Barry G, post: 405071, member: 12296 wrote: City of Redlands v Nickerson (1961 188 CA2d, 118, 126
Your cite should be City of Redlands v. Nickerson, 188 Cal.App.2d 118, 126 (1961).
Redlands is not directly applicable to your situation because it involves a metes and bounds description which does not mention the street in controversy. Of course, in the case the abutting property owner contended they did own the street, the opposite of the contention you want to make.
Warren Smith, post: 405072, member: 9900 wrote: Somewhat analogous is the public utilities easement depicted on the rear of your lot. Because it was not dedicated for a public purpose, it is administered by the County for public utilities under terms which allow surface use by the fee owner. None of this is shown on the final map, but only authorized personnel are allowed to access facilities placed within it, under conditions of necessity. You may use the encumbered area for landscaping and the placing of non permanent structures. Should any damage occur during maintenance efforts, the utility company is responsible for rectifying it. This is for the mutual benefit of homeowners being provided with those services.
The public trust aspect comes into play for the public right of way fronting properties. The multitude of uses within that area is administered by the local agency. It is not an ownership issue, but a regulatory one. As the owner of a corner lot, you are restricted to not place a fence or shrubbery high enough to block visual sight distance for motorists. Ordinances are enacted for the purpose of regulating activity for the betterment of the general motoring public as it relates to public rights-of-way.
I agree with the Public Utilities, there is no dedication to maintain this property, since its clear, its private property. I dont own it, control it or possess it. They are allowed to read a meter or repair a telephone line, etc. If they mess up my property, they are liable. Lets say the telephone pole falls down on my property, burns my grass and my bushes. Should the Utilites to responsible? Who owns the pole, who controls the pole, what caused the damage is what the courts will rule on. Why does this same rule apply for a government owned parkway trees? If it damages private property, why should the government not be responsible, like the Utilities company? Can the Utility company subdelegate the maintenance of the telephone pole to the adjacent property owner? With this transfer, they can avoid any liability. That is what my County has performed by Ordinance, to subdelegate parkway tree damage to sidewalks and parkways, hold the adjacent property owner liable. The County CEO stated on a letter that the County maintains the parkway roots. Then why Im a liable, when they fail to maintain the roots, causing the damage to the sidewalks? They could put a root barrier, or trim the roots, or taken out the roots under the sidewalks that lift the sidewalks. When they fail their maintenance, they can hold the adjacent property owner accountable. I have no control over telephone poles, no control over parkway tree roots. I cant touch the pole or roots, without liability.
Dave Karoly, post: 405076, member: 94 wrote: Trying to chase down the law using logic is a fool's errand. Many of these things have a political basis, not a logical one.
"The life of the law has not been logic; it has been experience... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics." -Oliver Wendell Homes, Jr., from The Common Law.
Get a copy, read it, it'll bend your mind. The English have case law regarding who has the right to a pocket book dropped in the Barber Shop, crazy stuff like that.
That is why I studied law in college, had my head spin in all directions. Many of the laws dont tie into fairness and equitable, some are unreasonable and irresponsible. I turned into Accounting/Finance, where logic prevails, sometimes. If you take a look at the tax code, that will bobble your mind, or disability law, Corporate law, etc. I was going to be a Corporate Attorney, when I was a fool in College. I spend my life in the law library. I had a meeting with a Corporate Lawyer, in my 3rd year of law school, based in Los Angeles. I asked him one question " If an employee tells you that the Management in the Corporation is committing massive fraud, what would you do?" He told me that he would investigate it, prepare two separate reports for the CEO. One report would show the truth, there was fraud and what to do about it. The second report was presented to the employee who exposed the fraud, informing him/her that all allogations were unfounded. My job was to protect the Corporation, the profits, the shareholders, and to bury the employee who exposed the fraud. The good thing was that he was telling the truth, based on my 30 years experience in Corporations. So I changed majors, from political science and economics to Accounting/Finance/ Economics. If a became a Lawyer, I would be 6 feet under years ago. Majority of Lawyers are about billable hours and nothing else, the truth does not matter, its all about spinning the truth. Its was safe to be an Accountant, Auditor, where its specific, not general, up for interpretation.
