California Surveyors Forums

I remember reading a court case or AG opinion concerning the fee title status of roadbeds in old subdivision plats (before 1900). The questions is whether the streets were fee title or easements to the County, City, etc. I've exhausted my ability to find this reference. Can anyone point me to the reference?

Thanks

Stan,

I tried to attach it but the software said the board is full? Regardless, try doing a search for AG Opinion 04-809.pdf or call me and I'll send it to you.

Best,

Larry Stevens, PLS
L.A. Stevens & Associates, Inc,
Novato, CA
415-382-7713

Yeah, I get the same message about the attachment being too large. It is 4 MB.

That AGO addresses the amendment of the Streets and Highway Code section 805 in 1955 and its repeal in 1961, which allowed public agencies to acquire rights of way in fee. Prior to that, it was presumed to be an easement interest. I would expect that to apply to dedications via subdivision maps as well.

Actually, you can access that AGO on the members area of this site.

[edit] Oops - I just checked the members area, and this AGO is not in those listed. It would be a good addition, though.

Thanks. I have AG 04-809, it is not the one "I sort of remember". I read the opinion/case around 2007. It gave recording dates that the Court specifically deemed old subdivision streets to be either easement or fee.

I have a bunch of different cases on street right of way and abandonment. One court of appeal case, Soroush-Azar, not published, saved under my abandonment directory. The superior court judgement was 2010 and the appeal was in 2013. Email me at Larry At LAStevensInc.com and I will send them to you. Maybe it will reference your case?

Larry Stevens
L.A. Stevens & Associates, Inc.
7 Commercial Blvd., Suite One
Novato, CA 94949

Email: Larry AT LAStevensInc.com

Thank Larry. Sent email.

If you find the case you're looking for, please post it for us.

Warren said AGO 04-809 "addresses the amendment of the Streets and Highway Code section 905 in 1955 and its repeal in 1961, which allowed public agencies to acquire rights of way in fee. Prior to that, it was presumed to be an easement interest."

Warren's statement matches a commonly held opinion, but AGO 04-809 says:
"Accordingly, neither section 905 prior to 1955 nor its predecessor, section 2631, prohibited fee ownership of public roads by counties or other government agencies."

Has anyone seen a case or a good discussion on this issue?

http://oag.ca.gov/opinions

Johnson,

My understanding of that AGO is that, absent a clear statement of a grant of fee title, the presumption is that it was a lesser estate, i.e. an easement interest.

So fee title could be, and many times was, obtained. The statutory scheme was amended to clarify new takings going forward, much like the SMA now requiring an explicit statement when dedicating to public agencies.

Warren: Thanks for your reply. Your use of the word "allowed" is what conflicted with the AGO, and conflicted with what I (and I now see what you) understand about whether or not public agencies could take R/W in fee at all in the past.