imaudigger, post: 403119, member: 7286 wrote: I believe that when Barry is referring to "meets and bounds", he is referring to the dimensions on the subdivision map, not the language in his actual deed.
Chances are his deed is (or was originally) a lot description, similar to your example.
Please Read: 7-27 Road and Railroad Easements: 7.42 a. Use of Metes and Bounds Description: Fee Title Exception. "A common method for rebutting the presumption of ownership to the center line is the use of a metes and bounds legal description of private property that does not refer in any way to an abutting road." These is where the deed and the grant comes in. If the County can prove, by Metes and bounds, that my property line extends out to the middle of the street, then they win. When they cant, they lose. There is not intent to place my property out to the middle of the street. Why is this important? Look at the Streets and Highways Code 5600-5630 argument and California Civil Code 830 and 1112. SHC 5600-5630 was predicated on the fact, that the adjacent property owns out to the middle of the street, based on CC 803 and 1112. That is my Counties position. Back in 1911, property maps would show out to the middle of the streets, no issue in 1911. What do property maps show today, in housing tracts? In my case, they clearly show 6" before the sidewalks. So is in the intent for me to own the underlying fee out to the middle of the street. A Judge would say no, there is not intent. When I dont own the fee in title or underlying fee, I dont own the public sidewalks or parkways, dedicated to the County. They cant hold me liable for property I dont own, period. They cant used 5600-5630, since I dont own the underlying fee to the middle of the street. Its their easement property they, by California law are responsible to maintain. 5600-5630 does not give them authority to transfer these duties to an adjacent property, when that land is not owned by te adjacent property owner. No one has ever made this argument, until now.
The parkway land did not cause the public sidewalks to go out of repair, its the parkway tree roots that caused all the damage. If a County owns the parkway tree roots, they are responsible for that damage, not adjacent property owners. They permitted these trees, on a small 4" wide parkway, its their liability, they hold some responsibility, cant transfer their mistakes to me. They should never allow a large parkway tree on a 4' wide parkway, due to roots that grow under the sidewalks. they should put root barriers in these areas, to prevent the sidewalks from lifting. Remember by Oridinance, they own the parkway trees.
Somebody needs a new retirement hobby.
epoch date, post: 403129, member: 485 wrote: Show in your deed, where there is other intent by the subdivider, or that contrary verbiage is shown. These elements are not within your deed.
You state that CA code sections are presumptions... Your statement in itself is an unfounded presumption, and blatantly disregards all statutes and case law that provide clarity to the issue.
You own to the center of the street (unless contrary information is provided within the deed - which in your case, it is not provided). But realize that the county has an easement over a certain area that includes the streets, and in most instances, the sidewalks also. It is by the actions of statutes and local regulations that additionally define responsibility over the sidewalks (and trees).
Easements to not equate to ownership. You keep jumping to the conclusion of ownership being transferred under the easement.
Easements usually encompass a USE.The second part of your first paragraph: This is an invalid argument. Your deed describes your description as a Lot, within a subdivision. That does not mean that is all that describes your Lot. The map of the subdivision is included within your deed. Also included are statutes, regulations and case law.
I respectfully disagree with your presumptions, not based on facts or law. If my deed/grant shows my property line out to the middle of the street, you are correct. My deed/grant shows my property as defined in the County Map of Tract . 1116-1. Read the law, City of Redlands c Nikerson (1961) 188 CA 2d, 118, 126, or Warden v South Pasadena Realty & Improvement Co, (1918) 178 C 440, 442. Also see Berton v All Persons (1917) 176 C 610.
Read the law regarding easements and requirement of those who own the easements, regarding maintenance. Please read the California laws I present, then come back with comments. Read 7-27 Road and Railroad Easements: 7.42 a. Use of Metes and Bounds Description; Fee Title Exception. Knowledge is power.
Williwaw, post: 403133, member: 7066 wrote: Somebody needs a new retirement hobby.
I actually agree, lol. Its either I study medical journals all day regarding my sons disability, to figure a cure or do this. Being doing this for years. Believe me, this is a distraction.
I want to learn about everything, before I take my General Law County to court, regardless this illegal Ordinance. That is why its interesting to hear from Land Surveyors, who are experiences in these matters, regarding property, not the law, with all due respect.
Warren Smith, post: 403117, member: 9900 wrote: Hmm - I'm seeing the dimensioned lots and the dimensioned public roadways on your final map. Otherwise, it wouldn't be technically compliant and signed by the County Surveyor.
