Missing Alley Vacation in My Deed

[chris-bouffard]

Honestly not enough information to form an opinion. Jr. Sr. Rights or simultaneous conveyance with reversion rights? With no documentation filed on the termination of the easement, what’s to say that it doesn’t still exist?

All of these things, including long term amicable lines of possession are maybe meaningless and maybe not so much when it comes to who was supposed to benefit from the original easement.

IF the easement can be vacated by official means, it seems to me a boundary line agreement to fix the line is the best course to resolve the discrepancies.

[jhframe]

Have you explored the possibility of getting the public agency to formalize the vacation? That would eliminate problem *and* the considerable liability that you take on by asserting an unwritten transfer from the public to a private entity.

[jimcox]

Around here (New Zealand), failing any documentation that shows the closure of the alley, you would be claiming Adverse possession. While the timeframe is sufficient, AP cant be claimed against the Crown. So it is an encroachment.

[chris-bouffard]

It has not been said that the easement was for the benefit of the public, therefor, if it was not a public, therefore, what authority would local officials have to abandon something that they had no interest in from the start?

Without determining who the easement was created for, it’s a hard call to determine the course of action to take. Hypothetically, it could have been created to benefit a land locked parcel to the year of the common line back in the 1800’s.

[chris-bouffard]

In the US, it would depend on whether the easement was created for the State, County or Town, in the vast majority of cases, no adverse possession can be claimed against a public agency, unless they take decisive and official action to vacate the easement.

[Norman_Oklahoma]

1. Chris is quite correct – there can be no AP against the public. An alley is (usually) a public right of way. The adjoiners can occupy it for a thousand years and never acquire title by AP.

2. It is inaccurate to call this alley “vacated”. “Unopened” is a better word.

3. Sometimes descriptions are written to the centerline of the road. Sometimes they go to the right of way line only. It doesn’t matter, either way. If they are written to the right of way the assumption is that ownership goes to the centerline, regardless. If they are written to the center line the assumption is that the right of way is excluded.

4. It’s just a little odd that a property would be created by plat and then described by metes and bounds. Not that I haven’t seen it before. But it does make me wonder.

[protracted]

Hi Scott,

I’m interested in the neighbors chain of title. If the neighbor’s deed has the alley included, why? When was it added? Tracing the neighbors chain of title can give a time frame of when the alley might have been vacated, it might even cite a document or reason. Seeing if that same reason/document does (or does not) apply to your client could be helpful (either way).

• This reply was modified 1 month, 3 weeks ago by  protracted. Reason: typo

[Hoosier_Surveyor]

OK here is some more info:

1. I have made an effort to contact the local planning dept., but no one will return my call. I am very reluctant to give them any ammunition. Yes, they might be able to shed some light on the situation. For the purpose of this post, assume that I will get no reply.

2. I have researched the deeds’ chains of title back to the unindexed portions of the record. I’m not going to get any further. I have met my state min. requirements, gone, further, and hit a wall. A perfect chain of title would be great…but like peace in the Middle East, it just ain’t gonna happen …at least not without additional steps (*).

3. The proper view of the alley is not vacated as some have indicated. Without any type of official jurisdictional action, it would not be considered “vacated” or “discontinued”. Around here it might be referred to as “abandoned” – but, as far as I know, there is little court precedent or other commonly accepted practice for what happens to abandoned thoroughfares & rights-of-way. Consider the implications that the alley has never been improved for travel or utility uses in the first place. Lastly, I agree, no A.P.

I have decided to show a heavy parcel perimeter to include the alley. A lighter line will depict the edge of the alley and will go through the garage. The alley will have a light hatch through it and a note will reference the Surveyor’s Report where I will sate the ambiguity of record over the hatched area but long standing occupation. Also, I will state that others including jurisdictional authorities may have interests in the tract (alley, hatched area). Lastly, a face to face with the client explaining the findings with some recommendations for possible, additional steps (*) is extremely important – at least to me.

Based on this info ALONE and the info in the initial post, if you HAD to finish the survey, how would YOU depict the subject parcel and alley on the plat of survey and why?

• This reply was modified 1 month, 3 weeks ago by  Hoosier_Surveyor.
• This reply was modified 1 month, 3 weeks ago by  Hoosier_Surveyor.

[Hoosier_Surveyor]

Follow up question: Would you agree that a surveyor can under certain circumstances and with sound reasoning determine a property’s location based on occupation as long as any discrepancy with the written record is depicted? and hopefully explained!

I think Cooley and others have established yes, but this does give me a certain pucker factor.

[lurker]

What document created the alley and for whose benefit? Where is the indication this is an easement? If an easement was used to create the alley, there is typically verbiage
that would determine whether the easement has been extinguished.

It is not said explicitly but I’m assuming the alley was created with the plat. If dedicated to the public by the plat, then it remains in the public interest until the public formally vacates that interest. Either the adjoiner had someone do what you are contemplating or there was a vacation. Short of finding the formal vacation your client is encroaching on the public alley. If it is at all possible the alley may be opened in the future, attempting to get it formally vacated is the way to go. If your client has little worry about a future sale of this property, then leaving well enough alone is the way to go. No way I would create a survey that implied to my client the alley was his property based on what you have told us so far.

Typically in my area a title company will have a document justifying their legal description. I would try to find the title work that was used for the last purchase of the adjoiner. Or at least ask the adjoiner’s title company to provide informational title work for the adjoiner’s property. If they are insuring the adjoiner’s portion of the alley contrary to the plat’s indication of the lot, then they likely have the document making them comfortable in doing so.

