They found that out, in spades, although this has been almost thirty years ago. The process with which the highway boyz obtain their property was completely revamped at that time. There are still thousands of miles of 'easement' out there. One way they're slowly attempting to rectify the situation is when obtaining new fee (for widening or improvements), all of the older areas considered easement are included in the take descriptions, but only the 'new' areas are actually calculated for payment.
TickMagnet, post: 337628, member: 4378 wrote: To muddy the water, I have found multiple minor subdivision maps along this street since I posted yesterday
Some show Camino Los Cerros to be dedicated by the new map and some where the R/W is the limit of the Fee title property
and the County never required the Street to be dedicated by the new map.
Implying the County thinks they have fee title to the street ..sometimes
OR, implying that less than careful surveyors, county map reviewers, and land title folks have participated in the creation of those maps. I say that because I've seen underlying fee title mis-handled on maps and deeds and title reports many times.
Many Californians were/are under the impression that counties were not allowed to take fee title to R/W until decades after 1905. That idea appears to have been based on Political Code Section 2631, in place since about 1873. If that was the prevailing understanding of 2631 in 1905, that again points to your street being an easement. Attorney General's Opinion 04-809 in year 2005, though, opines that 2631 did not prohibit fee R/W.
Section 2631: "By taking or accepting land for a highway the public acquires only the right of way and the incidents necessary to enjoying and maintaining it, subject to the regulations in this and The Civil Code provided."
AG opinions at Legal Opinions of the Attorney General - Opinion Unit | State of California - Department of Justice - Kamala D. Harris Attorney General
Peter Ehlert, post: 337589, member: 60 wrote: that sounds very different than California. Revisionary rights would go the the adjoiner, not the original developer (unless the adjoiner lots were never conveyed)
When I read it, it wasn't clear to me if the court meant the original developer and his assigns including the lot owners or the original developer for the minerals only. It's possible he retained all the minerals and the lot owners would have none.
Oil wells need to be spaced, probably this one's spacing covered the 40 that it was in.
That means anyone with minerals in that 40 acre tract gets a piece of the well depending on their percentage of ownership, or it may have been in a larger spacing unit. The court decided that none of the roads minerals were owned by the town because of the limited ownership defined by the dedication language.
Recently (like in the past 3 or 4 years, I really should know this...) the California Subdivision Map Act made the requirement that all dedications to the public on subdivision maps had to specify whether they were as an easement or in fee. This has been very good in clarifying things. And, like someone mentioned earlier in this thread, most of the time, the local agencies really only need an easement. However, one local agency told me that they wanted the streets in fee. I'm not sure why this is, but at least the language on the map is very clear about this.
I did this parcel map down the street in 2008 - carved out of the same 1905 map
The County did not ask for street dedication, they thought that their title was clear
also No mention of dedication in the owners certificate
Legal Description before the subdivision - calls to the center line
Title report excepts out county rights to the street
The title report seems right - the insured property is subject to the rights of the public to that portion delineated as the street - as offered and accepted, and improved apparently.
The rights of the County as the "trustee" for the public include police power, such as enforcing owners fronting the street to keep trees and lawns trimmed - and an obligation to keep the roadway in a driveable condition (from the collection of gas tax).
As far as subdivision maps go, SMA section 66424 states that a subdivision is only of those parcels shown on the latest Assessor's roll. If streets are not included on that roll, they are not shown as being divided.
Again, this only becomes an issue upon the vacating of the right of the public to travel upon, over and across that strip. The underlying fee ownership then becomes unencumbered, at least to that extent.
Local zoning ordinances will address gross versus net area for building purposes.
Syd,
That was in 2009. A good move and, yes, some jurisdictions actually do want the streets in fee.
:-S
Warren Smith, post: 337679, member: 9900 wrote: Syd,
That was in 2009. A good move and, yes, some jurisdictions actually do want the streets in fee.
:-S
2009... eep, my memory is failing me! I think it is probably because between 2008 and 2013 I didn't do any subdivision work at all thanks to the slow economy.
Warren Smith, post: 337677, member: 9900 wrote: The title report seems right - the insured property is subject to the rights of the public to that portion delineated as the street - as offered and accepted, and improved apparently.
The rights of the County as the "trustee" for the public include police power, such as enforcing owners fronting the street to keep trees and lawns trimmed - and an obligation to keep the roadway in a driveable condition (from the collection of gas tax).
As far as subdivision maps go, SMA section 66424 states that a subdivision is only of those parcels shown on the latest Assessor's roll. If streets are not included on that roll, they are not shown as being divided.
