I am working on a survey in small town ND. The plat was filed about 1907, and the village was never incorporated. The plat consists of about 5 blocks of 300'x300' lots, 50' street r/w, 20' alleys... pretty standard stuff. No one signed off on the plat except the owner, surveyor, and recorder. Over the years, these lots were bought and sold according to the lot and block number. The streets and alleys were never used as roads, and no utilities are in these rights-of-way. Fast forward to today, all of the lots are accounted for via various deeds, but the homes, fences, garages, etc. are built over and in the streets and alleys, as if they never existed. Not encroaching onto each other's lot lines, just across the "public" rights-of-way.
Several issues arise, and I know the law varies from state to state, but I'm just looking for a variety of expert opinions here:
1. From what I understand, if the "public" doesn't sign off on the plat or somehow acknowledge and take responsibility for the streets and alleys, they weren't really dedicated. Just putting a street on the plat and saying it's for the public doesn't make it so.
2. If there were never roadways or other public improvement built in these dedicated streets and alleys, and people just started occupying them and no one objects, is there some sort of automatic vacation? Keep in mind these houses, etc. have occupied the same land for at least 40 years.
3. If the typical practice of abandoning streets applies here whereby each side adjoining the street is given half the street r/w, what happens when one adjoining has occupied all of the right of way, via fences, or just people letting them maintain that land without opposing it?
Things were probably different in 1907 - was there a statutory requirement at that time that streets be dedicated? If not, and the common practice was to just record a plat then it seems to me that the intent shown by the plat is paramount. The streets may legally exist...
Unless there is specific language to the contrary, use is not an issue - no matter how much time has elapsed.
A true abandonment would be to grant half the street to each adjoiner, I believe this arises out of the concept of equity.
The legal council for the entity that has jurisdiction here will probably ultimately decide how this turns out.
Any streets and alleys on the plats are legally useable by any lot owner within the mapped area. In order to vacate any street or alley you would need 100% approval from all lot owners and any lot that requires it must be provided alternate access. Same criteria would be required had a municipality accepted the right of ways. Getting equitable contribution for improvements from 100% of lot owners is an entirely different matter.
Had the lots not been sold and improved on it is fairly simple for a single owner to give or get 100% approval.
An abutter that is not a map lot owner but touches a right of way and has used same further complicates the issue.
In PA a mapped right of way, not put into use, can be extinguished by the lot owner by a statement of different use to the municipal planning board? The town then has one year to acquire the right of way or it is de facto abandoned. I was involved in such a case, but the landowner never showed up at the required planning board meeting to make his declaration. They waited one half hour and declared the meeting adjourned. they were not happy as they stopped their softball game early for the scheduled meeting, only item on agenda. I never heard from that client again, I was paid up to that meeting and did not care to linger.
Paul in PA
Allan, Check out pages 38 through 42 of the handout from the 2016 NYSAPLS conference:
I read the NY handout... interesting. From what I'm gathering here, the streets and alleys were dedicated to the public and as such public rights can't be taken by acquiescence, adverse possession, etc. This is the case regardless of whether the public actually used (or accepted) this land. There needs to be formal action taken by all interested parties to officially abandon/vacate these areas. Does that about sum it up?
If so, can the landowners on each side agree to divide the r/w however they want? I personally know all the parties involved (about 7 total) and I'm wondering if they could just agree to divide it up according to how it's currently being occupied.
Your mileage may vary, but here we would simply have the county or city go through the vacation process for everything that wasn't a lot. That public process clears out the public interest. What happens after that is up to the individual lot owners who suddenly gain all or half of a street and all or half of an alley.
Holy Cow, post: 355392, member: 50 wrote: Your mileage may vary, but here we would simply have the county or city go through the vacation process for everything that wasn't a lot. That public process clears out the public interest. What happens after that is up to the individual lot owners who suddenly gain all or half of a street and all or half of an alley.
Where is "here" if you don't mind?
Boondocks USA, otherwise known as rural Kansas. If in a rural area where the County is the ruling entity the vacation can be initiated either by a petition of the adjoiners or by a declaration by the Board of County Commissioners. The ensuing process is almost identical in either case with an onsite viewing and public hearing as published in the newspaper designated as the official County newspaper. In almost every case the vacation process will be completed. Occasionally there will be evidence presented of great hardship that could occur due to some reason that the Commissioners had no knowledge of at the start of the process. That is rare, however. Due to the cost involved there are many cases where vacation should be completed but everyone is quietly ignoring reality.
