Fee Interest? - Vacated street

[JasonCamit]

I have a question regarding the Fee Title interest in a street/highway dedicated to a County in 1902. The attachment shows a map recorded in 1902. It dedicated roads and highways to said county, the county accepted these dedications. A railroad right-of-way exists through this tract map and was dedicated in fee prior to the map. A 60' highway was dedicated parallel to this RR, 30 feet on each side by said Tract map.

This 60' highway is now proposed to be vacated. Since it was dedicated and accepted in 1902, the county only had an easement interest in this highway then, as well as today. My initial opinion is that the underlying fee ownership can be claimed by the owner of Lot 120 for the entire width of the 60' highway, since the RR was not apart of this subdivision and acts as a Tract boundary.

The consulting Title officer is not sold on this opinion, and suggest that the owner of Lot 120 only has claim to the centerline of said 60' highway. The remaining 30' adjacent to the RR is owned by the original subdivider, by this suggestion.

Section 831 of Civil Code states that an owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown.

Section 9.7 of Wattles Legal Principles "Street" illustrates that a street that is on the boundary of a map is owned in its entirety by the adjacent parcel, unless other title interest can be found.

Is there a statute or court case that addresses this situation?

[Warren Smith]

I will opine that the presumption of underlying ownership to the centerline of streets applies when lots are adjacent on each side of the street in a simultaneously created subdivision. This is based on equitable distribution. Here, the railroad was not a party to the lands being subdivided, and the adjacent lots throughout the subdivision would have always had fee title under the public easement to the edge of the railroad's fee strip. That is, there is no adjacent lot with which to share the burden of the public right of way.

Statutes in the Civil Code relating to property interests do not go into detail for anomalous situations such as this, and a search of appellate decisions may yield a similar set of facts if one were so inclined. I would suggest a conversation with the title officer to inquire as to the rationale behind the position that the subdivider retained a fee interest on the other side of centerline.

[dmi]

It sounds like a marginal street, in that the entirety of the street is located within the boundary of one parcel along its margin. This example is discussed in Brown. If the ROW is held in fee, then lot 120 only has private easement rights over the ROW. if the ROW is an easement only then abandonment removes the public easement and reserves easements for utilities where applicable. There is a a two year time limit to assert private easement rights.
If the street is marginal then lot 120 has a fee interest to the full width of the street subject to utility reservations. BCLP 5th edition section 8.18 principle 13 ppgs 209-212 cites case Oberhelman v. Allen, 7 Ohio App,251 (1915)

You do need additional evidence to prove where the subdivision line is. This additional evidence is to prove the street is marginal or it is not and the act accodingly. The map you attached is inadequate for this purpose.

[E_Page]

Whenever this idea of some unaccounted portion being vested in the original subdivider comes up, whether it's a supposed gap found between parcels or a portion of a vacated RW, I always urge that professionals step out of the arena of trying to figure out the legal principle as the first step because we (surveyors, engineers, title officer, and even most lawyers) get ourselves all tangled up over the legal technicalities that we think we need to account for.

As the first step, I advise that one step back and think like an old farmer about it for a bit. The old farmer typically isn't encumbered with a lot of education (which for most of us includes just enough law to enable us to really confuse ourselves and most everyone around us). But the old farmer generally is blessed with an abundance of common sense.

Now, putting yourself in the place of that old farmer (that is, forget for a moment what you think you know about the law). Does it make a lick of sense that the person who subdivided that land in 1902 thought to himself that he'd best hold on to an underlying interest of half that road because a hundred or so years from now, that road might get vacated and he'll have some value there so his grandkids can enjoy the proceeds? Or is it more likely that his intent was to dispose of all his interests in this land? If he wasn't required to place a road RW there, what lot would he have put the underlying land into?

Now that you have that set of common sense answers in your head, step back into your professional role, taking with you the knowledge that practically all common law that has developed relative to boundaries and title is based on common sense born of the experience of centuries of human interaction, as opposed to most statute law that is based on the poorly thought out good intentions of politicians (who by definition are the intellectual opposite of the old farmer, especially when it comes to common sense).

