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Attorney letter
I just was sent an interesting letter from a landowner’s attorney regarding a street vacation. The landowner will not protest the vacation if his demands are met. The road in question is north south, the landowner is east of the street. The street is in a subdivision created with land east and west of the street. The street was 75 feet wide but the east 35 feet was previously vacated granting the landowner 35 extra feet on the west side of his lot and leaving the street 40 foot wide. His attorney stated that in the new vacation his client gets the east 20 feet of the remaining 40. That is an interesting theory. ????
you get 1/2, then 1/2, then 1/2; do it right and you can get almost all of it.
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21 Replies
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- It is a very interesting theory, but it is not that far fetched in Montana given the right set of circumstances. The devil is always in the details.
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In any state I have worked in he is only entitled to 2.5′ more.
Street vacation you say, was this landowner in effect using the 40′ roadway?
Paul in PA
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Wait doesn’t the street revert to the developer in Wyoming?
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In Jersey, you can only own up to the original centerline of the 75 foot row.
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The Supreme Court decided that the developer retains mineral rights under the street if he originally had any, after the lots are sold the reversionary rights belong to the lot owner, minus minerals.
Of course the west land owner would need to deed 17.5′ to the east land owner to make the east landowner’s demand work which would be a new subdivision of land and need at least a BLA. The centerline of the original street is already the division line even when the street is public.
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Most places the center line is a rebuttable presumption. If the street had been dedicated by one owner, followed by development against it by others the center would not hold.
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Worked along a county road on Thursday where the entire right-of-way came out of Section 35 and none out of adjoining Section 2.
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Is some places this would be possible if the appropriate goverment held the road in fee. If it was an easement the land owner would only have a claim to the original centerline, but if it was fee, then the landowners on both side would have an equal claim regardless of the history.
This is a classic situation that is used as an example to explain why it matters whether a dedication is an easment or fee.
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Yes, if fee they can distribute the road any way they wish, in this case it’s a fee simple determinable ownership for the government, they have no say over the ownership when it’s vacated.
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As usual- it depends. If the crown acquired fee title in a contested manner, the former owner may have priority on vacation.
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…and in some states the the vacated area must be offered to the adjoiners first. Each adjoiner would have to be offered 1/2 the vacated area regardless of history, while in other areas the vacated area could just be offered to the highest bidder. There is a lot of knowledge on this board, but be careful of applying what is right in one area to an other area. There is a reason land surveying licences are not transferable across state lines and borders.
EDIT: I am not used to this new format. The above comment was not specifically directed at thebionicman.
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I’m not aware of any case law dealing with this particular sequence of events. Nevertheless case law has nothing to do with it. The easterly owner wants something and has some weight to throw around. He can object to the abandonment and probably quash it. If he doesn’t get what he wants, the westerly owner may get nothing. It’s a negotiation, not a rote application of common law principles.
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I agree, except that he is trying to use the county to automatically give it to him, they have no power over that.
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One has to look at the Original vacation language as well as the original 75′ acceptance documentation. It is possible that this time they may have to vacate the full 75′ rather than just the remainder.
Paul in PA
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I wouldn’t discount the possibility of a clever Lawyer convincing a Judge his client should get the 20′.
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The vacated land has to vest back to the lands it came from. If the court, judge, commission, council or whatever political body gives additional land to the attorney’s client it would be repugnant to the constitution… an illegal taking of the land of others without compensation.
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The Government can effect a taking without compensation. Usually it’s inadvertent or an accident. The property owner can bring an action in inverse condemnation within the statute of limitations demanding either return of the taken land or compensation but they can’t force the government or other taker (such as a utility or railroad) to return the land. As soon as the statute runs in the absence of a lawsuit the taking is complete, the record owner can’t recover the land or gain compensation. Our courts have ruled this is not a constitutional violation, I forget the exact reasoning.
The clever lawyer I mentioned above would argue that the centerline of the 40 foot R/W is the boundary, there is no transfer of land either way, so no taking of any kind. This is strictly hypothetical of course. Naturally the other side would have an expert who would successfully explain that the boundary is at the original platted centerline and the Judge of course would adopt that theory of the case, naturally.
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Dave – a lot of the case law regarding road vacations here in Oregon is due to local governments getting it wrong. Many city councils or county courts believe (even to this day!) that a public road dedication “gave” the land in fee to the governing body and therefore they can dispose of the vacated R/W any way they chose. They can’t, unless the abutting parties agree to an atypical vesting.
“While a highway exists there is nothing more than a mere suspension of the abutter’s right.”
– A Treatise on the Law of Roads and Streets; Third Edition (1911) Byron L. and William F. Elliott
“In this state the rule is that where land has been dedicated or appropriated for a public street, the fee in that street remains in the original owner* subject only to the public easement.’’
– Portland Baseball Club v. Portland, 142 Or. 13, 18 P.2d 811 (1933)
* And subsequent owners
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only if it is an easement
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My Clever Attorney managed to keep all that away from the Judge, the brother-in-law of the politician that called in a favor from the Governor who appointed him.
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