When a public street or alley is vacated, does it always retain its original width when prorating across, or does it become like its own lot that gets a prorated distance similar to the lots adjacent?ÿto it??ÿ There are no existing monuments on either side of the vacated entity.?ÿ Is there a legal precedent?
In the situation I am dealing with, a 16.00' wide alley, some of the owners own the entire vacated alley, while others own to the center.?ÿ If I treat it like it's own lot, the prorated alley becomes 16.07' on one end and 16.11' on the other.?ÿ The center of the alley then becomes a line connecting points at?ÿ8.035' and 8.055' on the ends.?ÿ Or, if do not prorate across the alley, the end widths are fixed at 16.00' and the center?ÿis a line 8.00' on each end.
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The alley is 16', any excess or deficiency goes to the lots.
Might I ask how owners own the entire alley?
Paul in PA
The alley is 16', any excess or deficiency goes to the lots.
Might I ask how owners own the entire alley?
Paul in PA
I would guess that some owners parcels were bisected by the alley, and they owned on both sides...?
If a subdivision created an alley along one boundary line, then when it's vacated only the lots in that subdivision would get reversionary rights. If the alley is inside the boundary then lots on each side get 1/2. Sometimes cities or counties try to distribute the street or alley but all they can do is vacate.
So I'm curious as well how some get 1/2 and others get the full width, I suppose there could be a jog in the subdivision boundary.
I also agree if it's a proration that I would leave 16 feet in the alley and lots would get excess or deficiency, at least that's my default position, it's a very interesting question that could have different answers in different states.
The alley is 16', any excess or deficiency goes to the lots.
Might I ask how owners own the entire alley?
Paul in PA
I would disagree - IMHO if the lot was created "simultaneously" with the lots via a plat, the alley width is prorated exactly like the adjoining lots. If the alley was created prior to the lots then of course it has senior rights and is 16 feet wide.
It depends and can be argued in both directions depending on the specific situation. ?ÿNo single answer will apply in every case.
I can think of an 1868 addition to a town that was all of the west half of the southeast quarter of a standard section. ?ÿThe plat shows all numbers being whole numbers that total to exactly 1320 by 2640. ?ÿWe all know that is not true without even doing any measuring. ?ÿOne camp would argue that the streets and alleys should get the exact amount shown on the plat and the lots/blocks get the extra/deficiency. ?ÿThe other camp would say prorate everything. ?ÿThe third camp (including me) says let the chips fall where they will. ?ÿThere have been numerous surveys over the past 150 years in that addition performed to the best of the ability of the surveyor at whatever time it was done. ?ÿIgnoring all of that work and the reliance of the land owners would be foolish.
Initially, each side got half of the alley long ago, but one landowner later built a garage that went across the halfway point, so the adjacent owner sold him his half of the alley.?ÿ The alley was never used as a thoroughfare, just an alley on paper.?ÿ
So, if I am reading the responses correctly, the alley width can never be more or less than the original platted 16.00' despite the vacation.
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The rule of apportionment applies to properties with equal rights (created under a single action) created in equal time (recording of the plat).?ÿ The difference between the properties involved is public vs private.?ÿ The private rights are superior to public rights; therefore, the public only gets what the public needs, i.e. 16 feet.?ÿ The rule of apportionment results in the proportionate distribution of the excess or deficiency after the public need is removed from the equation.
If the alleyway has been vacated, the abutters each get half of the public property as they have an equal share in the former alleyway.?ÿ The vacation doesn't change the boundaries, it simply eradicates the former alley right of way, merging it with the abutter's property to form a single tract of land.?ÿ After vacation, the right-of-way line simply disappears so there's nothing to distribute the excess/deficiency upon.
This result may differ dramatically if the public right of way was created under the Townsite Act.?ÿ?ÿ
Also, remember that the rule of apportionment is a rule of last resort only intended to be applied when the boundaries have not yet been established.?ÿ As Holy said, the chips may have already fallen.
If the alley was along the exterior of the subdivision and the subdivider/owner owned the land that abutted alley at the time of the creation of subdivision, the subsequent owners of the land that adjoined the alley would normally own to the center of the alley.?ÿ?ÿ
If the subdivider/owner did not own on the other side of the alley outside the subdivision, I agree that the lot owners would own the entire alley.
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Not so sure about that. ?ÿAs in the addition I described above, it was entirely out of a specific aliquot part of the section. ?ÿThe vacated alley would stay entirely within ?ÿthe tract from which it was taken. ?ÿThe adjoiner would not suddenly get anything he, or his predecessors, did not give up.
I'll look at my index when I have a chance.
I think there are two distinct factual scenarios.
I believe it was common in the 19th century to lay out the blocks at most. It wasn't unusual to not stake Lot corners because the buyer might want fractions of lots or multiple lots. So in that case it was occasionally found that the block was larger or smaller than record shortly after the Plat was filed and the courts directed that the lots be apportioned. The lots would be apportioned between block corner stakes and where crossing an alley or Street the r/w width would be held at record width. This is an equitable procedure.
The other scenario is where the lots and streets were staked with either a long or short chain. In this case apportionment is more of a logical restoration of the facts upon the ground by attempting to match the original Surveyors chain. In this case everything is apportioned in restoring the original stakes to their most likely location.
Justice Cooley wrote a Michigan case where h discusses apportionment.
Pleas excuse iOS edits above.
Really iOS, really????