Barry G, post: 405081, member: 12296 wrote: That is why I studied law in college, had my head spin in all directions. Many of the laws dont tie into fairness and equitable, some are unreasonable and irresponsible. I turned into Accounting/Finance, where logic prevails, sometimes. If you take a look at the tax code, that will bobble your mind, or disability law, Corporate law, etc. I was going to be a Corporate Attorney, when I was a fool in College. I spend my life in the law library. I had a meeting with a Corporate Lawyer, in my 3rd year of law school, based in Los Angeles. I asked him one question " If an employee tells you that the Management in the Corporation is committing massive fraud, what would you do?" He told me that he would investigate it, prepare two separate reports for the CEO. One report would show the truth, there was fraud and what to do about it. The second report was presented to the employee who exposed the fraud, informing him/her that all allogations were unfounded. My job was to protect the Corporation, the profits, the shareholders, and to bury the employee who exposed the fraud. The good thing was that he was telling the truth, based on my 30 years experience in Corporations. So I changed majors, from political science and economics to Accounting/Finance/ Economics. If a became a Lawyer, I would be 6 feet under years ago. Majority of Lawyers are about billable hours and nothing else, the truth does not matter, its all about spinning the truth. Its was safe to be an Accountant, Auditor, where its specific, not general, up for interpretation.
Ask a Lawyer a legal question, he will ask you, "which side am I on?"
Or listen to Barney Greenwald (Jose Ferrer) explain reality to the officers of the U.S.S. Caine (Fred MacMurray, Van Johnson, et al).
Warren Smith, post: 405072, member: 9900 wrote: Somewhat analogous is the public utilities easement depicted on the rear of your lot. Because it was not dedicated for a public purpose, it is administered by the County for public utilities under terms which allow surface use by the fee owner. None of this is shown on the final map, but only authorized personnel are allowed to access facilities placed within it, under conditions of necessity. You may use the encumbered area for landscaping and the placing of non permanent structures. Should any damage occur during maintenance efforts, the utility company is responsible for rectifying it. This is for the mutual benefit of homeowners being provided with those services.
The public trust aspect comes into play for the public right of way fronting properties. The multitude of uses within that area is administered by the local agency. It is not an ownership issue, but a regulatory one. As the owner of a corner lot, you are restricted to not place a fence or shrubbery high enough to block visual sight distance for motorists. Ordinances are enacted for the purpose of regulating activity for the betterment of the general motoring public as it relates to public rights-of-way.
I believe its a good thing for the County to regulate what is placed on the parkway strips, due to the things you bring out. Its to protect the public. When their decisions to permit large parkway trees, with large roots on a 4' parkway, they should be accountable for their errors. When they make the public sidewalks unsafe, they should be held accountable, not pass on their mistakes to adjacent property owners. When they decided by Ordinance 2041, that they own everything on that parkway, they gained 100% control. Ownership comes with responsibility and liability. Lets go back to 1961. If they refused to permit large parkway trees on 4' parkways, this problem would never exist. If they put in a root barrier or trimmed back the roots, this problem would not exist. If they would have taken the roots out under the sidewalks, flatten the sidewalks, this problem would not exist. Instead, they let the problem grow, allowed the sidewalks to become unsafe, then, by Ordinance transfer their bad decisions, holding the adjacent property owner accountable. This is an abuse of power issue, their negligence should be their responsibility, not the individual adjacent property owner, with no rights to trim the parkway roots, or decide what tree grows on the parkway. There errors are not my responsibility and liability.
That's right - an attorney is, for the most part, an advocate for a client. Judges on the other hand, weigh the evidence presented and rule upon questions of law. Justices rule upon those rulings.
Land Surveyors are objective finders of fact and use proper application of the law for purposes of protection of the public. That is how we are licensed and regulated. Much like Doctors - first do no harm.
Warren Smith, post: 405075, member: 9900 wrote: This is a little out of context, but it does relate to a lot description being sufficient to convey title. From the Government Code:
66499.57.
