Interesting article out of Denver
http://denver.cbslocal.com/2018/06/02/neighbors-fight-property-alley/
Not sure the neighbors are going to win this one.
Literally hundreds of cases have reiterated that "non-use of dominant rights (as in a right-of-way) does not in itself constitute abandonment". I'm assuming the alley was a dedication in a plat.?ÿ Prevailing AP cases against a government entity are rare as hen's teeth. ?ÿAnd I really don't think there is such a thing as adversely possessing an easement if that is the nature of the alley.
But I wish them luck.?ÿ Although there?ÿare volumes of court cases?ÿindicating the foolishness of such an action; a City Council is usually a?ÿcrazy bunch of?ÿignorant amateurs.?ÿ They may indeed concede to the party that feels they "own" the alley.?ÿ And there is always the "green factor".?ÿ How much green has been spread around in specific locations that might aid in a decision?
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A buddy used to graphically say, "Money talks and BS walks." for such debates.
The city has effectively devalued certain properties by not maintaining the alley.
Literally hundreds of cases have reiterated that "non-use of dominant rights (as in a right-of-way) does not in itself constitute abandonment". I'm assuming the alley was a dedication in a plat.?ÿ Prevailing AP cases against a government entity are rare as hen's teeth. ?ÿAnd I really don't think there is such a thing as adversely possessing an easement if that is the nature of the alley.
But I wish them luck.?ÿ Although there?ÿare volumes of court cases?ÿindicating the foolishness of such an action; a City Council is usually a?ÿcrazy bunch of?ÿignorant amateurs.?ÿ They may indeed concede to the party that feels they "own" the alley.?ÿ And there is always the "green factor".?ÿ How much green has been spread around in specific locations that might aid in a decision?
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An easment can be adversely possessed.
See?ÿ https://law.justia.com/cases/alaska/supreme-court/2018/s-15461.html
But?ÿ not a public easment.?ÿ
This isn't an adverse possession case though, it's a through yourselves at the mercy of city council case.
There's not enough there to say for sure what is going on other than the City apparently has an alley R/W
That alley wasn't just thrown onto the plat as a afterthought. No developer would do that if it wasn't a requirement. No doubt that it was intended to provide fire truck access into the back of those homes. This homeowner should probably get the fire marshals opinion on the situation.
As others have said - you can't AP against the public. And simple failure to open the alley is not abandonment. But there is an Oregon case, Dabney v. City of Portland,?ÿ124 Or. 63, 263 P. 386,?ÿin which an owner was able to prove that, through its actions, that the city had abandoned it's right of way without expressly doing so.
?ÿ"This is not a case of mere nonuser by the city, but the record discloses affirmative acts, such as the special assessment proceedings in the construction of the concrete walk, whereby a person might reasonably reach the conclusion the property had been abandoned for public use.?ÿ It is believed that the plaintiff and her predecessors in title acted in good faith in making these improvements.?ÿ Dabney was threatened with arrest, if he undertook to construct the cement driveway, but, nevertheless, he built the same under a claim of right, and no objection was ever made by the city until recently against the use of the property for private purposes.?ÿ That the improvements are of a valuable and permanent nature is beyond question.?ÿ To permit the city to destroy the valuable improvements after a lapse of all these years, without compensation to the owner, would, under the facts and circumstances, amount to the perpetration of a fraud.?ÿ If the city desires this property for street purposes, it may acquire it under the power of eminent domain."
Around these parts, R/W's never die. If the city doesn't want it, they deed it to the landowners that join it. Each one gets half. They've done that some alleys where I live. Other than that, I don't know how they think they can take it. It's government property and has the same rights as any other government property. I think I'll go adversely possess some Glacier National Park land. Wouldn't be any different.
In Park County, I drafted and uploaded many vacations of roads/alleys etc that had bee platted 50 or more years ago that never got developed nor accepted by the County. Consequently, the opposing land owners were granted each their own half(more taxes for the county) and they were all surveyed , submitted with new plats, and never just assumed nor presumed to be abandoned.?ÿ Additionally, I was dragged into a research project where the County had no records of ownership for a piece of hotly contested land that was assumed to belong to the County, because no one could find records of ownership.?ÿ I simply directed them to the Vault, where I had failed to come up with anything that said the County owned it, and that the title company and Good surveyor would be the only ones that could take the time to figure it out, because I was out of scope.?ÿ No lo contendre.....
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While all cases are unique, there has to be an acceptance by the municipality of the offer of dedication, which is evidenced in several ways. As mentioned above, mere non-use rarely qualifies, but if you can prove/show other evidence of non-acceptance, such as no improvements made by the municipality, no maintenance of the right-of-way (even if not improved, such as mowing), no improvements/infrastructure/entry by any public or franchised utility, etc.,?ÿ you may have a good case.?ÿ
While all cases are unique, there has to be an acceptance by the municipality of the offer of dedication, which is evidenced in several ways. As mentioned above, mere non-use rarely qualifies, but if you can prove/show other evidence of non-acceptance, such as no improvements made by the municipality, no maintenance of the right-of-way (even if not improved, such as mowing), no improvements/infrastructure/entry by any public or franchised utility, etc.,?ÿ you may have a good case.?ÿ
It really depends on where you are. In Alaska the law is very clear, in order for a public ROW to be vacated the relevant legislative body, or state department,?ÿ has to hold a public meeting, and come to very specific findings in order to vacate. Even for an 100 year old easement that has never been used. On the other hand, I remember reading here, that at least one state considers an easement vacated merely by the fact that the government built a nearby road.?ÿ
While all cases are unique, there has to be an acceptance by the municipality of the offer of dedication, which is evidenced in several ways. As mentioned above, mere non-use rarely qualifies, but if you can prove/show other evidence of non-acceptance, such as no improvements made by the municipality, no maintenance of the right-of-way (even if not improved, such as mowing), no improvements/infrastructure/entry by any public or franchised utility, etc.,?ÿ you may have a good case.?ÿ
It really depends on where you are. In Alaska the law is very clear, in order for a public ROW to be vacated the relevant legislative body, or state department,?ÿ has to hold a public meeting, and come to very specific findings in order to vacate. Even for an 100 year old easement that has never been used. On the other hand, I remember reading here, that at least one state considers an easement vacated merely by the fact that the government built a nearby road.?ÿ
Of course it depends on where you are, but I assumed everyone knew that.?ÿ