Edward Reading, post: 404715, member: 132 wrote: Yay!
baby steps...
Im getting there, sloooooooooooooooooooowly.
Barry G, post: 404717, member: 12296 wrote: This is how this all started. 15 years ago, I called the County Department of Transportation and established a good relationship with him. He came to my house, inspected my property, we had a long talk. I requested that he take out the parkway trees and repair the sidewalks, due to root damages from the parkway trees, before someone gets hurt. I also requested that my block wall, on my property, damaged by the parkway tree roots be repaired. He looked at the damage, cited me for having an unsafe block wall on my property, stated that I must repair the wall, at my expense. This is how this all started. I fixed the block wall, requested compensation, he said no. He told me SHC 5600-5630 allows them to transfer this responsible to adjacent property owners, we are responsible for all the damage to the sidewalks. He then walked away, allowing the sidewalk to go out of repair. One year later, an 84 year old blind lady, walking out of her house, while it was raining, fell over my neighbors sidewalk. She sued both the Municipality and the property owner. The property owner and I were good friends. I called the ladies attorney and explained the law, that adjacent property owners owns no duty to a pedestrian, and the County has already been warned, in writing to repair the sidewalks, they refused. The Attorney agreed 100%, sued the County. The County quickly gave the lady 50K, under seal, told her to keep quiet. The sidewalk repair, neighbors home would have cost the County $100 to repair. 50K was their solution to this problem, of taxpayers dollars. They ignored their duty to maintain public sidewalks, children and the elderly were getting hurt over the property, for 30 years, County did nothing. Their failure resulted in 10 people getting hurt, that is why Im so frustrated, the damage to people, this has caused. In 2006, they decided to write an Ordinance, transferring all liabilities to adjacent property owners, subverting State law. If the would have taken out the liquid amber trees in our front yards, that messed up the sidewalks, trimmed back the roots, taking out the roots under the sidewalks, this would have been resolved, 30 years ago, that simple. They failed to maintain this dedication property, they signed up to maintain, then transferred this to us, with no consideration. This started out as a friendly conversation with Board Supervisors, Dept of Transportation and Public Works, politely requesting help in our neighborhoods. They rewarded us with an Illegal Ordinance, invoicing us for property we dont own or control, placing liens on property. The County Counsel was ordered in a meeting (Board of Supervisors) to answer my questions, same with Dept of Transportation, so I could get a full understanding of the law, and their side. After asking a few questions, being professional and polite, Counsel Counsel smiled, looked at me, my son and my neighbor and stated, and a Quote "If you want answers to your questions, look them up yourself". He took my prepared questions in a letter, same with Department of the Transportation, told me they would not answer any questions, then walked out of meeting. This is now personal, as you can tell. Your Dad and I have this in common.
I sympathize with your plight but I don't think you are going to beat the County on this.
You are subject to the Improvement Act of 1911. Sidewalk and parking strip is the area between the right of way line and the street line meaning the curb. The County accepted the R/W easement then later accepted the streets for maintenance...streets do not include the sidewalk and parkway.
Dave Karoly, post: 404721, member: 94 wrote: I sympathize with your plight but I don't think you are going to beat the County on this.
You are subject to the Improvement Act of 1911. Sidewalk and parking strip is the area between the right of way line and the street line meaning the curb. The County accepted the R/W easement then later accepted the streets for maintenance...streets do not include the sidewalk and parkway.
