The typical setup in California is usually the stakes were set on the R/W lines (often since widened and buried under asphalt). The City Engineer transferred those to the centerline then intersected the PIs and set stones or other monuments. In one of the cases the Court refused to accept those as proving the block distance on the Plat is inaccurate; they punted and quieted title to the plaintiff in his legal description (Lot and block) which is nice I guess but WHERE IS THAT LOCATED??ÿ
The typical procedure is to hold the R/W widths as stated on the Plat and prorate the lots but there's no case law saying this is the correct procedure. In the Vallejo case (reversed and remanded because the trial court prorated two of three lots in the block, INCORRECT) the Plat shows the lot lines on the centerline and the distances along the centerline so I would prorate it that way. The streets are private so the easement widths would remain I would think. Prorating is a fact restoration procedure so I think the particular case would govern.
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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Yes, proprtionong is a last resort and should be avoided as much as possible but sometimes it has to be done. The only reason it is acceptable is that absent any other evidence it seems to be the best way to guess the location of the original, or first, survey. There is no case law that any one has been able to find that negates this for Rows.
The public hires surveyors to survey their interests all the time, City and county surveyors, DOT, BLM and their contractors are some of the examples of this.
If you are acting as the first surveyor of the ROW, (i.e. surveyong a platted but unnonumebted ROW with no occupation) then it might make sense to consider the rights of the public as different than the rights of the private land owners .
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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Yes, proprtionong is a last resort and should be avoided as much as possible but sometimes it has to be done. The only reason it is acceptable is that absent any other evidence it seems to be the best way to guess the location of the original, or first, survey. There is no case law that any one has been able to find that negates this for Rows.
The public hires surveyors to survey their interests all the time, City and county surveyors, DOT, BLM and their contractors are some of the examples of this.
If you are acting as the first surveyor of the ROW, (i.e. surveyong a platted but unnonumebted ROW with no occupation) then it might make sense to consider the rights of the public as different than the rights of the private land owners .
"I have never been shown case law that describes a procedure for proportionate retracement first surveyor of dedicated rights of ways"
There, I fixed it
Prorate to the center of the alley.?ÿ Then back off 8 feet each side, then prorate the lots.?ÿ
The alley is street. It maintains its width forever. Just like a street.?ÿ ?ÿAbandonment is secondary to the original map.?ÿ Yes, there are some who disagree.?ÿ All who've tried to defend themselves in court cases I've known have lost.?ÿ ?ÿ Of course, there were big prorates due to gross errors on original map.?ÿ
Care to share those court cases?
I don't think anyone is arguing that the width isn't "maintained forever", but before you can maintain it, you have to determine what it was. If it was monumented with a long chain, the road doesn't shrink when the monuments are lost. The original width is maintained.
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I've worried about plenty in my career but .05 across an alley wasn't one of them.
I've worried about plenty in my career but .05 across an alley wasn't one of them.
"On June 15, 1990, when the garage was already three stories tall on the side adjacent to Levering's property, Levering filed suit in the Circuit Court for Baltimore City alleging a permanent encroachment and seeking an injunction and damages. Levering then hired Greenhorne O'Mara, Inc. ("Greenhorne") to survey the site and determine whether the garage encroached on its property. The Greenhorne survey determined that the garage encroached in a triangular area, from zero to 1.5 inches over nine feet.
After receiving the Greenhorne survey, Levering advised Urban Site's contractor, Omni Construction, Inc. ("Omni") that it believed the north wall of the garage encroached on its property. The construction supervisor immediately halted construction. Urban Site had Triangle double-check its survey. Then Omni verified the placement of the building on the lot and checked the Triangle survey's accuracy with the Baltimore City surveyor's office. Based on this investigation, Urban Site determined that the garage did not encroach on Levering's property and resumed construction.
After a three-day trial, Judge John N. Prevas held that the garage encroached a total of 1.3 square feet on Levering's property. He determined that the market value of the sliver of land encroached upon was $200 and the cost of removing the encroachment would be approximately $500,000. He also found that the encroachment did not impede Levering's use of its property or future development rights. Accordingly, Judge Prevas denied Levering's request for a permanent injunction under the doctrine of comparative hardship and awarded it $14,801 in damages."
https://www.casemine.com/judgement/us/5914bd3cadd7b049347a11c9
FWIW - I came back in a dozen years later to this site and put a twenty story condo on top of the "parking garage" in question