We have a 67 lot subdivision in California that was created in 1957.
It was filed as a Record of Survey (which is odd).
The parcels are depicted ending at the edge of the streets and the map has the following statement.
There is no home owners association.
I would presume that case law would support each lot benefiting from an implied easement over the streets for the purpose of ingress/egress. Can anybody point me to the primary case law in California which supports the implied easement over private streets in a subdivision? Perhaps it is covered in a statute?
By the way this question is not related to a survey...rather this question came up as to the status of the streets.
Thanks for any information you can provide.
Who is maintaining the road?
There are usually codes in place that will change road status when maintenance is continued for a public roadway.
A Harris, post: 451507, member: 81 wrote: Who is maintaining the road?
There are usually codes in place that will change road status when maintenance is continued for a public roadway.
Good question. I'm not sure there is any maintenance being performed. They are sandy roads on volcanic lava.
The tax collector shows a private individual as being responsible for tax purposes.
I think it's clear that the roads are probably privately owned for whatever reason.
I was mainly looking for information to support the implied easement.
imaudigger, there was a period of time when local agencies used a map named "Record of Survey" for some subdivision purposes and it was not the same as the Record of Survey as defined in the PLS Act. Threw me at first too. I believe this was eventually eliminated when Parcel Maps came into existence.
I suspect that it could go either way....the streets being owned by a single individual with implied easements for the lots, or each lot extending to the centerline because the developer had no intention to retain useless strips of land.
It appears in this case, the developer owned several larger lots which surrounded the development and perhaps he wanted to retain the streets because they benefited his other parcels of land.
"It depends" is probably the answer. However, in either situation there would be implied easements.
My experience has been, being located not too far from imaudigger's neck of the woods, that ROS's were filed commonly for the purpose of division. However, they of and by themselves were not divisions of land but were utilized as a reference for subsequent granting of deeds.
I am familiar with many instances where ROS's were filed showing divisions of land, but which were not utilized when the granting of parcels occurred resulting in lot boundaries different than the ROS depiction. As you are surely aware, prior to 3/4/72, many parcels were created by deed splits as the map act did not require parcel maps for less than 5 lot divisions. Some landowners and their surveyors tried end running the Map act for "SIMULTANEOUS" divisions greater than 5 lots by filing a ROS showing divisions and then performing "SEQUENTIAL" deed splits that referenced the prior ROS "proposed" divisions.
The solution is in the individual deeds' language as to ownership limits. That and the part of the civil code (813) that states that the presumption is that the owners own to the center of the street. CC 813 does not differentiate between public and private roads.
Thanks,
Correction: It's Civil Code 831.
We have the same type of map in Amador County. As Ric said the R/S were exceptions to the map act and were allow based on local regulations controlling minor divisions. I also know of a court ruling of a judge stating all roads shown on a map were implied dedication for all parcels shown on the map. I will try and locate that ruling, but have to leave the office shortly and may not have enought time.
Right, 831.
I meant to also throw in my 2 cents regarding access rights as per your original question. As I said before, it is necessary to look at the deeds for any clue to granted or reserved access rights. Notes on the R/S as to access rights/ dedications likely are of questionable value being in part that ROS's are not part of the chain of title and don't impart constructive notice (see Stearns vs Title Ins), and in part being as they are not part of the SMA. Otherwise, lacking any grants or reservations in the deeds, one would have unperfected title as to access short of any adjudication of rights. One might argue several avenues as to perfecting title to the access rights, such as easement by necessity, appearance of prescriptive rights, etc etc etc.
Thank you Clearcut, very good stuff.
This is more of a curiosity for me at this point. I do not have the time to dive into the deeds and research the chain of title.
ACD Surveyor, post: 451526, member: 494 wrote: We have the same type of map in Amador County. As Ric said the R/S were exceptions to the map act and were allow based on local regulations controlling minor divisions. I also know of a court ruling of a judge stating all roads shown on a map were implied dedication for all parcels shown on the map. I will try and locate that ruling, but have to leave the office shortly and may not have enought time.
I'm familiar with imudigger's area and surrounding counties and am certain there were not and are not any local ordinances allowing ROS's to create lots by and of the ROS itself. I don't doubt that may be the case in other counties but am not familiar with it. Stearns vs Title Ins. is a good read on how published case law views ROS's in CA in general. I'd have to venture that any local ordinance providing for an ROS to be a division document would have been superceded by state law changes to the SMA in 1972 if not also earlier.
How do the deeds convey access to the lots? The cases like you describe usually either have a covenant, deed language, or a separate easement retaining ownership of the roads to the developer and or his assignees. My question has always been how do you become an assignee if you're a lot owner and is that looked at by the Courts as being given permission to use the road, which kills your prescriptive easement argument. How do you become an official assignee?
imaudigger, post: 451505, member: 7286 wrote: We have a 67 lot subdivision in California that was created in 1957.
It was filed as a Record of Survey (which is odd).The parcels are depicted ending at the edge of the streets and the map has the following statement.
There is no home owners association.
I would presume that case law would support each lot benefiting from an implied easement over the streets for the purpose of ingress/egress. Can anybody point me to the primary case law in California which supports the implied easement over private streets in a subdivision? Perhaps it is covered in a statute?By the way this question is not related to a survey...rather this question came up as to the status of the streets.
Thanks for any information you can provide.
I don't see any problem here. The frontage lots own the road, whether they're dimensioned to the edge or CL, and it's up to them to maintain it, whether there's an association or not. At least where I work, there has to be specific language excluding the fee in the road, if that's the intent.
JPH, post: 451542, member: 6636 wrote: I don't see any problem here. The frontage lots own the road, whether they're dimensioned to the edge or CL, and it's up to them to maintain it, whether there's an association or not. At least where I work, there has to be specific language excluding the fee in the road, if that's the intent.
I agree.
As everyone has stated, you really cannot get the big picture without going back to the beginning and reading all of the deeds.
That will not happen on this one.
The current deed description generally reads: those certain lots as shown on the record of survey....then a note stating "the following should be conveyed by separate Quitclaim Deed but will not be insured; Those certain strips of land known as Smith Lane, and Dairy Road, as depicted on record of survey book #1, page #1, recorded on.....saving and excepting therefrom an Easement to the public for ingress and egress over those certain strips of land known as Smith Lane and Dairy Road.