Barry G, post: 402771, member: 12296 wrote: I agree with you. Looking at the dedication, it does not address anything to do with a fee. I was trying to understand two issues. Who owns the easement areas, to include the sidewalks, parkway trees, our the the middle of street. Who is responsible to maintain the public right of ways? Looking at my property map, I own 6'" before the sidewalk to the end of my back yard. The Ventura County owns the easement, from the 6" to the sidewalk to the middle of the street. Who is responsible to maintain the easement is another issue. On this site, I've been informed that I own the fee title, the property map dimensions don't matter. So I own property after my property dimensions, which makes my head spin. I believe at that moment, the developer owns the private property, where he builds homes, streets, sidewalks, parkways etc. The Developer then prepares a dedication, giving the duty and responsibility to the County to maintain the public right of ways. Easements are created, once the dedication is approved by the Board of Supervisors. The properties are then sold to home owners. The fee title, on private property, then transfers to the Ventura County Municipality, once they accept the dedication for maintenance. It does not get transferred from developer to home owner. The Private Roads turn into Public Roads, to include public sidewalks and parkways. Once this turns public, home owners pay property taxes and gas taxes for this maintenance of public property, not private property. Private property (rights of ways) ended when they transferred to Public Property, for public use. The easements make it ingress and egress, everyone can drive on the roads and walk over the sidewalks. Public property is owned by me, my house, paid for in a mortgage. Public property is paid in maintenance and new property in taxes, to our government, paid by the homeowner. I cant see why the community can all use it, then I pay for this maintenance, when out of repair, as an individual. Its like Im ordered to let 100 drive my car. When it needs maintenance, I pay for it, not the others who used this property. I cant see that the fee stays with the adjacent property owner, when it turns to public property. Then this is private property, not public property, if I own out to the middle of the street. I think you can understand my confusion.
An easement, such as a street right of way, is an interest in the land of another. An easement is not a separate title or ownership. You own the fee, the public has an easement to have a street over your property.
This is an interesting law review article:
http://digitalcommons.law.scu.edu/lawreview/vol31/iss2/5/
Barry, just curious, what is your profession?
Thanks.
Dave Karoly, post: 402772, member: 94 wrote: An easement, such as a street right of way, is an interest in the land of another. An easement is not a separate title or ownership. You own the fee, the public has an easement to have a street over your property.
This is an interesting law review article:
http://digitalcommons.law.scu.edu/lawreview/vol31/iss2/5/
Thank you for explaining. So I own the fee under the land to the middle of the street, even through my property map shows my property ending 6" before the sidewalk. The easement allows ingress and egress, so cars can pass and people can pass on the public sidewalks. Now the issue is who is responsible to maintain the easement. I say tax dollars, others say that the County can charge us both, in taxes and when out of repair.
Edward Reading, post: 402773, member: 132 wrote: Barry, just curious, what is your profession?
Thanks.
Im am retired, to take care of my older son. I was a Controller, Senior Financial Analyst and auditor. I studied law in College, Finance, Accounting, Economics.
Barry G, post: 402778, member: 12296 wrote: Thank you for explaining. So I own the fee under the land to the middle of the street, even through my property map shows my property ending 6" before the sidewalk. The easement allows ingress and egress, so cars can pass and people can pass on the public sidewalks. Now the issue is who is responsible to maintain the easement. I say tax dollars, others say that the County can charge us both, in taxes and when out of repair.
I'm in favor of paying for public facilities with general tax revenue but I don't see how you can get out of your statutory duty to pay the cost of sidewalk maintenance under SHC 5610. The Statute applies even if you abut a street held in fee simple by the City or County.
Most maps have different linetypes and weights for the various lines...property lines, right of way lines, centerlines, etc. For retracement surveys in semi-modern subdivisions, I don't recall maps ever extending the property linetype out to center line when the original subdivision map wasn't depicted this way. Are we all getting it wrong? I'm also wondering about gross and net area calculations that jurisdictions use to determine develop-ability, shouldn't we be including this half street width for gross area even if the original subdivision map shows property lines being the edge of the right of way?
