Dave Karoly, post: 404823, member: 94 wrote: 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.
Hello Dave. Can someone please define "Underlying fee". I hear that the adjacent property owners own the underlying fee to the middle of the street. I cant find a legal term of underlying fee.
1. lying beneath something else, as a substratum.
2. fundamental; basic: the underlying cause.
3. discoverable only by close scrutiny or analysis; implicit.
4. (of a claim, mortgage, etc.) taking precedence; prior.
Fee: (1) : an estate in land held in feudal law from a lord on condition of homage and service (2) : a piece of land so held b : an inherited or heritable estate in land. 2 a : a fixed charge b : a sum paid or charged for a service.
Im trying to put both together, to find a legal definition and intent. Do I own the land to the middle of the street, not the asphalt street itself, that it owned by the public, for which Im one of the public? The easement is declared by the public, once the dedication is approved. Same with the parkways and sidewalks. Do I own the land and title to the parkway and under the sidewalk, not the actual parkway trees and cement sidewalks. The Utilities, they have a telephone pole in the backyard, and a light on the parkway. We know for a fact, that the Utility owns the pole, owns the light, I owned the ground underneath the pole , based on the dimensions my property map. If they go out of repair, the Utility repairs it. It they fall down, the Utlity repairs it. Lets look at the parkway trees and roots. That tree is be owned by the County, based on their own Ordinance, written in 1968, that is clear, their intent. The City trims the permitted trees, and trimmed the roots. SHC 22060 is clear. So I could own the land, not the tree and its roots. Same goes for the light or telephone pole. I can own the land under the sidewalk, not the sidewalk itself. I remember receiving a letter from the County stating that I own the land under the street and under the sidewalk, need to find it. Im just looking at ownership, who owns what. Its IMHO, that the public owns the street, owns the parkway and trees and sidewalks, that the public is responsible to maintain it, in transportation funds. That is stated in SHC 941 and in Miller and Starr. I dont own the parkway trees and roots, that caused the damage to the sidewalk, cant be responsible for property that I dont own, title, or control. Underlying fee is not a simple fee, nor is it title or ownership. This is not so simple to understand.
Dave Karoly, post: 404811, member: 94 wrote: 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.
I agree, and you have to understand his position. He is presenting his side, not trying to (necessarily) present an objective opinion. that is the same side a lawyer would be presenting if he hired one. He has, indeed, gotten the opinion of a lot of surveyors who have worked on the premise that a dedicated street is not owned by the county, and he is trying to find law that disputes that.
Barry G, post: 404837, member: 12296 wrote: Hello Dave. Can someone please define "Underlying fee". I hear that the adjacent property owners own the underlying fee to the middle of the street. I cant find a legal term of underlying fee.
I've never tried to look that up as a legal term. It might just be a term of art in the boundary business. It is used all the time in the highway/survey business. When you see legal descriptions on a deed they often go to the centerline of the road and if there is a highway occupying that road we say that the owner has the "underlying fee" title. (and as someone pointed out the measurements on a plat aren't really a "metes and bounds" description...or not necessarily. We generally think of a "metes and bounds" as a written narrative and not dimensions on a plat.
I see dedicated roads as a way to get the public agency to maintain and upgrade the road without the homeowners having to pay homeowner's fees roadway upkeep. The County is taking on responsibility without actually owning the "underlying fee title". That is, they don't have a warrantee deed (or other type of deed) for the land. They limit and/or divide what is their responsibility vs. the homeowner.
Tom Adams, post: 404840, member: 7285 wrote: I agree, and you have to understand his position. He is presenting his side, not trying to (necessarily) present an objective opinion. that is the same side a lawyer would be presenting if he hired one. He has, indeed, gotten the opinion of a lot of surveyors who have worked on the premise that a dedicated street is not owned by the county, and he is trying to find law that disputes that.
Sure we can understand his position. But, with all the information that has been presented, he could capitalize on the ideas and formulate defense and attack strategies to counter the arguments that he will most likely face in a court of law. He just doesn't seem to be doing that. His focus appears as attempting to latch-on to small passages that he believes might defend his assertions. He won't get far just defending. To win his cause, he must attack...
Tom Adams, post: 404840, member: 7285 wrote: I agree, and you have to understand his position. He is presenting his side, not trying to (necessarily) present an objective opinion. that is the same side a lawyer would be presenting if he hired one. He has, indeed, gotten the opinion of a lot of surveyors who have worked on the premise that a dedicated street is not owned by the county, and he is trying to find law that disputes that.
