Follow up question: Would you agree that a surveyor can under certain circumstances and with sound reasoning determine a property’s location based on occupation as long as any discrepancy with the written record is depicted? and hopefully explained!
Of course, I just did this a month or two ago. I was working on a rectangular lot in an ancient subdivision; no pins found on the lot but a couple pins found elsewhere in the sub. Ancient fence on the 3 non-street sides of the lot with the rear matching record almost exactly and the street ends being about 0.5' wide of the record. I called the fence line the best available evidence of the boundary and showed record/measured along the street.
If you're going to do this I think what is being occupied should at least be in the ballpark of what the record says.
In Illinois, the Conveyances Act states that if a deed conveys real property that abuts vacated right of way, it is deemed and construed to include the right, title, and interest in that part of such right of way.
I'm paraphrasing here...there can be exceptions.
We found a recorded vacation document by the local authority that basically was a recorded summary of the City Council Ordinance. This did not show up in any land/tract/grantor/grantee index. I believe it was recorded as a misc. document. The title company agreed the vacated portion is automatically included with the adjacent property.
I work for the DOT, this greatly affects how we acquire property. In this case, we have to purchase some previously vacated ROW. 🙄
I'd check with the local authority to see if an ordinance was passed. It's possible it never got recorded.
State specific laws come into play. I've heard that in some places a public road right-of-way can be legally extinguished by nonuse or abandonment. Here (Oregon), that's not the case. In Martin v. Klamath County 39 Or. App.455 (1979) the court ruled that "A duly established public road may not be lost to the public except pursuant to the terms of ORS 368.620.” So if there is no public record of a road vacation then the road or ally is still public right-of-way.
Spot on. I would add that timing of creation and disuse can also impact the answer.
I would scour the commission and council notes for the period(s) in question. It there was a formal vacation it will be there. Every entity has different search tools. Best of luck..
I can think of an odd situation where the blocks were platted with no alleys, but, the city later created alleys for all blocks. The city came into existence overnight with the original town consisting of blocks consisting of only four lots. The northeast quarter was Lot 1, the northwest quarter was Lot 2, the southwest quarter was Lot 3 and the southeast quarter was Lot 4. Blocks were 400 feet east to west and 300 feet north to south.
As the town lots were being snapped up by eager buyers, it soon became apparent there was a need for alleys. The city fathers decided the south eight feet of Lots 1 and 2 and the north eight feet of Lots 3 and 4 needed to be an alley. They quickly passed this action before more lots were sold. Thus, reference to a specific lot gets confusing as the platted lot goes to the center of the alley. Some documents will read like: The east 50 feet of the west 100 feet of Lot 3, less alley. Other documents will refer to the same parcel as including the alley.
I looked in and noticed a bunch of replies I hadn't seen before. Odd...
One recurring theme in replies is 'no AP against the crown. While technically correct there are many cases of statutory acqiescence to vacation. It is often the case that roads created by prescription can be vacated by a period of disuse. You would need to understand the history of road creation and abandonment to recognize the relevant fact patterns.
This is where I diverge from the ideas of recent tradition. It is absolutely our function to gather and evaluate evidence and issue an authoritative opinion on what that evidence means. If we stopped describing (and thinking of) ourselves as measurement experts that would be obvious.