What does it really mean that people "own" half the street? Seems to me that it is completely meaningless unless the street is vacated, so I'm wondering why we are all going out of our way to be sure it's clear that we "own" the street. How is this distinction of "ownership" at all significant to anything beyond reversionary rights? Is there any other right that can be enjoyed?
The dimensions shown on a subdivision map are for net area of a lot. The dimensions needed to determine the underlying fee are also shown on your final map - the parallel and concentric lines defining the centerlines.
The practical purpose of this is to determine zoning compliance. Such things as minimum area, setbacks, minimum frontage and the like are used from those net dimensions. The tax assessor also does for land valuation.
Control over what the Streets & Highways Code terms County roads are defined in the Government Code. Counties are political subdivisions of the state, whereas Cities are municipal corporations.
Similar subdivisions to yours in the adjoining City of Thousand Oaks are funded and maintained under a different scheme. Keep this mind as you dig further into mandated public service facilities maintenance.
Dave Karoly, post: 402783, member: 94 wrote: I'm in favor of paying for public facilities with general tax revenue but I don't see how you can get out of your statutory duty to pay the cost of sidewalk maintenance under SHC 5610. The Statute applies even if you abut a street held in fee simple by the City or County.
Go back and look at the history of the 1911 Improvement Act, Streets and Highways Code 5600-5630, then find out the intent of the State Legislators. why was this code created and for what purpose. Its only purchase, according to the courts, is to reimburse the Municipality back for this maintenance, after it posted a bond. There were no gas tax, sales tax, property tax, etc to pay for this maintenance in a town, so this was the only revenue generated idea to keep the Municipality solvent. Lets go forward 106 years, its all changed, with tax revenue coming from property tax and gasoline taxes, paid into a transportation fund sent by Sacramento. County wants to go back 106 years, I want to go forward to current SHC, dedications and court rulings. They lose on all three counts. Let them explain Willits vs Los Angeles 2010. Let them explain Jones vs Detter 1984. I can name 7 other cases.
I will let the State Superior Court Judge decide, do we go back 106 or does current law apply?
Warren Smith, post: 402785, member: 9900 wrote: The dimensions shown on a subdivision map are for net area of a lot. The dimensions needed to determine the underlying fee are also shown on your final map - the parallel and concentric lines defining the centerlines.
The practical purpose of this is to determine zoning compliance. Such things as minimum area, setbacks, minimum frontage and the like are used from those net dimensions. The tax assessor also does for land valuation.
Control over what the Streets & Highways Code terms County roads are defined in the Government Code. Counties are political subdivisions of the state, whereas Cities are municipal corporations.
Similar subdivisions to yours in the adjoining City of Thousand Oaks are funded and maintained under a different scheme. Keep this mind as you dig further into mandated public service facilities maintenance.
I have the same issues.Warren. If we adjacent property owners own the underline fee out to the middle of the streets, why is this not expressed in the County property maps dimensions. It would be clear to see by increasing the dimensions in the property map out to the centerline. You have seen my land surveyors map on this website. My property line, starting from my front yard, is 6" before the sidewalk, not starting in the middle of the street. The dimensions define the property area, again does not start from the middle of the street. Whom ever created the County Map, did not take into account that the property (fee) starts in the middle of the street. What I hear is that its implied or is it based on an 1872 California Code 831, with on intention of applying to housing tracts, not created till 1945. CC 831 was written 144 years ago, things have changed. Thousand Oaks funds public sidewalks in housing tracts and also takes out parkway tree, no charges to the residence. Same with every City is Ventura County. The unincorporated areas, part of Ventura County, the step child, get stepped on.
Take a look at the final map of your subdivision that I posted. That is the origin of your title to your real property. That map was the culmination of the approved tentative map approved by the County Planning Commission, subject to satisfaction of all conditions of approval, as attested to by the County Surveyor.