Somewhere in your State's statutes pertaining to the affairs of Counties you will find those that clearly address how to do this. I'm sure the practice within Cities is similar but I've never had to be involved with such a case.
Allen Wrench, post: 355354, member: 6172 wrote: I read the NY handout... interesting. From what I'm gathering here, the streets and alleys were dedicated to the public and as such public rights can't be taken by acquiescence, adverse possession, etc. This is the case regardless of whether the public actually used (or accepted) this land. There needs to be formal action taken by all interested parties to officially abandon/vacate these areas. Does that about sum it up?
If so, can the landowners on each side agree to divide the r/w however they want? I personally know all the parties involved (about 7 total) and I'm wondering if they could just agree to divide it up according to how it's currently being occupied.
I would think that if the landowners on each side of a vacated R/W wanted to divide it on some line other than the old centerline of the roadway, that's up to them. Although I would think that it would be in their best interest to have some document (map or deed) that would evidence the intended common line. And in some states, I believe this document would need to enter the title record somehow so that future buyers would have a history of this agreed dividing line.
It's so varied state to state these laws.
We have a lot of these type of subdivisions in old sections of ny. The old roads were definitely not dedicated like they are today. Today the developer actually deeds the ROW to the municipality once complete and accepted.
This makes it seem the old roads are actually easements. But this is not always the case as town law, village law etc can influence.
I do know in ny the town only has so many years to build improvements on the highways before they lose the right to do so (easement roads only I assume) however that doesn't mean the land just reverts to the owners.
I just did a parcel (75x150 lot) that backs up to a paper road. All the lots on the street have old fences enclosing the lots to the center of the rear street. His barn was actually roughly 10 feet onto the paper road.
When he went to install pool equipment on the paper road, the town told him he could but "if they ever wanted to put the road in he would have to move it" which is a joke. This road is about 20 lots long and have been like this for over 100 years. Not to mention at the end of this run is water and in the middle of the block one of the owners gained fee title across the paper road and owns the next lot of the following block, so I'm pretty sure he has nothing to worry about.
For reference, I've attached a sketch showing the lots and what everyone was deeded (color coded per owner). None of the deeds reference any part of the streets. The 3 metes & bounds tracts at the north end came before the plat (would any of these have claim to the r/w within the plat if they didn't need it to access their lots?). There is an ancient fence line running throughout the lots and it's all pasture to the west of this fence. Approximate building locations were added.
This thing is going to be a mess. If the township vacates these rights-of-way, what types of documents should be filed to convey ownership? Would everyone adjoining certain areas quitclaim portions to the others? It will of course all have maps filed with it, but I'm just trying to understand how this will all play out.
Allen Wrench, post: 355542, member: 6172 wrote: If the township vacates these rights-of-way, what types of documents should be filed to convey ownership?
Probably you would do a replat. Which you would need but-in from every owner to do. And every mortgage holder. May get expensive. Do any of the owners have any wish to go to that required expense? Does even your current client want to?
Mere non-use of an easement does not constitute abandonment of said easement. There must be a clear and positive declaration of intent to abandon. That's the law in Oregon, anyway. A right-of-way is an easement.
Abandoning these right of ways may not be all win-win for every owner. They provide an avenue for some owner remote from the traveled road an avenue to bring in utilities or build a driveway. Abandoning the right of way may actually reduce the value of the property of such an owner.
Mark Mayer, post: 355555, member: 424 wrote: Do any of the owners have any wish to go to that required expense? Does even your current client want to?
As of right now, nobody but me and this message board know about this. I'm guessing nobody wants to do anything because there's no perceived problem on their end. I'm just stirring a hornets nest. But I thought if there's a way to get this done cheaply (other than the survey) It would be best for everyone in the long run. That's why I thought maybe a resolution by the township, vacation plat, and a few quitclaims would clear it up.
My client owns the orange part on the sketch I posted. The orange actually is about 120 acres around the platted townsite. I am doing a subdivision plat in areas not shown on the sketch, but part of the orange stuff. I guess I could just draw the plat boundary around the outside of the orange, and just show the streets as platted and leave it alone.
His family also owns the purple part and plans to sell the part with the house. That's where it gets sketch because the new owner will have title problems right off the bat. I could let sleeping dogs lie, but as this land gets sold to outside parties, it's bound to be a problem sooner or later.