Metes and bounds descriptions are inappropriate for a filed subdivision map. The description - sufficient to convey title - is that of Lot X as shown on map of YY Acres, filed in Book ZZ of Miscellaneous Records (Maps), at Page AA in the office of the County Recorder of Ventura County, California. All matters of title are shown, and subsequent modifications would be by reference to that lot. For example, an easement for gas line purposes over the westerly 10 feet of said Lot X.
Thank you Warren. The Roads and Railroad Easements (7.27): 7.42 Use of Metes and Bounds Descriptions: Fee Title Exceptions is quite relevant, with all due respect. I was in the County Records Dept last year. They have a computer, where I could look up the past residence who owned my property. Their deed, describes this Tract No. 1116-1, the property lines, etc. It does not address to the middle of the street, owning sidewalks and parkways, etc. It does not address easement, only the property map. The Property Map does not show easements by the County over the rights of ways. Is this a record in the County. Is this an indirect easement with no paperwork or a direct easement with paperwork. The Utilities have to create an easement document, as placed on the property map. Is this the same for the County? Will a document be required, so it ca go on the Tract No 1116-1? If its not on the Map, can their still be an easement over the rights of ways?
Barry G, post: 403134, member: 12296 wrote: Read the law regarding easements and requirement of those who own the easements, regarding maintenance.
If you "own" an easement, then I would say that you don't own the underlying ground. An easement, by definition is A right of use over the property of another. Traditionally the permitted kinds of uses were limited, the most important being rights of way and rights. (that definition is from the free legal dictionary on line.
You can not have an easement over your own property. The fact that it is an easement means they don't have fee ownership of the property.
Barry G, post: 403142, member: 12296 wrote: Thank you Warren. The Roads and Railroad Easements (7.27): 7.42 Use of Metes and Bounds Descriptions: Fee Title Exceptions is quite relevant, with all due respect. I was in the County Records Dept last year. They have a computer, where I could look up the past residence who owned my property. Their deed, describes this Tract No. 1116-1, the property lines, etc. It does not address to the middle of the street, owning sidewalks and parkways, etc. It does not address easement, only the property map. The Property Map does not show easements by the County over the rights of ways. Is this a record in the County. Is this an indirect easement with no paperwork or a direct easement with paperwork. The Utilities have to create an easement document, as placed on the property map. Is this the same for the County? Will a document be required, so it ca go on the Tract No 1116-1? If its not on the Map, can their still be an easement over the rights of ways?
On the transfer of liability by County ordinance issue: I haven't studied whether they can do that. It seems to me the Santa Clara law review article I linked addresses that issue. I'm busy with my grandson right now.
Tom Adams, post: 403143, member: 7285 wrote: If you "own" an easement, then I would say that you don't own the underlying ground. An easement, by definition is A right of use over the property of another. Traditionally the permitted kinds of uses were limited, the most important being rights of way and rights. (that definition is from the free legal dictionary on line.
You can not have an easement over your own property. The fact that it is an easement means they don't have fee ownership of the property.
Good point. The easement would be owned by the Utility or the County, to allow the Utility to walk on your private property, for repairs or to read a meter. The rights of ways, include the middle of the street, parkway and sidewalks, which creates an easement upon a dedication. This allows ingress and egress to all who travel on this public property, not private. The Utility has a right to my backyard, no one else is allowed, only the Utility, based on their recorded easement. I dont have an easement over my property, correct. An easement does not decide the underlying fee (ownership) to the middle of the street.
CC 830 was written in 1872 to describe who owns the underlying fee to the middle of the street. In 1872, based on property maps at that time, it assumed that all adjacent property owners own the underlying fee, unless the property map shows otherwise. In 1872, there were farms and a business in a town, no residential properties till 1945 in California. That is when things changes, when we started to have housing tracts. Then a Subdivision Map would be created, different than a 1872 Map, to show Metes and bounds on property lines in a housing tract. If its the purpose for a home owner to own out to the middle of the street, that Housing Tract property map would show it, by dimensions. In 1872, there were towns, that show it out to the middle of the street. That is why the 1911 Improvement Act SHC 5600-5630 was created, requiring that adjacent property owner to maintain the parkway and the sidewalk, adjacent to their establishment. This is consistent with CC 830, where the adjacent property owner owns out to the middle of the street. Look at the property maps in 1872, 1890, 1900, etc. So many dont know the history and the intent. SHC 5600-5630 relies on 830, that we all own out to the middle of the streets. That is not true in majority of housing tracts in California. That is where 5600-5630 gets thrown out in court. No one have ever brought this issue up in court, I dont believe. If your property dimensions show to the middle of the street, or their is a statement that claims to own a specific streets, road, etc then that is a different story. My friend in SF knows these facts, not many understand what is happening today. We will see in court how the Judge rules.
