Dave Karoly, post: 403218, member: 94 wrote: 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.
Show me a case law in California, in 150 years, where a General law is authorized to charge an adjacent property owners for parkway tree maintenance. Please explain Streets and Highways Code 22060 below:
22060. The board may remove any tree or any part thereof which appears to be dead, is liable to fall, is dangerous or is an
obstruction to public travel, whether or not the tree is on an private property and overhangs or projects into any street or is in
any street, park, parkway or other public grounds of the city.
Show me the Streets and Highways Code that allows a General Law Municipality to take out any parkway tree, or trim that tree, then charge the adjacent property owner for that maintenance. Please give me the #. My Municipality owns the tree, per Ordinance. So if the Municipality owns the parkway tree, Im responsible to maintain a government tree? Please show me this SHC, where this is clear that a government can transfer duties, responsibility and liability to the adjacent property owner. It does not exist. Lets say the parkway tree fall down on a car in the street? Who is responsible? Who, its the County/City? How can that be, if the county can assign responsibility to maintain their own tree to adjacent property owners? Lets say the parkway tree roots destroy the gutter, curb and street? Who is responsible for this repair? Not the adjacent property owner, per the courts. Why? Adjacent property owner is not responsible to maintain the damages from the roots of the tree. How about the sidewalk damage by the parkway tree roots? If its the government tree, how will a Judge hold the adjacent property responsible? Are the parkway roots, under the ground the responsibility of the adjacent property owner? Find a court case where the adjacent property owner was responsible for damage to that sidewalk, based on government parkway tree roots. It all falls apart.
Barry G, post: 403221, member: 12296 wrote: Show me a case law in California, in 150 years, where a General law is authorized to charge an adjacent property owners for parkway tree maintenance. Please explain Streets and Highways Code 22060 below:
22060. The board may remove any tree or any part thereof which appears to be dead, is liable to fall, is dangerous or is an
obstruction to public travel, whether or not the tree is on an private property and overhangs or projects into any street or is in
any street, park, parkway or other public grounds of the city.
Show me the Streets and Highways Code that allows a General Law Municipality to take out any parkway tree, or trim that tree, then charge the adjacent property owner for that maintenance. Please give me the #. My Municipality owns the tree, per Ordinance. So if the Municipality owns the parkway tree, Im responsible to maintain a government tree? Please show me this SHC, where this is clear that a government can transfer duties, responsibility and liability to the adjacent property owner. It does not exist. Lets say the parkway tree fall down on a car in the street? Who is responsible? Who, its the County/City? How can that be, if the county can assign responsibility to maintain their own tree to adjacent property owners? Lets say the parkway tree roots destroy the gutter, curb and street? Who is responsible for this repair? Not the adjacent property owner, per the courts. Why? Adjacent property owner is not responsible to maintain the damages from the roots of the tree. How about the sidewalk damage by the parkway tree roots? If its the government tree, how will a Judge hold the adjacent property responsible? Are the parkway roots, under the ground the responsibility of the adjacent property owner? Find a court case where the adjacent property owner was responsible for damage to that sidewalk, based on government parkway tree roots. It all falls apart.
You need to start all your legal arguments with, "Like a milking stool, my case rests on three legs..."
[MEDIA=youtube]cc3Um-BBhpI[/MEDIA]
Dave Karoly, post: 403259, member: 94 wrote: You need to start all your legal arguments with, "Like a milking stool, my case rests on three legs..."
[MEDIA=youtube]cc3Um-BBhpI[/MEDIA]
Like Sheldon, I never apologize for the truth. Expressing the truth does come with consequences, depending on who is the judge. In the County administrative building in my County, the Judge (Board of Supervisors) is the same as the Defendant. In court, the Judge is independent, better chance in court. The truth is better than winning, the truth is the truth, win or lose.
