Yesterday the Montana Supreme Court made a decision involving a public right-of-way which was created in the late 1800's and early 1900's which basically used the land left over between platted subdivisions. The people who sued and won convinced the court that they were entitled to more land than their subdivision plat showed. The variable width right-of-way created by multiple old subdivisions belonged to the landowners and not the right-of-way according to the court.
Missoulian Article
This article only talks about the decision and maybe somebody can find the decision. I guess I don't understand boundary evidence and control?? These people have lots of say 125' in depth and now they are being paid for and extra 5-10' giving them 130-140' of land. They didn't lose anything that they thought they owned.
The court ruled the R-O-W was never intended to be more than 60'.
AND evidently, property owners felt they had an interest in this "extra" land.
“The city tore off a front porch, ripped out fences, tore out lawns and landscaping, cut down trees, and at the property owners’ expense, replaced them with 9-foot sidewalks and other public improvements,”
It would be nice to know a lot more about this.....
Took me some time to come up with a theory as to where this extra land came from. Then I thought of one small town where I've done a lot of work. The original town was a standard quarter section of PLSSia. Development started near the center then grew out towards the edges over many years. The quarter was a bit oversized. The lots on the far north side, for example, have as much as 30 feet of extra space between the lot dimension of record and the aliquot line. Suppose the plat had showed a street or alley as the final part of the subdivision along the aliquot line. Who should have had the extra 30 feet? The town, as owners of the alley, or the landowners abutting that alley?
Look for the Slip Opinion. That is the unedited opinion the Court publishes before the official version.
I can think of reasons why they would decide that way but I would just be guessing.
Wohl v. City of Missoula, 2013 MT 46
http://searchcourts.mt.gov/getDocument?vid={DA60C195-CD3A-4E8A-965A-66AE6877BA40}
The link works for me. Otherwise go to the Montana Supreme Court, Opinions page and look at the recent decisions list. It was filed on February 27th.
I don't have time to read it now.
I did not have anything to do with this survey and it seems I thought knew more facts than I really do, but here is the major offending plat:
Car Line Addition
As mentioned already, the distance across South is not 60' as shown in the plat. So who really owns the extra right-of-way?
Wohl v. City of Missoula, 2013 MT 46
Good read Dave. Thanks.
It looks to me like the court has it completely correct.
From page 12:
"McCarthy opined that Bonner intended the lots along each side of South Avenue to have uniform depths, even if this meant that South Avenue itself would end up with a varying width. He based this conclusion, in part, on the fact that Bonner used variable lot widths when closing on boundaries in an east-west direction but used uniform lot depths when closing on boundaries in a north-south direction."
I don't mean to talk bad about McCarthy, but that statement shows a severe lack of experience working with those old plats as posted in the case.
> I did not have anything to do with this survey and it seems I thought knew more facts than I really do, but here is the major offending plat:
> Car Line Addition
> As mentioned already, the distance across South is not 60' as shown in the plat. So who really owns the extra right-of-way?
Looking forward to reading this. As a matter of simultaneous conveyance, aka platting. The king gets what the kind gets and the excess or deficiencies go to the land claimant.
Even though streets on many plats do not show a ROW width, that does not mean they are variable. Many states have statue ROW widths for roads depending on when it was dedicated and for what purpose. I will read this and post later.
It appears that the facts related in the case differ somewhat from discussion I've heard regarding this case. This looks like Shelton got it right.
Wohl v. City of Missoula, 2013 MT 46
> I don't mean to talk bad about McCarthy, but that statement shows a severe lack of experience working with those old plats as posted in the case.
I should apologize to McCarthy as I am speaking from experience with similar looking plats in my area of practice. They often show the same length on lines that even have bearings noted which would preclude the lengths from remaining the same. It may be different in other areas of the country.
I couldn't get the court case to come up. This may not have anything to do with this case, but Jeff Lucas just helped write a law book for Illinois and I went to his presentation at the Illinois conference. He talked about the theory that cities always get their platted ROW, that you don't prorate the ROW if there is a shortage, you can't get adverse possession over a ROW etc. He said all these ideas are FALSE. He agreed you can't get adverse possession over a city ROW, but he did say acquiescence, repose etc can apply and ROWS can end up smaller than platted. He also said if there is a shortage in blocks, that the ROW should maybe lose its fair share also. He also listed several court cases to back this up.
I like this:
". . .He talked about the theory that cities always get their platted ROW, that you don't prorate the ROW if there is a shortage, you can't get adverse possession over a ROW etc. He said all these ideas are FALSE. . ."
I have never bought the idea that the ROW is always as stated in distance!
Keith
here another place to try and get the case to load.
The supreme court held that the plat showed 60 feet and that's what the public got, no more - no less....citing Roubillard and friends.....[sarcasm]just thought I'd throw that out there....[/sarcasm]the opinion sounds like it was a rough day on the stand for the city's surveyor/witness....
Yes, they heavily quote Robillard's version of Brown's Boundary Control and Legal Principles.
The decision makes a lot of sense. I've never heard of anyone taking the excess and putting it all in the street.
The City even conceded that the lot owners have the fee to the Section line but tried to extend it's easement despite the obvious intention displayed by the Plat (30' half street, 60' total).
The street R/W is an easement in this case.
Having worked for the aforementioned Mr. McCarthy I can vouch that he did not make boundary decisions lightly and local surveyors have been following his work around for decades. As this survey was a bit before my time there I can't offer comments but perhaps it might generate some lively discussion at future MARLS chapter meetings.
My $0.02...
This is either amazing, funny or sad, I'm not sure which...
from the article...
“They were not using this private property, by the way. It was sitting there unoccupied. There were no buildings on it,” Bender said.
Well heck they weren't using their front yards so we just turned it into street. What's wrong with that?
dig- I have no doubt McCarthy thought through his boundary decisions before he produced his COS, It appears that he had difficulty coming to grips with the quantity of the excess uncovered.
It's worth noting that Shelton's work up and down the valley is at least as extensive as McCarthy's, if not more so, and his expert opinion was accepted by both the district court and the SCOM.
This is either amazing, funny or sad, I'm not sure which...
> “They were not using this private property, by the way. It was sitting there unoccupied. There were no buildings on it,” Bender said.
A true statement. No buildings were built on the approx. 20 foot strip between the homes and the curb:
-2002 google aerial-
And none ever will be now:
-Current aerial-
Now you can step on to the bus from what remains of your front porch:
I think both courts got it right.
> I've never heard of anyone taking the excess and putting it all in the street.
Yeah, one position just boiled down to the idea that somehow it was more important to create lots with the exact depth shown on the plat than a street adjoining them with the exact statutory width (also as shown on the plat). If one needs a textbook to make that argument, then something has slipped off the tracks somewhere.
After reading the opinion, I too have to agree with the court. I did not remember seeing the platted distance of 60' on some surveys in that area and that is what my thoughts were. We have a lot of roads such as Russell and Third which have plats abutting the section line and the earlier surveys sometimes indicated a void on that area with no lots, but no platted road and then the plat on the other side of the section line may or may not have done the same. Upon surveying the section line and the two adjacent plats; we generally end up with a variable width right-of-way.
In this court opinion, I do not see that being the case.