epoch date, post: 404551, member: 485 wrote: Entities can't have an easement in their favor over property they own. Doesn't work that way in CA. There is no need for an easement, if they already own the property.
Barry G - you keep saying that the county owns the roadway. But you have not provided legal proof that in fact the county does own the right-of-way area, only given your personal belief. You are hanging the whole argument on your understanding (or misunderstanding...) of ownership. Does Ownership really matter in your case? No, not in the least, and you'll get shot down over that argument.
In reality the tree you are barking up is related to liability and cost of maintenance of sidewalks and trees, and if local ordinance can legally transfer the liability and cost to adjacent property owners. Concentrate on that and you may have a valid argument...
Hello Dave. Thank you for this discussion. That is my confusion. The public only needs an easement over private property. I can only assume that the assumption that adjacent property owners own to the middle of the street, due to CC 831, written in 1872. Therefore, an easement must happen, when the dedication is approved, an automatic easement. Who actually owns the underlying fee is based on the assumption of the abandonment principle. If the streets are abandon, it transfers to the adjacent property owners, by law. Who owns it after the dedication is signed, yes the Municipality. The County owns the Public Road System, and is responsible to maintain it, when it signs the dedication. Why would any Municipality maintain property it does not own, if its private property? They maintain public property (schools, libraries, parks, etc). Please read County of Kern v Edgemont Development Corp 1963, 5th Dist, 222 Cal App 2d, 874, 35 Rptr 629. Please read SHC 941a. Also, read miller and Starr, 2d, KB 167 M5l. Why would a Municipality be responsible to maintain property it does not own, after they sign the dedication? The County owns the parkway trees and root. The key question is this one. Can a Municipality, state that it owns parkways trees, state that it maintains parkway tree roots, when property tree roots destroy the public sidewalk, can they, through an Ordinance, after they fail to maintain their parkway tree roots, pass this liability to adjacent property owners? Lets say, a private property owner owns a tree on their property line. Lets say that tree roots destroy the public sidewalk, in front of their home. The courts would deem the person who owned that tree is responsible to maintain that tree, including roots, is responsible. Now take that same concept, the parkway tree root are owned and maintained by the County. Who should be responsible? If my trees destroy this property, I cant transfer liability to someone else, nor can the government. It depends who owns the trees, what damaged the sidewalk. Its their tree, as stated in ordinance. Im not liable for their tree root damage, that they failed to maintain. That is my argument to the court. Nor am I liable for their property damage, cant be passed to me.
mattsib79, post: 404552, member: 1138 wrote: This is the last time that I will entertain this conversation.
Regardless of state of practice, deeds transfer property from one owner to another. The statute of frauds mandates it.
In your instance a dedication is merely a grant of a right of use of that portion of the property that is being used as a street. No deed was ever transferred to the city or municipality.
Even if it were taken by eminent domain there would still be a deed from the developer to the municipality. The deeds that transferred were to the Lot owners. The strips and gores doctrine specify that the original owner of the development never intended to retain ownership of any parts of the subdivision other than those lots that have not been sold. So in turn the lots would extend to the center of the street.Lastly it is never the surveyors intent that ever matters in a land transfer. Whether it be in a subdivision or a rural boundary. Only the developer/grantor's intent matter.
I do not care who is your surveyor that trains other surveyors. This is a basic principle of boundary law is how land is transferred.
Look up and read the statute of frauds and the strips and gores doctrine.
Please read this below:
"While Texas courts have held that a metes and bounds description excluding a small strip of land was sufficient to overcome the strips and gores presumption on account that it evidenced the GrantorÛªs plain and deliberate intent to not convey the strip, there is a strong argument that a court would interpret a blanket reservation of strips and gores adjoining the land conveyed as not sufficiently plain and specific to overcome the presumption.
For the landowner that wishes to reserve a small strip or strips of land adjacent to the lands conveyed, they should ensure that that the metes and bounds description of the lands conveyed is unambiguous, in that it does not encroach upon the strip to be reserved (which would plainly and specifically evidence an intent to not convey said strip). Alternatively, a landowner could provide a metes and bounds description for the strip intended to be reserved from the conveyance when making the reservation in the deed."