Dave Karoly, post: 403149, member: 94 wrote: On the transfer of liability by County ordinance issue: I haven't studied whether they can do that. It seems to me the Santa Clara law review article I linked addresses that issue. I'm busy with my grandson right now.
Is the the one written in 1960's, by a law student? That is quite interesting. It does not answer the questions I raise. Enjoy your grandson. I have my son to watch.
Barry G, post: 403152, member: 12296 wrote: Good point. The easement would be owned by the Utility or the County, to allow the Utility to walk on your private property, for repairs or to read a meter. The rights of ways, include the middle of the street, parkway and sidewalks, which creates an easement upon a dedication. This allows ingress and egress to all who travel on this public property, not private.
The right of way is an easement for a different purpose than the utility easement. A "right of way" is a right of passage, and not a fee ownership. The dedicated right-of-way easement is still an easement but it is for public use. The County accepts the dedication, not so they have more land of value, but only to agree to keep up the roadway for public use. They do not profit, they do not pay property tax, but agree to maintain the roadway to keep it open for public passage.
As it turns out, it is immaterial whether you have an underlying fee interest in the adjacent public right of way. The Streets & Highways Code relevant section:
The owners of lots or portions of lots fronting on any portion of a public street or place when that street or place is improved or if and when the area between the property line of the adjacent property and the street line is maintained as a park or parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience in the use of those works or areas save and except as to those conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to him by law or by the city authorities in charge thereof, and such persons shall be under a like duty in relation thereto.
The statute imposes an obligation upon the adjacent property owners to maintain a safe condition. However, it allows for an exception when conditions created by others to have that duty transferred to them. This is equitable under a theory of causation. This may be what you have been saying all along - it just wandered into reversionary interests and other considerations. The intent of this provision appears to be directed at third parties working under an encroachment permit issued by the local agency (think underground utility lines sawcutting sidewalks for repair work), but you may encounter case law which addresses street tree root damage.
Tom Adams, post: 403160, member: 7285 wrote: The right of way is an easement for a different purpose than the utility easement. A "right of way" is a right of passage, and not a fee ownership. The dedicated right-of-way easement is still an easement but it is for public use. The County accepts the dedication, not so they have more land of value, but only to agree to keep up the roadway for public use. They do not profit, they do not pay property tax, but agree to maintain the roadway to keep it open for public passage.
I agree with you. The issue I have is passing the duty, responsibility and liability of parkway trees and sidewalks repairs and maintenance to the adjacent property owners. They have no legal authority, this General Law County. The Dedication approval requires them to maintain the Public Road System. Once accepted, the County has an easement over the rights of ways, to allow ingress and egress along the public streets, sidewalks and parkways. County owns the parkway trees, by Ordinance. There tree roots from their own trees have destroyed the public sidewalks adjacent our homes. they allowed Liquid Amber trees, without a root barrier, to be placed on a 4" wide parkway. The roots grow above ground and under the sidewalks, lifting them, cracking them, making them out of repair. So they created an Ordinance passing this responsibility to the adjacent property owner. Its their trees that messed up the sidewalk, the same trees that they approved by permit, same trees they own. So they collect taxes for this maintenance, then get to charge us twice for the same repair. If its my parkway tree, or tree on my property line, I have no issue paying for the damages to the sidewalk or taking out the tree. Since its a County owned Parkway tree, that did not all damage, that I already pay taxes for, to the government to maintain, Im not responsible for the sidewalk damage, nor the parkway tree owned by the government, dedicated to it to maintain. I break it, I fix it. Government breaks it, they repair it. I pay them to repair it in taxes, not once, but now twice, where they are negleant.
Warren Smith, post: 403161, member: 9900 wrote: As it turns out, it is immaterial whether you have an underlying fee interest in the adjacent public right of way. The Streets & Highways Code relevant section:
The owners of lots or portions of lots fronting on any portion of a public street or place when that street or place is improved or if and when the area between the property line of the adjacent property and the street line is maintained as a park or parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience in the use of those works or areas save and except as to those conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to him by law or by the city authorities in charge thereof, and such persons shall be under a like duty in relation thereto.
The statute imposes an obligation upon the adjacent property owners to maintain a safe condition. However, it allows for an exception when conditions created by others to have that duty transferred to them. This is equitable under a theory of causation. This may be what you have been saying all along - it just wandered into reversionary interests and other considerations. The intent of this provision appears to be directed at third parties working under an encroachment permit issued by the local agency (think underground utility lines sawcutting sidewalks for repair work), but you may encounter case law which addresses street tree root damage.