The tentative map was approved as being compliant with the General Plan as it existed at that time. Orderly development is controlled stautorially under provisions of the Government Code relating to land use and planning,.and local ordinances adopted to implement those policies. They are approved by the Board of Supervisors as part of the statutory scheme.
I'm laying out this civics lesson to prepare your understanding of the mechanism of community development as it has come to be known.
Your land ownership is - as is all of ours - increasingly subject to regulation in order to properly allocate appropriate sources of revenue for ongoing obligations to perform maintenance. If the gas tax paying motorists are charged with expenditures for repairs not related to the damage caused by motor vehicles, there is a faction willing and able to contest that effort.
Is it your issue that sidewalk repair costs are being allocated to a smaller group - such as adjacent landowners? There is a nexus, but search for it outside the Streets & Highways Code. You are aware of the evolving nature of the law, as adjudicated in Appellate decisions. Pursue your quest in relevant case law. Some of it may be that of first impression.
Owner of easement generally bears responsibility for its maintenance; that is not so with regard to sidewalks and parkways. Jones v. Deeter (App. 2 Dist. 1984) 199 Cal.Rptr. 825, 152 Cal.App.3d 798. Easements 53; Municipal Corporations 757(2)
Jones is a sidewalk trip and fall liability case. The Court says the abutting owner pays the cost of repair several times but attributes the liability for the injured person to the City of Long Beach. They even say at the end that if the City finds it too expensive to keep the sidewalks safe they can bill the adjoining owners under SHC 5600 et seq. The Court also discusses the ownership issues.
The current version of Streets & Highways å¤ 5610 was enacted by Statutes of 1941, chapter 79, page 873, å¤ 1.
The historical enactments (superceded) were:
Stats.1911, c. 397, p. 747, å¤ 31; Stats.1935, c. 771, p. 2148, å¤ 2; Stats.1939, c. 508, p. 1886, å¤ 1.
ÛÏWhile a highway* exists there is nothing more than a mere suspension of the abutterÛªs right.Û
A Treatise on the Law of Roads and Streets; Third Edition (1911) Byron L. and William F. Elliott
*In 1911 highway had a generic meaning of road, street, etc. A public road
Barry G, post: 402787, member: 12296 wrote: I have the same issues.Warren. If we adjacent property owners own the underline fee out to the middle of the streets, why is this not expressed in the County property maps dimensions. It would be clear to see by increasing the dimensions in the property map out to the centerline. You have seen my land surveyors map on this website. My property line, starting from my front yard, is 6" before the sidewalk, not starting in the middle of the street. The dimensions define the property area, again does not start from the middle of the street. Whom ever created the County Map, did not take into account that the property (fee) starts in the middle of the street. What I hear is that its implied or is it based on an 1872 California Code 831, with on intention of applying to housing tracts, not created till 1945. CC 831 was written 144 years ago, things have changed. Thousand Oaks funds public sidewalks in housing tracts and also takes out parkway tree, no charges to the residence. Same with every City is Ventura County. The unincorporated areas, part of Ventura County, the step child, get stepped on.
Another one of your contentions is if a statute proceeds another statute then the first doesn't apply to the second because the legislature in the first couldn't have intended to apply it to the second (which didn't exist until decades later). This is incorrect. It would be nearly impossible to try to untangle the web of statutes when interpreting them this way and I know of no legal doctrine where old statutes don't apply in situations created by new statutes. For example, what if the basic speed law existed before the latest revision of the Subdivision Map Act. I'm ready the next time I get pulled over for speeding, "Officer, the basic speed law doesn't apply to the streets in this subdivision." That is just ludicrous.
Another thing is, when the legislature enacts a new statute they have notice of all the preceding statutes on the books. If they intended to exempt new housing subdivisions from 5610 then they could've put it in the revision of the SMA.
Warren Smith, post: 402789, member: 9900 wrote: If the gas tax paying motorists are charged with expenditures for repairs not related to the damage caused by motor vehicles, there is a faction willing and able to contest that effort.
