Practical Location??

Since they knew where the creek was located they couldn't move the boundary lines without a written conveyance. It would be best to get a Q/C from owner A covering the gap if he is still available but not absolutely essential since there probably was no intention to keep the gap. Then do lot line adjustments between the three owners. Then have the City transfer its resultant parcels to the respective owners as appropriate.

Practical Location is an establishment doctrine or a phrase sometimes used in explaining other Establishment Doctrines which isn't appropriate in this case, in my opinion.

The calls of the creek were the boundary then and remain the boundary today.

A Harris, post: 355879, member: 81 wrote: The calls of the creek were the boundary then and remain the boundary today.

I would go further to say the creek is now contained in the culvert with an agreed 20 foot width. Where the creek was historically is of no consequence, it is still the boundary where it is now. There are no "gaps" or "overlaps" to consider.

The other issue with Practical Location or other Establishment Doctrines is the City was not a party to the Deed conveyances. I doubt a building permit operates to transfer land or agree to boundaries. Maybe estoppel is involved but I wouldn't count on it. It is doubtful the City Building Official could cause the City to be estopped in a title or location matter. When A deeded to B and C it could not arbitrarily move the City's boundaries without the City's participation.

Practical Location usually occurs when A conveys to B some of A's property with no third parties involved.

I say all this recognizing, however, that there may be appropriate Deed conveyances among all interested parties already. Title research needs to go back to at least the beginning of A's ownership. I assume this has been done already. Check with the City too, sometimes agencies forget to record documents but they have them on file somewhere.

When a creek boundary has been re routed by somebody, that does not change the original boundary line's location.
The same goes with the installation of a box culvert or other underground drainage system.
Big yellow machinery digging a trench is not a natural movement of a riparian boundary.
That action does not change the calls of the boundary lines and the space between the bank calls will be the actual property owned by the city.
Usually, it will be damned the law and allow Bureaucracy to decide when any city government entity needs access.
The minutes of city council meetings will be where the cities decisions are posted.
Not actually posted in full verbiage like most public announcements are for legal reasons and most of the time do not regard or follow state laws to the letter.
When the area is following that original location as can be located, the result may be the best solution possible.

A Harris, post: 355888, member: 81 wrote: When a creek boundary has been re routed by somebody, that does not change the original boundary line's location.
The same goes with the installation of a box culvert or other underground drainage system.
Big yellow machinery digging a trench is not a natural movement of a riparian boundary.
That action does not change the calls of the boundary lines and the space between the bank calls will be the actual property owned by the city.
Usually, it will be damned the law and allow Bureaucracy to decide when any city government entity needs access.
The minutes of city council meetings will be where the cities decisions are posted.
Not actually posted in full verbiage like most public announcements are for legal reasons and most of the time do not regard or follow state laws to the letter.
When the area is following that original location as can be located, the result may be the best solution possible.

I agree, it would be best for owners to use and maintain the original lines but sometimes they don't and the erroneous location can become established in law or equity. The required parties have to participate. If Ralph Kramden and Ed Norton agree to go steal the City's land it doesn't make an established boundary with the City. Also established boundaries don't operate when the true boundary location is known to the parties.

If the true line no longer makes sense then they should file the appropriate paperwork so future generations don't have to waste enormous sums of money and time figuring it out.

So I get "Practical Location usually occurs when A conveys to B some of A's property with no third parties involved", and my reasoning that the City was involved when A deeded to B (who was granted both of the parcels on each side of the historic creek/culvert) may not hold.

I wanted to respond to the following reply by Dave:

"Since they knew where the creek was located they couldn't move the boundary lines without a written conveyance. It would be best to get a Q/C from owner A covering the gap if he is still available but not absolutely essential since there probably was no intention to keep the gap. Then do lot line adjustments between the three owners. Then have the City transfer its resultant parcels to the respective owners as appropriate."

I believe they didn't know where the creek was located and gave it their best shot. I've resolved it with an unrecorded map, with its location substantiated by calls in the old deed that match pretty well once a blunder is rectified on the first call along the creek bank. City Council minutes gave instructions to construct the culvert "along the bed of the creek."

That aside, owner A and his heirs are not available. I also believe, like you, there probably was no intention to keep a gap, so can you say more about it not being absolutely essential to get a Q/C from owner A. No quiet title action either? To be clear, if this is the case, Owner B owns to the creek banks, City still owns the creek, no LLA is needed, just need City to transfer the parcel it owns presently (the lands between the banks of the historic creek) to Owner B, and reserve an easement over that portion of the culvert that their creek lands encompass, and get an easement granted to them for the rest of the culvert that traverses lands outside of the historic creek, no?