Whenever the city council or board of supervisors adopts a map prepared under this division as the official map of the subdivision, town, city or county, it shall be lawful and sufficient to describe the lots or blocks in any deeds, conveyances, contracts, or obligations affecting any of the lots or blocks as designated on the official map, a reference sufficient for the identification of the map being coupled with the description.
Should there be another description in the deeds, other than the subdivision map? Im going to the court records today. Maybe I can look at other deeds in the records, from other properties in my area, to see if there are other descriptions. My deeds, from the beginning, only reference the dimensions in this Map.
Dave Karoly, post: 405082, member: 94 wrote: Ask a Lawyer a legal question, he will ask you, "which side am I on?"
Or listen to Barney Greenwald (Jose Ferrer) explain reality to the officers of the U.S.S. Caine (Fred MacMurray, Van Johnson, et al).
My answer would be, on the side of truth. I would never defend a Manager who committed fraud in any Corporation. That is why I never became a Corporate Lawyer. The truth matters to me, not money, ethics and integrity matter. Yes, Im a dinosaur, born at another time period, lol.
Warren Smith, post: 405086, member: 9900 wrote: That's right - an attorney is, for the most part, an advocate for a client. Judges on the other hand, weigh the evidence presented and rule upon questions of law. Justices rule upon those rulings.
Land Surveyors are objective finders of fact and use proper application of the law for purposes of protection of the public. That is how we are licensed and regulated. Much like Doctors - first do no harm.
Agreed. That is why I enjoy this cite, I get the truth, regardless. A lawyer would spin the truth, misinterpret the law to protect his/her client.
Barry G, post: 405088, member: 12296 wrote: Should there be another description in the deeds, other than the subdivision map? Im going to the court records today. Maybe I can look at other deeds in the records, from other properties in my area, to see if there are other descriptions. My deeds, from the beginning, only reference the dimensions in this Map.
No, the statute states that it is sufficient to include the lot number of a subdivision map, and to reference the filing information. All aspects of title pertaining to the lot as depicted on the map are contained within that conveyance.
Barry G, post: 405068, member: 12296 wrote: " The issue is the Ordinance 2041, written in 1968, the clearly states that everything on that parkway is owned by the government. It its owned by the government, can they subdelegate maintenance and liability on their own tree to an adjacent property owner?
Lets look through Ventura County Ordinance 2041 (1968).
You state that this ordinance claims that everything on that parkway is owned by the government.
Exactly what part of this ordinance imparts total ownership by the county?
This ordinance deals with ENCROACHMENT within public rights-of-way. It does not purport any ownership by the county.
Sec. 12109 - HIGHWAY - "Highway" means any public highway, public street", public way, or public place in the unincorporated territory of the County, either owned by the County or dedicated to the public for the purpose of travel. The term includes all or any part of the entire width of right-of-way, and above and below the same, whether or not such entire area is actually used for highway purposes.
[INDENT]The purpose of this ordinance section is to define the limits of where the county has authority, thus requiring permits for modification or blockage. No ownership is claimed here.[/INDENT]
Sec. 12110 ÛÒ RIGHT-OF-WAY ÛÒ the term right-of-way means any land or interest therein which by deed, conveyance, agreement, dedication, usage or other process of law has been reserved for or dedicated to the County for use of the general public for public road purposes.
[INDENT]Here they indicate that there may be ownership of some of the county lands, where in other cases (as in a dedicated roadway) they only have an interest in the land. Established processes of law define these ownership or usage rights.[/INDENT]
Sec. 12143 -. PERMITTEE AWARENESS AND LIABILITY ÛÒ and Sec. 12144 - PROTECTION AND REPAIR OF FACILITIES - The permittee shall investigate and be aware of all existing facilities lawfully within the highways which are within the limits of his activity. The permittee shall not interfere with any existing public or private facility without the consent of its owner .
