Why would a surveyor exclude the area under the road just because they are writing a description for an LLA? In those cases, do the fee owners convey the underlying fee to the County? Unlikely. It sounds like either misguided practice or a misguided requirement imposed by some County office. The result of this practice is erroneous descriptions that people mistakenly rely on as being inclusive of all property to which the landowner has title.
Even if that was done, the surveyor who wrote the description has no authority to separate the fee of the road bed from the remaining parcel. If no vehicle to transfer title of the roadbed was executed, it still lies with the adjoining parcel that it was historically a part of.
The surveyor you are working with should know better than to rely on just the latest deed as gospel. Ask him who owns the road bed now. Ask him if he has the document by which title to the road bed was conveyed to the County. If he can't answer the 2nd question in the positive, ask him by what doctrine does the county now own the road bed.
LLA's and underlying fee title
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E_Page
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"Previous owner of the land"???
That is a total fallacy promulgated by a well known author but not supported by any case law that I am aware of. The previous owner would have had to have intended to reserve that fee ownership, which is almost certainly not the case.
In cases where paper gaps are created by descriptions bastardized by title companies, attorneys, and all too often, surveyors, the courts recognize that there is one boundary between adjacent (supposed to be adjoining) parcels. Where a paper gap is created, the courts do not recognize that gap as a separate parcel unless intent can be shown by the grantor of the description creating the gap to have retained ownership of the gap.
The same holds true for roads. Contrary to survey legend, people don't retain ownership of some portion of the land they think they are selling by mistake. Is the previous owner paying taxes on the land comprising the road bed?
If there was intent to divide the property at the RW line, it is an illegal subdivision.
"The previous owner" That's patently ridiculous to any professional surveyor that decides to engage their brain and apply logic. If the LS has a little ambition, he can research law to back up the logic.
Sheesh!
Edit: Please excuse the unvarnished tone. I'm feeling a little cranky today.
That is a total fallacy promulgated by a well known author but not supported by any case law that I am aware of. The previous owner would have had to have intended to reserve that fee ownership, which is almost certainly not the case.
In cases where paper gaps are created by descriptions bastardized by title companies, attorneys, and all too often, surveyors, the courts recognize that there is one boundary between adjacent (supposed to be adjoining) parcels. Where a paper gap is created, the courts do not recognize that gap as a separate parcel unless intent can be shown by the grantor of the description creating the gap to have retained ownership of the gap.
The same holds true for roads. Contrary to survey legend, people don't retain ownership of some portion of the land they think they are selling by mistake. Is the previous owner paying taxes on the land comprising the road bed?
If there was intent to divide the property at the RW line, it is an illegal subdivision.
"The previous owner" That's patently ridiculous to any professional surveyor that decides to engage their brain and apply logic. If the LS has a little ambition, he can research law to back up the logic.
Sheesh!
Edit: Please excuse the unvarnished tone. I'm feeling a little cranky today.
Evan Page, PLS
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Propst
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I agree
Seems like we're all in agreement that as the LLA could not create a greater number of parcels than originally existed, and unless the street was shown as a separate parcel on the LLA, the presumption would be that the underlying fee would remain in the adjoining owner, however the parcels were adjusted.
For the students on the forum, Lot Line Adjustments are described and defined in section 66412(d) of the government code (subdvision map act), which states in part ". . . where the land taken from one parcel is added to an adjoining parcel, and where a greater number of parcels than originally existed is not thereby created, . . . "
I think the Map submitter and the Title company may be too focused on the Deeds recorded in conformance with the LLA, and have forgotten about the limitations of the LLA procedure.
They may be looking at the deed description which states "thence along the north line of the street" (or like words) and concluding that that call would exclude the street, which is the law according to Severy v. Central Pacific R.R. Co., 51 C 194 (1875).
That case's statement of facts reveals a situation somewhat like the one in question here:
"In 1856, C.N. Webber owned a tract of land containing about one hundred and sixty acres, including the street and lots in controversy, which he laid out into lots and blocks and caused a map of the same to be made, on which he laid down streets, including Sacramento street, and dedicated the streets. Webber afterwards sold to the plaintiff and his grantors the lots in controversy, and in his deed described the boundary as stated in the opinion."
