Does anyone know of any case law were the excess of a subdivision was put into one street?
The subdivision I am reviewing has all lots dimensioned. A Record of Survey 40 years later exposed that the subdivision has about 16 feet of excess and that survey put all the excess into 1 street at the edge of the subdivision. Now 65 years later the issue comes up for resolution.
I understand that occupation should not be disturbed and that if all the excess is put in the street then the potential for conflict is minor, but is there any evidence for placing the excess of a subdivision into a street?
Thanks,
Brad L.
Wattles addresses that scenario. The example I read was about shortage I believe.
Not sure I agree with that.
As I undertand public right of ways, you can't adverse posess a public right of way. Therefore occupation of the right of way has no bearing on it.
I am assuming the parent parcel of the subdivision was thier along with the right of way? If so how did the excess occur?
Was it done by making the street wider through a recorded process or just shown on a subdivision plat? If a deed was made showing the street now has 16 extra feet of width, then it stays in the street. Otherwise I would think the one adjacent landowner could claim it through a formal process. As it stands now, it doesn't appear to belong to anyone.
Technically you should consider the apportionment of the excess. Of course, if everything was laid out by the original surveyor by holding one side, then you'd be following in the footsteps by holding his method. What do the monuments and occupation show or match?
That is how I read it. One street on the margin of the subdivision is 16' wider.
If all the lots have their width and the occupation matches then I don't see a problem. It is what it is.
I don't need Case Law to employ common sense.
Would need more information on both the original subdivision and the survey that exposed the problem.
First the original subdivision plat:
- Original monuments called for in the subdivision plat?
- Are the monuments, if any, street center line or lot corners? Makes a difference.
- All boundaries of parent tract shown on subdivision plat?
Next the survey exposing the problem:
- Any original monuments found and honored?
- Are any of these monuments still in place?
- Any new monuments set by the retracement survey?
- Are any of these newer monuments still in place?
- Are the original monuments and the retracement survey monuments in agreement?
- Are there any subsequent surveys that honor any/all of the monuments?
Get answers to these questions and the answers will likely create more questions. At the end of the second or third round of answering questions you may be ready to address where excess, if it still exists, should be placed.
spledeus, my initial reaction is to pro rate accordingly. But I'd be taking a long hard cold look at more information, because there is no doubt much much more to this story. Plus the fact that it now comes in the form of a "resolution" from the city. They seem to think it is worth resolving, right. Somebody, somewhere, has a reason to seek that resolution. No doubt there are some special interests involved.
I think I'd be inclined to let them resolve it and keep out of the fallout, pending that resolution.
Correct. If it is a subdivision then all parcels, including streets, were created simultaneously, and excess or deficiency should be pro-rated across all parcels.
Except pro-ration is a last resort. Proration should never be used to disturb an entire neighborhood that has established lines in place.
It shouldn't be the first resort although the typical Boundary class tends to focus in on how to prorate subdivisions and how to proportion sections.
yes, that was what i was leaning towards with the footsteps statement. if the boundaries are all well established in the wrong locations, it would do more harm to revise the lines now. of course, getting everyone in a subdivision to agree to the boundaries could be challenging. as long as everyone gets what was deeded (should be no issue with excess) then nobody can complain.
Dave is correct, after 65 years of things being the way they are I sincerely doubt proration will fit into this story. Also, it would depend on where the 16' excess is. Is it across the entire subdivision, in which the original monumemts are all a little bit long? Then the monuments are where they are, and in effect the proration has already occurred. You would just hold the original monuments. Did it occur in the last block? Then perhaps putting it into the R/W made the most sense.
Proration is appropriate in a simultaneous sudivision where excess or deficiency is present, but only between outer original monuments (or their perpetuated locations) where it cannot be determined where interior monuments were set (or would have been set). And as Dave said, proration is indeed a last resort device.
Stephen
That's the thing, they are already in the right position. People have agreed by their behavior. There's no need to get a pile of BLAs when all you have to contradict the established boundaries is prorated solution which is really nothing except a figment of the Surveyor's mathematical imagination.