The obvious intent to not keep a gap in an area that was to be the access for the pending development makes the "gap" issue that easily resolvable?

Thanks.

I tend to simplify things, but it sounds like the city could issue quitclaim deeds of the properties on either side of the culvert centerline to the respective owners, while each of those owners simultaneously issued easements back to the city.

DBarberio, post: 355907, member: 6106 wrote: So I get "Practical Location usually occurs when A conveys to B some of A's property with no third parties involved", and my reasoning that the City was involved when A deeded to B (who was granted both of the parcels on each side of the historic creek/culvert) may not hold.

I wanted to respond to the following reply by Dave:

"Since they knew where the creek was located they couldn't move the boundary lines without a written conveyance. It would be best to get a Q/C from owner A covering the gap if he is still available but not absolutely essential since there probably was no intention to keep the gap. Then do lot line adjustments between the three owners. Then have the City transfer its resultant parcels to the respective owners as appropriate."

I believe they didn't know where the creek was located and gave it their best shot. I've resolved it with an unrecorded map, with its location substantiated by calls in the old deed that match pretty well once a blunder is rectified on the first call along the creek bank. City Council minutes gave instructions to construct the culvert "along the bed of the creek."

That aside, owner A and his heirs are not available. I also believe, like you, there probably was no intention to keep a gap, so can you say more about it not being absolutely essential to get a Q/C from owner A. No quiet title action either? To be clear, if this is the case, Owner B owns to the creek banks, City still owns the creek, no LLA is needed, just need City to transfer the parcel it owns presently (the lands between the banks of the historic creek) to Owner B, and reserve an easement over that portion of the culvert that their creek lands encompass, and get an easement granted to them for the rest of the culvert that traverses lands outside of the historic creek, no?

The obvious intent to not keep a gap in an area that was to be the access for the pending development makes the "gap" issue that easily resolvable?

Thanks.

Does B own both sides of the creek?

I got the impression there was two owners, one on each side of the creek.

If B owns all of predecessor A's lands then I think you are correct, just have the City grant B the creek parcel, this will extinguish the creek boundaries, then have B grant the City the easement. The City could reserve the easement but that could leave gaps in the easement. It would be better for B to grant the easement. If the Title Company will insure it theoretically you have no problem.

B does own both sides of creek.

I'm thinking I'll show the 10 foot offset line to the culvert centerline and its relation to the historic creek banks on the Record of Survey, with the note that A couldn't grant what he didn't own on the "overlap" side, and on the other side that the "gap" doesn't exist as all the circumstances at the time of the conveyance lead to the conclusion that no intention existed to keep the "gap". They made a best guess at where the creek existed (with or without the City's participation).

So Dave, when you say it's best, but not essential, to get A to quitclaim the gap (not possible), is that just for assurance in the unlikely scenario that some other piece of evidence emerges in the future that lessens the case that the intent was not to leave a gap? It seems to me if I have the authority to determine intent, and believe it is clear, a quit claim deed is unnecessary except for that unlikely scenario....

I don't have an answer for you, but I can tell you the fact that the city issued building permit has no bearing. A building inspector does not have the authority to alter a city's title to real estate.

Also, in all the states I am familiar with there can be no prescriptive rights obtained on city property, so if the area the driveeay crosses is owned by the city there is no prescriptive easement.

Can the City inspector's actions create an implied easement?

Something here doesn't pass the "smell test."

1) How did the city end up with a fee title strip of land encompassing the creek bottom? If they received a deed from A or their predecessors, then ok. If there is no deed to produce showing the city's ownership of the creek, then I'd be very suspicious of their claim. If their ownership claim has no basis in a deed, then the common law presumption is that A owned to the center of the creek from both sides. The city possibly could have an regulatory interest in the form of a flood control ordinance for protection of public health and safety. Many times these are incorrectly believed to equate to the city's claim of "ownership" of the creek.

2) How were the descriptions in the deed from A to B changed? Once a parcel description is made of record, there is no way to rewrite the description without an conveyance document altering the boundaries of the parcel. Simply constructing the storm drain line isn't enough to change the boundaries.