In its opinion the court said:
"One line of the description in the deed is: 'Thence along the easterly line of Sacramento street one hundred and fifty feet;' and no other language is employed which affects or modifies the natural interpretation of that above quoted.
It is very clear, therefore, that the parties to the instrument intended that the lots should run up to the eastern line and not the middle of the street."
One major difference between that case and this one is the LLA, which does not allow for remainders.
I think if you point out to the Map Submitter that the LLA could not possibly have segregated the street he will likely concur with your request to include the adjoining street.
Chapter 9 of Wattles' "Writing Legal Descriptions" gives a nice discussion of the issues involved with describing streets.
As an aside to this, it has occasionally been noted in this forum that surveyors are sometimes required by local agencies to prepare "metes and bounds" descriptions when other types would better serve the purpose. I would guess that this was a case where an alternative type of description might have avoided the problems raised. Or as E_Page put it:
"It sounds like either misguided practice or a misguided requirement imposed by some County office."
That's my take as well.
For the students on the forum, Lot Line Adjustments are described and defined in section 66412(d) of the government code (subdvision map act), which states in part ". . . where the land taken from one parcel is added to an adjoining parcel, and where a greater number of parcels than originally existed is not thereby created, . . . "
I think the Map submitter and the Title company may be too focused on the Deeds recorded in conformance with the LLA, and have forgotten about the limitations of the LLA procedure.
They may be looking at the deed description which states "thence along the north line of the street" (or like words) and concluding that that call would exclude the street, which is the law according to Severy v. Central Pacific R.R. Co., 51 C 194 (1875).
That case's statement of facts reveals a situation somewhat like the one in question here:
"In 1856, C.N. Webber owned a tract of land containing about one hundred and sixty acres, including the street and lots in controversy, which he laid out into lots and blocks and caused a map of the same to be made, on which he laid down streets, including Sacramento street, and dedicated the streets. Webber afterwards sold to the plaintiff and his grantors the lots in controversy, and in his deed described the boundary as stated in the opinion."
In its opinion the court said:
"One line of the description in the deed is: 'Thence along the easterly line of Sacramento street one hundred and fifty feet;' and no other language is employed which affects or modifies the natural interpretation of that above quoted.
It is very clear, therefore, that the parties to the instrument intended that the lots should run up to the eastern line and not the middle of the street."
One major difference between that case and this one is the LLA, which does not allow for remainders.
I think if you point out to the Map Submitter that the LLA could not possibly have segregated the street he will likely concur with your request to include the adjoining street.
Chapter 9 of Wattles' "Writing Legal Descriptions" gives a nice discussion of the issues involved with describing streets.
As an aside to this, it has occasionally been noted in this forum that surveyors are sometimes required by local agencies to prepare "metes and bounds" descriptions when other types would better serve the purpose. I would guess that this was a case where an alternative type of description might have avoided the problems raised. Or as E_Page put it:
"It sounds like either misguided practice or a misguided requirement imposed by some County office."
That's my take as well.
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RAM
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So just to be a thorn, I briefed the above discussion and may have missed something but here is the question.
Did the previous LLA grant the area of the road or was it retained as a portion of another parcel?
If the area of the road has not been granted to the current owner, why should it be included?
Does the road front the entire parcel?
Not sure I have the complete picture of the issues. But like normal I have not taken the time to think it over. Or as normal maybe I am trying to stir the pot.
Did the previous LLA grant the area of the road or was it retained as a portion of another parcel?
If the area of the road has not been granted to the current owner, why should it be included?
Does the road front the entire parcel?
Not sure I have the complete picture of the issues. But like normal I have not taken the time to think it over. Or as normal maybe I am trying to stir the pot.
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dmi
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There are probably as many different ways to do a LLA as there jurisdictions checking them. Variety is not always a good thing. The process you describe sounds downright danagerous and will ultimately cause a lot of headaches.
The surveyor's response is more frightening than your local agency requiring that certain information be shown on LLAs whether or not it is material to the adjustment at hand.