Unless there is some express intent on the map or in a related document to show that the subdivider intended to retain a fee interest in some portion of the land under the road RWs, such as a note on the face of the map, a designation of a portion of the RW as a separate lot along with some not or document expressing intent to retain, or a lack of records indicating it had been conveyed, then the underlying fee goes with the parcels created from the subdivider's land adjoining on each side of the RW. If, as in this case, there is only the parcel created by the subdivider on one side, and on the other are lands previously and still belonging to some other party (RR RW), then the entire road RW being vacated reverts to the sole adjoining parcel.

I don't have time to look it up just now, but I'm sure that you can find that principle included in BCLP or EPBL.

[Lee Hixson]

You might find this 2013 Colorado Supreme Court case interesting. Here's the gist of it:

"Thus, the United States contends, establishing mere ownership in the land abutting the right-of-way, without more, is insufficient to establish fee title in the land underlying the right-of-way. Rather, the landowner must establish that he or she received the abutting property from the owner of the fee underlying the right-of-way in order to claim presumptive ownership to the centerline of the right-of-way. The United States argues that, because Plaintiffs bear the burden of proving ownership of the land underlying the right-of-way before the United States must compensate them for the alleged taking, Plaintiffs must provide their chains of title to close the evidentiary gap between the original landowners’ conveyances to the railroad in the early 1900s and Plaintiffs’ eventual acquisition of the abutting properties."

[Steve Martin]

Gary kent had a good example of this in one of his seminars. He had a case where a lawyer for the adjoiner (the railroad in this case) argued that his client got half the vacated road. Gary responded "no, because that would be unconstitional" and the attorney really saw red after that.

[dedkad]

I'm going to ignore Evan's discussion about common sense and go back to statute law. Section 66424 of SMA says that "Property shall be considered as contiguous units, even if it is separated by roads, streets, utility easements or railroad rights-of-way." Durkee just lost a case arguing otherwise, so that law still holds. So, common sense aside, it would seem to me that Lots 121 and 122 have an interest in the 1/2 street on their side of the centerline because we ignore the RR ROW. I don't agree at all with the title officer that the underlying subdivider has an interest. I assume the abandonment is coming at the request of a developer for Lot 120. If I were the agency processing the abandonment, to be on the safe side I would consider requiring Lot 120 to process a lot line adjustment with Lots 121 and 122 to officially acquire the 1/2 street on the RR side of the street. Makes perfect sense, right? Of course, it's been over 100 years since this map was recorded, so those lands are probably already subdivided, so that really complicates things. That's when I get to a point where I just ignore the problem and assume Lot 120 owns it all and hope no one ever sues. :)

[Warren Smith]

I think the Friends of Mt. Diablo case centered around the issue of determining the separation (or not) of ownership by later acquisition of fee strips for the purpose of further subdivision. It hinged on development entitlements.

Here, as I understand the portion of map provided, the railroad was in existence, and was not a signatory to the subdivision. Under the version of the Map Act in existence at the time, the distinctive border would not have included the railroad. This would lead to a pretty solid case that the 60' street abutted a subdivision boundary.

[dmi]

only lot 120 has an interest. the other lots are cut off because of the railroad.

[Dave Karoly, PLS]

Tell the title officer to run down to the County Surveyor and get a Certificate of Compliance for the new lot he conjured out of thin air.

I agree with Warren, Evan and Dane's analysis.

[E_Page]

When one decides to ignore common sense and get themselves wrapped up in a statute or case that at a quick glance may appear to speak to the situation, you get something like a reference to 66424 and the Durkee case involving the canal. Warren is correct in that the owner wanted to have two distinct parcels for subdivision purposes, and for the purposes of creating a further subdivision of the parcel, it is legally considered contiguous.

If, in that case, the owner subdivided the parcel, creating lots on both sides of the canal, with a road paralleling the canal on one side and lots directly bordering the other side of the canal, if that street is later vacated, it would revert only to the lots fronting it on the same side of the canal. The lots across the canal, or in the case of the map attached to the opening post here, the lots on the other side of the RR never fronted on the road. They shared a boundary with a senior parcel which happened to parallel the road. But, the RR RW was still an intervening senior parcel to the subdivision lots preventing the adjoining relationship that is the basis for the presumption of reversionary rights.

Note on the map that the attached to the OP, the road between Lots 119/120 and 94/96 has a dashed line down the centerline, indicating underlying fee of the adjoining lots to centerline. Also note that there is no dashed line within the RW of the road paralleling the RR. There was no indicated intent that a portion of the fee interest of the lots on the opposite side of the RR have a useless 30' strip under the road. Additionally, the courts have stated that the recognition of parcels which are of no value and no use to the parcel that some land professional opines it is attached by title to goes against both common sense and public policy.