Hello Warren. This was written in 1911 as a part of the improvement Act, based on the fact that there were no taxes dollars collected by the Municipality for this maintenance and the purpose was to pay back the Municipality for this maintenance. It did not allow the Municipality to pass liability to the adjacent property owner, nor did it allow them to transfer this duty. Ordinance 4355 requires the adjacent property owner to repair the public sidewalks and parkway trees, not the Municipality, and allows the pedestrians to sue the adjacent property owner for injuries. This was not the intent of 5610. nor by the courts. 5600-5630 is predicted on the fact, in 1911, that CC 830 applies, that the adjacent property owners owns to the middle of the street. In 1911, if the property map shows that, then I agree 100%, that the person who owns this property should pay for the repair. If the adjacent property owner can prove by property dimensions in his Subdivision Map, that he/she does not owns to the middle of the street, SHC falls apart. It assumes that the map shows the sidewalk and parkway tree owned by the adjacent property owner. Tree root damage is discussed in Jones vs Deeter 1984, where the parkway tree roots destroyed the sidewalk, causing Jones to fall. Deeter did not lose, the City of Long Beach was responsible. In this case, their was to determination that Deeter (property owner) own the parkway trees, nor the County. It was only an issue of maintenance. In my case, this is important, since the County clearly states its the owner. A judge wont allow 5600-5630 to force me to maintain a public parkway tree owned by the County. 5600-5630 assumes that the adjacent property owner owns to the middle of the street. Not according to my property map, which I will prove. That is why this case is so interesting. That is why ownership is so important. Once I prove ownership of the County, no Judge will hold me accountable to repair sidewalks, the County parkway trees damaged. That is only my opinion, whatever its worth.
If you're taking them to court on this I think the strongest thing you could do is show that their planting of trees caused damage to the sidewalk. I would rely more on showing that they planted the trees and an expert (an arborist?) testifying that it was the planting of the trees with no protection for the sidewalk that caused the damage. I don't know, though
Tom Adams, post: 403175, member: 7285 wrote: If you're taking them to court on this I think the strongest thing you could do is show that their planting of trees caused damage to the sidewalk. I would rely more on showing that they planted the trees and an expert (an arborist?) testifying that it was the planting of the trees with no protection for the sidewalk that caused the damage. I don't know, though
I already have letters from the County stating that the parkway trees have caused this damage, and pictures. All I need to do is present this to a Judge, show them Ordinance 2041, on planting in the parkway, then inform the Judge that this is a government tree. The pictures show large liquid amber trees overrunning the sidewalks and the parkway gutters and curbs. That is my #1 argument, who caused the damage should pay for it. County created an Ordinance hold the adjacent property owner accountable for their negligence for allowing (permits) a large parkway tree, without a root barrier, to make the sidewalks out of repair.
Barry G, post: 403134, member: 12296 wrote: I respectfully disagree with your presumptions, not based on facts or law. If my deed/grant shows my property line out to the middle of the street, you are correct. My deed/grant shows my property as defined in the County Map of Tract . 1116-1. Read the law, City of Redlands c Nikerson (1961) 188 CA 2d, 118, 126, or Warden v South Pasadena Realty & Improvement Co, (1918) 178 C 440, 442. Also see Berton v All Persons (1917) 176 C 610.
Read the law regarding easements and requirement of those who own the easements, regarding maintenance. Please read the California laws I present, then come back with comments. Read 7-27 Road and Railroad Easements: 7.42 a. Use of Metes and Bounds Description; Fee Title Exception. Knowledge is power.
ÛÏIf my deed/grant shows my property line out to the middle of the street, you are correct. My deed/grant shows my property as defined in the County Map of Tract . 1116-1.Û Barry G ÛÒ
Your Lot is defined by said map. But is also defined by all the statutes, local regulations and court cases that comprise the full law. So, your deed in actuality encompasses more than just what is illustrated on the referenced map.
Per the cited cases you suggestÛ?
None of them apply directly to your situation. They relate to ambiguities related metes and bounds issues within descriptions. Only the first listed in red below somewhat relates, and goes against your assertions about lots.
_____
City of Redlands v. Nickerson , 188 Cal.App.2d 118
ÛÏÛ?property to be sold was described by metes and bounds. As a result of prior negotiations, it was understood that the city would dedicate and pave the diagonal roadway as a new street.Û
[INDENT]Your property is not a metes and bounds description, it is a Lot description.[/INDENT]
ÛÏunless it clearly appears that it was intended to make a side line instead of the centre line the boundary.Û
[INDENT]There is nothing contained within your deed, or the map it references, to indicate other intent to make the side lines be the boundary.[/INDENT]
"A transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent appears from the grant."