This is quite clear to me, for use in Texas. Metes and bounds is what I'm using, based on the dimensions in my property map. If the Grantor wanted to convey the strip, it would have done so in the housing map dimensions, to be clear. That intent would be to place the property dimensions starting in the middle of the street, or starting at the curb, or starting before the parkway. In that case, its clear the intent, the adjacent property owner, by metes and bounds, to where the property starts. My property line starts 6" before the public sidewalk, therefore, no intent by grantor for me to own the sidewalk, parkway, out to the middle of the street.
At this stage of this thread I am oddly reminded of previous debates regarding a "bogus theory" and the "Rivers v Lozeau" case. Debates that drag on such as these make us all sound like very intelligent idiots.
Barry G, post: 404560, member: 12296 wrote: Please read this below:
"While Texas courts have held that a metes and bounds description excluding a small strip of land was sufficient to overcome the strips and gores presumption on account that it evidenced the GrantorÛªs plain and deliberate intent to not convey the strip, there is a strong argument that a court would interpret a blanket reservation of strips and gores adjoining the land conveyed as not sufficiently plain and specific to overcome the presumption.For the landowner that wishes to reserve a small strip or strips of land adjacent to the lands conveyed, they should ensure that that the metes and bounds description of the lands conveyed is unambiguous, in that it does not encroach upon the strip to be reserved (which would plainly and specifically evidence an intent to not convey said strip). Alternatively, a landowner could provide a metes and bounds description for the strip intended to be reserved from the conveyance when making the reservation in the deed."
This is quite clear to me, for use in Texas. Metes and bounds is what I'm using, based on the dimensions in my property map. If the Grantor wanted to convey the strip, it would have done so in the housing map dimensions, to be clear. That intent would be to place the property dimensions starting in the middle of the street, or starting at the curb, or starting before the parkway. In that case, its clear the intent, the adjacent property owner, by metes and bounds, to where the property starts. My property line starts 6" before the public sidewalk, therefore, no intent by grantor for me to own the sidewalk, parkway, out to the middle of the street.
Here is your misunderstanding: Your description is not metes and bounds. Yours is Lot 97 in Tract XX-XXX or some such. That the map has dimensions on the face of it does not make your legal description a "metes and bounds" description. It is a lot in a plat (or tract), simultaneously conveyed into existence with all the other lots and the right of way easement dedication at the acceptance of the plat (or tract).
half bubble, post: 404571, member: 175 wrote: Here is your misunderstanding: Your description is not metes and bounds. Yours is Lot 97 in Tract XX-XXX or some such.
That is only one of his misunderstandings. 🙂
What strikes me as funny is that whether the adjoiner owns the underlying fee and the local public agency has an easement, or whether the public agency haw fee-title, seems irrelevant. What is relevant is who is liable for the raised sidewalk, and whether the public agency or the adjoiner does, is immaterial of how the roadway right of way is held.
Barry G, post: 404546, member: 12296 wrote: "The key word on this lawsuit is abandoned. When an Municipality abandons a street, the underlying fee goes to the adjacent property owner. If the street is no abandoned, the Municipality owns the underlying fee title. This once again proves my point.
This is another of your misconceptions. What the municipality is abandoning is their rights in the easement. The underlying fee was never theirs. It doesn't "go" to the adjacent land owner, it was always theirs.
I'd still like to know who your expert his that claims otherwise.
Tom Adams, post: 404576, member: 7285 wrote: What strikes me as funny is that whether the adjoiner owns the underlying fee and the local public agency has an easement, or whether the public agency haw fee-title, seems irrelevant. What is relevant is who is liable for the raised sidewalk, and whether the public agency or the adjoiner does, is immaterial of how the roadway right of way is held.
Agreed.
Edward Reading, post: 404578, member: 132 wrote: This is another of your misconceptions. What the municipality is abandoning is their rights in the easement. The underlying fee was never theirs. It doesn't "go" to the adjacent land owner, it was always theirs.
I'd still like to know who your expert his that claims otherwise.
So when the streets are abandon, what happens to the easement? The laws states that the underlying fee goes to the adjacent property owner. If we own this underlying fee, why would it go back to the adjacent property owner, it they owed it in the first place, the Municipality never owned it? It should read "Then the underlying fee remains with the adjacent property owner". Since it never changed, this would be the appropriate language. This is not the language in the law, its completely different. I believe the rights of ways are public ownership, the collective, different that private property. That is based on the dedication, where the Municipality assumes the affirmative duty of maintenance. Its the law. You can disagree with the law, does not change the facts. The public street is owned by the Public. My street is a public street, not a private street, owned only by the people on that street. A private street is owned by the people on that street. It has rights to that private street. When its out of repair, the property owners pay for its maintenance. Once again, this is not an assumption, its based on law. I respectfully disagree.