I'm telling you, in almost every complicated boundary situation, if you step back and view it with what just makes sense before stepping back in and figuring out how the law works in that situation, you will come up with the right answer far more often than if you choose to start by trying to shoehorn the circumstances into a statute or case. Common law is developed a case at a time, considering the specific circumstances of that case. If you don't consider the specifics underlying the decision, it becomes really easy to misread the application of the principle of law.

Because of how it has developed, if the reasoning that you have as to why a certain common law principle applies to a particular situation boils down to "because they (the courts) said so", you're probably misapplying the principle. If you can look at the result of an applied principle and look at it from the perspective of a reasonable landowner prior to some professional advising him of rights & claims he may or may not have (reason seems to drift away shortly after such info is given) and say "that makes sense", then you have most likely applied the principle or law correctly, or are at least on the right track.

[JasonCamit]

I appreciate your time and opinions on this matter. It appears that my initial opinion has a consensus. Now its time to speak with a title consultant.

[Dave Karoly, PLS]

It appears that the below case may be helpful. Frankly, the writing is a mess so it's hard to figure out. It involves the abandonment of the RR R/W though. There is a 10' marginal alleyway on the south. They mention the marginal street doctrine:
Everett v. Bosch, 241 Cal. App. 2d 648 (1966)

"In Los Angeles etc. School Dist. v. Swensen, 226 Cal.App.2d 574, 579 [38 Cal.Rptr. 214], the court stated that a grantor's intent to withhold his interest in an alley (the same as in a street) will never be presumed, reasoning that there would be no object in the retention by the grantor of a narrow strip of land, which, when separated from the adjoining land, would be of little or no use to him. The court also observed that the value of the land to a purchaser would be greatly affected if the abutting street were not included in the conveyance. To the same general effect is Merchant v. Grant, 26 Cal.App. 485 [147 P. 484]."

See:
Los Angeles County
AP Map 5548-008
TR0005-049A See Tract
TR0008-017 Michigan Tract
TR0010-080A J.F. Grass Tract

[Dave Karoly, PLS]

The thing about most of the common law rules is an Engineer sees a rule and thinks, "I have to apply this at all times, always, without exception." The Courts think, "this rule is an aid to try to arrive at the correct or best conclusion but sometimes the rule doesn't apply, some other rule does."

If you find a rule, first you have to determine if it even applies. A lot of damage has been done by Engineers blindly applying the wrong rules to a situation.

I like Evan's method, find the simplest and most probable answer then find the rule that supports that. Is it probable that the unknown heir of a grantor from 1902 has any valid, enforceable claim at all to the strip? I would say it is highly unlikely. Title Companies look at risk, not Title, oddly enough. There is really no upside to them declaring the title in the insured and plenty of downside although the downside is very unlikely to come up. In fact, the TC would eventually win but the litigation would cost them plenty.

[dmi]

Evan is spot on here. The temptation to grab at a convenient answer is ever present. I am not suggesting here that anyone is doing that, just echoing Evan here that it is a pitfall. What rule is called for by the evidence that you have collected?

[Dave Karoly, PLS]

Also see:
Besneatte v. Gourdin, 16 Cal. App. 4th 1277 (1993):

"The "doctrine of marginal streets" also supports the trial court's ruling. The rule is this: "The grant of land adjoining a street or highway which has been wholly made from, and upon the margin of, the grantor's land is deemed to comprehend the fee in the whole of the street." ( Everett v. Bosch (1966) 241 Cal.App.2d 648, 655, fn. 3 [50 Cal.Rptr. 813], internal quotation marks omitted.) Put another way, if a property owner creates a street from and along the margin of his property, a deed conveying the land bounded by the road carries fee title to the entire parcel, subject to the public easement. In such cases it would be illogical to presume the grantor intended to retain a narrow sliver of land "which, when separated from the adjoining land, would be of little or no use to him." (Id. at p. 654; but see City of Redlands v. Nickerson (1961) 188 Cal.App.2d 118, 128 [10 Cal.Rptr. 431].)"

[LS_8750]

That old farmer has showed me a thing or two in the past.
Thank you Mr. Page.
And thank you to the rest of you as well.
Quality discourse.