This all changed when the County wrote an Ordinance, stating they own the parkway trees, and a letter from CEO stating that they maintain parkway tree roots. 1911 Improvement Act is predicated on the fact that we own the underlying fee to the middle of the street, no taxes were collected by the Municipality to pay back the bond. Going forward, gas taxes pay for this maintenance, in housing tracts. 5600-5630 was written, taking into account CC 831, written in 1872, stating that the adjacent property owners own out to the street, unless otherwise proven. So 1911 Improvement Act understood that the business in towns or apartment building in that town own the underlying fee, to the middle of the street. Counties Ordinance states they own the parkway trees. This makes them responsible for the damages to the sidewalks, and liable for the sidewalks being out of repair. Do you see the difference between 1911 Improvement Act, SCH 5600-5630, then the County Ordinance, stating that they own everything on the parkway. The Judge needs a history of the 1911 Improvement Act, the intent by State Legislators, not to force adjacent property owners to maintain the sidewalks, but, to allow the Municipality to pay back its bond for this maintenance, since they did not collect taxes in 1911 for this maintenance. In 2016, all this has changed. Municipalities dont post bonds for maintenance of public rights of ways, to include parkway trees and sidewalks maintenance. They gain gas taxes and property taxes for this maintenance. A has change in 95 years in California. A brief history should help the Judge cite for the adjacent property owners.
Barry G, post: 404722, member: 12296 wrote: This all changed when the County wrote an Ordinance, stating they own the parkway trees, and a letter from CEO stating that they maintain parkway tree roots. 1911 Improvement Act is predicated on the fact that we own the underlying fee to the middle of the street, no taxes were collected by the Municipality to pay back the bond. Going forward, gas taxes pay for this maintenance, in housing tracts. 5600-5630 was written, taking into account CC 831, written in 1872, stating that the adjacent property owners own out to the street, unless otherwise proven. So 1911 Improvement Act understood that the business in towns or apartment building in that town own the underlying fee, to the middle of the street. Counties Ordinance states they own the parkway trees. This makes them responsible for the damages to the sidewalks, and liable for the sidewalks being out of repair. Do you see the difference between 1911 Improvement Act, SCH 5600-5630, then the County Ordinance, stating that they own everything on the parkway. The Judge needs a history of the 1911 Improvement Act, the intent by State Legislators, not to force adjacent property owners to maintain the sidewalks, but, to allow the Municipality to pay back its bond for this maintenance, since they did not collect taxes in 1911 for this maintenance. In 2016, all this has changed. Municipalities dont post bonds for maintenance of public rights of ways, to include parkway trees and sidewalks maintenance. They gain gas taxes and property taxes for this maintenance. A has change in 95 years in California. A brief history should help the Judge cite for the adjacent property owners.
Most of your contentions are incorrect. For purposes of Chapter 22 (Sidewalks and Parkways) of the Improvement Act of 1911 ownership is not a consideration, even if the County owns the R/W in fee simple you still have to maintain the sidewalk in front of your property. The latest revision was in 1941, look it up on leginfo.ca.gov if you don't believe me. The County did not accept the sidewalks into the road system, just the road (curb to curb).
You don't have to convince me, you have to convince a Court and your chances don't look good to me.
Dave Karoly, post: 404724, member: 94 wrote: Most of your contentions are incorrect. For purposes of Chapter 22 (Sidewalks and Parkways) of the Improvement Act of 1911 ownership is not a consideration, even if the County owns the R/W in fee simple you still have to maintain the sidewalk in front of your property. The latest revision was in 1941, look it up on leginfo.ca.gov if you don't believe me. The County did not accept the sidewalks into the road system, just the road (curb to curb).
You don't have to convince me, you have to convince a Court and your chances don't look good to me.
Underlying fee to the middle of the street defined. Underlying fee is defined as the ground underneath the public sidewalk, sidewalk and parkway or the asphalt roads, cement sidewalks, and parkway trees. Underlying fee include land and what is on the land? Utilities own the telephone poles and meters on the property, also the street lights on the parkways. So I could own the ground, they own what is planted on the ground, correct?
Barry G, post: 404729, member: 12296 wrote: Underlying fee to the middle of the street defined. Underlying fee is defined as the ground underneath the public sidewalk, sidewalk and parkway or the asphalt roads, cement sidewalks, and parkway trees. Underlying fee include land and what is on the land? Utilities own the telephone poles and meters on the property, also the street lights on the parkways. So I could own the ground, they own what is planted on the ground, correct?
