> If the centerline or baseline can be reproduced, it is the best evidence of the parties and their intentions.
I have been told on more than one occasion, by DOT, that the r/w monuments are there to reference the centerline, the centerline being the only monument that should be held. Given this, if a r/w monument was 10' off from where the intended station and offset lies it is not correct and should not hold for anything. I have yet to see a taking that uses monuments in the description, only stationing and offsets.
Given this, if a r/w monument was 10' off from where the intended station and offset lies it is not correct and should not hold for anything
Then it's not a ROW monument, it would be referred to as a reference monument. At least that's how the DOT does it here.
All depends on where you are I suppose.
They should be stamped Notice - ROW Somewhere Nearby.
RADAR...
"With every property that adjoins a public right of way; whether it be state, county or city, there is an implied enjoyment; allowing the owner to maintain, within the regulations or an interpretation thereof, the area between the right of way line and the allowable traveled way."
Do you have any references that support this concept?
JIM...
>> "With every property that adjoins a public right of way; whether it be state, county or city, there is an implied enjoyment; allowing the owner to maintain, within the regulations or an interpretation thereof, the area between the right of way line and the allowable traveled way."
>
> Do you have any references that support this concept?
It's a tort issue.....
Of course it changes with every jurisdiction: State, County, or City. Take a look at your local municipal code and see if there isn't something in there about everyone maintaining their street frontage.
Or better yet; neglect the maintenance of the yard in front of your house, between the right-of-way line and the curb. Then when your neighbors complain; call up the city and tell them they better come out and take care of their property!
What happens when someone slips on the ice in front of your house, on the sidewalk in the right-of-way, and cracks their skull; leaving them a vegetable?
Dougie
Hey Duane,
I liked your post. I would like to get some clarifying understanding of what you mean.
> If a takings process was involved then those conrete blobs are not monuments in the sense you speak of. Monuments usually hold because it is presumed they are the consumation of a bargained for exchange and the parties took title with a view of them indicating the final and complete bargain. This follows contract law where a deed is the contract.
>
When is a "taking" process involved. Typically, a highway is designed and the highway department decides how much adjoining property is needed and they create parcels accordingly. Then they approach the adjoining landowner to purchase at fair market value. In you opinion, is a "takings process" triggered at this point? or does it have to go to condemnation?
Second, many times the landowner "acquiesces" (if that's the right word) to the ultimate fact that the highway will be taken but then can't agree to the price. At that point they often willingly sign a "posession and use" agreement that gives the highway department the possession and use to build a highway on their property, but then they go into condemnation to come to terms with the price. Is that the trigger for a "takings process" or since they willing signed the "possession and use" agreement, have they "stipulated" to the fact that the property is being transferred but are only going through court action to come to terms with the "fair market value" of the property.
Sometimes they also object to even the ability of the highway dept to even take and/or build on their property. At that point it might take a court ordered "possession and use" assignment (or whatever that word is) to allow the highway to build on the property. This is usually a court finding. Then it goes in to hearings on the value of the land and/or whether there are total damages.
Does the "takings process" only begin when the land owner requires the agency to condemn for possession and use.
Depending on your answer, do you consider the monument a memorial and not a boundary line only if the taking process has happened?
> A taking is not a normal contract, even if one decides to settle before going through the whole court process. There is no bargaining over whether the land will be sold, only a requirement and usually a fight, over how much the government has to pay. Most courts recognize that the land is being taken either way. The public can not gain or lose and neither can the landowner on subsequently set monuments.
>
> Those that have been taught this should not be so ready to make up their own rules. You're not going to get very far fighting a constitutional law rule with a contract rule that doesn't apply to the given situation.
>
> It has nothing to do with construing ambiguity in favor of one or another; again it's not a contract of equal bargaining power, or even one with state power getting the benefit of the doubt like the case of issuing a patent of land. It's a condemnation under eminent domain theory. Different animal altogether.
>
It is a condemnation over an eminent domain theory, but again, the eminent domain is for arguing over land that is needed for the general public at large. If there is an ambiguity in the description, I would still hold a theory that the resolution of the ambiguity is whether or not the difference in the ambiguity effects the intent to gain enough land to build the road and hold the integrity of the highway (ie enough slope so as to not effect the integrity of the road.) If the ambiguous part of the description is +/- a foot, and erring toward the landowner having that foot difference does not effect the integrity of the road, it seems as the intent of the eminent domain action (to allow for the safe and adquate transportation of the public is fulfilled).
> Once the line is determined per the taking documents then it is subject to normal rules of a boundary between public and private for the given type of property and use. There can be no establishment of a different line by actions of the parties. There have been isolated successful adverse possessions of unopened streets. I'm not sure whether any have been successful on an unopened street that was acquired through a taking process, but I doubt it. There would have to be something showing the state transferred it to a proprietary interest property, such as an attempt to sell it.
>
> If you can figure out the description well enough to know some of those concrete structures or pipes or whatever are out of position by 10 feet, then the description seems sufficient. The ones that are verified are still not monuments in the normal sense. They may better be described as memorials. If they're not close enough that the point falls on them, then they are witnesses. The baseline stations are usually the best evidence of the intended location, but they are still not monuments either. Once the baseline is gone, the memorials become the best evidence in many cases to find the intended location. But ones that disagree with the taking documents must be disregarded.
>
Maybe this answers my question above. The memorial monument that is or is not a division line between the right-of-way corridor and the private property still seems open to interpretation to me....but I may not understand.
> My .02 take on the takings issue. Good luck with it.
Thanks for the viewpoints from your perspective.
Another wrinkle in the "Hold The Monuments?" - Duane
Hey Duane,
I liked your post. I would like to get some clarifying understanding of what you mean.