Sometimes it makes sense when the original corners are lost and the occupation fences are all that exists. If the proration fits the occupation well then you are just using to refine the answer. But if you are prorating to move everyone 16' from where they are obviously occupying a Lot of substantially the correct size then that is folly.
I had a similar situation a few years ago. This old subdivision had backyard garages in pairs about a foot apart down the block. Measuring record from one side split the garages within a few hundredths. One side of the block was a definite street which I measured from. The other side was a street which was indefinite due to it bounding a railroad. It was obvious what the original Surveyor did (about 80 years ago) so I did the same. I was about the 3rd lot from the definite street. I viewed the garages as being the best evidence of the original lot lines. Proration would have resulted in absurdity.
Jim
Jim, I don't know if I agree with that totally. Yes, it's simultaneous, but the streets are entitled to their width. You can't/shouldn't short a street. In the case above, it's a hundred year old subdivision with one street 16' wider. That's weird, but way better than 16' short.
Jim
"Yes, it's simultaneous, but the streets are entitled to their width. You can't/shouldn't short a street. In the case above, it's a hundred year old subdivision with one street 16' wider. That's weird, but way better than 16' short."
Kris:
In the case under discussion I probably wouldn't pro-rate anything - the extra 16' sounds like an anomaly and I would probably leave it essentially where it is.
In general though, if a subdivision is a simultaneous creation of all parcels, a shortage or excess HAS to be apportioned to ALL parcels, including streets. Streets are NOT senior parcels, they are of equal standing with the lots/tracts/easements.
:-/ That's just wrong. Every lot would move between 0 and 16 feet, causing setback issues, fist fights, and god knows what else.
I don't know about case law but I did run into a similar situation abutting a city property I was surveying. The neighbor platted lots north to south leaving the southerly 50 feet as a street. By the dimensions there was only 16 feet left for the street so they encroached the unimproved 50 foot right-of-way into my clients property. I'm no longer involved but it is probably still in the lawyers hands.
I agree that the particulars of the improvements, fences and property corners in place is the primary control. Like (Karoly?) said, prorata is a last resort.
If all the corners are in from one correctly-sized street at the platted distances with an excess of 16 feet at the next street, I highly doubt the street would get it. I would look at the roadway improvements and see if they appear to fit inside their platted width. It seems to me that the last lot-owner would find himself with an extra 16 feet of dirt before going into the right of way.
If there were case law, your particular set of circumstances need to match that cases elements. ie: Were there property pins in place in the case? Improvements? Did the street already assume the extra 16 feet? etc. Unless the municipality has 'acquired' the land by developing it with stree improvements, then I think the extra dirt would go to the adjacent landowner.
Equity Says The Excess Belongs To Every Parcel
If the streets have the required right of way the 16' is excess to all parcels. It may have some use to the group but it's future is not singly in the municipalities hands, i.e. the municipality cannot by itself sell it off to the adjacent parcel owner. Selling it gives the adjacent parcel access to an existing road which may be contrary to subdivision owners wishes. Such a sale could be conditioned on additional improvements or assessment for improvements already in place. It is large enough to be useable so it cannot be considered a spite strip. If a consensus of subdivision lot oners agree it may be separated from the street and put to better use.
Alternatively the municipality could give it a tax parcel number and tax it. Without a homeowners association in place it will most likely be eventually seized by the municipality for taxes. That would separate it from all the subdivision lot owners and the municipality could sell it at will. It is not an overnight process but it has a reasonably forseeable ending.
Paul in PA
Equity Says The Excess Belongs To Every Parcel
If the plat shows a 50'x100' lot and your occupied lot on the ground is 50'x100' how is that not equitable? The chaos and expense of shifting all of the lots down towards the 16' would far outweigh any equity, I would think, but I'm just a Country Surveyor.
"Miss Scarlett, I'm just a Country Surveyor, I don't know nuthin' 'bout birthin' no babies!"