Equity Says The Excess Belongs To Every Parcel
It belongs to all, I did not say it should be divied up and everyone gets a small piece. The most equitable way is either sell it, dividing the money up, doing something community minded with the cash or physically making it useful for all. A lot of things can be done there that cannot typically be done within a street ROW.
Paul in PA
Equity Says The Excess Belongs To Every Parcel
I can't agree with your last two posts. First of all, we don't have the relevant facts to say who the excess belongs to or where it should go. To repeat my earlier post, proration should occur on lots without original monuments or the perpetuated position of original monuments and should only extend to the first outer original monuments encountered. We don't know if the 16' excess is found across the entire subdivision, or in just one block, or in just two lots.
Secondly, as has been mentioned, retracement first, proration last.
Finally, while we all like being able to employ equity in property boundary resolutions and we are pleased when we can, equity, by itself, is not our goal. Retracement of the first surveyor is and we are bound to find the place that he or she placed their corner markers or would have placed their corner markers.
Stephen
I think you answered your own question. Your job is to retrace, not stake out as you think it should have been done.
Steve Calder, Equity Says The Excess Belongs To Every Parcel
All lots are whole, the streets are whole, the excess is where the original surveyor put it, the question is what to do with it. Prorating is done within fixed monument and the existing streets are monuments, so that cannot be done in this case besides all the turmoil it creates.
Equity is why one prorates excess or deficiency, so one is dealing with equity, whether you want to or not.
John Smith dies leaving 4 acres and 1 house to his 5 sons. The judge will say, "No problem, sell the house and 4 acres and divy up the cash." That is equity.
To complete the answer to Brad, relavent cases are more likely to be found in probate court. If the excess is to the far side of the street it may be separable, if the physical street is in the middle of the excess ROW then it remains as it is where it is, unless the municipality reconstructs it. It is doubtful a municipality would consider such an expense, but a developer gaining street access and some extra area may find it finamcially rewarding to do so.
Paul in PA
Steve Calder, Equity Says The Excess Belongs To Every Parcel
You just responded with random, tangentally related sentences. You didn't respond to my post with any logical argument.
Stephen
Jim
> 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.
Jim..
I have to disagree with you on streets not having a senior status. Prior to any of the lots being created, which takes place the moment the map records, the dedicated portions of the subdivision, streets, easements etc. are accepted on behalf of the public by the governing agency and acknowledged by signature on the yet to be recorded subdivision map.
My personal opinion is that this action establishes senior rights for the streets.
Jim
As far as I'm aware in California the streets get their width and the proportioning only takes place on the lots.
I don't know know if this is covered in any Appellate decisions; it seems to be a standard practice, though, and Judges will often accept testimony as to what is the standard practice.
I don't particularly care for proportioning, though. Did the original surveyor's crew in a rectangular lot and block situation prorate down the block? It seems more likely they measured from the corner 50', then 50', etc (in the case of 50' lots). When the block is very close to record and the original stakes are gone then we prorate but it isn't always the best solution.
Jim
No. You don't apply apportionment to the streets, only the lots. The streets are always given their record width, but even that is subject to original monuments. If a 50' R/W has original monuments at 49.85', then the R/W is 49.85'.
Stephen
Jim
You're right that the streets don't get apportioned, but the reason is due to their sovereign status, not senior rights.
Stephen
Stephen
>You're right that the streets don't get apportioned
I never addressed apportionment
Jim
The owners sign the map creating the Lots and dedicating the right-of-ways and easements then the agency accepts the right-of-ways and easements on behalf of the public then the map gets filed.
I don't think the streets are senior because it's a map; everything happens in the same instant in time.
The streets are easements; the owner of the corner lot owns to the center of the side street. You could argue the owner of the corner lot should have his entire lot prorated from the centerline to lot line and the street would still get it's width because it is an easement of specified width.
The usual practice, though, is to establish the right-of-way corner as a block corner then prorate from there. Maybe it doesn't make much difference.
The intention of the subdivider is to create a street of a specific width although you could argue his intention is also to create lots of a specific width.
I just chalk it up to 1) the world isn't perfect and 2) nothing is 100% logical and consistent. Actual customary practice may allow for some deviation from being perfectly logical and consistent.
