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 cannot agree more strongly, Dave. And after all, weren't subdivisions invented so as to create ALL parcels contained therein simultaneously, so as to eliminate junior-senior issues?
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 cannot agree more strongly, Dave. And after all, weren't subdivisions invented so as to create ALL parcels contained therein simultaneously, so as to eliminate junior-senior issues?
I didn't write anywhere that the lots were not created simultaneously or that there are junior/senior issues so I'm confused by your post.?ÿ
The interesting thing is recent California case law states that 19th century plats DID NOT create the Lots.?ÿ The first Deed creates the lot.?ÿ This reasoning has been used to prevent land owners from getting a certificate of compliance on old Platted Lots where no Deeds were ever issued on the Lots.?ÿ At any rate, 19th century Courts make no mention of whether the lots were created simultaneously or not, they merely attempt to restore the original survey as a factual exercise.
Skelton cites?ÿCoop v. George A. Lowe Co., 71 Utah 145 (1927), 263 P. 485 which rules for proportioning an alley but in the next paragraph he writes, "It is questionable whether the shortage should be prorated in a street." Skelton, ??219 on page 220.
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 cannot agree more strongly, Dave. And after all, weren't subdivisions invented so as to create ALL parcels contained therein simultaneously, so as to eliminate junior-senior issues?
I didn't write anywhere that the lots were not created simultaneously or that there are junior/senior issues so I'm confused by your post.?ÿ
The interesting thing is recent California case law states that 19th century plats DID NOT create the Lots.?ÿ The first Deed creates the lot.?ÿ This reasoning has been used to prevent land owners from getting a certificate of compliance on old Platted Lots where no Deeds were ever issued on the Lots.?ÿ At any rate, 19th century Courts make no mention of whether the lots were created simultaneously or not, they merely attempt to restore the original survey as a factual exercise.
Skelton cites?ÿCoop v. George A. Lowe Co., 71 Utah 145 (1927), 263 P. 485 which rules for proportioning an alley but in the next paragraph he writes, "It is questionable whether the shortage should be prorated in a street." Skelton, ??219 on page 220.
Dave - my second sentence was not responding to your post, it was directed at those who purport that there is some sort of senior right that needs to be applied to streets/alleys. It is my understanding that the concept of subdividing large areas of land into lots and streets was so that they all were created equally and simultaneously so no junior/senor rights would need to be resolved. It therefor makes sense to me that the position of EVERY interior point is subject to proration, without respect to the disposition of the parcel it marks the boundary of. it makes no sense to hold positions in certain instances and not hold them in others. I prorate everything, lots, streets and alleys.
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I will have to ponder the idea that the plat does not create the lots - that's a new one for me.
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Skelton cites?ÿCoop v. George A. Lowe Co., 71 Utah 145 (1927), 263 P. 485 which rules for proportioning an alley but in the next paragraph he writes, "It is questionable whether the shortage should be prorated in a street." Skelton, ??219 on page 220.
In Coop v. Lowe, the court subtracted the half-width of both streets from the proportion formulae but include the width of the alley which is apportioned along with the lots.?ÿ Upon a closer read of the case, the owner's dedication on the plat read as follows:
"We hereby dedicate and set apart the avenues, streets and alleys as shown on the accompanying plat of Lakeview addition, the avenues and streets to be used as public thoroughfares forever, the right to the use of the alleys being appurtenant to any lot or fraction of lot abutting thereon. In witness whereof we have hereunto set our hands and seals this 20th day of April, A. D. 1889. August B. Patton, Ida D. Patton, by A. B. Patton, her Attorney in Fact. Signed, sealed and delivered in the presence of Thomas Y. Stanford."
The appellate court ordered the trial court to amend its ruling by striking its finding that the alley was public.