> If a takings process was involved then those conrete blobs are not monuments in the sense you speak of. Monuments usually hold because it is presumed they are the consumation of a bargained for exchange and the parties took title with a view of them indicating the final and complete bargain. This follows contract law where a deed is the contract.
>
When is a "taking" process involved. Typically, a highway is designed and the highway department decides how much adjoining property is needed and they create parcels accordingly. Then they approach the adjoining landowner to purchase at fair market value. In your opinion, is a "takings process" triggered at this point? or does it have to go to condemnation?
Second, many times the landowner "acquiesces" (if that's the right word) to the ultimate fact that the highway will be taken but then doesn't agree to the fair market value estimated price. At that point they often willingly sign a "posession and use" agreement that gives the highway department the possession and use to build a highway on their property, but then they go into condemnation to come to terms with the price. Is that the trigger for a "takings process" or since they willing signed the "possession and use" agreement, have they "stipulated" to the fact that the property is being transferred but are only going through court action to come to terms with the "fair market value" of the property.
Sometimes they also object to even the ability of the highway dept to even take and/or build on their property. At that point it might take a court ordered "possession and use" assignment (or whatever that word is) to allow the highway to build on the property. This is usually a court finding. Then it goes in to hearings on the value of the land and/or whether there are total damages.
Does the "takings process" only begin when the land owner requires the agency to condemn for possession and use.
Depending on your answer, do you consider the monument a memorial and not a boundary line only if the taking process has happened?
> A taking is not a normal contract, even if one decides to settle before going through the whole court process. There is no bargaining over whether the land will be sold, only a requirement and usually a fight, over how much the government has to pay. Most courts recognize that the land is being taken either way. The public can not gain or lose and neither can the landowner on subsequently set monuments.
>
> Those that have been taught this should not be so ready to make up their own rules. You're not going to get very far fighting a constitutional law rule with a contract rule that doesn't apply to the given situation.
>
> It has nothing to do with construing ambiguity in favor of one or another; again it's not a contract of equal bargaining power, or even one with state power getting the benefit of the doubt like the case of issuing a patent of land. It's a condemnation under eminent domain theory. Different animal altogether.
>
It is a condemnation over an eminent domain theory, but again, the eminent domain is for arguing over land that is needed for the general public at large. If there is an ambiguity in the description, I would still hold a theory that the resolution of the ambiguity is whether or not the difference in the ambiguity effects the intent to gain enough land to build the road and hold the integrity of the highway (ie enough slope so as to not effect the integrity of the road.) If the ambiguous part of the description is +/- a foot, and erring toward the landowner having that foot difference does not effect the integrity of the road, it seems as the intent of the eminent domain action (to allow for the safe and adquate transportation of the public is fulfilled).
> Once the line is determined per the taking documents then it is subject to normal rules of a boundary between public and private for the given type of property and use. There can be no establishment of a different line by actions of the parties. There have been isolated successful adverse possessions of unopened streets. I'm not sure whether any have been successful on an unopened street that was acquired through a taking process, but I doubt it. There would have to be something showing the state transferred it to a proprietary interest property, such as an attempt to sell it.
>
> If you can figure out the description well enough to know some of those concrete structures or pipes or whatever are out of position by 10 feet, then the description seems sufficient. The ones that are verified are still not monuments in the normal sense. They may better be described as memorials. If they're not close enough that the point falls on them, then they are witnesses. The baseline stations are usually the best evidence of the intended location, but they are still not monuments either. Once the baseline is gone, the memorials become the best evidence in many cases to find the intended location. But ones that disagree with the taking documents must be disregarded.
>
Maybe this answers my question above. The memorial monument that is or is not a division line between the right-of-way corridor and the private property still seems open to interpretation to me....but I may not understand.
> My .02 take on the takings issue. Good luck with it.
Thanks for the viewpoints from your perspective. I hope I worded my questions well enough above.
Taking Is The Acquiring Of Private Land For Public Use
It can occur in many ways, condemnation, maps or deeds are not neccessarily required.
Paul in PA
Another wrinkle in the "Hold The Monuments?" - Duane
Tom, I think most, if not all, courts hold that it is a taking process when land for a road is acquired, regardless of how each individual landowner decides to deal with it. Of course this would not be true if all of the landowners petitioned for a roadway to be constructed through their lands, as was maybe customary in some parts of the country as it developed.
Similar to your argument, there are railroad cases where it has been decided that those who went all the way to condemnation have reversionary rights, while those who settled and took a deed do not. I think those cases are wrongly decided, but I think they have mostly been over ruled, or more properly made irrelevant, by statutes relating to rails to trails stuff.
There are many areas in NY where whole blocks of houses have been built into roads owned by the State or lesser municipalities based on assumed boundaries. Statutes have been written to allow these structures to stay, but not to change the boundary line.
As far as where on the ground the boundary is; another way to say it is that these are statutorily created boundaries. The intent will be strictly construed, and there will be no going outside of the four corners of the statute or the documents that carry out the enabling statutes directive. The intent is not in question when described by the baseline method, or any other method. The only question is what evidence is most reliable in recreating the baseline. What the public or the private owners think is immaterial. What the public or private understood or needed to accomplish is immaterial. Whether the public or private got more or less than needed for whatever purpose is irrelevant. The only intent issue that would ever be looked at is the intent of the legislature, and that only in an extreme situation where there is absolutely no way to get anywhere close to where a boundary might possibly be located.
Of course there is probably a case somewhere that says something contrary to the above, but that's my general take on it.
Another wrinkle in the "Hold The Monuments?" - Duane
Duane, Thanks for the reply. It makes sense to me that when a highway decides to build a road and impact some private property that would trigger the "taking" standard.
I will probably printout out your earlier post and try to absorb it a little more.