A lot of very knowledge surveyors have responded to your post. I am one more and I happen to agree with them on most all points. I suggest that you are barking up the wrong tree with this notion of who owns between the usable portion of your lot and the centerline of the street. In my view, without giving legal advice, the argument of who owns what is irrelevant to the basic question at hand. The question is whether or not a local jurisdiction can make policy changes with respect to rights and responsibilities of improvements, including landscaping within a public right of way. In San Francisco, almost without exception, public rights of ways are owned by the City and County of San Francisco IN FEE. At the same time up ,until the November election, private property owners were responsible for street trees and sidewalks.
DANEMINCE@YAHOO.COM, post: 403515, member: 296 wrote: A lot of very knowledge surveyors have responded to your post. I am one more and I happen to agree with them on most all points. I suggest that you are barking up the wrong tree with this notion of who owns between the usable portion of your lot and the centerline of the street. In my view, without giving legal advice, the argument of who owns what is irrelevant to the basic question at hand. The question is whether or not a local jurisdiction can make policy changes with respect to rights and responsibilities of improvements, including landscaping within a public right of way. In San Francisco, almost without exception, public rights of ways are owned by the City and County of San Francisco IN FEE. At the same time up ,until the November election, private property owners were responsible for street trees and sidewalks.
Thank you. Ive been dealing with two issues, ownership and who is responsible to maintenance, based on that ownership. IMHO, I dont own the underlying fee to the middle of the street, based on SS 831, based on property map dimensions. I can prove this fact. Its the intention of the Land Surveyor, when the Subdivision Map was prepared. It would be in the deed and grant, specified, that for example, adjacent property owners owns to the middle of Michael Drive. No deed or grant shows this, only show Subdivision Tract Map as legal ownership of property. The second question, which I agree is #1, can a General Law County, in only the Unincorporated Areas of a County in California, transfer 100% of its own duties, responsibilities and liabilities on the public rights of ways, dedicated to this County to maintain, to the adjacent property owners, in a housing tract, created in 1961? Liability, we know for a fact, based on SHC 5600-5630 is not allowed, also by case law ( Williams vs Foster, Schaefer vs Lenahan, Jones vs Deeter, Aderson, vs Contrares, etc). 5600-5630 was only for payment back to Municipality who posted a bond, without collecting taxes for this maintenance , not the transfer liability of pedestrian injuries to adjacent property owners. If the Charter City and County of SF owns the rights of way in fee, its owns the parkway trees and sidewalks, out to the middle of the street, not the adjacent property owners. It receives gas taxes from Sacramento, to pay for the rights of ways for this maintenance. I dont know if they signed a dedication of property, like a housing tract, dont believe so. This issue is important in housing tracts. Can it transfers this to adjacent property owners in a Ordinance? INHO, answer is no. Look at Willits vs Los Angeles 2010. LA is a Charter City, like SF. LA lost 1.4B, it was ordered to maintain the pubic rights of ways in housing tracts as well as towns. Therefore any Ordinance would be invalid, based on this lawsuit. I dont believe anyone has challenged this in court, a Charter City Ordinance transfer to adjacent property owners.