[INDENT]These sections are protect the interest that others (electric, cable, gasÛ?) have within the right-of-way. This is not a claim by the county that they own the existing facilities. The term ÛÏOwnerÛ relates to the person who has the interest in the improvement that is within the right-of-way.[/INDENT]
Sec. 12211 - TREE AND STRUCTURE RELOCATION - The Commissioner may require the permittee to make proper arrangements for, and bear the cost of the relocation of any structure, publicly owned facility, tree, or shrub, where such relocation is made necessary by the proposed work for which a permit is issued. The Commissioner may elect to do the necessary relocation at the permittee's expense.
[INDENT]Deals with relocation of county owned facility, tree or shrub. It doesnÛªt go as far as saying all facilities (sidewalks), trees and shrubs are owned by the county. County owned properties may have shrubs and trees, and if disturbed by an encroachment activity, the permittee must bear that cost.[/INDENT]
The parkway trees which were planted as part of the landscaping plans for your subdivision were a feature deemed attractive to potential homebuyers in the neighborhood when the developer was undergoing the entitlement process in advance of sales. By convention at the time, the submitted proposal was approved and constructed. For purposes of orderly development, appropriate facilities were placed within the public right of way. It is still done this way today - albeit in a fashion based on experience with past consequences.
Barry G, post: 405091, member: 12296 wrote: My answer would be, on the side of truth. I would never defend a Manager who committed fraud in any Corporation. That is why I never became a Corporate Lawyer. The truth matters to me, not money, ethics and integrity matter. Yes, Im a dinosaur, born at another time period, lol.
While your answer might be on the side of truth in someone else's case, your position on this case is and must be biased, in that you are taking a side, and you only want to show those truths that advantage your position that the county is liable. Take what these guys are saying seriously. For the most part the surveyors are all looking at this objectively at least for the fact that none of us has anything to gain from taking one position over another. (and for most of us it becomes pretty ingrained in how we look at things.)
epoch date, post: 405100, member: 485 wrote: Lets look through Ventura County Ordinance 2041 (1968).
You state that this ordinance claims that everything on that parkway is owned by the government.
Exactly what part of this ordinance imparts total ownership by the county?This ordinance deals with ENCROACHMENT within public rights-of-way. It does not purport any ownership by the county.
Sec. 12109 - HIGHWAY - "Highway" means any public highway, public street", public way, or public place in the unincorporated territory of the County, either owned by the County or dedicated to the public for the purpose of travel. The term includes all or any part of the entire width of right-of-way, and above and below the same, whether or not such entire area is actually used for highway purposes.
[INDENT]The purpose of this ordinance section is to define the limits of where the county has authority, thus requiring permits for modification or blockage. No ownership is claimed here.[/INDENT]
Sec. 12110 ÛÒ RIGHT-OF-WAY ÛÒ the term right-of-way means any land or interest therein which by deed, conveyance, agreement, dedication, usage or other process of law has been reserved for or dedicated to the County for use of the general public for public road purposes.
[INDENT]Here they indicate that there may be ownership of some of the county lands, where in other cases (as in a dedicated roadway) they only have an interest in the land. Established processes of law define these ownership or usage rights.[/INDENT]
Sec. 12143 -. PERMITTEE AWARENESS AND LIABILITY ÛÒ and Sec. 12144 - PROTECTION AND REPAIR OF FACILITIES - The permittee shall investigate and be aware of all existing facilities lawfully within the highways which are within the limits of his activity. The permittee shall not interfere with any existing public or private facility without the consent of its owner .
[INDENT]These sections are protect the interest that others (electric, cable, gasÛ?) have within the right-of-way. This is not a claim by the county that they own the existing facilities. The term ÛÏOwnerÛ relates to the person who has the interest in the improvement that is within the right-of-way.[/INDENT]
Sec. 12211 - TREE AND STRUCTURE RELOCATION - The Commissioner may require the permittee to make proper arrangements for, and bear the cost of the relocation of any structure, publicly owned facility, tree, or shrub, where such relocation is made necessary by the proposed work for which a permit is issued. The Commissioner may elect to do the necessary relocation at the permittee's expense.