The surveyor's response is more frightening than your local agency requiring that certain information be shown on LLAs whether or not it is material to the adjustment at hand.
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Ben Lund
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E_Page
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What subdivision are you speaking of Ben? I thought we were talking about LLAs, which cannot be used to subdivide land.
In the case above, the surveyor assumed that the underlying fee of the road bed had been somehow subdivided from the rest of the parcel by way of an erroneous description which ommitted that portion of the parcel lying within the RW. That's what my statement referred to, an assumed subdivision of land by mistaken omission in a description.
In the case above, the surveyor assumed that the underlying fee of the road bed had been somehow subdivided from the rest of the parcel by way of an erroneous description which ommitted that portion of the parcel lying within the RW. That's what my statement referred to, an assumed subdivision of land by mistaken omission in a description.
Evan Page, PLS
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Ben Lund
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Evan,
I’m not sure what author you are talking about nor am I sure what fallacy you are referencing. You have peaked my interest. Does anyone know what Evan is referencing?
JLB,
From Brown’s Boundary Control and Legal Principles (5th edition, pg 203) Section “8.8 Centerline Presumption”:
“Principle 9. A metes and bounds description with a road as a boundary must be written to positively exclude the road; otherwise, in those cases where the grantor owns the bed of the road, it will be presumed that the conveyance intended to convey title to the center of the road, subject only to the public easement.”
I believe it is industry standard to write metes and bounds descriptions TO the right of way and ALONG the right of way even though the fee ownership of the road is meant to stay with the fronting parcel.
I have seen subdivision lines at the right of way (even though the fee ownership of the road is with the adjacent parcels ) and I’ve seen the subdivision line drawn at the centerline. I believe the general rule from Brown above also applies to subdivision lines.
Propst,
I’m not sure how relevant the 1875 Colorado case is to us in modern day California. I don’t know all the specifics of the particular case. I do know that in almost any situation the “contrary can be shown” and my gut says that the case you cited is not the general rule.
I’m not sure what author you are talking about nor am I sure what fallacy you are referencing. You have peaked my interest. Does anyone know what Evan is referencing?
JLB,
From Brown’s Boundary Control and Legal Principles (5th edition, pg 203) Section “8.8 Centerline Presumption”:
“Principle 9. A metes and bounds description with a road as a boundary must be written to positively exclude the road; otherwise, in those cases where the grantor owns the bed of the road, it will be presumed that the conveyance intended to convey title to the center of the road, subject only to the public easement.”
I believe it is industry standard to write metes and bounds descriptions TO the right of way and ALONG the right of way even though the fee ownership of the road is meant to stay with the fronting parcel.
I have seen subdivision lines at the right of way (even though the fee ownership of the road is with the adjacent parcels ) and I’ve seen the subdivision line drawn at the centerline. I believe the general rule from Brown above also applies to subdivision lines.
Propst,
I’m not sure how relevant the 1875 Colorado case is to us in modern day California. I don’t know all the specifics of the particular case. I do know that in almost any situation the “contrary can be shown” and my gut says that the case you cited is not the general rule.
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Propst
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The Wattles quote is apropos
Severy is a California case, cited in Brown's first three editions, and also in Wattles.
That case may have been modified or overturned by some subsequent decision, but if so I am not aware of it.
Wattles also references Warden v. South Pasadena Realty & Improvement Co., 178 C 440 to make the same point:
"These decisions in California follow the majority rule in holding that a call expressly for the side line of a street excludes the street from the grant."
(Writing Legal Descriptions, 9.3)
The key word in that statement is "expressly".
Wattles' suggestion on how to describe the line so that it would probably be interpreted as going along the centerline is:
"The description begins at a point or monument in the west line of Hill Street and 'thence along said street,' or the call is to 'the West line of Hill Street' and 'thence along said street.'
It will be noted that the call is 'along the street' not 'along the West line' of said street nor along 'said line.'
The authorities are not in agreement . . . "
(Writing Legal Descriptions, 9.4)
The problem with calling for the right of way line and "thence along said right of way" is that those words would have to be interpreted as excluding the adjoining street per the cited cases.
