Activity Feed › Discussion Forums › Ask A Surveyor › Recognizing an implicit easement
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@jdsimmons Regardless of how it may have been labeled prior to your purchase. It is still property that is not yours and was never a part of your purchase. It was always someone else’s property. Giving it a name (Tract H) doesn’t change ownership or the right to use the property.
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@jdsimmons I’m not sure about Arizona but in some states the Clerk and Recorders office is responsible for the subdivision and land survey plats database. You might try searching by township, range, and section number and maybe even quarter section.
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I can’t speak to Yuma County, but the Maricopa one doesn’t offer MTRS as a search parameter (it’s one of the worst that I’ve used).
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Hello Everyone and thanks again for all your comments. I am responding specifically to a point made by Dave (see underline. I have reposted his entire reply here……
@dave-karoly said…….. (underline my own emphasis)
It looks like the Parcel in question has a metes and bounds description with a remote tie to the government lot corner. It is way at the north end of Yuma County. The County GIS shows parcels and parcel numbers (but no book and map no. what the ?). After some noodling around on the Assessor’s parcel search thing I found it.
The east line of the parcel along Osprey (or Cedar) is straight.
I don’t know how the street (appears to be private) came to be in existance but it curves away from the east parcel line, unfortunately.
An implied easement only arises between grantor and grantee. So for example if this parcel was cut out of the parcel with the street on it, and the street existed when that happened, and the grantee had a reasonable expectation of access to the street then there could be an implied easement.
Note: I am attaching several maps and photos
After doing more research it appears that the earliest maps I have been able to obtain from Yuma county date to 1988 and throughout the 1990’s (various amendments). I suspect there are earlier maps as the Martinez Lake Resort opened up in the 1950s or there about. At any rate, the earliest map (map 64, supplemental), which interestingly shows our eastern property line as having a dog leg in it, and essentially incorporating what later became Tract H is different than map #64 Sheet 8, which shows the eastern boundary as straight and matches what is shown on the 2009 survey plat.
The streets as we call them were dirt up until the lets say around 2009 when underground utilities went in and they were then paved over in asphalt, curb and gutter. So lets say with considerable certainty ‘dirt’ since the resorts beginnings,,, some 60 years prior to the current (2009). I am not sure who owned the ‘roads’ all those years but I do know that they are currently owned by the Yuma County Improvement District, which I take to mean they are public roads entrusted to the County for maintenance and jurisdictional matters. Yuma County Improvement District could be a BID (Business Improvement District overseen by a Board of Directors). Correct me if I am wrong but the primary question would then seem to me to be….. where the road boundaries lie prior to 2009? and also, who owned the roads before 2009? I think the question you are posing Dave is essentially …was Tract H always its own entity,,,, or was it carved out of something larger say a system of poorly (no survey) dirt roads? Correct?
Again, the lines and locations indicated in map # 64 supplemental vs. sheet 8, the fact that there are presumably no earlier maps available, and knowing up until the 90’s it was all pretty laid back frontier land, really causes me to wonder how historically accurate is anything in this region. Maybe map #64 supplemental is just a very ‘general’ reference map and the accuracy is contained in the individual sheets, but that’s a big discrepancy in the lot line. If that is the case, and the space of Tract H was once part of a larger space of roads and excesses or spill-overs, and was all owned by one and the same entity,…..can they legally come in 60 years later and carve out this Tract H and in so doing disrupt/block 60 years of ingress and egress to four of the eight tenant mobile home spaces, which essentially means we have to reconfigure the entire park to work around this?
In conclusion,
Based on the maps I have been presented, and if I were a judge, I would fathom that tract H was in 2009, ‘arbitrarily’ cut out of a larger pre-existing space of poorly defined roads and spoils for lack of a better word. Does this seem reasonable?
Finally, given that the trailer park (APN 107-64-104), which currently exists, and has for nearly 60 years unchanged in any way, and given the fact that it and its tenants has used the real space, recently designated as Tract H as its sole means (that is without substantially changing the layout and function), of access for parking and boat storage, that there is an ‘implicit’ easement. Is this reasonable?
Thanks in advance for any comments, observations, suggestions, etc. Sorry this is so lengthy… would rather be fishing for sure 🙂
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Yes, if you can show continuous use and need for ingress and egress over that land, you might stand a chance of winning an easement from the court. I certainly don’t know the history of the property, but it was likely private land. This land belonged to someone. It was not just “excesses or spill-overs or spoils”. There may have been roads over the land and they very well could have been private roads. When the lots were platted for Martinez Lake Resort the roads were dedicated to Yuma County Improvement District.
While you may win the right to use the property as you have been using it, it still was always someone else’s property that you were using.
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Plat H, as you describe it, has it’s own legal boundary, or, title lines. It does not fall within the practice of a Professional Land Surveyor to determine if any sort of undocumented easement exists or doesn’t exist. If an easement were document and filed, the Surveyor would have the obligation to show it on his plat.
Surveyors trace title lines or create subdivisions to establish them. It’s their obligation to show permanent structures and hardscapes, as well as existing easements and utilities that are visible. It is not within the realm of their responsibilities, nor is it for an Engineer, to determine ownership, undocumented rights, or decide on ownership. Those issues are legal issues, Professional Land Surveys and Engineers do not practice law and can be sanctioned by the State Board overseeing their professions if they render legal advice without being licensed as an Attorney.