[INDENT]Deals with relocation of county owned facility, tree or shrub. It doesnÛªt go as far as saying all facilities (sidewalks), trees and shrubs are owned by the county. County owned properties may have shrubs and trees, and if disturbed by an encroachment activity, the permittee must bear that cost.[/INDENT]
Sec. 12535 - REQUIREMENTS FOR PLANTING --The applicant for apermit to plant trees or other plants in the right-of-way shall show in his application or by sketch the proposed location and the kind of plants. No change shall be made in either the location or kind without approval of the Co~nissioner.
Upon planting trees or other plants in the right-of-way they become the property of the County.
ownåáeråáship
èönªrèÎSHip/
noun
- the act, state, or right of possessing something.
"the ownership of land"
synonyms: possession, right of possession, freehold, proprietorship, proprietary rights, title
"there is no question of ownership"
propåáeråáty
èöprÌ?pªrdÒ/
noun
- 1.
a thing or things belonging to someone; possessions collectively.
"she wanted Oliver and his property out of her house"
synonyms: possessions, belongings, things, effects, stuff, gear, chattels, movable.
The parkway trees on the parkway are the property of the County, as stated. They possess it, they control it, title to it, it belongs to the County, not the Adjacent property owner. That is why they trim tge branches and the roots, as per letters from the County. If it was not their property, they would not responsible to maintain it, or liable for a falling branch. This is simple common knowledge. Why do adjacent property owners require a permit to plant it, to cut it, to remove it. I dont need to permission to cut down my tree on my property line. Its their property, yes owned by the County. Properties destroyed by County parkway trees (ie sidewalks), their property, is their liability, cant pass liability to their property to an individual property owner, who does not possess County property. This is quite clear, by law and by language. My property includes my home, my car, everything on my property. The tree is my property, and Im responsible by law to maintain that tree, on my property. If someone gets hurt, on my property, due to tree roots, that I own, Im responsible, no one else. Same applies to County property, that damages another's property, they are liable and responsible, they pay for the damage caused by their property. Im not responsible to repair a sidewalk damaged by County owned parkway tree roots, that is fact, nor can they charge me for this repair.
"Upon planting trees or other plants in the right-of-way they become the property of the County."
Now you are on to something...
epoch date, post: 405174, member: 485 wrote: "Upon planting trees or other plants in the right-of-way they become the property of the County."
Now you are on to something...
That is the issue that changes everything. With property, comes duties, responsibilities and liabilities. The public pays taxes for government property repair and maintenance, for schools, roads, parks, libraries, etc. If it needs additional tax dollars to maintain government property, it goes to the taxpayer to raise taxes for this maintenance. It does not create Ordinances to increase taxes, and transfer liability on its own government property, nor can it require an individual property owner to maintain government property. My personal property, like my tree on my property is my duty, responsibility to maintain. If that tree root destroys government property, then I, as an individual will be held liable for that damage. Same principal with government property. If government property destroys a public sidewalk, government is responsible to repair it, maintain it, through tax dollars and is liable for all damages this parkway tree causes. I could trim the roots on my property, for my tree, or put a barrier on my property, to make sure the roots don't make the sidewalks out of repair. I have no duty or authority to trim a government property tree root, nor authority to place a barrier to prevent the tree roots growing under the sidewalks. Especially when the government trims the branches, and at one time trimmed the government parkway property roots, as stated by CEO. This main issue is, who's property is it, what caused the damage to the sidewalk, should be responsible to pay for the repair. Government states it can transfer all its liability to me, I own the underlying fee, therefore its my tree. Not if its governments property, as stated in their own Ordinance. This is a game changer. I would say, if there is no Ordinance that clearly states this, I would be responsible for the parkway tree and sidewalk, based on SHC 5600-5630. Since its a government property tree, they must be accountable to maintain it, with tax dollars they receive, are liable for the damage its caused to sidewalks, its government property that made the sidewalks unsafe. The control of government property, and possession is the government, when they trim the branches and the roots, take out dangerous and diseased trees, not charging it to adjacent property owners, or illegally transferring this responsibility. If the streets are not abandoned, they have this responsibility, cant transfer it away.