• This reply was modified 1 month, 3 weeks ago by  lurker.

[lurker]

Just saw your latest post. Before implying my client has any right to the alley, I want an example of how he has obtained the alley from the public. Without a precedent I can point to, I would not try to create one myself. The alley still exists in the public’s interest until you can show the public deliberately gave up that interest.

[BStrand]

If my client’s deed doesn’t claim part of the alley AND I’m not finding a vacation document for it then I’m certainly not wrapping my boundary linework around any part of the alley. That being said, the adjoiner’s deed which claims part of the alley is concerning. Is there a survey out there that shows any of the adjoiner’s properties and if so what do those guys show? I would also do a quick search of other adjoiner deeds to see if they’re claiming any part of the alley. And lastly, I would have ordered a title report for my client’s property so I could see what the title company comes up with.

[Norman_Oklahoma]

“Based on this info ALONE and the info in the initial post, if you HAD to finish the survey, how would YOU depict the subject parcel and alley on the plat of survey and why?”

I would show the “heavy line” at the right of way line, just as I would for the street frontage. Because they are both public rights of way. Any structures within the right or way are encroachments (barring any permits), and if the city gets the idea to open the alley they will have to go. I would not want my client getting the idea that I’m giving the OK to build something more.

You might do a google search for the Oregon case of Abell v. Shelton for a similar situation.

• This reply was modified 1 month, 3 weeks ago by  Norman_Oklahoma.

[holy-cow]

If an alley was created, there must be a document proving so. Normally, an alley abuts numerous properties. In my area, it would not be a significant effort to search all properties abutting said alley to see if any other tract has some action relative to the alley. Then, if no abutter makes mention of such an action, I would treat the alley as though it were still open, no matter how it has been occupied along its length.

I most definitely would not, arbitrarily decide it is the property of my client. The location of your client’s garage is totally unimportant in this decision.

[BStrand]

Follow up question: Would you agree that a surveyor can under certain circumstances and with sound reasoning determine a property’s location based on occupation as long as any discrepancy with the written record is depicted? and hopefully explained!

Of course, I just did this a month or two ago. I was working on a rectangular lot in an ancient subdivision; no pins found on the lot but a couple pins found elsewhere in the sub. Ancient fence on the 3 non-street sides of the lot with the rear matching record almost exactly and the street ends being about 0.5′ wide of the record. I called the fence line the best available evidence of the boundary and showed record/measured along the street.

If you’re going to do this I think what is being occupied should at least be in the ballpark of what the record says.

[ropestretcher]

In Illinois, the Conveyances Act states that if a deed conveys real property that abuts vacated right of way, it is deemed and construed to include the right, title, and interest in that part of such right of way.

I’m paraphrasing here…there can be exceptions.

We found a recorded vacation document by the local authority that basically was a recorded summary of the City Council Ordinance. This did not show up in any land/tract/grantor/grantee index. I believe it was recorded as a misc. document. The title company agreed the vacated portion is automatically included with the adjacent property.

I work for the DOT, this greatly affects how we acquire property. In this case, we have to purchase some previously vacated ROW. 🙄

I’d check with the local authority to see if an ordinance was passed. It’s possible it never got recorded.

[mike-berry]

State specific laws come into play. I’ve heard that in some places a public road right-of-way can be legally extinguished by nonuse or abandonment. Here (Oregon), that’s not the case. In Martin v. Klamath County 39 Or. App.455 (1979) the court ruled that “A duly established public road may not be lost to the public except pursuant to the terms of ORS 368.620.” So if there is no public record of a road vacation then the road or ally is still public right-of-way.

[thebionicman]

Spot on. I would add that timing of creation and disuse can also impact the answer.

I would scour the commission and council notes for the period(s) in question. It there was a formal vacation it will be there. Every entity has different search tools. Best of luck..

[holy-cow]

I can think of an odd situation where the blocks were platted with no alleys, but, the city later created alleys for all blocks. The city came into existence overnight with the original town consisting of blocks consisting of only four lots. The northeast quarter was Lot 1, the northwest quarter was Lot 2, the southwest quarter was Lot 3 and the southeast quarter was Lot 4. Blocks were 400 feet east to west and 300 feet north to south.

As the town lots were being snapped up by eager buyers, it soon became apparent there was a need for alleys. The city fathers decided the south eight feet of Lots 1 and 2 and the north eight feet of Lots 3 and 4 needed to be an alley. They quickly passed this action before more lots were sold. Thus, reference to a specific lot gets confusing as the platted lot goes to the center of the alley. Some documents will read like: The east 50 feet of the west 100 feet of Lot 3, less alley. Other documents will refer to the same parcel as including the alley.

[thebionicman]

I looked in and noticed a bunch of replies I hadn’t seen before. Odd…

One recurring theme in replies is ‘no AP against the crown. While technically correct there are many cases of statutory acqiescence to vacation. It is often the case that roads created by prescription can be vacated by a period of disuse. You would need to understand the history of road creation and abandonment to recognize the relevant fact patterns.

This is where I diverge from the ideas of recent tradition. It is absolutely our function to gather and evaluate evidence and issue an authoritative opinion on what that evidence means. If we stopped describing (and thinking of) ourselves as measurement experts that would be obvious.