Yes WHY?! (Sorry - I had to fit that picture in somehow).
Why should I have to pay for repairing sidewalks in a housing development 575 miles away?
If people in that community want shade trees and concrete sidewalks along the frontage of their homes...let them pay for it by increasing the local property tax.
Gas taxes should be used to maintain and rebuild major infrastructure such as bridges and roads. Shade trees and sidewalks are just icing on the cake.
Warren Smith, post: 402789, member: 9900 wrote: Take a look at the final map of your subdivision that I posted. That is the origin of your title to your real property. That map was the culmination of the approved tentative map approved by the County Planning Commission, subject to satisfaction of all conditions of approval, as attested to by the County Surveyor.
The tentative map was approved as being compliant with the General Plan as it existed at that time. Orderly development is controlled stautorially under provisions of the Government Code relating to land use and planning,.and local ordinances adopted to implement those policies. They are approved by the Board of Supervisors as part of the statutory scheme.
I'm laying out this civics lesson to prepare your understanding of the mechanism of community development as it has come to be known.
Your land ownership is - as is all of ours - increasingly subject to regulation in order to properly allocate appropriate sources of revenue for ongoing obligations to perform maintenance. If the gas tax paying motorists are charged with expenditures for repairs not related to the damage caused by motor vehicles, there is a faction willing and able to contest that effort.
Is it your issue that sidewalk repair costs are being allocated to a smaller group - such as adjacent landowners? There is a nexus, but search for it outside the Streets & Highways Code. You are aware of the evolving nature of the law, as adjudicated in Appellate decisions. Pursue your quest in relevant case law. Some of it may be that of first impression.
That is the dedication of property Map in Ventura County, for the housing tract I live in. The Land Surveyor I hired took the dimensions in my property and created a single map, to show me, based on the dimensions in the County Map, where my property starts and where it ends. You can see online this Land Surveyors Map, posted by someone else. You can clearly see my property starts 6" before the public sidewalk, that is clear. You address a tentative map was approved as being complaint with the General Plan... I am unaware of a tentative map. Do you have a copy? How would this change anything? The issue I have see an Ordinance created by this General Law County, transferring all the duties, responsibilities and liabilities on public parkways and sidewalks in our housing tract. We all know by all case law, that a General law County has no authority to transfer liability on public sidewalks and parkway trees. SHC 5600-5630 does not give them this authority, which they claim. Read Jones vs Deeter, Williams vs Foster, Schefer vs Lenahan, etc. According to the courts, no liability can be transferred, period, since the adjacent property owner owns on duty to a pedestrian. That is the law, yet the County performed this in their Ordinance. The second it I have is that the Parkway trees, by County Ordinance is owned by the County, not the adjacent property owner. That decision was decided by the County. When their parkway tree roots destroy their public sidewalk, lift, crack, ot of repair, who should it them? if it is my parkway tree, on my property line, then I should fix this damage. If its my tree on my property shown on the map, that destroys my neighbors yard, or wall, or anything, that is my liability, not my neighbors. If I was anyway responsible in messing up public property, then I should repair it. In this case, the County owns the tree, there Ordinance 2041. They claim that everything on the parkway, they own. So when a government tree, own by the government, as stated by the government destroys public sidewalks, who should repair the public sidewalks? Who was responsible for these sidewalks to be out of repair? I had nothing to do with the Parkway tree and its roots. Please read Jones vs Detter 1084 in Long Beach. A pedestrian fell over the public sidewalk, made out of control by a parkway tree, in a housing tract in Charter City of Long Beach. Jones suit was against the City and the adjacent property owner. The Courts did not find against the Adjacent property owner for the injuries on the sidewalk, it cited against the City. If 5600-5630 were the precident, then the Courts would hold the adjacent property owner responsible. The court stated that the could not find cause, since the City is responsible to maintain the public parkway and trees, that the adjacent property owner is not responsible to maintain the parkway tree roots that went under the sidewalk and lifted the sidewalk, making it out of repair. Im