We have written descriptions "along the right of way", but added the clause:
"Together with that portion of the adjoining street which would pass with the described land" or words to that effect.
RAM: Your Question
"Did the previous LLA grant the area of the road or was it retained as a portion of another parcel?"
The way I read the original problem statement, the answer is "Neither"
The street was simply ignored, mapped out of the adjustment.
Not included in either parcel or as a separate parcel.
See the problem with that? That ownership had to go somewhere, and the logical proposition would be that it would go with the adjusted lots.
Where else could it go, or to whom could it go other than the parties to the LLA?
That case may have been modified or overturned by some subsequent decision, but if so I am not aware of it.
Wattles also references Warden v. South Pasadena Realty & Improvement Co., 178 C 440 to make the same point:
"These decisions in California follow the majority rule in holding that a call expressly for the side line of a street excludes the street from the grant."
(Writing Legal Descriptions, 9.3)
The key word in that statement is "expressly".
Wattles' suggestion on how to describe the line so that it would probably be interpreted as going along the centerline is:
"The description begins at a point or monument in the west line of Hill Street and 'thence along said street,' or the call is to 'the West line of Hill Street' and 'thence along said street.'
It will be noted that the call is 'along the street' not 'along the West line' of said street nor along 'said line.'
The authorities are not in agreement . . . "
(Writing Legal Descriptions, 9.4)
The problem with calling for the right of way line and "thence along said right of way" is that those words would have to be interpreted as excluding the adjoining street per the cited cases.
We have written descriptions "along the right of way", but added the clause:
"Together with that portion of the adjoining street which would pass with the described land" or words to that effect.
RAM: Your Question
"Did the previous LLA grant the area of the road or was it retained as a portion of another parcel?"
The way I read the original problem statement, the answer is "Neither"
The street was simply ignored, mapped out of the adjustment.
Not included in either parcel or as a separate parcel.
See the problem with that? That ownership had to go somewhere, and the logical proposition would be that it would go with the adjusted lots.
Where else could it go, or to whom could it go other than the parties to the LLA?
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Ben Lund
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Propst,
Thank you for the clarification. It looks like I had some major misconceptions!
I reread Wattles Chapter 9 and now I realize what you were saying. I also reread Wattles pg 8.3-8.4 “Court Cases” which I found to help my understanding.
Adding the clause, “Together with that portion of the adjoining street which would pass with the described land" seems to be the best remedy to insure the fee ownership of the adjacent public street (by easement) goes with the adjacent lots.
I’m having my attorney (my father in this case) read this thread and Chapter 9 of Wattles, Brown, etc. to see if he agrees with Wattles’ conclusion that the language “to the right of way” specifically excludes the right of way. Very interesting!
JLB,
A quote from Wattles, “When a street is created by an easement over a strip along the boundary of subject property, the fee title in and under the street remains in the owner or his assignees and to the original boundary.” (pg 9.2)
Steve,
Well said! I wonder how many agencies like the subdivision boundary drawn to the centerline versus to the right of way.
Thank you for the clarification. It looks like I had some major misconceptions!
I reread Wattles Chapter 9 and now I realize what you were saying. I also reread Wattles pg 8.3-8.4 “Court Cases” which I found to help my understanding.
Adding the clause, “Together with that portion of the adjoining street which would pass with the described land" seems to be the best remedy to insure the fee ownership of the adjacent public street (by easement) goes with the adjacent lots.
I’m having my attorney (my father in this case) read this thread and Chapter 9 of Wattles, Brown, etc. to see if he agrees with Wattles’ conclusion that the language “to the right of way” specifically excludes the right of way. Very interesting!
JLB,
A quote from Wattles, “When a street is created by an easement over a strip along the boundary of subject property, the fee title in and under the street remains in the owner or his assignees and to the original boundary.” (pg 9.2)
Steve,
Well said! I wonder how many agencies like the subdivision boundary drawn to the centerline versus to the right of way.
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PLS7393
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I'm in agreement with Evan on his thinking relating to roadways and LLA's.
