I won't mention a potential for certain croonies lining their pockets in their own self interest, but I wouldn't toss that baby out with the bath water either. Somebody is benefiting and it likely is not John Q Public.

 
Posted : January 22, 2015 9:56 am
(@wayne-g)
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Jim, I think the term would be "abandonment" of a subdivision, so then it resorts back to raw land. The only people that can do that are either all the effected property owners, or the original subdivider of the land if none of the lots ever got sold. In your case it sounds like your attorney is right, but who knows.

Was there any condemnation in the past which enabled the city to obtain ownership, or just some kind of hand shake between friends?

 
Posted : January 22, 2015 10:06 am
(@jo-teague)
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This is what I see in Tucson and Pima County. A dedication with a road map or record of survey, which goes to the City Council or the Board of Supervisors, depending on the jurisdiction, for approval.

>
> One small city had need of a strip for an alley. We surveyed it so they could purchase it outright from the two owners. Then the city dedicated the strip officially as an alley.

 
Posted : January 22, 2015 10:36 am
(@aliquot)
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It happens all the time here too. I think what is being missed be those who see a problem with this is that the local government is not granting the ROW to themselves, they are dedicating it to the public. Although the local government may have authority to maintain the road within the ROW they do not "own" it.

 
Posted : January 22, 2015 10:36 am
(@andy-nold)
Posts: 2016
 

I really think a distinction needs to be made as to whether the municipality holds the land as sovereign in trust for the public for public purposes (like roads, parks, etc.) versus land held as a proprietor only. I think the courts have spoken to the latter concept by allowing adverse possession on municipally controlled tracts that were not truly public property.

That being (seemingly) true in the circumstances you described, I believe we do have two distinct interests - the city and the public. It just happens that the city is the entity charged with responsibility for the public lands. But it could just as easily be the county or the state or any other governmental entity that could be the responsible party for the public property as recently happened to a publio park in my neighborhood. The county had maintained the park and then decided to transferred it to the Regional Water District who will now maintain the land but it is still a public park.

IN the instance of a plat, the grantor of the reservations and rights is the City and the grantee is the public.

 
Posted : January 22, 2015 10:40 am
(@norcalpls)
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As others have said, for the merger doctrine to apply the two estates must be in the same person at the same time and in the same right. The City holds the land as a general asset while the right of way is held as a public right. The City could sell the underlying fee in the road as they could sell any general asset, but would have to operate under a different set of rules to vacate or relinquish the right of way.

 
Posted : January 22, 2015 11:18 am
(@glenn-breysacher)
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> i know of a surveyor that is working w/ a city to plat some city property and the city has requested some easements to the city across the property. as i recall they were for drainage. after some discussion, our conclusion was that it was unnecessary since it would violate the legal notion of not having an easement across yourself...but, i can see where if the city were to sell the property later, then the easement would be in place.

Frank,

This is exactly the situation I face here all the time. We need to sell the property later, so typically we'd show a reservation for that use, just as a reminder if we ever sell it to get the easement reserved in the conveyance instrument.

We've shown them as easements too, even though legally it's not conceivable, but again, it's a reminder. There's no victim.

 
Posted : January 23, 2015 2:44 pm
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