3) Like you said, "all the circumstances at the time of the conveyance lead to the conclusion that no intention existed to keep the 'gap'." What evidence do you have that the parties intended to either create or to retain ownership of some narrow strip of land ("gap") next to one of their outside lines? Any time I find evidence of a supposed "gap" or "overlap," I look for the reasoning behind it. If there is no reason, there is no "gap." A simple mathematical difference isn't a sufficient reason. There must be direct evidence of the intent to overcome the presumption against gaps or overlaps.

4) If "they made a best guess at where the creek existed (with or without the City's participation)" and the evidence of the former creek location is obliterated, why is your guess any better than theirs?

5) If the city truly desires only an easement and is willing to give up their fee title, then simply have the city execute a quitclaim deed for the creek using the precise language from the document they received the title under. Exchange the QCD for a grant of easement from B for the 20' strip centered on the storm drain line.

JBS

PS The doctrine of Practical Location is one of the establishment doctrines, like Dave said. However, it is viewed differently in the several states. In its pristine sense (before the more modern courts have twisted it around), it was viewed as a doctrine of repose wherein several boundaries were simultaneously resolved. It requires the construction of improvements at or near the time the parcels were divided, presumably at a time when the boundaries were best known by the parties involved in creating them. For some unknown reason the parcels are shifted and/or rotated from their expected position yet found in harmony with one another. The boundaries are said to have been "practically located" and are to be left in harmony. From a surveying perspective, we'd call it "following the footsteps" of the one(s) who established the boundary or we'd call the fences as the "best available evidence" of the original survey. The PLSS manual calls it "corner of common report." (Either way, the doctrine doesn't apply in this circumstance.)

The courts in several jurisdictions have equated the similarities of the doctrine (repose) with the agreement doctrines (expressed and implied) and have come to view the doctrine of Practical Location as an umbrella under which the other doctrines reside. In those few jurisdictions, the doctrine no longer stands on its own as a separate doctrine. The common view in those jurisdictions is that the establishment of a boundary under expressed or implied agreements (acquiescence) is the action which has "practically located" the boundary. The only loss by that view is that the boundaries are established one at a time using the same argument over and over. When dealing with several parcels, you'd need a separate lawsuit for each boundary. The pristine doctrine can resolve all the boundaries at one time.

DBarberio, post: 355929, member: 6106 wrote: B does own both sides of creek.

I'm thinking I'll show the 10 foot offset line to the culvert centerline and its relation to the historic creek banks on the Record of Survey, with the note that A couldn't grant what he didn't own on the "overlap" side, and on the other side that the "gap" doesn't exist as all the circumstances at the time of the conveyance lead to the conclusion that no intention existed to keep the "gap". They made a best guess at where the creek existed (with or without the City's participation).

So Dave, when you say it's best, but not essential, to get A to quitclaim the gap (not possible), is that just for assurance in the unlikely scenario that some other piece of evidence emerges in the future that lessens the case that the intent was not to leave a gap? It seems to me if I have the authority to determine intent, and believe it is clear, a quit claim deed is unnecessary except for that unlikely scenario....

The Q/C from A would simply eliminate any claim A might have to the gap but if A is gone it isn't likely he will come back and as JBS points out there isn't a gap in reality, anyway. It's just a belt and suspenders approach to really kill it dead, putting more bullets into the dead horse to make sure it really is dead.

DBarberio, post: 355931, member: 6106 wrote: Can the City inspector's actions create an implied easement?

I will say no to this. A Court will not hold the City to the actions of an employee who does not have the authority to affect the City's real property interests. The inspector has no authority to sign a Grant Deed from the City, for example, so it would be extremely unlikely that a Court would hold that a City inspector's behavior can imply an easement. Implied Easements are usually tied to a conveyance; the typical example is selling the rear half of land without giving an expressed easement over the road that goes back there. The Courts will say an implied easement exists in that case.

Assuming the City actually owns the creek and it's not an easement or other interest:

I think the Practical Location angle is:
1) The City owns between the banks of the creek.
2) The banks of the creek were lost when it was filled in and the pipe installed.
3) Years passed.
4) No one knows where the creek banks were located (it can be guessed but not known for sure).
5) The location of the pipe is known so the edges of the pipe becomes the practical location of the boundaries (it has to be tied to the physical feature, not an arbitrary offset from the pipe centerline).
6) Under this scenario B owns all the land except the pipe itself. The City owns the pipe.