Barry G, post: 405253, member: 12296 wrote: That is the issue that changes everything. With property, comes duties, responsibilities and liabilities. The public pays taxes for government property repair and maintenance, for schools, roads, parks, libraries, etc. If it needs additional tax dollars to maintain government property, it goes to the taxpayer to raise taxes for this maintenance. It does not create Ordinances to increase taxes, and transfer liability on its own government property, nor can it require an individual property owner to maintain government property. My personal property, like my tree on my property is my duty, responsibility to maintain. If that tree root destroys government property, then I, as an individual will be held liable for that damage. Same principal with government property. If government property destroys a public sidewalk, government is responsible to repair it, maintain it, through tax dollars and is liable for all damages this parkway tree causes. I could trim the roots on my property, for my tree, or put a barrier on my property, to make sure the roots don't make the sidewalks out of repair. I have no duty or authority to trim a government property tree root, nor authority to place a barrier to prevent the tree roots growing under the sidewalks. Especially when the government trims the branches, and at one time trimmed the government parkway property roots, as stated by CEO. This main issue is, who's property is it, what caused the damage to the sidewalk, should be responsible to pay for the repair. Government states it can transfer all its liability to me, I own the underlying fee, therefore its my tree. Not if its governments property, as stated in their own Ordinance. This is a game changer. I would say, if their is no Ordinance that clearly states this, I would be responsible for the parkway tree and sidewalk, based on SHC 5600-5630. Since its a government property tree, they must be accountable to maintain it, do liable for the damage its caused to sidewalks, its government property.
A few questions: who built the sidewalks? Who designed the parkway or whatever you're calling it. I am guessing this was all done by the land developer. Shouldn't that guy that profitted big by selling homes have installed some kind of root barrier? The dedication of the road and the conveniences and landscaping were made to attract buyers. were the sidewalks built to code? Do they have to have root barriers? It seems like the point of the local public agency is to maintain the big items with the taxpayer's dollars, and some of the local amenities are done by the homeowners. You are benefiting by having a public road there that is maintained by tax money from others that don't live in your subdivision. I just feel like having to take part of some of the maintenance is a lot cheaper than if you were being charged homeowner's fees by a HOA to upkeep these joint ownership items. I feel it's just your price to pay. But I understand your arguments.
Tom Adams, post: 405256, member: 7285 wrote: A few questions: who built the sidewalks? Who designed the parkway or whatever you're calling it. I am guessing this was all done by the land developer. Shouldn't that guy that profitted big by selling homes have installed some kind of root barrier? The dedication of the road and the conveniences and landscaping were made to attract buyers. were the sidewalks built to code? Do they have to have root barriers? It seems like the point of the local public agency is to maintain the big items with the taxpayer's dollars, and some of the local amenities are done by the homeowners. You are benefiting by having a public road there that is maintained by tax money from others that don't live in your subdivision. I just feel like having to take part of some of the maintenance is a lot cheaper than if you were being charged homeowner's fees by a HOA to upkeep these joint ownership items. I feel it's just your price to pay. But I understand your arguments.