The dedicated street is owned by the Public, who declares an easement, according to Land Surveyors on this site. My street is a Public, not private street, part of the road system. My contention is that, can a local Municipality, after signing the dedication, and not abandoning the housing tract, create an Ordinance, requiring the adjacent property owner to maintain the public street, parkway trees and sidewalks? Also, it can transfer 100% if its liability on pedestrain injuries to adjacent property owners, when the law says no. It owns the parkway trees that have caused all the damage to the sidewalks, and they permitted the trees, are responsible to trim the trees and the roots. Once they fail to perform their duties on the trees, can they legally transfer liability from these tree roots, that have destroyed the sidewalks. What is their liability for non performance, is their is liability. My trees in the backyard, their roots are my responsibility, not my neighbors or the Municipality. Lets say my front yard tree roots mess up the sidewalk. Can I transfer this liability to the government, or neighbor? I understand the 1911 Improvement Act SHC5600-5630. That was not written for parkway tree damages in housing tracts. It was for wooden sidewalks in towns that were damaged by rain. Since the Municipality had no tax dollars to repair the sidewalk, it posted a bond to pay for the repair, charged it to the business in the town. The town paid for the sidewalk repair, since it paid no taxes for this maintenance. Going 100 year later, times have changed, taxes pay for public property, in towns and in housing tracts.
epoch date, post: 404850, member: 485 wrote: Sure we can understand his position. But, with all the information that has been presented, he could capitalize on the ideas and formulate defense and attack strategies to counter the arguments that he will most likely face in a court of law. He just doesn't seem to be doing that. His focus appears as attempting to latch-on to small passages that he believes might defend his assertions. He won't get far just defending. To win his cause, he must attack...
I am not attacking anyone. This is a discussion, we are discussing issues, without name calling or throwing a fit, liked adults. If you and I disagree, with respectfully disagree, not attack, pass judgment or blame. That closes down a conversation, prevents information, two ways.
Tom Adams, post: 404845, member: 7285 wrote: I've never tried to look that up as a legal term. It might just be a term of art in the boundary business. It is used all the time in the highway/survey business. When you see legal descriptions on a deed they often go to the centerline of the road and if there is a highway occupying that road we say that the owner has the "underlying fee" title. (and as someone pointed out the measurements on a plat aren't really a "metes and bounds" description...or not necessarily. We generally think of a "metes and bounds" as a written narrative and not dimensions on a plat.
I see dedicated roads as a way to get the public agency to maintain and upgrade the road without the homeowners having to pay homeowner's fees roadway upkeep. The County is taking on responsibility without actually owning the "underlying fee title". That is, they don't have a warrantee deed (or other type of deed) for the land. They limit and/or divide what is their responsibility vs. the homeowner.
I cant find the legal term, the legal definition anywhere, of "underlying fee". It would help, to see if the intent is ownership, control, possession, etc. My deed and grant to my property, as well as previous owner of this home, clearly defines our homes as presented in the subdivision housing map. It does not
address anything else. The intent was to define private property based on this map, and nothing else. If it wanted to declare that I own out to the middle of the street, it would say it in the deed or grant, as to intent. It appears that the County separates the maintenance payment of the easement between the street repavement every 25 years years, then parkway trees and sidewalks treated separately, as a part of the rights of ways. SHC 22060 requires the Municipality takes our the parkway trees that have issues, therefore transportation funds pay for this removal. Also, they trim trees, again coming out of transportation funds, like all Municipalities I know. Since the parkway trees are own by this County, its trims the tree limbs and is also responsible to trim the roots, since its County property. It would not be right to make the adjacent property owner responsible to maintain county own parkway tree roots. When they repaired the public streets, sidewalks and parkway tree this year, they put in root barriers. When they did not remove the tree, they put in root barriers, to prevent the new sidewalks from damage. They ignored doing this when the original trees were put in, ignored putting in root barrier since 1961. If they would have trimmed the roots 35 years ago, put in barriers, removed the roots under the sidewalk, this would not be an issue today. Instead, the County ignored its duty, then transferred all its liability to adjacent property owners, problem solved. I would like to do this also for my private property, transfer this liability for my failure to maintain my own property. So if someone trips over a tree root from my tree, I will create my own Ordinance, transferring liability to the County, its only fair. Im angry at the County, not anyone on this site, for providing me with great insight into property rights and dimensions.
I think underlying fee might be a descriptive term but not a legal term of art. Sometimes even the Courts use terms loosely when it would be nice if they would be more precise. So we find ourselves reading between the lines but if we get too far afield reading between the lines they can shut down our attempts to interpret the particular Court opinion we are citing.