I'm not sure.
Normally fixtures attached to the land are real property, like your house.
I assume the asphalt, concrete, gutters, walks, drainage structures, etc. are owned by the easement holder, the County in your case. Utility companies own their respective poles, conduits, transformers, pipes, etc. Normally easement holders maintain the easement except for sidewalks, sidewalks are the exception.
Depends. Utillities, yes. The roadbed and lights, yes. Sidewalks and street trees, yes and no: the County gives the Public the Use of them, and when they are not usable or unsafe it is as if they retroactively granted them to you when they built or planted them. Yet had you been given them initially you might have cut down the trees or jackhammered out the sidewalk, so to protect you from yourself (and the public from you) they held it in an invisible trust for you, so that you and others could use it while it was useful. "The Public" is often short for "The Public Trust" -- not the people themselves, rather, various abstractions where the county (or generic State) hold rights and uses and property in trust to protect people from themselves and each other.
Another way to think of it is that a sidewalk is like a special little (imaginary) car people jump in to use the right of way as they cross your fee-ownership-to-the-middle. The owner (the County) abandoned it there when it broke down and now you are responsible fixing it so that some other member of the public can drive it across your land. Can't just haul it away, must be restored to use, because it was given to you in that condition, and you are obligated by your ownership of that fee-ownership-to-the-middle and from having accepted the benefit of the sidewalk and the enjoyment of the trees for those many years, restore it to Usefulness for others. Acceptance of a benefit is evidence of a contract.
I think Barry did blunder into something, though. He is right about the 1968 ordinance stating the County owns the trees.
Going out on a limb, I will venture that it is similar to accretion, erosion, and avulsion in riparian rights. If the sidewalk and tree damage happens fast, i.e. when a traffic collision damages the sidewalk or a tree, the County has insurance that will fix it. If the sidewalk and tree damage happens slowly, it is the fee-owner-to-the-middle's responsibility, because they are presumed to care for what they own and should be noticing these things as part of their ownership. The County probably doesn't have insurance to fix the slow damage, whereas a City might, if they were planning to take care of the sidewalks and street trees.
Barry G, post: 404729, member: 12296 wrote: Underlying fee to the middle of the street defined. Underlying fee is defined as the ground underneath the public sidewalk, sidewalk and parkway or the asphalt roads, cement sidewalks, and parkway trees. Underlying fee include land and what is on the land? Utilities own the telephone poles and meters on the property, also the street lights on the parkways. So I could own the ground, they own what is planted on the ground, correct?
ÛÏPublic streetÛ means all of that area dedicated to public use for public street and sidewalk purposes and includes, but is not limited to, roadways, parkways, alleys, service drives and sidewalks.
Dave Karoly, post: 404732, member: 94 wrote: I think Barry did blunder into something, though. He is right about the 1968 ordinance stating the County owns the trees.
That is the key Dave. The 1968 Ordinance makes it quite clear that the government owns everything on that parkway. The County has an easement over the rights of ways, including the parkway. I can own the underlying fee in the parkway, to me, is the land, and the County owns the parkways trees, as it stated it has ownership, in ordinance. The legal question is this. Since the County owns the parkway trees, its responsible to maintain them, has no authority to delegate their liability from parkway tree roots to adjacent property owners. The easements on the sidewalk, dont require the easement holder to maintain them, based on the easement. If the parkway tree roots, owned by the County, that is a different issue. There property needs to be maintained, to be safe, not dangerous, read SHC 22060. The parkway trees roots have made the sidewalks and the parkways dangerous. Who is responsible to maintain depends on the cause of action. If the sidewalks sink, that is my problem. because I own the underlying fee. If the sidewalks are damaged by County property, then the County is responsible, cant delegate this liability to adjacent property owners. There trees caused the damage, as they stated in numerous letters. They are responsible to maintain their own parkway tree roots. That is my argument before the court.
half bubble, post: 404733, member: 175 wrote: Going out on a limb, I will venture that it is similar to accretion, erosion, and avulsion in riparian rights. If the sidewalk and tree damage happens fast, i.e. when a traffic collision damages the sidewalk or a tree, the County has insurance that will fix it. If the sidewalk and tree damage happens slowly, it is the fee-owner-to-the-middle's responsibility, because they are presumed to care for what they own and should be noticing these things as part of their ownership. The County probably doesn't have insurance to fix the slow damage, whereas a City might, if they were planning to take care of the sidewalks and street trees.