The best advice that any of us should be giving you is to speak with an Attorney and attempt to go through the legal process of establishing rights of use. It’s going to be costly to do so and a lengthy process as well. If the “parking” was dedicated to the town, the situation would likely be different as it would be public property, but, with all of this said, I’m a Surveyor, and not an Attorney.
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Unless I’m mistaken your Tract H is clearly dedicated on the plat you posted. There’s nothing implicit about it. I’d go so far as to say it’s rather explicit.
Willy -
I had to go back and re-read the OP, but apparently the Martinez Lake Development sold Tract H to a private company.
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Should have gone to the hearings when they were doing the plat and gotten language like Tract K…My understanding of the OP is that he things there was this road that has always been there, and it was codified when the plat was done, basically about the centerline, but in essence the road simply trended that way as people cut the corner and should have included Tract H…again whoever owned these trailers should have said something when the plat was being created. Good chance they would have given access…isnt like Tract H is particularly useful.Posted by: @williwaw
Unless I’m mistaken your Tract H is clearly dedicated on the plat you posted. There’s nothing implicit about it. I’d go so far as to say it’s rather explicit.
-All thoughts my own, except my typos and when I am wrong. -
Ask the OP.
Dedication for said uses was not to the public.
(Notwithstanding the potential for a prescriptive easement) If the lot was dedicated to Martinez Lake Development and they sold it to a third party, what is the third party’s responsibility to maintain those uses? Do they own the lot but MLD still has rights?
I don’t see an issue if nobody is changing anything. I had to go back and look to see what the perceived problem was. Definitely a legal issue.
Full plat: https://www.martinezlake.com/_files/ugd/a4a02f_cea0e7c9b2034830a909e886046c8030.pdf
Apparently cabins/lots are available to rent or buy.
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@dmyhill said,
My understanding of the OP is that he things there was this road that has always been there, and it was codified when the plat was done, basically about the centerline, but in essence the road simply trended that way as people cut the corner and should have included Tract H…again whoever owned these trailers should have said something when the plat was being created. Good chance they would have given access…isnt like Tract H is particularly useful.
There was always a road, there yes and it always did curve as show. We have owned our land since 1978 and used the space of Tract H to access our trailer park (5 spaces of the 8 to be exact.) since then. The only maps that I have been able to secure from the County are the 2009 subdivision and a series of assessors maps of which I have question(s) below. It has never been an issue until the last 20 or so years when the area slowly became a land grab and because we own a now highly desirable piece of land- there is an effort, perhaps concerted, to make life miserable- to devalue our land in the hopes that we would sell it for pennies on the dollar. Paranoid perhaps, but I have good reason to believe that something is going on. We never had any reason before this to be concerned with our being able to come and go as we have. For example, we recently made an offer to buy the strip. It was low albeit we also said let us know what its worth to you, you being Martinez Lake Development. They responded as
MMMMMMM
This response, and the climate I described has prompted us to now take action in the form of filing for a prescriptive easement to protect and secure our interest.
Questions
1. How would we have known when and to in fact question the subdivison map, and can it still be questioned with the County?
2. can someone explain why our east property boundary is a ‘dog leg’, and is shown abutting the road on the map ending in 400 map but is shown a straight shot on map ending 408?
3. Also, I have been informed that there was an attempt by a third party to try and negotiate a deal to buy Tract H from Martinez Lake Development, to which a survey company the third party had hired I believe for other work in the area, told them that Martinzez Lake Development could not sell it. Can anyone explain to me why that might be?
To all commenters, you have been very generous with your time. This has been very frustrating for myself and my family. Having experts such as your self not only helps us to understand the nuances, but shows that there are still some good people out there.
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Oooops! I forgot to put the representative for Martinez Lake Development’s response which is what that really made us get hot about filing for a prescriptive easement……though part of me thinks its a bluff.
he said….. “tract sales are much higher than your offer (2000K), ranging from 30k to 60K. The last offer made on that exact track was 35K and we turned it down. I respectfully decline your offer and at this time not interested in getting rid of that piece of land as we have some other uses planned……” emphasis my own.
I asked myself what could planned mean, parking, landscaping, full blown blocked off? Mind you , Tract G which was dedicated to the adjacent lot in the 2009 survey is now chained off.
Again, surveyors, thank you for your time.
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Posted by: @jdsimmons
…when the area slowly became a land grab…
But you didn’t own it, I don’t want to be too harsh here, but it seems like you want to “grab” land that isn’t yours. Not sure about if they can sell Tract H, that would be dependent on the CCR’s of the plat and the laws of your state.
If you do not have current legal access to your property, then the maximum value would have to subtract however much it would require to obtain the rights to legal access. Honestly, your questions have nothing to do with surveying, take some $$, put a lawyer on retainer, and get some answers.
-All thoughts my own, except my typos and when I am wrong. -
@jdsimmons assessor maps are not for purposes of determining the size and shape of your property. The first picture shows a dashed line, it doesn??t show your property, just a reference to it.
If you want to know how your property came to be in its current configuration you need to either pay a Title Company for a chain of title or go to the Recorder??s office and follow it back in the indexes (time consuming but free to you).
Finding out what type of easement you may or may not have starts with knowing the title history. We have no idea if your property and Tract H share a common parent tract or not, for example.
You never know what you might find already recorded if you don??t search. Some types of unwritten easements require a common origin of title.
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@andy-nold said “apparently the Martinez Lake Development sold Tract H to a private company.”
If I may, can you tell me where/how you arrived at this conclusion? As far as I know, Martinez Lake Development is the current owner of Tract H. Thanks in advance.
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That was my take from your original post. I must have misread it.
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