Barry G, post: 404546, member: 12296 wrote: "We conclude, therefore, that Marquez and Sanchez each own a fee interest in one-half of the portions of abandoned Ash Street which abuts their respective properties. fn. 6". The key word on this lawsuit is abandoned. When an Municipality abandons a street, the underlying fee goes to the adjacent property owner. If the street is no abandoned, the Municipality owns the underlying fee title. This once again proves my point.
The City of Sacramento is a Charter City, not a General law County. They have different rules. A General Law County must follow State Law. A Charter City does not have to follow State law, its a Charter, it decides its own rules. There is a big difference. This is for towns, not housing tracts, I believe. Show me one case in Sacramento, in a housing tract, where this transfer is legal, based on a Judge ruling. Please read Ordinance 4355. Does it pass liability on parkway trees and sidewalks to adjacent property owners? Is it legal to do so? Please read 5600-5630, then read Ordinance 4355. Do you see the additions in 4355, that are not there in SHC 5600-5630? Is it legal to add things with no State authority? Where does SHC 5600-5630 address the issues of parkway tree roots and damages, taking out parkway trees, charging adjacent property owners? 5600-5630 does not address the government owned parkway trees and roots. Its assumes, in 1911, that the adjacent property owners owns the underlying fee in a home, or the business owner. Look at the Maps in Towns and Cities in 1911, or 1872. Do they show, by property lines, out to the middle of the street or do they show before the public sidewalk. Show me a copy of a property map in 1911, by dimensions, that shows before the public sidewalk. This, I would love to see. Show me a Map in 1872 of a housing tract, or 1911, or 1930's. I would love to see one, they dont exist.
You are quoting from the conclusion in Safwenberg which is based on the particular facts of the case. I suggest you do yourself a favor and look for the principles explained by the Court about in the middle. I guarantee the Judge will be able to read and understand it.
Housing Tracts existed long before 1945.
The right of way ("the street") has been neither abandoned nor vacated. The County aka the Public never owned it. They accepted a right of way easement dedication, which they still are using. That easement is laid over your fee ownership to the middle. That is why your "property line" is six inches from the sidewalk: you are not being taxed for the part of the land that is in public use, and that "property line" is the edge of your tax parcel. It is not everything you "own"; you have the underlying fee title to the middle. What they have done is to cease giving out "free lunches" with regard to sidewalk maintenance. Hope this helps.
Barry G, post: 404581, member: 12296 wrote: So when the streets are abandon, what happens to the easement? QUOTE]
Not sure why you can't seem to grasp this: It is the EASEMENT that is being abandoned.
Dave Karoly, post: 404582, member: 94 wrote: You are quoting from the conclusion in Safwenberg which is based on the particular facts of the case. I suggest you do yourself a favor and look for the principles explained by the Court about in the middle. I guarantee the Judge will be able to read and understand it.
Housing Tracts existed long before 1945.
Please explain why I am wrong about abandonment by a Municipality, by reading this in the middle. Do they address the dedications of property, or property maps, etc? Please inform me when the first housing tracts in California were created, where the City/County accepted the dedication that was dedicated by the developer of this housing tract to the City/County for maintenance in this housing tract.
Barry, do you plan to call expert witnesses in this case?
half bubble, post: 404585, member: 175 wrote: The right of way ("the street") has been neither abandoned nor vacated. The County aka the Public never owned it. They accepted a right of way easement dedication, which they still are using. That easement is laid over your fee ownership to the middle. That is why your "property line" is six inches from the sidewalk: you are not being taxed for the part of the land that is in public use, and that "property line" is the edge of your tax parcel. It is not everything you "own"; you have the underlying fee title to the middle. What they have done is to cease giving out "free lunches" with regard to sidewalk maintenance. Hope this helps.