Quite an interesting discussion. Does it matter that the County owns the parkway trees and roots, in this conversation? Who is responsible to maintain parkway tree roots under the ground and sidewalk? How can any Judge hold me accountable for property I dont own, control or possess? How could I maintain parkway tree roots? Should adjacent property owners all dig up tree roots under the ground on parkways? Why did the County permit the trees in the first place? Where is the root barriers or someone placed near the sidewalks to prevent the roots growing under the sidewalks. When this house was build, I was 4 years old, did not live here. Why should I be responsible to the neglect of the County to maintain their tree? If its my tree, Im responsible, I agree 100%. There tree, their responsible to maintain it. I would need a permit to dig, modify or change a County tree, same with sidewalks, They control the easement, I have no control of these areas. The Municipality never sent me a letter, in 35 years, stating that the parkway tree roots are my responsibility to manage and maintain. They legally cant, its their property.
Barry G, post: 404734, member: 12296 wrote: ÛÏPublic streetÛ means all of that area dedicated to public use for public street and sidewalk purposes and includes, but is not limited to, roadways, parkways, alleys, service drives and sidewalks.
That is the key Dave. The 1968 Ordinance makes it quite clear that the government owns everything on that parkway. The County has an easement over the rights of ways, including the parkway. I can own the underlying fee in the parkway, to me, is the land, and the County owns the parkways trees, as it stated it has ownership, in ordinance. The legal question is this. Since the County owns the parkway trees, its responsible to maintain them, has no authority to delegate their liability from parkway tree roots to adjacent property owners. The easements on the sidewalk, dont require the easement holder to maintain them, based on the easement. If the parkway tree roots, owned by the County, that is a different issue. There property needs to be maintained, to be safe, not dangerous, read SHC 22060. The parkway trees roots have made the sidewalks and the parkways dangerous. Who is responsible to maintain depends on the cause of action. If the sidewalks sink, that is my problem. because I own the underlying fee. If the sidewalks are damaged by County property, then the County is responsible, cant delegate this liability to adjacent property owners. There trees caused the damage, as they stated in numerous letters. They are responsible to maintain their own parkway tree roots. That is my argument before the court.
Yes but the trees primarily benefit you. The sidewalks primarily benefit you and your neighbors. That is the theory behind you paying for the maintenance. People don't come from the other side of the County to use your sidewalks and enjoy your trees. The gas tax pays for the streets (curb to curb) which is the most likely way for visitors to enter your neighborhood. The County will say, sure we own the trees but they are for Barry's benefit. Why should a tax payer on a rural farm pay for Barry's tree and sidewalk maintenance? The Courts always consider who benefits the most.
I don't mind fixing the sidewalk, my beef when I was an inspector was the City expected property owners to comply with City construction standards as if it is new construction, not repair. If I want to use fence post concrete to fix the walk, why not? Maybe it'll fail in a year, fine I'll do it again. Originally the city would notify the owner their rotten board needed to be replaced, they didn't say now we want 4x8 stringers with 4x6 boards, no they would notify the owner to replace the board. I would play dumb and ask the Judge where it says in Chapter 22 that I have to anything more than simple repair. We required 6" of concrete, 6" of compacted class B agg.base on compacted subgrade. What, are we driving Mack truck on it?
