Based on what I read and what my mind made up from that...
Assumption: All of the subdivision is under a single current owner. Road never opened, not used by anyone or anything (utilities).
-The road would need to be vacated/abandoned by whatever process.
-In my jurisdiction, you could aggregate that subdivision and the vacated road into whatever number of resulting parcels you wanted, as long as they were zoning compliant.
Regarding the survey, if I was running a boundary, I would want to tie the monuments along it. If I did not run a line for some reason, I would not tie the monuments there. For instance, you walk the boundary, and you find the original monuments along the lines, but one area has occupation and perhaps encroachments. I would tie them out and show them on my survey. The other lines I might just walk them. They are already surveyed and undisturbed, what am I going to add?
Personal question comments/questions:
Why would you get a survey at all? If the monuments are in and the corners are there, and you just want to aggregate it, what's the point? (Price just dropped to zero.)
Not sure why you would want to aggregate...you have 12 lots, who would ever want 1 lot instead of 12?
Having read the other replies...
If an ROW shows up on a recorded survey, but there is no evidence that it was ever accepted or dedicated, it is just a picture (and not a pretty one). Need more info.
If the dedication is not formally accepted and memorialized by resolution, that would be deemed to be non acceptance.
Highway Holding Co. v. Yara Engineering Corp., 123 A. 2d 511 - NJ: Supreme Court 1956:
When lands are sold with reference to a map upon which lots and streets
are delineated, there is a dedication of such streets to the public,
Trustees of the M.E. Church v. Hoboken, 33 N.J.L. *126 13 (Sup. Ct.
1868); Clark v. City of Elizabeth, 40 N.J.L. 172 (E. & A. 1878); New
York & Long Branch R.R. v. South Amboy, 57 N.J.L. 252 (Sup. Ct.
1894); Dodge & Bliss Co. v. Mayor, etc., of Jersey City, 105 N.J.
Eq. 545 (E. & A. 1929), reversing 103 N.J. Eq. 552 (Ch. 1928), and
such dedication continues and cannot be revoked except by consent of the
municipality, Packer v. Woodbury, 3 N.J. Misc. 661 (Sup. Ct. 1925);
Long Branch v. Toovey, 104 N.J.L. 335 (E. & A. 1928); Hulett v. Sea
Girt, 106 N.J. Eq. 118 (Ch. 1930), affirmed 108 N.J. Eq. 309 (E. &
A. 1931). After such dedication of streets to the public use, the public
has the right to appropriate them at any time it wants or convenience
requires, Trustees of the M.E. Church v. Hoboken, supra; Simpson v.
Klipstein, 89 N.J. Eq. 543 (E. & A. 1918), no matter how long
delayed, Packer v. Woodbury, supra, and these public rights can only be
destroyed by proper municipal action, Hulett v. Sea Girt, supra, usually
by vacation.
There is no time frame for non acceptance. A dedication remains in effect until vacated by NJ Rev Statute 40:67-19. Vacation of streets and places
dedicated but not accepted. This is one of the reasons so many paper streets exist in NJ.
Not requiring the ROW to be built would essentially create land locked lots.
Velasco v. Goldman Builders, Inc., 225 A. 2d 148 - NJ: Appellate Div. 1966
When an acceptance has not taken place, but a dedication by implication exists, the individual purchaser of a lot abutting the right of way obtains by operation of law a private easement to the extent that he acquires a perpetual and indefeasible right of access to his lot over the dedicated street. Booraem v. North Hudson County R.R. Co., 40 N.J. Eq. 557, 564 (E. & A. 1885). At the least, this amounts to a right of passage "from his lot to the next adjoining public street on each side." Highway Holding Co. v. Yara Engineering Corp., supra, 22 N.J., at p. 128. See also Brindley v. Borough of Lavallette, supra, 33 N.J. Super., at p. 360. The court in Yara adopted as a yardstick the principle stated by Vice-Chancellor Pitney in Stevens v. Headley, 69 N.J. Eq. 533 (Ch. 1905), and said that "the implied grant of a private way in the street is confined to such use of the road or the street as is necessary for the beneficial enjoyment of the lot conveyed." 22 N.J., at p. 134.
Legally the lots are not land locked although from a practical sand point you may ave limited access. Although until the road is improved to municipal standards you may be not be able to get a building permit pursuant to the Municipal Land Use Law. Although I have formerly seen new construction on dirt roads in the Highlands.
If an ROW shows up on a recorded survey, but there is no evidence that
it was ever accepted or dedicated, it is just a picture (and not a
pretty one). Need more info.