In my case, the County, by Ordinance, owns the parkway trees. Counties tree roots, based on these trees have uplifted the public sidewalks, made them unsafe for pedestrians in our community. County representatives have sent letters and reports making these statements. Who is responsible, by permit, to approve what is planted on the parkways, 4' wide. Again, I dont own this tree, by Ordinance. If its on my property line, I dont need a permit to remove this tree from any Municipality, its my tree. Who is responsible to make sure there is a root barrier, to prevent parkway tree roots from going under the sidewalks, lifting and cracking them? Who is responsible to maintain these parkway tree roots, growing under the ground and sidewalk? County has stated in a letter that its responsible. Te Board is responsible by SHC 22060, to take out this tree, if it is dangerous. The roots make it dangerous to travel on the public sidewalks, the roots have made it unsafe. Jones vs Detter 1984 in Long Beach talks about maintenance of parkway tree roots. Its not the adjacent property owners responsibility. If a State Supervisor Count Judge reads 1) parkway tree owned by County, by Ordinance 2) County admits its responsible to maintain parkway tree roots 3) it signed a dedication to maintain the public right of ways 4) property maps where the County owns the fee to the middle of the street 5) SHC 5600-5630 relies on the adjacent property owner owning out to the middle of the street (CC 831, 1872), therefore my County cant use this as its authority for their Ordinance. In my view, game over! No judge is going to allow a General Law Municipality, who was negligent for allowing a monster tree, with monster roots, to go on a 4' wide parkway, no barrier, no maintenance, to take their negligence, pass it to adjacent property owners. Why was the parkway tree roots maintained, cut back, barriers for the past 50 years performed? Its not the adjacent property owners fault, its not our parkway trees, no SHC or case law states that we property owners must maintain public, not private, parkway trees and roots, dedicated to the County for maintenance. In my view, State Superior Court will rule against County based on the law.
Nice try Dane. 🙂
Edward Reading, post: 403520, member: 132 wrote: Nice try Dane. 🙂
Who is Dane? I am John Galt
Barry G, post: 403519, member: 12296 wrote: IMHO, I dont own the underlying fee to the middle of the street, based on SS 831, based on property map dimensions. I can prove this fact. Its the intention of the Land Surveyor, when the Subdivision Map was prepared.
Barry,
There are three problems here.
1. You are not listening to experts in their field.
2. It is not the surveyors intent that matter it is the intent of the grantor.
3. There is long standing precident stating fee simple ownership goes to the center of the road even in platted subdivsion unless specifically stated otherwise on the plat or in the subsequent deeds of conveyance.
I have provided professional surveying services related to cases centering on slip and falls in San Francisco. I am well aware of the City's position on who owns what. I am also well aware of the fact that if the sidewalk is in disrepair in front of your home or business and some trips and falls and suffers an injury you could be liable for money damages. This is without regard to the fact that the City OWNS IN FEE THE LAND UNDER THE SIDEWALK or the parkway where the tree is located that cause upheaval in the sidewalk. So you go ahead and google a bunch of s**t and conflate it and misunderstand it ... GOOD LUCK so far the only thing you seem to have accomplished is a bunch of reading that has left you still ignorant and no wiser for the effort.....
mattsib79, post: 403530, member: 1138 wrote: Barry,
There are three problems here.
1. You are not listening to experts in their field.
2. It is not the surveyors intent that matter it is the intent of the grantor.
3. There is long standing precident stating fee simple ownership goes to the center of the road even in platted subdivsion unless specifically stated otherwise on the plat or in the subsequent deeds of conveyance.
1. I am listening to an expert in San Francisco who trains Land Surveyors for a livings, states that Im correct.
2. Who is the grantor in this case, in a housing tract, approved for dedication? Is it the Developer or the Private Property owner? Who prepares the
County housing tract property map? Who approves this Map? Do the dimensions in this Map define a Private Property owners property? Where
is private property vs public property defined, what document, if not a Subdivision Map?
3. The fee simple ownership, in long standing, was based on CC 831, that I understand, approved in 1872, 144 years ago. Things have changed in
144 years, like housing tracts were created, different that towns and farms. Civil Code section 831 provides: "An owner of land bounded by a road
or street is presumed to own to the center of the way; but the contrary may be shown." This was clear back in 1872, also clear was 1911
Improvement Act Streets and Highways Code was created, making the adjacent property owner responsible to maintain the sidewalks, adjacent
to their business, in a town. In 1945, we had the first housing tract in California. Subdivision Maps were created, clearly showing property
dimensions of lots. Dedications of right of ways properties were approved by the Municipality, in housing tracts to maintain the public rights of
ways as a part of the County Road System, based on California law. This is completely changed from the City towns, created back in the 1800's
where a Municipality did not sign a dedication by land developer.