Here is what Skelton says on page 220 & 221:
"It is questionable whether the shortage should be prorated in a street.?ÿ Street widths are usually first determined before the actual platting is begun, and several widths accepted as representing the requirements for the various classes of streets.?ÿ The general tendency is to keep the street area down to a minimum, and it is usually a reasonable presumption to assume that the platter gave careful thought to his street dimensions and intended them as shown.?ÿ Had he known of a deficiency he would have taken a little off the losts on either side or rearranged his street plan to give a more satisfactory layout.?ÿ The court wrongly said that the public or private character of the alley was not involved "except as it may have some bearing upon the plaintiff's claim of adverse possession." When the width of a street is changed, the public is very much interested, and a court which protects public rights in a way from private encroachments should not, in the apportionment of a deficiency, assign any land within the stated width of a street to the abutting lot owners, especially where the public's representatives are not participants in the action.?ÿ An apportionment in better keeping with the platter's intention, the public's interest, and possibly the convenience of the lot owners would have placed one hundred seventy-one and six-tenths (171.6) feet in Lot One on 37th Street, twenty (20) feet in the alley and one hundred twenty-four and one-tenth (124.1) feet between the alley and Grant Avenue. Along narrow alleys or streets a foot in the street may be worth two in the lot."
...The interesting thing is recent California case law states that 19th century plats DID NOT create the Lots.?ÿ The first Deed creates the lot.?ÿ ...
Dave, my take on this, is that although the Sonoma cases invalidated the legality of older maps for which lots hadn't been sold off, I don't feel it creates a sequential, junior/senior situation for those many older subdivisions for which the lots had been sold off.?ÿ My reasoning is that the maps still created the locations of the lots in a simultaneous event. The deeding of lots to separate individuals simply created legal recognition of the lots being in compliance with the Ca SMA. Providing that the sale of lots consisted of legal descriptions?ÿbased on lot and block descriptions, the locations of those lots and blocks would be based on the location?ÿas established by the?ÿdate of the map?ÿand original survey.?ÿ
...The interesting thing is recent California case law states that 19th century plats DID NOT create the Lots.?ÿ The first Deed creates the lot.?ÿ ...
Dave, my take on this, is that although the Sonoma cases invalidated the legality of older maps for which lots hadn't been sold off, I don't feel it creates a sequential, junior/senior situation for those many older subdivisions for which the lots had been sold off.?ÿ My reasoning is that the maps still created the locations of the lots in a simultaneous event. The deeding of lots to separate individuals simply created legal recognition of the lots being in compliance with the Ca SMA. Providing that the sale of lots consisted of legal descriptions?ÿbased on lot and block descriptions, the locations of those lots and blocks would be based on the location?ÿas established by the?ÿdate of the map?ÿand original survey.?ÿ
Yes that is correct.?ÿ The Deed references a Plat which is the depiction of a field survey which controls; there is no overlap to resolve with junior/senior rights by the method that the Lot was described.
I like this from the Utah case:
"In the computation whereby we have arrived at these figures where there was a fraction of more than five one-hundredths we have regarded the same as one-tenth of a foot and where there was a fraction of less than five one-hundredths of a foot we have disregarded the same."
So 0.05 feet it is!
Here is what Skelton says on page 220 & 221:
"It is questionable whether the shortage should be prorated in a street.?ÿ Street widths are usually first determined before the actual platting is begun, and several widths accepted as representing the requirements for the various classes of streets.?ÿ The general tendency is to keep the street area down to a minimum, and it is usually a reasonable presumption to assume that the platter gave careful thought to his street dimensions and intended them as shown.?ÿ Had he known of a deficiency he would have taken a little off the losts on either side or rearranged his street plan to give a more satisfactory layout.?ÿ The court wrongly said that the public or private character of the alley was not involved "except as it may have some bearing upon the plaintiff's claim of adverse possession." When the width of a street is changed, the public is very much interested, and a court which protects public rights in a way from private encroachments should not, in the apportionment of a deficiency, assign any land within the stated width of a street to the abutting lot owners, especially where the public's representatives are not participants in the action.?ÿ An apportionment in better keeping with the platter's intention, the public's interest, and possibly the convenience of the lot owners would have placed one hundred seventy-one and six-tenths (171.6) feet in Lot One on 37th Street, twenty (20) feet in the alley and one hundred twenty-four and one-tenth (124.1) feet between the alley and Grant Avenue. Along narrow alleys or streets a foot in the street may be worth two in the lot."
Is this just Skeleton talking? Or is it a judge?
"it is usually a reasonable presumption to assume that the platter gave careful thought to his street dimensions and intended them as shown"
Isn't it equally reasonable to assume that the platter gave careful thought to the lot dimensions too?