One of the issues at hand is the processing of LLA's. Most planning departments process them, and they really do not have a clear understanding on Fee Title, even though they think they do. Then planning is reviewing the new legal descriptions (writen by a Licensed Land Surveyor), and how many planners have you ever seen in any Legal Description Seminar, enough said.
Cary on, it's Monday.
One of the issues at hand is the processing of LLA's. Most planning departments process them, and they really do not have a clear understanding on Fee Title, even though they think they do. Then planning is reviewing the new legal descriptions (writen by a Licensed Land Surveyor), and how many planners have you ever seen in any Legal Description Seminar, enough said.
Cary on, it's Monday.
Keith Nofield, Professional Land Surveying
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subman
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Would most agree that under Section 8726(l),(n) of the PLS Act, certain parts of a Lot Line Adjustment document need to be reviewed and approved by a licensed land surveyor? Parts, being the operative word, since there are zoning and planning aspects to LLAs that require the professional input of agency planning staff.
Any County Surveyor's out there that are involved in the review of LLA documents?
Any County Surveyor's out there that are involved in the review of LLA documents?
Dennis Hunter, PLS & PE
Simi Valley, CA
Simi Valley, CA
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PLS7393
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I am the licensed land surveyor for San Mateo County, not the county surveyor (yet), and we do not see a Lot Line Adjustment package from planning.
While at the City of Hayward, the survey section did review Lot Line Adjustments, after I brought to the planning departments attention that legal descriptions and technical issues were not getting adresses appropriately, and they were happy to have the surveyors look at the documents prior to plannings approval.
The two departments should work together, in my oppinion.
While at the City of Hayward, the survey section did review Lot Line Adjustments, after I brought to the planning departments attention that legal descriptions and technical issues were not getting adresses appropriately, and they were happy to have the surveyors look at the documents prior to plannings approval.
The two departments should work together, in my oppinion.
Keith Nofield, Professional Land Surveying
PLS 7393
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D Ryan
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mpallamary
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Hi,
If you are available, a great place to thrash this out is the upcoming Fresno Conference in January. I invite anyone with a position on this to attend. Here is my lecture outline:
REVERSIONARY RIGHTS – THE SURVEYOR’S DILEMMA
There is considerable confusion throughout the land surveying community, the title industry, and governmental agencies regarding reversionary rights and their implications in land surveying, government interests, and property conveyances. As evidenced by various court rulings, there are many misconceptions regarding this confusing subject. Mr. Pallamary will discuss the difference between easements and fee ownership as well as the problems associated with transaction involving streets, easements, and rights of way. Mr. Pallamary will also present a series of California Court Cases and will discuss the basis for these important court rulings. He will also discuss the common misconceptions held by many municipal agencies regarding the extent of their interests and those of the adjoiners along with the ill-advised requirement of some agencies to compel Land Surveyors to extend mapping lines to the “center” of adjoining street on land subdivision maps. Mr. Pallamary is in the process of writing a textbook for the Professional Land Surveyor regarding Reversionary Rights. He has been traveling across the state researching and documenting various court decisions.
If you are available, a great place to thrash this out is the upcoming Fresno Conference in January. I invite anyone with a position on this to attend. Here is my lecture outline:
REVERSIONARY RIGHTS – THE SURVEYOR’S DILEMMA
There is considerable confusion throughout the land surveying community, the title industry, and governmental agencies regarding reversionary rights and their implications in land surveying, government interests, and property conveyances. As evidenced by various court rulings, there are many misconceptions regarding this confusing subject. Mr. Pallamary will discuss the difference between easements and fee ownership as well as the problems associated with transaction involving streets, easements, and rights of way. Mr. Pallamary will also present a series of California Court Cases and will discuss the basis for these important court rulings. He will also discuss the common misconceptions held by many municipal agencies regarding the extent of their interests and those of the adjoiners along with the ill-advised requirement of some agencies to compel Land Surveyors to extend mapping lines to the “center” of adjoining street on land subdivision maps. Mr. Pallamary is in the process of writing a textbook for the Professional Land Surveyor regarding Reversionary Rights. He has been traveling across the state researching and documenting various court decisions.