There is a piece of ground encompassed by the street (all between the right-of-way lines). The adjoining owners are said to hold Fee Simple title to the centerline of the street (this is often referred to as the "underlying fee" to be descriptive-it also sometimes called a naked fee title, e.g. worthless until the street is abandoned). The fee simple title in the street is encumbered by the right-of-way easement. In your case the right-of-way easements were dedicated on the Tract Map, and accepted by the County. Acceptance of the right-of-way easement creates no obligation to maintain; that comes when the County accepts the streets as County Roads.
The word "fee" means an inheritable interest. I found an easement case where the Court said it is an easement in fee, meaning it is inheritable (this was a private easement). It is common to refer to fee vs. easement but this is an imprecise usage of the word "fee." Generally by the shorthand fee we mean fee simple title which is an estate in real property (or classically "real estate") whereas an easement is only an interest in the real property of another.
There is more unwritten law than written law. There is also the difference between "lawful" and "legal", which is to say the difference between law and legislation. While we are at it, there are both "illegal laws" and "unlawful legislation". Part of Barry's situation involves an ordinance that might be legal and might not be lawful ... meaning, various legislations and ordinances passed by legislatures and county commissions might be "legal" in the sense that they were legislated, yet "unlawful" because they are in conflict with common law principles of land title...
"Fee" is short for "fealty": "Fee title" then is short for "fealty title", which means that you have title to the property as long as you maintain fealty to the liege lord whose land you are on. Maintaining fealty means obeying the liege lord's rules. In the modern day context, the liege lord is the county or city your property is in, and the modern day liege lord's rules are the county or city ordinances. "Liege" and "lien" are related, more research for me to do there.
Way back when the Founding Fathers were fomenting rebellion, they didn't want just another King, they wanted to give every American a slice of sovereignty. They knew that according to the Law of Nations, sovereignty could not be parceled out in that way, so they created a trust to hold the sovereignty for the benefit of all Americans, innumerable and yet unborn (a requirement in the Statute of Charities, or maybe the Statute of Uses, all English Common Law stuff). All that stuff flows to us today via our public trust system and our state, county, and city municipal corporations. It's why I say you don't really "own" any of it, the parcel itself, the underlying fee-to-the-middle, not even your toothbrush. It's held in trust for you.
The average citizen doesn't like this abstraction though, so we have been conditioned by colloquialisms to believe we own things and places. People work harder when they think they own what they "own". It's why America has been an economic powerhouse and such a destination for people from other political systems. It's also why we have a class system of bankers and attorneys managing those various public trusts, and why when the average citizen runs afoul of ordinances they did not know they were subject to, they feel that they are being trampled upon and that the county and the courts are crooked.
The 14th Amendment and the New Deal and more recently, "single cause of action" and the adoption of the Uniform Commercial Code by every state in the Union, have slowly changed our Common Law rights into legislated privileges (a word that looks a lot like "private lieges"). and obligations-by-ordinance. In particular the 1938 Erie Railroad case where the Supreme Court declared "there is no general federal Common Law."
Starting with case law is like looking through the wrong end of the telescope. We study case law in hopes of finding a precedent that is advantageous for our situation, and it's like finding a needle in a haystack and hoping it fits our brand of sewing machine. Much better to look for a way to use contract law, or maxims of law, or gain access to the remnants of common law. Some people study enough case law to begin to see hints of the common law principles and the maxims behind the cases. I will opine that this is a very inefficient way to learn about law, especially for surveyors or landowners. Hope this helps.
Another distinction to make is the one between the easement for public purposes (right of way), and the public utilities easement shown on the final map. Easements for public purposes do not show the underlying lot dimensions by convention - at least in a dense subdivision - whereas the PUEs are shown as dashed lines. A parcel map out in a rural area creating 40 acre parcels typically will show those underlying lines. The reason is that zoning requirements are tied to gross area for larger lots, and within a residential community zoning, it is the net area. It also can be a drafting nightmare.
Barry G, post: 404860, member: 12296 wrote: I will create my own Ordinance, transferring liability to the County, its only fair. Im angry at the County, not anyone on this site, for providing me with great insight into property rights and dimensions.
The County's ordinance creates a duty of care in you to the public for unsafe condition of the sidewalk. They (and other local agencies) apparently think this passes Common Law (meaning precedent setting decisions of the appellate courts) muster because they aren't cancelling their own liability or attempting to force you to indemnify them. Their belief is not unsupported by the authorities I have found; at least no case appears to say they can't do it and many imply they can. The only case criticizing a local ordinance criticized it because the City attempted to cancel their own liability and shift all of it to the abutting property owners.