He seems to be building an argument based on equitable considerations, not based on following the footsteps.?ÿ I mostly agree with Jim. Normally it is our job to replace lost corners at our best guess at where they original where. Not proportioning streets does not do that. Of course there are always exceptions...
As far as the deed creating the lot- Unless there was a new survey associated with the deed or the deed neglects to mention the subdivision the plat is still part of the deed. The lots may not have been simultaneously created, but they were still simultaneous surveyed, so I don't think the technical status of a lot in the eyes of community planners has any bearing on how it should be located.?ÿ?ÿ
Not to split hairs, but wouldn't the most equitable solution be to calc a centerline location, correct your chain or prorate to it, respect the half width and then, based on our newly constructed blocks, with appropriate index corrections applied, prorate the lots. Assuming no other evidence
Discussions like this are why I check this site daily. The topic is hugely interesting to me.?ÿ I have spent hours looking for case law on the proration of dedicated public streets and alleys and found zip.?ÿ It's not really contested by myself or the surveyors around me. It's just accepted that you don't. My mentor used to say: "the King always gets his, no more no less."?ÿ When I asked for more details I believe he showed me the Skelton text from above, but that was it.
Maybe the idea was settled on the other side of the pond and not questioned until we lost some of our common law roots.
I will add that it's very rare any dedicated public portion of a plat save the alley enters into this discussion because there's almost always some kind of improvement to tie down the exterior of the block. If your the kinda guy that's willing to accept such evidence.
Steve
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Is this just Skeleton talking? Or is it a judge?
I agree with you in this instance.?ÿ Skelton doesn't cite any case law to support his discussion.
The States in the Northwestern Reporter hold that the street as opened is the street, not necessarily the precise width shown on the Plat.?ÿ They don't specifically mention prorating streets, only lots but they seem to assume the block corners were set on the R/W intersections.?ÿ As is often the case, some of the details we consider essential are left out of the fact discussion, like where are the monuments? Centerline PI or R/W intersections?
Is this just Skeleton talking??ÿ
I find Skeleton (A professor at the University of Maryland when he wrote "Boundaries and Adjacent Properties") to have a slight urban, east coast bias when looking for cases to cite and rules to extrapolate from said cases.?ÿ For this reason I tend to prefer him over Clark because I have a more than slight urban, east coast bias myself.?ÿ ??ÿ
Discussions like this are why I check this site daily. The topic is hugely interesting to me.?ÿ I have spent hours looking for case law on the proration of dedicated public streets and alleys and found zip.?ÿ It's not really contested by myself or the surveyors around me. It's just accepted that you don't. My mentor used to say: "the King always gets his, no more no less."?ÿ When I asked for more details I believe he showed me the Skelton text from above, but that was it.
Maybe the idea was settled on the other side of the pond and not questioned until we lost some of our common law roots.
I will add that it's very rare any dedicated public portion of a plat save the alley enters into this discussion because there's almost always some kind of improvement to tie down the exterior of the block. If your the kinda guy that's willing to accept such evidence.
Steve
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I have some cases but I don't know if they touch on the issue directly. You are probably most correct in California because that seems to be the prevailing method; my first boss told me the same thing. I assume the issue doesn't arise because the difference is so small that it isn't worth fighting over.?ÿ On a 400' block with 40' half streets east and west and four 80' lots; if there is a 10' shortage then the lots are 78' if the R/Ws are apportioned and 77.5' if they aren't apportioned.?ÿ If the end lots are treated as 120' wide then they receive 117' but lose 40' to the street so the two middle lots would be 78' wide and the end lots would bear more of the burden at 77' wide.
Note: I have not read these cases (except for Brumley):
844. Sullivan v. Balestrieri
District Court of Appeal, First District, Division 2, California. June 18, 1956 142 Cal.App.2d 332
Headnote: Generally when surplus is found in area called for in surveys of tract it must be prorated among the several lots
in block, but a shortage of distance in a block will not be apportioned among all lot owners where facts and circumstances
specifically locate the shortage.
Note by me: Brumley provides a tantalizing hint at the issue (a three lot block with 20' missing from C/L to C/L) but doesn't specifically address the issue.