I did not live here in 1961, when this development was created. I was 4 years old. I am assuming that the sidewalks and parkways were built by the developer. Once the County signed the dedication of property, the Road Systems became public property, it is responsible to maintain through the large amount of tax dollars I pay to this government! The 1st issue is the permit. Who approves the permit, on the parkway? Can an adjacent property owner plant anything it wishes on the parkway? Why not, after all, he owns the underlying fee, correct? The County representative, who is paid by my tax dollars is the authority, to make decisions as to what tree goes on a 4' parkway. I have no issue with this authority. I have an issue with their errors. Planting liquid amber trees on a 4' parkway is a big mistake, as we have witnessed on my community, for 50 years. The person, who permitted these trees should be accountable. He should have denied a permit, yes, for the past 50 plus years. When the tree was approved, there should be a letter from government to adjacent property owner, stating that they must put in a root barrier to protect the sidewalk from parkway tree root damage. The government never warned any property owner of the potential damage to parkway tree roots. You ask why, in 1961? Because the County maintained the parkway trees in 1961, this was no issue. It trimmed the branches for 50 years, no issues, no payments to adjacent property owners, taken out in tax dollars. In the 1970s and 80, County realized, that is was going to have problems with parkway trees, since they noticed large tree roots, growing under the sidewalks. So the dept of transportation crew came out and ramp the sidewalks lifted by the trees, with asphalt, problem temp solved. They never wrote a letter to the adjacent property owner, demanding this be repaired, the parkway tree or the sidewalk. They removed parkway trees and sidewalks in the 1960-1980. at county expense. Then in the 1990s, its stopped removing the trees and the sidewalks, it ramp them with asphalt, continued trimming the tree branches. In 2006, County Counsel had a meeting with Board, told them that they can transfer all government duties, responsibilities and liabilities in an Ordinance, to adjacent property owners, since so many pedestrians were falling over the sidewalks, suing the County, County gave the 50K under seal, told them to go away. So they created an Ordinance, forcing adjacent property owners to repair government property, parkway trees and sidewalks damaged by government parkway trees. Now they claim 5600-5630, written in 1911. Why not claim this in 1961, why 2006? Were the sidewalks built to code, cant answer that question. The developer did not plant the trees, would not need a permit from county. The people who bought homes got together and had a contractor plant the trees, with permission of the County with a permit. No root barriers were needed at this time, since they were small trees, I can only assume. Over time, the roots were growing out of control, on the parkways. When the County was told, it should have a) trimmed the roots back,b) placed in a barrier or something that would prevent the roots from growing under the sidewalk, c) notified the home owner what they were doing about this problem. Instead, the County ignored everything, let it continue to grow out of control, sidewalks continue to lift, crack and break, because they ignored this required maintenance. What they should have done in the 1980s is remove the parkway trees, if the could not trim the roots, without the tree dying. Then they should have only permitted trees on the parkway, where the roots grow under the ground, not under the sidewalks. They should have trimmed the roots, taken out the roots under the sidewalks and repair the sidewalks, at their expense, due to these trees. This problem would have be resolved, back in the 1980s. Instead, County ignored their duties, then, in 2006, transferred their liabilities to adjacent property owners, for failure of maintenance. That is what I find offensive! Transferring liaiblities for pedestrian injuries is illegal, did not stop them in Ordinance 4355. If they would have performed their job, no one would be hurt over the sidewalks, county would not have been sued for 500K, or more. That would have fixed all the sidewalks in the entire County, with money to spare. There negligence is our responsibility, yes their Negligence. If they maintained the parkway trees in the 80's, this problem would have never happened, no need for Ordinance 4355, no need for sidewalk repair. Their failure to maintain government property is the issue and their arrogance, to pass their failure to individual property owners, who are not responsible for their failures.
Barry G, post: 405253, member: 12296 wrote: That is the issue that changes everything. With property, comes duties, responsibilities and liabilities. The public pays taxes for government property repair and maintenance, for schools, roads, parks, libraries, etc. If it needs additional tax dollars to maintain government property, it goes to the taxpayer to raise taxes for this maintenance. It does not create Ordinances to increase taxes, and transfer liability on its own government property, nor can it require an individual property owner to maintain government property. My personal property, like my tree on my property is my duty, responsibility to maintain. If that tree root destroys government property, then I, as an individual will be held liable for that damage. Same principal with government property. If government property destroys a public sidewalk, government is responsible to repair it, maintain it, through tax dollars and is liable for all damages this parkway tree causes. I could trim the roots on my property, for my tree, or put a barrier on my property, to make sure the roots don't make the sidewalks out of repair. I have no duty or authority to trim a government property tree root, nor authority to place a barrier to prevent the tree roots growing under the sidewalks. Especially when the government trims the branches, and at one time trimmed the government parkway property roots, as stated by CEO. This main issue is, who's property is it, what caused the damage to the sidewalk, should be responsible to pay for the repair. Government states it can transfer all its liability to me, I own the underlying fee, therefore its my tree. Not if its governments property, as stated in their own Ordinance. This is a game changer. I would say, if there is no Ordinance that clearly states this, I would be responsible for the parkway tree and sidewalk, based on SHC 5600-5630. Since its a government property tree, they must be accountable to maintain it, with tax dollars they receive, are liable for the damage its caused to sidewalks, its government property that made the sidewalks unsafe. The control of government property, and possession is the government, when they trim the branches and the roots, take out dangerous and diseased trees, not charging it to adjacent property owners, or illegally transferring this responsibility. If the streets are not abandoned, they have this responsibility, cant transfer it away.