Are you sure your subdivision has 16 feet extra? Is it just because of the 40 year later survey (that might be wrong) ?
We have a 90 year old subdivision of the East 1/2 of the Southwest 1/4 (80 acres nominally) of a regular section a few blocks away, and the underlying legals were for the North 60 acres and the South 20 acres, and that was (right or wrong) what was surveyed. And yes there is a 10 foot gap between them. Also not uncommon for different section corners over time and depending if you are on the Township or Range line the wrong or (adjoining) corner were incorrectly used.
It seems like no-one brought this up. Could be there is just a gap.
Just wondering out loud.
Jim
> The intention of the subdivider is to create a street of a specific width although you could argue his intention is also to create lots of a specific width.
I generally adhere to the principle stated by Brown (5.23, 2nd Ed): "The rights of the public to a street are thus protected by the courts so that deficiency or excess cannot exist within a street except where the original monuments set by the original surveyor indicate otherwise."
The principle goes on to state that a measurement index is applied in a few jurisdictions, but I have yet to encounter one of them.
Jim
Also I think the original practice was to monument the street lines, not the centerlines. So you would prorate between block corners, not the street PIs.
I found a 1940s R/S in Orangevale (by inspection of another newer R/S because the old one wasn't indexed anywhere) on which white 4x4 posts were found along the street R/W (now under pavement because most of the major streets have been widened and improved). That is an indication that the old practice (late 19th century to early 20th) was to stake the street sidelines.
Steve Calder, I Will Type Slower This Time
My statements did not come out of thin air, they are my opinions of whatthe facts as stated mean. I have said nothing about proration. Equity does not exactly equal proration.
I say everyone in the subdivision has an interest share in the excess. It cannot be prorated becaue per the original post it is along the street ROW way from all lots. All must have a say in it's disposal, all lot owners as well as the municipality.
I proceed to give examples of how that may be accomplished.
Paul in PA
This 1905 subdivision created the right-of-way. The subdivision lies between a railroad right of way, still in current use & location agrees with found monuments and a tidal boundary line of a rancho, which dimensions agree with few remaining monuments found in 1947. There is also a survey adjoining this subdivision done roughly 20 years later in which the 1947 Record of Survey agrees with.
So a platted 50' wide road which was initially created in the 1905 subdivision and extended in the 1920's subdivision is shown on the 1947 Record of Survey going from 67' to a 50' street at the line where the subdivisions join.
I completely agree with common sense and not disturbing occupancy. I wanted to see if there was some other justification besides common sense. I am going to located some of the properties along the multiple blocks to see if there was any proration in the boundaries.
My job on this project is to ensure our entities rights are protected and that no future surveys on adjoining properties could potentially lead to litigation.
I am not performing this survey and the firm that is, is very competent. I wanted to see if there was an existing case I could reference to my higher ups if/when I am to explain this boundary.
If I recall there is a famous case in Skelton, where a guy prorated the excess into the Street. It was a NYC case so the amount would seem trivial to most. I think he threw all the excess into the street (1/4").
I don't have a dog in this hunt so I'm not going to look it up. Although I'm tempted to say it was a case related to "Mechler vs Dehn".
Ralph
Equity Says The Excess Belongs To Every Parcel
No, no "equity" between owners. They all got their paid-for property. The municipality got its. The last owner owns his original lot and the excess. If it were a deficiency I would say the same. Assuming the lots are all already staked and improvements to them, there is no other solution in my mind. The 16' is of no value to anyone but the last owner. You could try to put it up for sale, but only if the municipality paid the fair-market-value and needed it, could you even imply an 'equitable' solution. If they had to pay for it and didn't need it, it is a waste of taxpayer's money. If they had to maintain it and didn't need it it is a waste of taxpayers money. If they let it go to weed it is just stubborn silliness.
What about this: the last owner borders the street and borders the lot next to him. How can you take away his platted street access?
I can't believe anyone else hasn't mentioned this. I can't see a different solution.
Just to clarify, are you saying the surveyor put 1/4" of excess into the street, and that resulted in a law suit?