4. Where do I find the subsequent deed of conveynance on my property? I went into the County, to look up all the owners of my property, starting
in the 1960's. The Deeds all describe my housing tract per the Subdivision Map, no mention of owning to the middle of my street. It appears,
owning to fee simple to the middle of the street is implied, based on law in the 1800's, not by actual Subdivision property map dimensions. That
is our disagreement, with due respect. If the property is owned to the middle of the street, the dimensions would clearly go out to the middle of
the street. California CC 831, last part of sentence is quite clear, "buy the contrary may be shown". The intent of ownership of property is
identified in dimensions in the Subdivision Map. Then we have the issue of easements. County gains an easement over the public rights of
ways, after the dedication of property is approved by Board Supervisors, in a housing tract. Its an implied easement, no documents prepared.
Utility easement show on the Subdivision Property Map, no easements from County on property map. Can I assume that the easement created
is implied that the County does not believe it owns out to the middle of the streets, the public rights of ways? Its not the home owners property,
based on the dimensions in the Map, this is clear. Who owns this property? I am assuming that since this is public property, We the People,
trough our local government, own this public property, allowed for ingress and egress, paid for in taxes by We the People, to our government
for Public Property Maintenance. Governments don't maintain private property, only public property.
5. Remember, when the streets are abandoned, the law clearly states that the property goes to the adjacent property owner, to the middle of the street. What happens when the streets are not abandoned, are dedicated to the County for maintenance of the public road system? We can assume, that they own out to the middle of the street. If abandoned by the Municipality, the adjacent property owners own to the middle of the street. This is clearly the intent.
Nice try Matt. 🙂
Edward Reading, post: 403654, member: 132 wrote: Nice try Matt. 🙂
My name is Barry, not Matt. Why dont you kindly answer my questions?
Your questions have been answered ad nauseam. Now 13 plus pages worth. Why did you even post here in the first place? You have not listened to nor read anything that has been offered. Good luck to you and your "expert" in SF who "trains" land surveyors for a living.
Barry G, post: 403656, member: 12296 wrote: My name is Barry, not Matt. Why dont you kindly answer my questions?
I found the below on line at the link provided. I don't know if it (the link) works. It's from
California Law Review
Volume S3 Issue 2 Article 2
Dedication of Land in California
I found in it, it says (@ the page marked as 566):
"In California the interest acquired by the public does not follow from the form or method of dedicationÛÓthe courts have not distinguished between dedication by deed and other types of dedication, but have looked to the purpose for which the lands were dedicated. If land is dedicated for street or highway use, the public merely acquires an easement across the land; if a parcel is dedicated for use as a park or beach, the public acquires a fee simple interest."
As I stated before, the purpose is the key. If land is given with a limited purpose (in this case "street or highway use") It is an easement. "right of way" is a right not an ownership. My understanding is that the owners own the underlying land to the center of the roadway. The general test as to whether the county or local agency owns it in fee simple, would be can they block it off and build a building on it, or sell it. If your answer is "no" it is probably a Right of Way easement.
The reason you don't have "control" of the land is because you can't impede the purpose of the easement. But you can certainly mow the lawn or shovel the snow that is within the right of way.
If your source knows better, then I agree with the above, why are you arguing this issue here. You apparently have a better source. If you are trying to convince land surveyors you are correct, I think you may have failed. If you are trying to get further input I think you have gotten a lot of it by some very well-educated surveyors who have dealt with this type of scenario.