I think it fails because it is known that the pipe edges are not the same boundaries as the creek banks. The creek bank location can be reconstructed, at least approximately. Establishment Doctrines such as Practical Location cannot operate to move a boundary; they can only recognize where the boundary is already located. The Doctrines don't change the Deed description; they simply define the location of the boundary described in the Deed. Obviously a creek bank and a pipe edge are not the same thing.

In my experience, when a creek is converted to a closed conduit there is a topographic survey and engineering plans. If the City has those documents then those are good evidence of where the banks were located and also would defeat the required uncertainty for a boundary to establish as I describe above.

How have you determined that the creek is owned by the City. Unless you have a specific grant to the City of fee, I don't believe they do. When was the creek parcel created?

California Code of Civil Procedure
[2077.] Section Two Thousand and Seventy-seven. The following are
the rules for construing the descriptive part of a conveyance of real
property, when the construction is doubtful and there are no other
sufficient circumstances to determine it:

Four--When a road, or stream of water not navigable, is the
boundary, the rights of the grantor to the middle of the road or the
thread of the stream are included in the conveyance, except where the
road or thread of the stream is held under another title.

A Streets and Highway Code 905 precluded cities from owning fee title prior to 1955 for highway purposes. It was repealed in 1961. I don't know if anything similar exists for drainage.

I am troubled by this statement; "No one wants to go through an expensive quiet title suit or other legal remedies if they can be avoided."
I frame the issue differently. Collect all the relevant evidence for and a against a particular boundary location. Using the totality of the evidence form an opinion as to the location. The duty is to protect the public. I would rate finding the correct boundary as a paramount duty. The evidence dictates the appropriate action rather what the least expensive stop gap measure should be employed. The evidence could lead the client to have to take undertake a quiet title action. The surveyor needs to recognize when a boundary has been established and by which method.

In the area where Dean practices, you can't assume that the waterway is not navigable simply because it is named Somethingorother Creek. There are a number of creeks in that area that carried ship traffic inland several miles as those creeks are in flat tidally influenced areas, but then the creeks rapidly narrow as one continues upstream from the head of navigation as they come down out of the mountainous and hilly areas.

If I recall correctly, there are at least 2 creeks in Marin County that were considered navigable for a significant distance from their mouths at San Pablo Bay (Gallinas & Corte Madera). This situation sounds a lot like it could be Corte Madera Creek, which, IIRC, did have a portion of creekbed near the head of navigation replaced with culvert.

If that's it Dean, send me an email and I'll see what info we've got on the location.

If this portion of creek was part of a grant from the State to the City, then it would have been a transfer that placed the City as trustee of sovereign lands (bed of a legally navigable waterway), which means that they can't simply convey their fee interest away. Legally, it would make no difference that the waterway is no longer navigable in fact. I'm not saying that it couldn't be done at all, but that it won't be as simple as you hope. It may be simpler for the City to lease a corridor for B's driveway over the historic location of the creek bed. Just what hoops would need to be jumped through would be a question for our legal staff.

If the City somehow had acquired fee interest in a non-navigable (for title purposes) portion of the creekbed by some other means, then the City likely could convey their fee interest away that simply.

That all deals with the title part of the question. Getting into the question of boundary location, I have some of the same questions as posed by others.

How did the descriptions change from calling to the banks of the creek to lines 10' off the culvert CL? Was there some sort of LLA with the City when the culvert was placed?

Assuming that the City's title to the bed was valid, and that the only LLA was by some long ago unrecorded conversation between Owner A and some City Official, engineer or inspector, then the boundary is still the last natural location of the banks of the creek at that location. There is probably reasonably reliable mapping to re-establish those locations with a good degree of certainty. If I'm reading your post correctly, you've been able to re-establish those locations, that the alignment of the culvert with a supposed 20' wide strip centered on it doesn't follow the old creek course closely in all locations, and that is the basis for your gap and overlap statements. Am I following correctly so far?

Here's what you need to begin unraveling this:

1) Determine the source and nature of the City's title. (This and the next item are of paramount importance before implementing advice on other remedies.)
2) Determine if the portion of the creek in question is considered to be above or below the head of navigation (hint: Harbors & Navigation Code is not definitive on the question of navigability for title purposes. Direct the question of the location of the head of Navigation to State Lands).
3) Determine if there was some exchange that occurred during A's ownership with regard to the culvert alignment.
4) If This location is below the head of navigation, notify your client and whoever you've been in contact with at the City that the solution may not be as easy as hoped, or may need to be a different solution than originally anticipated.
5) If you don't have the names of some of the better title/boundary attorneys for riparian issues in the area, ask Larry. If you're dealing with an area blow the head of navigation and the City is not aware of it. It will help your client to have a knowledgeable attorney to help ensure that the remedy is within the City's authority to accomplish and the best for your client's interests.

