For all of us that don't want to argue with Keith about Chapter II - Section 15 in the 2009 Manual: I've got another topic that was flying around the office this afternoon:
When prorating (or indexing) between found monuments, specifically in a recorded plat in which the r/w and lots were created in a simultaneous conveyance; should a survey provide for record widths of dedicated right-of-ways and let the excess/ deficiency fall only on the private ownership, or should the r/w width also bear the excess and/ or deficiency?
Much of the urban/suburban and many rural streets in this part of the country are actually easements. I probably wouldn't prorate an encumbrance without good reason.
For the fee ownership, I am not aware of any court cases or statute law in my state which requires protection of the record fee R/W width. But I am aware it is a long standing practice of many and is the called for practice in a number of publications. I would imagine that holding the record r/w is even the correct answer on state/national licensing exam.
But I do not hold to that philosophy. Mainly because the original surveyor had error in all his measurements. It was not possible that R/W was a perfect measurement when all other measurements were not. Retracing his footsteps would mean putting them back where they stepped. Proration is meant as a means of finding those most probably footprints.
Darned good question!
I have not been involved in the actual location of a right of way line, but have never been able to buy into the theory that the King was always right, therefore the 60 foot right of way was just that, exactly 60 feet, no more, no less.
Why would it?
Keith
Because the King, or his modern equivalent, the municipal corporation, has more equity (i.e. deeper pockets) than any puny little lot-holder.
If they don't, they will just tax you until they do.
It may well come down to "don't fight city hall", but has nothing to do with survey procedures?
Maybe there is a court case someplace?
The developer was given the opportunity to design the lots as he wished, as long as the city/county got its minimum width R/W's. If the lots as designed don't fit within the boundaries of the block/subdivision, then the lots take the shortage as long as the city/county gets its due.
Just imagine a developer subdividing, say, a 660'x660' parcel with two roads running north-south through it. If the roads were required to be 66' wide, that leaves 528' for the lots. If the east-west sum of the lots shows 540' the city/county loses about 3'. The developer chuckles all the way to the bank because he pulled a fast one and really only had to dedicate 129'±.
The rules for street widths were known when the subdivision was designed.
Streets were are often their own layout, but perhaps not always. If I were to prorate across a roadway, I would hold the road widths as a general rule, but I seldom have to go across a roadway.
A lot of craziness might go on at a street. Are there centerline street monuments? How you deal with running a straight centerline between centerline monuments, then pull out the 1/2-street-width, is another issue. so if you do that, you might have another block corner location at the 1/2-street-width from the centerline. Then you might have a point to prorate from independent of the street width. And what about if it is in a curve or other scenarios? For the most part, I would go about figuring out the street right of way separately from the blocks and lots. and the blocks and lots would prorate to the street right of way if there is not a monument there.
hold the record r/w width as shown.
as a general rule.
It's not simultaneous conveyance of course, but in Mass. at least the state highways get thier record widths.
When I was interviewed by the Mass B.O.R. to sit for the exam in the mid 80's, I was asked what I would do with a state highway going through my client's property in Boston where the highway bounds didn't fit the highway layout. I was petrified. I think I said I would try to contact the state highway dept. for advice. Or maybe I would give my client the worst case on either side of the ROW. I just didn't know what I would do. I walked out feeling like a fool, but they must have thought I was humble enough to take the test.
> hold the record r/w width as shown.
> as a general rule.
Yes, you might hold the R/W Width as a rule, but I am saying that it would be very seldom I would prorate across a street at all. If there are lot corners west of a street but not at the street edge, and east of the street but not at the right-of-way edge, then I would not look a the total distance from nearest lot corner to nearest lot corner on the other side, and prorate all the lot distance and hold a right-of-way width. I would calculate the right-of-way independently from the nearest right-of-way monuments up and down the right of way, or centerline right-of-way monuments, and run them past the blocks I am prorating across. And my proration would only go to the right-of-way truncation point and not go "across" the road.
I don't know if I worded that well.
I have a hard time imagining when one would have to do that. Proportioning is a rule of last resort, meaning you do so only if and when there is no other evidence from which to retrace the boundaries. But, when one has to proportion, you shouldn't cross into another block or a street. Generally, a street would be evidence of the lines so you shouldn't have to proportion across it. If a bunch of boundaries were so truly lost, I don't think excepting the platted r/w from the calculations would be detrimental enough to be a factor, but each situation would have to be evaluted on its own merits.
The way we've been doing it as long as I can recall...
Right-of-way widths per plat as dedicated and recorded upon acceptance by the Public. Proration of lot road frontage excess or deficiencies among lots only.
Are you ready for this? The correct answer is: It depends.
Seriously, we look at several factors beforing making a case for going one way or the other.
One: This would be a case of a modern subdivision created using modern survey equipment. The measurement error should be so minor that adding or subtracting a few hundredths to the street width to keep lots at record distance seems logical.