It is still possible someone could challenge one of these Duty of Care Ordinances up to the Appellate level then we would get a ruling on it but that hasn't happened yet. I think you would have to convince the Court that the Duty of Care ordinance somehow conflicts with the State statute or maybe a Duty of Care Ordinance encroaches into an area of statewide concern but I'm not a lawyer or expert on the subject so I'm just guessing.
half bubble, post: 404870, member: 175 wrote: There is more unwritten law than written law. There is also the difference between "lawful" and "legal", which is to say the difference between law and legislation. While we are at it, there are both "illegal laws" and "unlawful legislation". Part of Barry's situation involves an ordinance that might be legal and might not be lawful ... meaning, various legislations and ordinances passed by legislatures and county commissions might be "legal" in the sense that they were legislated, yet "unlawful" because they are in conflict with common law principles of land title...
"Fee" is short for "fealty": "Fee title" then is short for "fealty title", which means that you have title to the property as long as you maintain fealty to the liege lord whose land you are on. Maintaining fealty means obeying the liege lord's rules. In the modern day context, the liege lord is the county or city your property is in, and the modern day liege lord's rules are the county or city ordinances. "Liege" and "lien" are related, more research for me to do there.
Way back when the Founding Fathers were fomenting rebellion, they didn't want just another King, they wanted to give every American a slice of sovereignty. They knew that according to the Law of Nations, sovereignty could not be parceled out in that way, so they created a trust to hold the sovereignty for the benefit of all Americans, innumerable and yet unborn (a requirement in the Statute of Charities, or maybe the Statute of Uses, all English Common Law stuff). All that stuff flows to us today via our public trust system and our state, county, and city municipal corporations. It's why I say you don't really "own" any of it, the parcel itself, the underlying fee-to-the-middle, not even your toothbrush. It's held in trust for you.
The average citizen doesn't like this abstraction though, so we have been conditioned by colloquialisms to believe we own things and places. People work harder when they think they own what they "own". It's why America has been an economic powerhouse and such a destination for people from other political systems. It's also why we have a class system of bankers and attorneys managing those various public trusts, and why when the average citizen runs afoul of ordinances they did not know they were subject to, they feel that they are being trampled upon and that the county and the courts are crooked.
The 14th Amendment and the New Deal and more recently, "single cause of action" and the adoption of the Uniform Commercial Code by every state in the Union, have slowly changed our Common Law rights into legislated privileges (a word that looks a lot like "private lieges"). and obligations-by-ordinance. In particular the 1938 Erie Railroad case where the Supreme Court declared "there is no general federal Common Law."
Starting with case law is like looking through the wrong end of the telescope. We study case law in hopes of finding a precedent that is advantageous for our situation, and it's like finding a needle in a haystack and hoping it fits our brand of sewing machine. Much better to look for a way to use contract law, or maxims of law, or gain access to the remnants of common law. Some people study enough case law to begin to see hints of the common law principles and the maxims behind the cases. I will opine that this is a very inefficient way to learn about law, especially for surveyors or landowners. Hope this helps.
Based on this information, do I directly own the asphalt street, the gutters, curbs, parkway, parkway trees and cement sidewalks, adjacent to my property, my private property, with an easement attached? If so, I want to rename my street to PITA, after me, lol. Thank you.
Warren Smith, post: 404872, member: 9900 wrote: Another distinction to make is the one between the easement for public purposes (right of way), and the public utilities easement shown on the final map. Easements for public purposes do not show the underlying lot dimensions by convention - at least in a dense subdivision - whereas the PUEs are shown as dashed lines. A parcel map out in a rural area creating 40 acre parcels typically will show those underlying lines. The reason is that zoning requirements are tied to gross area for larger lots, and within a residential community zoning, it is the net area. It also can be a drafting nightmare.
Dave Karoly, post: 404873, member: 94 wrote: The County's ordinance creates a duty of care in you to the public for unsafe condition of the sidewalk. They (and other local agencies) apparently think this passes Common Law (meaning precedent setting decisions of the appellate courts) muster because they aren't cancelling their own liability or attempting to force you to indemnify them. Their belief is not unsupported by the authorities I have found; at least no case appears to say they can't do it and many imply they can. The only case criticizing a local ordinance criticized it because the City attempted to cancel their own liability and shift all of it to the abutting property owners.
It is still possible someone could challenge one of these Duty of Care Ordinances up to the Appellate level then we would get a ruling on it but that hasn't happened yet. I think you would have to convince the Court that the Duty of Care ordinance somehow conflicts with the State statute or maybe a Duty of Care Ordinance encroaches into an area of statewide concern but I'm not a lawyer or expert on the subject so I'm just guessing.