my case, in a General law County, Ventura County Ordinance makes it clear that they own the parkway tree adjacent to my home and everything on that parkway. Long Beach did not have an Ordinance, stating that they own that parkway trees on the parkway. In law, we care about ownership. If I own something that causes damage to another, let say my car, my tree on my property, anything that I own, then Im responsible. When the government owns the parkway tree, and by California Constitution, SCH 22060, they are responsible to maintain, Im not responsible for government tree damage to public sidewalks. There tree caused the damage to all County Casa Conejo public sidewalks. I have their report that shows pictures of all the damage performed by their own parkway trees. Look at Willits vs City of Los Angeles 2010. The Judge ruled against the Charter City. If 5600-5630 is the authority, the Judge should have ruled against the adjacent property owners. After all, they are responsible to maintain the sidewalks, correct? Why did the Judge rule against the Charter City, citing them for 1.4B, out of their transportation funds to pay for public sidewalks and parkway trees? Please read that current case. Its 50 miles from Ventura County, Los Angeles. Why would this case not apply to Ventura? The Key to everything, IMHO, it who owns the parkway trees that destroyed the public sidewalks adjacent to a property owners home? Based on 2041, its the Ventura County government. Where am I going wrong?
MightyMoe, post: 402695, member: 700 wrote: Thanks Dave:
This is from a rather famous Wyoming Supreme Court (Moorcroft V Lang) case that was interested in who owned minerals under a street:
[å¦10.] Dedication of land for use by the public may occur either by virtue of common law or through statute. 11 E. McQuillin, Municipal Corporations, å¤ 33.03, p. 640 (3d ed. 1983), distinguishes between these two types of dedication:
A statutory dedication is one pursuant to the terms of the statute, and is almost universally created by the filing and recording of a plat. A common-law dedication requires an intention to dedicate expressed in some form, and an acceptance of the dedication by the proper public authorities, or by general public user. It is distinguishable from a statutory dedication, which is in the nature of a grant, and from prescription which is based on a long period of use. Generally a common-law dedication rests upon the doctrine of estoppel. Statutory dedication generally vests the legal title to the grounds set apart for public purposes in the municipal corporation, while the common-law method leaves the legal title in the original owner. * * *
[å¦11.] In Wyoming, dedication at common law creates an easement in the municipality. We stated in Gay Johnson's Wyoming Automotive Service Co., Inc. v. City of Cheyenne, Wyoming, 367 P.2d 787, 788 (Wyo. 1961).Under common law, at dedication the public or municipality acquires an easement in the streets and alleys, but the fee remains in the original proprietor or abutting owner. [Citations.]
[å¦12.] The dedication accomplished by the recording and acknowledgment of the plat in this case was governed by statute, namely å¤ 1402 of Revised Statutes of Wyoming, 1887. That section decreed the recording of a plat "equivalent to a deed in fee simple of such portion of the premises platted." The present Platting and Dedication Act, W.S. 34-12-101 through 34-12-115, is virtually identical to that early statute.
[å¦13.] We have held that, upon dedication under this statutory language, a fee simple determinable2 in the surface is created. It encompasses that area of dedicated property "set apart for streets and alleys and reasonably includes only the surface and so much of the subsurface as is necessary for street construction and municipal services." City of Evanston, 702 P.2d at 1289.
This of course isn't California: Barry G really, really needs to get good legal advice from an actual attorney before he steps into court on this one.
That is an interesting case.
The Court says a street dedicated by statute is a special type of fee simple which reverts to the adjoining landowner (common law dedications only deliver an easement). The streets only include the surface and enough subsurface to deliver access and utilities to the lot owners and public. This does not include mineral rights. This makes some sense in that the street is such a heavy use.
The conflict between the majority and the dissent involves who gets the mineral rights in the streets and parks. They agree the Town of Moorcroft is not entitled to the mineral rights (oil in this case). The majority says the original dedicator gets the mineral rights. The dissent, which makes more sense to me, says the individual lot owners should get the mineral rights to the centerline of the abutting street. This makes sense because if the street is abandoned then it would revert to the adjoining lot owner. The dissent cites cases in other mid-western states.