Dave Karoly, post: 404738, member: 94 wrote: Yes but the trees primarily benefit you. The sidewalks primarily benefit you and your neighbors. That is the theory behind you paying for the maintenance. People don't come from the other side of the County to use your sidewalks and enjoy your trees. The gas tax pays for the streets (curb to curb) which is the most likely way for visitors to enter your neighborhood. The County will say, sure we own the trees but they are for Barry's benefit. Why should a tax payer on a rural farm pay for Barry's tree and sidewalk maintenance? The Courts always consider who benefits the most.
I don't mind fixing the sidewalk, my beef when I was an inspector was the City expected property owners to comply with City construction standards as if it is new construction, not repair. If I want to use fence post concrete to fix the walk, why not? Maybe it'll fail in a year, fine I'll do it again. Originally the city would notify the owner their rotten board needed to be replaced, they didn't say now we want 4x8 stringers with 4x6 boards, no they would notify the owner to replace the board. I would play dumb and ask the Judge where it says in Chapter 22 that I have to anything more than simple repair. We required 6" of concrete, 6" of compacted class B agg.base on compacted subgrade. What, are we driving Mack truck on it?
The parkway trees benefit the street and the community, benefit society, in general. They are helpful for the lawn, to prevent evaporation of water, to allow water to soak down to the roots. My issue it that they should have never permitted a large tree on a small 4' wide parkway, with large root system, that grows above ground. Have you seen a 40 year old Liquid Amber tree on a small parkway? The tree roots are massive, size of tree trunks, take up the entire parkway, destroy the sidewalks. If the tree that were planted with roots that grow under the ground and away from the sidewalks, I would have no issue. They should have placed a barrier in between the trees and the sidewalks, protected the sidewalks from damages from tree roots. This blame goes to the County, not adjacent property owners. The Ordinance holds the adjacent property owner accountable for County breach of duty. Again, its their tree that caused the damage to the sidewalks. The sidewalks benefit the community, anyone who walks on this sidewalk. Its a collective benefit, from town to town, a public benefit, not just one individual. That is why cities repair them, at City expense. The taxpayers would not have had to pay for sidewalks repair, if the County stopped permitting the wrong trees on the sidewalks and protected the sidewalks from damage. I believe that the ownership of the Parkway requires the Municipality to maintain it. If its my property, I maintain it. Look at the telephone pole in the backyard, light fixtures on the parkways. Who is responsible to maintain the Utilities property? Yes, the Utility. The benefits of ingress and egress is County wide, State wide, for all residence. We use it, we maintain it, I use it only, I pay for that maintenance. I mind the repairing of the sidewalks, due to County neglect of their property. They claim they maintain parkway roots, yet failed in my community, pass that failure to us, which is so wrong in many ways.
Lets say a neighbor goes on the sidewalks, with a sledgehammer and destroys the sidewalk adjacent to my house. Am I responsible? Lets say a County Tractor travels on the sidewalk and tears it up. Im I responsible? A truck drops a heavy object on the sidewalk, damages it. Lets say my neighbors tree roots, on his property, destroys the sidewalks adjacent to my home. Should I be responsible for the neighbors tree root damaging this sidewalk? Im I responsible for all damage to the sidewalk, in front of my property, regardless who caused the damage? So it does not matter how the sidewalks get damaged, Im responsible to repair it, based on SHC 5610? Judges will require the persons responsible for the damage of the sidewalk to repair the sidewalk. Use this for parkway tree roots, County owned, Counties property messed up the sidewalk, they are responsible to repair it.
Barry G, post: 404771, member: 12296 wrote: Lets say a neighbor goes on the sidewalks, with a sledgehammer and destroys the sidewalk adjacent to my house. Am I responsible? Lets say a County Tractor travels on the sidewalk and tears it up. Im I responsible? A truck drops a heavy object on the sidewalk, damages it. Lets say my neighbors tree roots, on his property, destroys the sidewalks adjacent to my home. Should I be responsible for the neighbors tree root damaging this sidewalk? Im I responsible for all damage to the sidewalk, in front of my property, regardless who caused the damage? So it does not matter how the sidewalks get damaged, Im responsible to repair it, based on SHC 5610? Judges will require the persons responsible for the damage of the sidewalk to repair the sidewalk. Use this for parkway tree roots, County owned, Counties property messed up the sidewalk, they are responsible to repair it.