Edit: I don't think the link works. Sorry. But I bet you could google the title I typed above.
https://www.google.com/url?sa=t&rct=j&q=&esrc ="s&source=web&cd=3&cad=rja&uact=8&ved=0ahUKEwiLnZKLnu_QAhUoilQKHd3YDiAQFggmMAI&url= https://surveyorconnect.com/community/threads/dedication-for-street-purposes-fee-title-or-easement.314075/&usg=AFQjCNHUwVHr8kVshpdj7LT6mh7ietElNg&bvm=bv.141320020,d.cG w"
[USER=12296]@Barry G[/USER] :
You may find this case of interest with respect to the VC ordinance section which purports to shift liability for injuries to the abutting property owner, especially footnote 2:
"It is questionable whether this provision [in the City of Sacramento Ordinance] shifting all tort liability to property owners (regardless of whether defendant City might be responsible for the dangerous condition, such as root damage from a municipal tree) and requiring property owners to indemnify defendant City fully is constitutional. Gonzales specifically cited the fact that the ordinances did not absolve the municipality of tort liability that might otherwise exist under Government Code section 835 (City & County of S.F. v. Ho Sing (1958) 51 Cal.2d 127, 138, 330 P.2d 802; Peters v. City & County of San Francisco (1953) 41 Cal.2d 419, 428-430, 260 P.2d 55; Jones, supra, 152 Cal.App.3d at p. 805, 199 Cal.Rptr. 825 [City's liability for tree it owned and maintained]) in finding that the latter did not preempt them. (Gonzales, supra, 125 Cal.App.4th at pp. 1135-1136, 1138-1139, 23 Cal.Rptr.3d 178.) Similar questions are raised in connection with the provision shifting defendant City's responsibility to repair sidewalk damage caused by its trees. The issues are not directly before us (though defendant City might wish to revisit its ordinance in light of this authority)."
Jordon v. City of Sacramento, 148 Cal.App.4th 1487 (2007), 56 Cal.Rptr.3d 641
https://scholar.google.com/scholar_case?q=jordan+v+city+of+sacramento&hl=en&as_sdt=2006&case=4050604100740607911&scilh=0
The case cites "an unpublished case by this Court" but by name or citation which may bear on the subject. It is probably unnamed because citing an unpublished case is against the California Rules of Court.
On the other hand, Gonzales v. City of San Jose, 125 Cal.App.4th 1127, 23 Cal.Rptr.3d 178 (2004), seems to make the opposite finding, except Jordon doesn't make the finding, it just comments, but I haven't read all of Gonzales yet. I doubt you could cite a footnote because it is just a comment.
Both of these appear in a search of the West's Annotated Streets & Highways Code å¤ 5610. It would be worth looking at Deering's too (a Lexis product).
Dave Karoly, post: 404219, member: 94 wrote: On the other hand, Gonzales v. City of San Jose, 125 Cal.App.4th 1127, 23 Cal.Rptr.3d 178 (2004), seems to make the opposite finding, except Jordon doesn't make the finding, it just comments, but I haven't read all of Gonzales yet. I doubt you could cite a footnote because it is just a comment.
Both of these appear in a search of the West's Annotated Streets & Highways Code å¤ 5610. It would be worth looking at Deering's too (a Lexis product).
Okay, Gonzales is interesting. The City of San Jose's ordinance establishing a duty of care on abutting property owners for the sidewalk did not remove the City's liability therefore it is not in unconstitutional conflict with State law. And the footnote I quoted above seems to indicate Sacramento's ordinance may improperly shift all liability to the abutters. You would need a really good Attorney to knock down that VC Ordinance, I would think.
Hello Dave: These are two interesting cases, understand both. Both are for Charter Cities, not General law Cities or Counties Both are in towns, not residential housing tracts, with separate rules, dedications, SHC 941a and 1806, not SHC 5600-5630, which is specific for towns, property maps dimensions, etc. Both courts ruled that a Municipality can not pass 100% liability to adjacent property owners. Please read Ventura County Ordinance 4355, Ventura County, 23 December 2006. This Ordinance adds things to SHC 5600-5630, that are not in the 1911 law. Its passes 100% duty, responsibility and liability to adjacent property owners. All court cases decisions state that this cant happen. Remember, in our case, the parkway trees that are owned by the County have caused sidewalk damage. They also claim that they maintain the tree roots, yet they failed to do so. Please read Willits vs LA 2010, current ruling. Was Los Angeles not responsible to maintain the public rights of ways in housing tracts? Federal Judge ruled against Charter City of LA. Why? If housing tract owners are responsible under SHC 5600-5630 to maintain the parkway trees, roots and sidewalks, why did a Federal Judge not rule for Los Angeles? Any thoughts?