As to your current solution of showing the 10' off culvert lines as compared to the last natural location of the banks, I agree with that for your RS. It sounds like you would put your dark lines on the banks. Assuming that there was no land exchange between A and the City, I also agree with this. But I think that it's premature to file your map until you've fully answered the question of the City's title and the extent of navigability. If you are pushing up against your 90 days, send the CS a letter explaining the outstanding questions regarding boundary and title and the avenues you are pursuing to resolve those questions. Once you have those answers, you can file your map and begin helping in an appropriate remedy.

eapls2708, post: 356015, member: 589 wrote: In the area where Dean practices, you can't assume that the waterway is not navigable simply because it is named Somethingorother Creek. There are a number of creeks in that area that carried ship traffic inland several miles as those creeks are in flat tidally influenced areas, but then the creeks rapidly narrow as one continues upstream from the head of navigation as they come down out of the mountainous and hilly areas.

If I recall correctly, there are at least 2 creeks in Marin County that were considered navigable for a significant distance from their mouths at San Pablo Bay (Gallinas & Corte Madera). This situation sounds a lot like it could be Corte Madera Creek, which, IIRC, did have a portion of creekbed near the head of navigation replaced with culvert.

If that's it Dean, send me an email and I'll see what info we've got on the location.

If this portion of creek was part of a grant from the State to the City, then it would have been a transfer that placed the City as trustee of sovereign lands (bed of a legally navigable waterway), which means that they can't simply convey their fee interest away. Legally, it would make no difference that the waterway is no longer navigable in fact. I'm not saying that it couldn't be done at all, but that it won't be as simple as you hope. It may be simpler for the City to lease a corridor for B's driveway over the historic location of the creek bed. Just what hoops would need to be jumped through would be a question for our legal staff.

If the City somehow had acquired fee interest in a non-navigable (for title purposes) portion of the creekbed by some other means, then the City likely could convey their fee interest away that simply.

That all deals with the title part of the question. Getting into the question of boundary location, I have some of the same questions as posed by others.

How did the descriptions change from calling to the banks of the creek to lines 10' off the culvert CL? Was there some sort of LLA with the City when the culvert was placed?

Assuming that the City's title to the bed was valid, and that the only LLA was by some long ago unrecorded conversation between Owner A and some City Official, engineer or inspector, then the boundary is still the last natural location of the banks of the creek at that location. There is probably reasonably reliable mapping to re-establish those locations with a good degree of certainty. If I'm reading your post correctly, you've been able to re-establish those locations, that the alignment of the culvert with a supposed 20' wide strip centered on it doesn't follow the old creek course closely in all locations, and that is the basis for your gap and overlap statements. Am I following correctly so far?

Here's what you need to begin unraveling this:

1) Determine the source and nature of the City's title. (This and the next item are of paramount importance before implementing advice on other remedies.)
2) Determine if the portion of the creek in question is considered to be above or below the head of navigation (hint: Harbors & Navigation Code is not definitive on the question of navigability for title purposes. Direct the question of the location of the head of Navigation to State Lands).
3) Determine if there was some exchange that occurred during A's ownership with regard to the culvert alignment.
4) If This location is below the head of navigation, notify your client and whoever you've been in contact with at the City that the solution may not be as easy as hoped, or may need to be a different solution than originally anticipated.
5) If you don't have the names of some of the better title/boundary attorneys for riparian issues in the area, ask Larry. If you're dealing with an area blow the head of navigation and the City is not aware of it. It will help your client to have a knowledgeable attorney to help ensure that the remedy is within the City's authority to accomplish and the best for your client's interests.

As to your current solution of showing the 10' off culvert lines as compared to the last natural location of the banks, I agree with that for your RS. It sounds like you would put your dark lines on the banks. Assuming that there was no land exchange between A and the City, I also agree with this. But I think that it's premature to file your map until you've fully answered the question of the City's title and the extent of navigability. If you are pushing up against your 90 days, send the CS a letter explaining the outstanding questions regarding boundary and title and the avenues you are pursuing to resolve those questions. Once you have those answers, you can file your map and begin helping in an appropriate remedy.

I had no idea this is in California or even so close.