845. Brumley v. Hall
District Court of Appeal, Third District, California. April 29, 1952 110 Cal.App.2d 638
Headnote: Where there were three lots fronting on certain street in block, and in quiet title action between owners of two of
the contiguous lots it was stipulated that surveyor be sent to locate boundary line, and surveyor reported that there was a
shortage of about 20 feet in the block, and that he was unable to locate boundary lines between the three lots, and neither
party in action established superior title to area in dispute by adverse possession or otherwise, court erred in apportioning
deficiency between the two lots of the parties, and should have made apportionment on front foot basis by prorating deficiency
among the three lots.
846. Brumley v. Hall
District Court of Appeal, Third District, California. April 29, 1952 110 Cal.App.2d 638
Headnote: Where tract of land is subdivided and is subsequently found to contain either more or less than aggregate amount
called for in surveys of tracts within it, proper course is to apportion excess or deficiency among the several tracts.
847. Hoffman v. Van Duzee
District Court of Appeal, Second District, Division 1, California. March 12, 1937 19 Cal.App.2d 517
Headnote: If block had width greater than that shown by recorded map and original survey, proper allocation of excess could
not be determined until owners of all lots in block were brought into court.
850. Andrews v. Wheeler
District Court of Appeal, Second District, California. October 24, 1908 10 Cal.App. 614
Headnote: Where by actual measurement over the surface of lots from boundaries as fixed by a surveyor, who made an
actual survey on the ground, there is an excess in distance over that specified in the map and called for in deeds conveying
according to it, the excess in absence of any marking on the ground of the division line between the lots must be apportioned
thereto in proportion to their respective lengths.
848. Hammond Lumber Co. v. Haw
District Court of Appeal, First District, Division 1, California. January 23, 1929 96 Cal.App. 390
Headnote: Obliteration of survey monument does not justify adoption of proportionate method of locating lost corner, where
field notes refer to discoverable natural objects.
Headnotes are copyrighted by Westlaw
In Brumley it looks like the situation today is Lot 30 has full measure (more or less), Lot 31 is missing 20', and Lot 32 I can't tell because the Hargus Avenue (on the south) bears southeasterly and the current maps don't give a distance along the centerline from PI to PI.
The reference to 'front foot basis' in Brumley indicates an equal division of frontage (see blacks). By necessity the road needs to be defined in order to ascertain what to divide. Of equal importance is the structure of Statutes governing Rights of Way and establishment against States and political subdivisions.
As always, it depends....
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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?ÿUnless you can prove the alley was originally monumented at a different width then yes I'd agree with the statement.
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Maybe it depends on whether the ROW monuments are lost or if they were never set. If they were never set I can?ÿ buy the argument that the intention to provide a specific width to the public can override the intention to create lots of a specific width, but if monuments were set or job is to put them back where they were. No one has yet found a significant case hilding that original monuments dont control ROWs.
If the monument is truly lost, and the there is no evidence locating the error in measurement, the only legally defensible guess as to the original location is a proportion.
All of the California cases I cite from the Westlaw digest decline to apportion anything. They, in effect, say apportionment is a thing but it doesn't apply here. At least a couple say you can't apportion until you bring all of the Lot owners in the block into court.
Andrews v. Wheeler is a very weird case, first they reverse then affirm on rehearing. I give Justice Shaw credit for figuring out on rehearing that a distance on a map is useless if you don't know where to measure it from.
I have never been shown case law that describes a procedure for proportionate retracement of dedicated rights of ways, and have seen a couple of people try hard to do just that,?ÿ and have understood the following, generally applied:
A right of way in general is owned by ALL, and can not be "equitably" proportioned as a lot that is owned by single owners. Presumably, the public did not hire a land surveyor to retrace its right of way, but individual landowners hire land surveyors to retrace their Lot. Proportion is a RARE LAST RESORT, and absent any other evidence of possession or prior survey on the ground, proportioning of a private lot is the most reasonable method to use.?ÿ It is also generally held that not only is proportionate retracement to be AVOIDED, it is REALLY TO BE AVOIDED across different blocks. Proportioning rights of ways is hard to do unless one is proprotioning "across" different blocks.?ÿ
Since a landowner, such as the public, can not sell what they don't own,?ÿ there is no way to determine that an unmonumented, dedicated right of way was actually conveyed any more or less than its stated width.?ÿ
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