[INDENT]Notice it limits the intent to what it says in the grant. Not your later interpretation thereof to win an argument.[/INDENT]
ÛÏThe rule thus announced and followed has been extended to land described in a deed by reference to a map which shows the land to be bounded by a street.Û
[INDENT]Eight cases of precedence follow this finding. ThatÛªs extremely compelling that LOT descriptions actually go to the street centerlines.[/INDENT]
ÛÏÛ?only when a different intent or an ambiguity with respect thereto appears on the face of the deed.Û
[INDENT]Again, there is no different intent or ambiguity that appears on the deed.[/INDENT]
ÛÏWhere an ambiguity appears on the face of the deed, parol evidence is admissible to determine the issue involved.Û
[INDENT]So, parol evidence is not admissible to further explain the intent.[/INDENT]
ÛÏthe intention of the parties is the determinative factor.Û
[INDENT]It is their intention at the time of the sale, not what your intention is nowÛ?[/INDENT]
This case doesnÛªt apply to your situation. It relates to metes and bounds descriptions, that could contain ambiguities or inferred intent. That is not the situation with your LOT description.
_____
Warden v. South Pasadena Realty Co
Again, this case involved lot legal descriptions that were divided and the conveyed via metes and bounds descriptions (that didnÛªt match up with the original parameters of the lot). So, this case is not applicable.
_____
BERTON V. ALL PERSONS, ETC
Again, this case involves metes and bounds, some lots, and private ways. The issue is the private nature of the road. This does not apply to your situation. Your roads are not private.
Barry G, post: 403178, member: 12296 wrote: I already have letters from the County stating that the parkway trees have caused this damage, and pictures. All I need to do is present this to a Judge, show them Ordinance 2041, on planting in the parkway, then inform the Judge that this is a government tree. The pictures show large liquid amber trees overrunning the sidewalks and the parkway gutters and curbs. That is my #1 argument, who caused the damage should pay for it. County created an Ordinance hold the adjacent property owner accountable for their negligence for allowing (permits) a large parkway tree, without a root barrier, to make the sidewalks out of repair.
Well I agree with that approach. I don't think I wholly agree with your boundary issues, but if it comes up I guess you can throw whatever you have against the wall and see what sticks.
This may be of assistance.
It is from the California Law Review, and entitled: Dedication of Land In California
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2983&context=californialawreview
Difference between common law and statutory law dedications. See pages 559, and from 570 onward.
(Subdivisions fall under statutory law dedications per the Subdivision Map Act.)
Page 566 relates to what interest is acquired by the dedication: "If land is dedicated for street or highway use, the public merely acquires an easement across the land;"
And on Page 583 related to interest acquired by the public: "...the public acquires only an easement in dedicated streets..."
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Warren Smith, post: 403161, member: 9900 wrote: As it turns out, it is immaterial whether you have an underlying fee interest in the adjacent public right of way. The Streets & Highways Code relevant section:
The owners of lots or portions of lots fronting on any portion of a public street or place when that street or place is improved or if and when the area between the property line of the adjacent property and the street line is maintained as a park or parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience in the use of those works or areas save and except as to those conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to him by law or by the city authorities in charge thereof, and such persons shall be under a like duty in relation thereto.
The statute imposes an obligation upon the adjacent property owners to maintain a safe condition. However, it allows for an exception when conditions created by others to have that duty transferred to them. This is equitable under a theory of causation. This may be what you have been saying all along - it just wandered into reversionary interests and other considerations. The intent of this provision appears to be directed at third parties working under an encroachment permit issued by the local agency (think underground utility lines sawcutting sidewalks for repair work), but you may encounter case law which addresses street tree root damage.
Without reading it all again, I think the law review article said there is no case law on the third party part of 5610 but presumably it applies to utility companies that damage the sidewalk. In the case of parkway trees owned and maintained by the city or county the equities may still favor requiring the property owner to fix the walk even if its damaged by the tree roots because the property owner is the main beneficiary of the parkway trees and they are getting free tree maintenance.
She seems to think charter cities may be able to shift their liability for injuries to the property owner by ordinance but probably not general law cities and counties. It is unclear and the courts may not have spoken on the issue.
There is little question that the city or county can require the property owner to pay for sidewalk repairs. Liability to injured parties, however, depends a lot on circumstances and who did what.