Dave Karoly, post: 402807, member: 94 wrote: Owner of easement generally bears responsibility for its maintenance; that is not so with regard to sidewalks and parkways. Jones v. Deeter (App. 2 Dist. 1984) 199 Cal.Rptr. 825, 152 Cal.App.3d 798. Easements 53; Municipal Corporations 757(2)
Jones is a sidewalk trip and fall liability case. The Court says the abutting owner pays the cost of repair several times but attributes the liability for the injured person to the City of Long Beach. They even say at the end that if the City finds it too expensive to keep the sidewalks safe they can bill the adjoining owners under SHC 5600 et seq. The Court also discusses the ownership issues.
Jones did trip on the sidewalk in a housing tract in Long Beach, correct. The courts did talk about the parkway trees roots destroying the sidewalks, causing the injury and that Long Beach was responsible to maintain the public parkway tree roots. The Courts decided that the adjacent property owner is not responsible to maintain the parkway tree roots, that the adjacent property owner is not responsible for the parkway maintenance. That is the key in tis case. Therefore the liability for the damages to Jones went to " The City of Long Beach", not Deeter, the adjacent property owner. What I get out of this case is 2 things. #1 Parkway tree root maintenance is the responsibility of the Municipality, that destroys the public sidewalk. #2. No Municipality can pass on its liability on sidewalks to the adjacent property owner. If the abutting owner is required to pay for this cost, for the sidewalk being out of repair, where is the ruling that the Deeter needs to pay for this repair of the sidewalks? Its not there in this ruling. Find a lawsuit in California, where a Judge ruled against an adjacent property owner in a housing tract, requiring them to pay for the public sidewalk repair. In 106 year, there are none? Why?
Dave Karoly, post: 402810, member: 94 wrote: The current version of Streets & Highways å¤ 5610 was enacted by Statutes of 1941, chapter 79, page 873, å¤ 1.
The historical enactments (superceded) were:
Stats.1911, c. 397, p. 747, å¤ 31; Stats.1935, c. 771, p. 2148, å¤ 2; Stats.1939, c. 508, p. 1886, å¤ 1.
5600-5630 was written in 1911, as a part of the 1911 Improvement Act.
imaudigger, post: 402837, member: 7286 wrote: Yes WHY?! (Sorry - I had to fit that picture in somehow).
Why should I have to pay for repairing sidewalks in a housing development 575 miles away?
If people in that community want shade trees and concrete sidewalks along the frontage of their homes...let them pay for it by increasing the local property tax.
Gas taxes should be used to maintain and rebuild major infrastructure such as bridges and roads. Shade trees and sidewalks are just icing on the cake.
That is a picture of me in my housing tract several years ago, reported in the Starr and Acorn newspaper. If you read the article, I point out that the County marks public residential sidewalks in my housing tract that have lifted 1/16 of an inch above the next sidewalk panel, with no policy and procedure as to define, what is an out of repair sidewalk. When the County representative marked these sidewalk, I asked him for the criteria. he told me they dont have one, his orders were to mark all sidewalks that were lifted, so they can demand repair from the adjacent property owner. So I spoke to the Public Works Dept and asked him for the criteria. He told me that they are now working on one, will take 4-6 months to complete, in 2016. This house tract was created in 1961. How can they mark sidewalks that they believe needs to be repaired with no legal criteria. Answer from County, we do what we want, yes, we do what we want. The ADA requires that anything above 1/2" need to be repaired. So what is an out of repair sidewalk? The ADA told me 1/16 raised sidewalk is not out of repair. So the County marked all sidewalks, grind them down, charge residence. The courts have rules that anything above 1" or more can be considered out of repair, not 1/16 of an inch. This Counties position is that they decide what is out of repair, not a Judge or a Court.