Tom Adams, post: 403659, member: 7285 wrote: I found the below on line at the link provided. I don't know if it (the link) works. It's from
California Law Review
Volume S3 Issue 2 Article 2
Dedication of Land in CaliforniaI found in it, it says (@ the page marked as 566):
"In California the interest acquired by the public does not follow from the form or method of dedicationÛÓthe courts have not distinguished between dedication by deed and other types of dedication, but have looked to the purpose for which the lands were dedicated. If land is dedicated for street or highway use, the public merely acquires an easement across the land; if a parcel is dedicated for use as a park or beach, the public acquires a fee simple interest."As I stated before, the purpose is the key. If land is given with a limited purpose (in this case "street or highway use") It is an easement. "right of way" is a right not an ownership. My understanding is that the owners own the underlying land to the center of the roadway. The general test as to whether the county or local agency owns it in fee simple, would be can they block it off and build a building on it, or sell it. If your answer is "no" it is probably a Right of Way easement.
The reason you don't have "control" of the land is because you can't impede the purpose of the easement. But you can certainly mow the lawn or shovel the snow that is within the right of way.
If your source knows better, then I agree with the above, why are you arguing this issue here. You apparently have a better source. If you are trying to convince land surveyors you are correct, I think you may have failed. If you are trying to get further input I think you have gotten a lot of it by some very well-educated surveyors who have dealt with this type of scenario.
Edit: I don't think the link works. Sorry. But I bet you could google the title I typed above.
https://www.google.com/url?sa=t&rct=j&q=&esrc ="s&source=web&cd=3&cad=rja&uact=8&ved=0ahUKEwiLnZKLnu_QAhUoilQKHd3YDiAQFggmMAI&url= https://surveyorconnect.com/community/threads/dedication-for-street-purposes-fee-title-or-easement.314075/&usg=AFQjCNHUwVHr8kVshpdj7LT6mh7ietElNg&bvm=bv.141320020,d.cG w"
Hello Tom: Thank you for this information. What is the purpose, in a housing tract, for a Subdeveloper to give a dedication to the Municipality? Aftre the dedication is approved, the Road system goes from being private, owned by the developer, to the public, can we agree, the ownership becomes the public, easement is set into place for ingress and egress? After the dedication is approved by the Municipality, who assumes the affirmative duty of maintenance. Is it the adjacent property owners job to maintain the public road system, or is it the Municipality? Why do Municipalities pave roads very 25 years, if its the adjacent property owners duty and liability? We pay taxes to the government to pay for public property, (roads, parks, libraries, schools, etc). They are public property, owned by the public, maintained through taxes we pay, property tax, gas tax, sales tax, bonds,and many more.
When the road system is dedicated to the Municipalities, this public property is maintained by the Municipality, paid for in taxes, paid by the public. The public owns out to the middle of the street, not the adjacent property owner, based on this sign dedication. The Subdivision developer owns these private, streets out to the middle of the street. When its dedicate, its public property, not private property, the public owns it, maintained by the Municipality, in an easement. Who is responsible to maintain public property? Yes the taxpayer, through taxes. If the Municipality runs out of money, in its transportation, it can go back to the taxpayers and ask for more money, at the ballot box. It can create an Ordinance for additional tax dollars, while having 50M in reserve. In my Counties case, this is what they did, to avoid going to the taxpayers. If the Municipality abandons the public road system, then the adjacent property owners own out to the middle of the street. That is the law. What happens when the housing tract road system is not abandoned? Your correct, its own my the public, its not private property, as would be indicated in the deed, property map.