Thank for your this explanation. I agree, my housing tract has been been abandoned or vacated. Who accepted a right of way easement, was it the Municipality, after signing the dedication. After the Municipality accepts the easement, due to the dedication, what responsibility to they accept? You claim that The fee ownership is the adjacent property owners. Show me on my property housing property map, my deed, my grant, any document where this is stated. Is it by CC 831, written in 1872? Show me a California Code, Streets and Highways Code that states I own the underlying fee to the middle of the street, no exceptions. You are correct, Im not being taxes on the public rights of ways, since its not my private property. My home owners insurance goes to 6" before the sidewalk, again, they dont insure public property. So, what is required (please list) to sidewalk maintenance, for the Municipality. They do nothing on the public sidewalk, until its damaged by their own parkway tree roots. Lets say, for example, the Municipality refused to permit large parkway tree roots in 1961, knowing these large tree roots, on a 4' wide parkway, would mess up the public sidewalk? Lets say, they only allowed trees where roots grow under the ground, not under the sidewalks. They permit the same parkways trees in 1961, that they do today. How about a root barrier, or put something near the sidewalk preventing roots from lifting the sidewalk. Or, how about, when they noticed this issue of parkway tree roots, they came out and grinding down the roots, so they dont grow under the sidewalks. So by ignoring all of this, allowing the wrongs parkway trees on property holds no liability, not the Counties fault. Nothing the County did holds any liability. The parkway trees are owned by this County, by Ordinance. So once they ignore their tree roots, and damage the public sidewalks, they can create an Ordinance, hold the adjacent property owner responsible, used SHC 5600-5630 as their authority. So once their is liability, they can transfer it, caused by their property, to someone else. I would like to do this also. So when my trees on my property are out of repair, I want to transfer liability to someone else. Same with my private property, if someone falls, then create a law, hold my neighbor responsible. Same with my car. If I get an accident, transfer this liability to someone else. It should be legal, transferring my responsibility, my mistakes to everyone else, I should never be accountable for anything I do. That is what this County did, by this illegal ordinance. Hope you understand my frustration, at this County Representatives, not at anyone else.
Edward Reading, post: 404596, member: 132 wrote: Barry, do you plan to call expert witnesses in this case?
I will have an expert land surveyor state under oath, that I dont own the underlying fee to the middle of the street. This land surveyor did the Counties property map, he should know. The rights of ways are not my private property, they are the Counties. Then another expert on California Property, stating the same thing. The underlying fee is the County, once they signed the dedication of property. That is a fact.
My issue is with the parkway tree roots, damaging the public sidewalks and the liability transfer 100% to adjacent property owners for Counties property. The illegal Ordinance holds us accountable for all County property, the rights of ways, which, by law is illegal. It is my opinion, that who ever owns the parkway tree and roots that caused this sidewalk damage, its their duty, responsibility and liability. If its my tree, on my property line, that makes the sidewalk unsafe, its my responsibility to repair the public sidewalk. If its their parkway tree, its their responsibility. Its that simple.
When you say "the Counties property map" what map do you mean?
Barry G, post: 404600, member: 12296 wrote: I will have an expert land surveyor state under oath, that I dont own the underlying fee to the middle of the street. This land surveyor did the Counties property map, he should know. The rights of ways are not my private property, they are the Counties. Then another expert on California Property, stating the same thing. The underlying fee is the County, once they signed the dedication of property. That is a fact.
My issue is with the parkway tree roots, damaging the public sidewalks and the liability transfer 100% to adjacent property owners for Counties property. The illegal Ordinance holds us accountable for all County property, the rights of ways, which, by law is illegal. It is my opinion, that who ever owns the parkway tree and roots that caused this sidewalk damage, its their duty, responsibility and liability. If its my tree, on my property line, that makes the sidewalk unsafe, its my responsibility to repair the public sidewalk. If its their parkway tree, its their responsibility. Its that simple.
Your expert will not be allowed to testify to a question of law.
A right of way by definition is an easement or a "right", meaning it is not the underlying fee. It is only a right of passage as long as the easement isn't extinguished (by abandonment, for instance)
Edward Reading, post: 404602, member: 132 wrote: When you say "the Counties property map" what map do you mean?
It is the Housing Tract Map created for my Community, including the signed dedication. I purchased this at the County. I had a Land Surveyor perform an individual property map, based on my property dimensions. You can see the map in this cite, someone copied it. It shows property lines, based on metes and bounds.