In New Jersey the filing of a map is enough to consider that the intent was to dedicate the roads. (see my other posts for the case law.
Your jurisdiction may be different.
In New Jersey the filing of a map is enough to consider that the intent was to dedicate the roads. (see my other posts for the case law.
Intent does not indicate acceptance. In NJ, acceptance does not occur by resolution until all of the improvements have been constructed, a final inspection conducted and the performance bond released with a maintenance bond posted.
You can intend to dedicate something, but, if nobody wants it, the intent doesn't factor in. No town in NJ is going to accept a ROW that they have to clear and improve at their own expense.
Intent does not indicate acceptance. In NJ, acceptance does not occur by resolution until all of the improvements have been constructed, a final inspection conducted and the performance bond released with a maintenance bond posted. You can intend to dedicate something, but, if nobody wants it, the intent doesn’t factor in. No town in NJ is going to accept a ROW that they have to clear and improve at their own expense.
Dedication and Acceptance are two different things. While Acceptance requires dedication, dedication does not require acceptance.
The landowner dedicates the road by deed or by filing a map. At this point the dedicator can not retract his dedication. If the dedication is by filed map then the lots on the map automatically receive a private ROW easement over the roads. (This is the situation that DMYHILL had questioned. In NJ if the map is filed the road is dedicated)
Then the municipality can:
- Accept the dedication by ordinance. The municipality may attach conditions to the Acceptance such as requiring the road to be improved. This authority comes from the Municipal Planning Act (1953) and later the Municipal Land Use Law (1976)
- Accept the dedication by their actions. (improvement, maintenance, snow plowing)
- Accept the dedication by public use. (Use of the road by the public not just the private easement holders, generally for 20 years)
- Chose to not accept the road and vacate it under NJ Revised Statues 40:67-19
- Do nothing. The municipality has no responsibility for the road. The ROW becomes what is commonly called a "Paper Street". The dedication will sit there until the municipality chooses to do 1 or 4.
If you know of a court case that requires acceptance with dedication please post the case citation, I would very much like to read it.
If an ROW shows up on a recorded survey, but there is no evidence that
it was ever accepted or dedicated, it is just a picture (and not a
pretty one). Need more info.
In New Jersey the filing of a map is enough to consider that the intent was to dedicate the roads. (see my other posts for the case law.
Your jurisdiction may be different.
First: How do you make the quote box???
Second: You are saying that if I file a map with no signature or declaration or dedication on it from the actual owner, I create an intent to dedicate a right of way? That seems unlikely. Owners do not record surveys, Surveyors record surveys. If you want to put a dedication on a map, then record that, I understand, but that would be outside the norm (accepting BLA's, of course).
First: How do you make the quote box???
Copy the text you wish to highlight. Next open the reply window and paste the text. select the text. Then click the "show formatting" shown below it's the Aa. Click on the "Back quote". That should do it for you.
Second: You are saying that if I file a map with no signature or
declaration or dedication on it from the actual owner, I create an
intent to dedicate a right of way? That seems unlikely. Owners do not
record surveys, Surveyors record surveys. If you want to put a
dedication on a map, then record that, I understand, but that would be
outside the norm (accepting BLA’s, of course).
This is where jurisdictions differ. New Jersey does not record surveys, only subdivision plats and other special maps such as state highway ROW maps. Subdivision maps are signed by the property owner consenting to the filing of the plat. Since the original post was about a subdivision plat I took your question about a recorded survey to mean a subdivision map, my error.
Only the landowner can dedicate land. So no a survey will can dedicate anything.
It's a two step process, and not particularly unique to New Jersey. Filing of a map which shows a proposed right of way may be interpreted as an offer to dedicate, but the dedication is not complete until there is a positive acceptance of that right of way by the governing authority. That acceptance may come in writing, or it may be by acts such as building something and using the right of way for a long period of time.
Thanks to Mike Berry for his very excellent presentation on these matters to the PLSO a few years back.
Thank you, that has been my point all along, an offer does not force an acceptance without either memorialization of an acceptance or other actions that imply acceptance through physical improvements.
This is absolutely correct, but what some are trying to point out, is that once the offer is made in a public way (i.e. recordimg) it usually can't be unilitarily retracted.
What is required varies by jurisdiction. Some jurisdiction even have established methods by which a public ROW is automatically vacated.
In the situation described here, the land owners in question wouldn't have the authority to vacate the public's interest on their own in most jurisdictions.