Two: This would be a case of a modern subdivision with a clear bust or error of some sort resulting in some portion of the subdivision off while the remainder might be fine. Normally, in this case, the error would impact a small area compared to the total subdivision. We would put the error there and not prorate across the length or breadth of the entire subdivision. In this case, I would probably give the street the record dimension and short a lot or two.
Three: This would be a case of a subdivision laid out between, say, 1920-1970. Some difference in measurements is to be expected. Generally, we should get a shorter distance than those of record. If fairly sloppy work, I would probably prorate the error to everything, including streets and alleys. If fairly tight work, I might put the very minor error in the streets to keep the lots at record distance.
Four: This would be a case of a hundred or more year-old subdivision. The reasons for disagreement with record are potentially many. Sloppy work, inferior survey equipment, property owners doing their own layout due to a shortage of skilled surveyors, assumed distances (all quarter sections are precisely 2640 by 2640, right?), assumed perpendicularity of aliquot lines, minor value of the more distant portions of the subdivision from the primary section to be developed, so forth and so on. In some cases, we have found areas laid out in the primary area developed to be pretty good. No error was found until they finally sold off the lots near the distant perimeter of the total tract subdivided, which could be years, if not decades, after the initial development. Here, you are pretty much stuck with whatever you found in your field research. You may handle one situation one way and another differently within the same subdivision.
Five: This would be a case of a hundred or more year-old subdivision developed in spurts in different portions of the total tract over time. Again, you are pretty much stuck with whatever you found in your field research. One block may be several feet long, with a normal width street on all sides, but one or more of the adjoining blocks has been partially surveyed creating a shortage or even more excess. In these cases, we pretty much stick with what has been surveyed and viewed as settled by the property owners. The street may end up being extra-wide or narrow or wider at one block corner than at the next block corner, or vice versa. It is what it is. To try to perfect the historical mayhem will only lead to wailing and moaning and a trip to the guillotine for the bearer of the bad news.
I've come across a many of these where the city/county surveyor muddied the waters further by setting C/L monuments at all the street intersections. And of course they don't often jive with the actual occupation.
On older subdivision early 1900 or late 1800 say 6000' long field evidence suggest row lines may be one line for each side of ROW. I would hold monumentation. ROW is what it is by best evidence.
If the subdivision creates both the streets and lots simultaneously one MUST prorate ALL parcels, including streets. To me that is incontrovertible and unarguable.
We are prorating to account for errors in original measurements, correct? Will you stand in front of the judge and argue that the original surveyors tape changed to the correct length when it was measuring across the street, then back to incorrect when measuring the lots?
Jim makes a good point. Why should the street be treated any different then the rest of the parcels?
> When prorating (or indexing) between found monuments, specifically in a recorded plat in which the r/w and lots were created in a simultaneous conveyance; should a survey provide for record widths of dedicated right-of-ways and let the excess/ deficiency fall only on the private ownership, or should the r/w width also bear the excess and/ or deficiency?
It's a good thing the choice isn't up to surveyors, otherwise we'd be all over the map. Wait, it sounds like we are...
The original question appears to be speaking of "prorating (or indexing)" as if they are the same. They are not. "Prorating" is a mathematical method used to apply the "rule of apportionment" which is a legal doctrine that is applied to distribute excess and deficiency among several private lots created simultaneously. Because the parcels are simultaneous, they each share equal rights in the whole, therefore it is appropriate that they each share proportionately in the excess or deficiency. It's a property rights issue and the law is quite clear.
The private and public property, however, are not on equal footing and do not share the same "equal rights." Public property is required because of a public necessity which allows the public to condemn private property as necessary even when the private ownership of property is preferred. "Needs of the many outweigh the needs of the one." Because the rights are unequal, the law of apportionment does not apply to public streets.
"Indexing" is an entirely different concept related to the retracement of the controlling survey. It was common for earlier surveyors to calibrate their measurements to a known standard which was incorrect. Early surveys in Salt Lake City are a prime example. The 1919 official resurvey of the city established a baseline for chain calibrations which is around 0.18 feet off in 400 feet. Each city block is 796 feet by record but is 796.35 feet by modern (real) measurement. The city passed an ordinance that "all surveys within the city shall be made using a chain calibrated to the official base line." When you make your measurement and apply the index correction in accordance with the ordinance, you will report a measurement of 796 feet.
Because an "indexing" error results from scaling every distance measured, it is applied to all measurements which would include public streets as well as private lots. An indexing error is not the same thing as apportionment of excess and deficiency under the law. Two different concepts requiring two different methods for two different reasons.
JBS
So in the case of proportioning, you're saying the King gets his due before the proportioning is applied to what is left.
What about the case where there are no interior lot corners found, but found block corners measure out to 59 ft for a street of 60 ft record. Do you "fix" the street width or go with the monuments?
It's a wonderful question as I have been considering that holding the r/w width and prorating the private ownership could be the correct method. Although it is considered a simultaneous conveyance, the creation of the road* is a typical requirement to be met before the first private conveyance.
* Or post a bond, but there are still acceptances of restrictions prior to conveyancing.
The Primacode Software scales everything, so I can be swayed to just scale.