I'm just giving the counter arguments here:
It is settled law in most of the U.S. that the easement owner is responsible to maintain its easement EXCEPT for sidewalks, parkways, and curbs. Most jurisdictions have statutes or ordinances that put that burden on the property owner. So you have to overcome that. The trees are part of the parkway so although the County owns them you still are responsible for maintenance by Statute.
It is also settled law that the maintenance statutes and ordinances don't create a duty of care in the property owner to the public, the duty established is only one of maintenance to the City or County unless there is a clear and unambiguous statute or ordinance which creates such a duty of care. The City or County probably can't transfer all of its liability to you but they can create a duty of care in you to the public. The County's ordinance only establishes a duty of care but it does not cancel the County's liability to the general public. Someone who trips can still make a claim with the County, if the County denies the claim then they can sue the County. They can also sue you under the Ordinance. The Courts have implied a duty of care ordinance is legal but it hasn't been directly tested in an Appellate Court as far as I know.
It is undisputed tree is owned and maintained by the County, and it is undisputed that the County's tree damaged the sidewalk. These facts would normally place responsibility on the Tree's owner to repair the damage, however, the Legislature has authorized the County to collect the cost of repairing damage from the abutting property owner. Policy supports this because the abutting property owner is the prime beneficiary of the trees for which they receive free maintenance. The legislature has seen fit to allow the County to collect the cost of maintenance of the County's curbs, parkway (of which the tree is a part), and sidewalks from the abutting property owners (who can elect to do the work themselves) and the Court has no authority to ignore the Statute unless it is unconstitutional or somehow does not apply to the circumstances in the case.
The statement that the owner is normally responsible is true but in this case the Legislature has clearly made an exception to that. The argument that the Statute only applies to urban business districts is unsupportable because the Statute itself does not say that, in fact, it defines City as meaning City or County which by itself indicates the Statute applies outside of Cities.
It is understood that some Cities pay for the cost of the repairs to sidewalks out of their general tax revenue. They are not required to do this however, and many Cities in this State do charge the cost of repairs to the adjoining property owners.
-Break-
Granted:
1. You may be able to make some headway on the tree damage just due to simple fairness. If the County didn't take steps to prevent damage such as cutting roots, or root barriers then they may be responsible for those specific repairs.
2. Was the sidewalk repaired and restored to its original state or was it upgraded to current construction standards? You may be able to get the invoice reduced arguing that the Statute requires repair, not upgrades to current construction standards. If the original sidewalk was 3" thick on dirt but the County is charging you for 6" of concrete on 6" of aggregate base on compacted subgrade then that is beyond the scope of a repair. I think a repair means you have to restore the 3" thick sidewalk to a safe condition. I would think you could make more headway on that, and it seems like you are being reasonable in wanting to comply with the law, rather than trying to stick the taxpayers with all of your obligations.
Disclaimer: I'm not a lawyer and none of this is intended to be legal advice.
[USER=12296]@Barry G[/USER]
I get your argument, but I just empathize with the county more. They are taking on the lion's share of the upkeep, and they did not get to input in the way the sidewalks were built unless they simply made sure they were to code. To me, the big bad boogeymen are land developers and not government agencies. Government agencies have much less incentive to cut corners than they guys making the big bucks. By "accepting" the right-of-way dedication only brings them liability and a larger work burden. It doesn't make them money. It's for the benifit of the subdivision community. Maybe you're technically right, and maybe the county should be taking care of all the sidewalks in their counties, but I don't know. But I would imagine that would take a much larger staff and higher taxes if you could possibly win.
I live in a county, and all I got was a dirt road and no sidewalk; and I'm sure my taxes are paying for the upkeep of the asphalt in other subdivisions. Personaly I would pick my battles more carefully. I am envisioning this being an expensive battle for you.