Again, this only becomes an issue upon the vacating of the right of the public to travel upon, over and across that strip. The underlying fee ownership then becomes unencumbered, at least to that extent.
Local zoning ordinances will address gross versus net area for building purposes.
Warren, in my experience, the vacation of the public right to travel upon doesn't eliminate the right of those who own lots created by this subdivision to pass over these roadways. Am I recalling this correctly? So if the city/county vacates the public right-of-way AND any easements for utilities in this area, the individual lot owners cannot become automatically "landlocked" as they still hold a right to pass over the roads as shown on the map as a private easement. This is a bit off-topic for this post but it just came to mind.
Tom Adams, post: 337630, member: 7285 wrote: Bad idea to use terms like "right of way" or any qualifying term in a deed (or legal description) of a warranty deed transfer. If it implies that it is for a specific use, it can be construed as an easement. It is especially bad for organizations like highway departments or railroads. They always refer to their corridor as a right-of-way (corridor). (by especially bad, I mean as in easy to use the wrong terminology because of their use of the term) They can call it what they like, but if they are adding to it, they need to be very careful in not calling it a "right of way" on their legal documents (especially documents of transfer).
Amen Tom! The term "Right-of-Way" is one of the most mis-used and mis-understood terms I've ever heard - drives me nuts sometimes! Kind of like when politicians talk about "nuculear" energy...
Syd,
Section 8353 (b) of Streets and Highways Code says:
A private easement claimed by reason of the purchase of a lot by reference to a map or plat upon which the street or highway is shown is not extinguished pursuant to subdivision (a) if, within 2 years after the date the vacation is complete, the claimant records a verified notice that particularly describes the private easement that is claimed in the office of the recorder of the county in which the vacated street or highway is located.
Jim, You've gotten me to come to your way of thinking more. We had an argument some time back (you and I), but I changed course in my language. Some (correctly) point out that highway departments and railroads have used the term to indicate they roadway corridors so much so that Black's Law recognizes it. But if we are in the business of writing property descriptions, we need to recognize that anything "for right of way purposes" will more likely than not be construed as an easement. And just by definition a right of way is a "right". It is a right to cross someone's property. So I no longer say "well sometimes right of way is in fee and sometimes it's an easement" because if it is a right of way, it is an easement.
You done learned me that. (so don't go nuculer)
(Now I'll look over my shoulders and make sure JB Stahl isn't about to pounce)
Tom Adams, post: 337730, member: 7285 wrote: Jim, You've gotten me to come to your way of thinking more. We had an argument some time back (you and I), but I changed course in my language. Some (correctly) point out that highway departments and railroads have used the term to indicate they roadway corridors so much so that Black's Law recognizes it. But if we are in the business of writing property descriptions, we need to recognize that anything "for right of way purposes" will more likely than not be construed as an easement. And just by definition a right of way is a "right". It is a right to cross someone's property. So I no longer say "well sometimes right of way is in fee and sometimes it's an easement" because if it is a right of way, it is an easement.
You done learned me that. (so don't go nuculer)
(Now I'll look over my shoulders and make sure JB Stahl isn't about to pounce)
Tom,
I don't remember an argument so much as a discussion. In any event it's good to see that you came over from the dark side...:-)
Jim in AZ, post: 337731, member: 249 wrote: Tom,
I don't remember an argument so much as a discussion. In any event it's good to see that you came over from the dark side...:-)
discussion....I always get that wrong.
Warren Smith, post: 337705, member: 9900 wrote: Syd,
Section 8353 (b) of Streets and Highways Code says:
A private easement claimed by reason of the purchase of a lot by reference to a map or plat upon which the street or highway is shown is not extinguished pursuant to subdivision (a) if, within 2 years after the date the vacation is complete, the claimant records a verified notice that particularly describes the private easement that is claimed in the office of the recorder of the county in which the vacated street or highway is located.
Yep, that's what I recall. I knew that my brain held on to some good information from time to time!
Peter Ehlert, post: 337472, member: 60 wrote: read the map:
"dedicated to public use" ... use = easement
if you find another document executed by the Owner of the land being subdivided (board resolution signed by the owner?) that precedes the date of endorsement on the map that specifically says "dedicated in fee" then we have something to discuss.
or more simply, as stated above, by a true Expert:
Bingo. Mr. Ehlert beat me to it. The operative word is "use".
Just curious if you've spoken to anyone at the City / County? What have they said? I've encountered documents filed with the agency after the subdivision map when right of way and maintenance issues were dealt with. In fact, it's quite common in older subdivisions.