I see two forms of liability, regarding this issue. I believe the liability issue on their property is illegal, since I dont own or control the right of ways, the law cases, state that I dont own a duty to any pedestrian. Issue #2 liability is charging me to replace the parkway tree, that the County owns. Its required by State law to maintain the tree. Charging me to repair a public sidewalk that I did not make out of repair, Counties parkway tree roots did. Is there a Duty of care Ordinance or other requirement in a Municipality? I believe that when they sign the dedication of property, that is their contract between private property owners and the County, that the County maintains the public rights of ways, the easements they create, public owns the easement, not private property owner. The Collective owns the roads, sidewalks, curbs, gutters, parkway trees and sidewalks, paid to maintain through taxes, like all public property.
[SARCASM]This sounds like a good angle. I have to mow the grass on the City's parkway and half the alley behind my house. I don't see why they don't take care of it. It's their property, they tax the daylights out of me. I don't even use the alley.[/SARCASM]
Andy Nold, post: 404911, member: 7 wrote: [SARCASM]This sounds like a good angle. I have to mow the grass on the City's parkway and half the alley behind my house. I don't see why they don't take care of it. It's their property, they tax the daylights out of me. I don't even use the alley.[/SARCASM]
You are not required to mow the grass on the parkway or water. My issue is not performing this function, is allowing the large parkway trees on a 4' wide parkway. Three liquid amber trees were permitted on the parkway, by the County. It created an Ordinance, stating that it owns everything on the parkway. Why should the County not maintain its own property? It does trim the branches every 3-5 years. The CEO stated that they are responsible for the parkway tree roots. So when they are notified that the roots need to be trimmed, taking out from under the sidewalk, they can ignore my request? They have no duty of maintenance of parkway tree roots they own. What happens if my tree in my front yard, its roots mess up the sidewalk. I should be responsible to repair the sidewalks, since my property messed up anothers property. I can transfer this liability, nor can any Municipality. If it wants me to maintain their parkway tree, they can pay me to maintain it, like I pay for road payment maintenance for my street. That seems fair to me.
In my city and state, if I fail to maintain the grass and weeds on their parkway and alley to a certain standard, I will be given a citation. At some point, the city will bring in a contractor to perform the maintenance and my property will be subjected to a lien. Fortunately, I have no sidewalk in front of my house, but I understand that I am expected to maintain it as well.
As to General Fund monies being expended on sidewalk repair, consider Civil Code section 841 (attached).
It (recently enacted) speaks to fences along common property lines between adjacent private owners, and the shared responsibility to construct and maintain - much like the original ones built in your subdivision prior to home sales. What is pertinent are the provisions for one party desiring a material and type that is inordinately ornate. There is recognition that equity requires a proportionate share according to quality and aesthetics beyond a minimum.
As a corollary, the sidewalks in your subdivision are not the norm for County residents in rural settings. The Ordinance seeks to allocate costs directly to those adjacent landowners who derive the benefit, rather than to far-flung taxpayers. Your cause of action is to focus on the proximate cause of damage to be other than normal wear and tear of those sidewalks.
Jurisdiction of the right of way in which the sidewalks are placed is not a prime concern. It is an element - one of several that must be presented - in order to reach the issue in play.
Andy Nold, post: 404916, member: 7 wrote: In my city and state, if I fail to maintain the grass and weeds on their parkway and alley to a certain standard, I will be given a citation. At some point, the city will bring in a contractor to perform the maintenance and my property will be subjected to a lien. Fortunately, I have no sidewalk in front of my house, but I understand that I am expected to maintain it as well.
Do you live in a HOA? I see no issue with mowing a parkway lawn and watering, from the adjacent property owner. I have an issue with a County owned Parkway tree that they are responsible to maintain in the parkway, tree roots destroying sidewalks, parkways, streets and my property. My issue is that they permitted these trees, which was a major mistake, for 50 years. Also, when the roots were growing out from the parkway, they should have put in a barrier, trimmed back the roots, etc. In California, you cant trim roots on a tree that you dont own, you will be liable. You cant trim any parkway tree root, again, you dont own the tree, would be held liable if the tree falls down. You need a permit, since the Municipality has control over this area, not the adjacent property owner. I water the parkway grass and mow the lawn, they maintain the trees, as per Streets and Highways Code. First, only permit trees whos root does not destroy the sidewalk, and/or put in a root barrier to protect the sidewalks from damage, for safety reasons.
Barry G, post: 404926, member: 12296 wrote: Do you live in a HOA?
You couldn't pay me to live in an HOA property.