The second half of 5610 seems to cover those situations.
Edward Reading, post: 404449, member: 132 wrote: Barry, you have had many well respected California Land Surveyors present you with this information. Do you truly believe that they are all wrong about this basic tenant of land ownership and that you, a lay-person are the only one that has the correct information? I find that to be astounding. If this is a point of law that you are going to argue in your case, you will be very disappointed.
Yes, I believe he does. I don't see why he came here if all he wanted to do was argue that he was right the whole time. Why seek the advice that was given, great and free advice I might add, and just argue with the advisers?
I don't really blame Barry for continuing to question things; professionals can tend to have a confirmation bias. I have found out things that may tend to contradict standard Land Surveyor doctrine on boundary law, for example. The purpose of a profession is to serve the public but sometimes things get turned around and the public is expected to serve the professionals.
He has a valid criticism of our mapping custom; it is confusing not showing the heavy line on the centerline. Lay people tend to view things simply; here is the map, this is what it shows. We know the question is more complex than that, though. The map is only one piece of information.
Dave Karoly, post: 404811, member: 94 wrote: He has a valid criticism of our mapping custom; it is confusing not showing the heavy line on the centerline.
Why did it become the accepted way to show the lots ending at the edge of the easement? Can that practice be reversed?
Another problem that would solve: If there is a street that is never developed, such as a stub that turns out to have nowhere to go when the adjacent tract is developed, it can leave ambiguity in how to extend the property lines into the abandoned street. I recall Brown had a section discussing the options. That could have been shown on the original plat and there would be no question.
Bill93, post: 404816, member: 87 wrote: Why did it become the accepted way to show the lots ending at the edge of the easement? Can that practice be reversed?
Another problem that would solve: If there is a street that is never developed, such as a stub that turns out to have nowhere to go when the adjacent tract is developed, it can leave ambiguity in how to extend the property lines into the abandoned street. I recall Brown had a section discussing the options. That could have been shown on the original plat and there would be no question.
I'm not sure either, if California treats dedicated subdivision streets as easements then there is a good reason for the surveyor to show the centerline as the boundary.
I show it that way when I do property surveys along a county road which are generally easements, but for dedicated subdivision roads the ROW is the property line and the public has fee title to the road until vacated.
Bill93, post: 404816, member: 87 wrote: Why did it become the accepted way to show the lots ending at the edge of the easement? Can that practice be reversed?
Another problem that would solve: If there is a street that is never developed, such as a stub that turns out to have nowhere to go when the adjacent tract is developed, it can leave ambiguity in how to extend the property lines into the abandoned street. I recall Brown had a section discussing the options. That could have been shown on the original plat and there would be no question.
Sometimes on minor subdivisions (aka Parcel Maps in Northern California) the parcel lines are shown to the centerline with the right-of-way lines being shown dashed. I assume the origin of the drafting custom is to make it clear what is the usable area of the lot since the street is such a heavy use for an easement. But then there are cases where the streets are not accepted or the dedication was accepted but the streets were not accepted for maintenance. I've tried to find a definitive statement in the Streets & Highways Code on what is accepted for maintenance but it just says highway, street, road, etc without being specific that it only includes the traveled way. Chapter 22 (sidewalks) of the Improvement Act of 1911 defines sidewalk as the sidewalk, park or parking strip, and curb between the property line and the street line so this implies that the street as accepted for maintenance doesn't include the sidewalk, parkway, and curbs. Barry wants to say the Improvement Act of 1911 doesn't include anything outside the business districts of Cities but I haven't found any authority limiting it like that.