We have a few small towns in a nearby county where the center of street intersections were set instead of block corners. ?ÿFirst thing you do is head to the middle of the intersection, wave the magic stick and start digging a hole in the pavement because ?ÿit was added decades after the monuments were set.
66 Neb. 826 Supreme Court of Nebraska. BROOKS v. STANLEY. Dec. 17, 1902. Syllabus by the Court. *1013 1. ??On a line of the same survey, and between remote corners, the whole length of which is found to be variant from the length called for, it is not to be presumed that the variance was caused from a defective survey of any part, but it must be presumed, in the absence of circumstances showing the contrary, *1014 that it arose from imperfect measurement of the whole line, and such variance must be distributed between the several subdivisions of the line in proportion to their respective lengths.?
Quinnin v. Reimers, 46 Mich. 605, 607 (1881); 10 N.W. 35
Justice Cooley writing: "The general rule is familiar that an apparent shortage like that which is met with here is not to be taken from any one lot, but is to be apportioned among all according to the length of their lines as indicated by the survey. The principle is clearly stated in the leading case of Moreland v. Page, 2 Iowa, 139, 153: ??Where on a line of the same survey, between remote corners, the whole length of which line is found to be variant from the length called for, in re-establishing lost intermediate monuments, as marking sub-divisional tracts, we are not permitted to assume that a variance arose from a defective survey of any part; but we must conclude, in the absence of any circumstances showing the contrary, that it arose from the imperfect measurement of the whole line, and distribute such variance between the several subdivisions of such line, in proportion to their respective lengths.? This rule is so obviously just and reasonable, that surveyors are accustomed to apply it without question or doubt."
And at 608: "To interpret the plat correctly we should place ourselves as nearly as possible in the position of the proprietor when he made it, and have its subdivisions before us as they were before him at that time. It does not appear that stakes or other monuments were planted to indicate lot lines, but if any had been placed along the west line of block 59, they must, in order to be true to the plat, have divided that line into six equal portions. If these monuments had been planted, they must have controlled, because they would have constituted the most conducive and satisfactory explanation of the proprietor's intent in making the subdivision. But if the map shows with reasonable certainty that his intent was to make an equal subdivision, the absence of stakes is not very important. We must look at his work as he regarded it, and **37 uphold the subdivisions which he by his *609 plat then supposed he had made. By the plat the west line of block 59 was assumed to be 360 feet in length when it was really but 352 or thereabouts. But the plat divided it into six equal parts, and made no fractional lot on the plank- road. The proprietors must therefore abide by this equal division, and none of them has a right to insist or making a fraction where the proprietor made none. The shortage, in accordance with the familiar rule already referred to, must be equally apportioned between the six lots. O'Brien v. McGraw, 27 Wis. 446."
We have a few small towns in a nearby county where the center of street intersections were set instead of block corners. ?ÿFirst thing you do is head to the middle of the intersection, wave the magic stick and start digging a hole in the pavement because ?ÿit was added decades after the monuments were set.
Most small town subdivisions (est. 1855 -1899) I work on where laid out in such a way. These same small towns now have a large sanitary manhole at this location instead of a stone.?ÿ Others would just set one corner of each block. Sometimes a stone, sometimes an oak stake, occasionally a pipe. Usually the original surveyor admitted as much in his map or the desrciption thereof.
I like this primer from the Marquette Law Review: http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=2928&context=mulr ?ÿand I'm pretty sure one of you guys turned me on to it.
Steve
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Quinnin v. Reimers, 46 Mich. 605, 607 (1881); 10 N.W. 35
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These citations don't seem to say anything about roads??ÿ
There are two possible?ÿ goals in proportioning.?ÿ
1)?ÿ To locate the corners where they original were. In this case including the roads in the proportioning is appropriate. If the original surveyor had a short chain, this would have affected the alleys in the same way as the lots.
2) To arrive at an equitable solution. In this case ensuring the row widths match the record may be appropriate because the public's interest is different than an individual land owner. The public is "more equal".?ÿ
Whichever method is appropriate, it shouldn't matter that the alley was vacated. The vacation of the alley cant change the boundaries on the other side of the lot.
That being said, the differences you are dealing with are so small it is not very likely anyone will have a problem with your choice, unless there are improvements right on the line or the set back.?ÿ
No, the cases I cite don't directly mention roads however they appear to view apportionment as an evidentiary act of restoring the footsteps rather than an equitable one so that would favor apportioning the road right-of-ways. ?ÿNebraska is in the Northwestern Reporter and all the cases seem to cite other Northwestern States so eventually I could probably find a case that is directly on point although likely not in Nebraska. Probably any Appellate Court Library in those states would've had a set of the Northwestern Reporters because I see them citing other States in that group. So any case within that set of reporters should be at least highly persuasive.
I can only speak from my neck of the woods.?ÿ With few exceptions, most town lots, subdivisions, etc, the streets and roads are held as easements by the public entity.?ÿ Even as such, most mapping shows lots as terminating at the R/W lines. However in reality, the lot frontages?ÿactually extend to the C/L of the street, and the public R/W is simply an easement over such lots.?ÿ
Considering it as such, any proration across streets would be based on the C/L location for those lots that abut at the street C/L's.?ÿ
The gov't would still get their exact width of easement, but the street easement width would have no effect on lot width prorationing. The street may have some bearing on where the C/L is located, such as when one splits curbs for street location, however again, the width would not affect lot size being as the street width is simply an overlaying encumbrance.
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