California Surveyors Forums

We are doing a lot merger in a city and the city is our client. They have one lot that they own due to a Quitclaim deed from the USA. The adjoining lot was condemned by the city in fee separately but it contains the following language, “The fee simple title to that real property is hereby condemned and taken for the following public use, namely for a right of way for a public street or highway and related facilities, and also a water pipeline.”

The condemned parcel has no Assessor parcel number and in the Assessor map it appears like a street. I’m not sure if a street was ever built on that parcel or not. The condemnation was in 1962. The QC from the USA contains no such language and the parcel has an Assessor Parcel Number. Currently the lots are not used as a street and there is a big tank that is split pretty evenly by the line between the two lots.

My concern is can they just merge the lots together without vacating the public use of the condemned lot? I don’t think so. I think there needs to be a vacation proceeding first then lot merger.

Thanks,
Ryan.

Most municipalities have adopted the Caltrans Right of Way Manual as a guild to purchase land and to dispose excess lands as needed. There are many cases where you may have a remnant parcel. The agency must follow the Right of Way Manual as described in Chapter 16 – Excess Lands. These remnant parcel must be offered to other public agencies (County, Schools, State, and other public agencies) prior to selling it to a private party. I did one a year ago and it’s quite a process, many City Council meetings.

The City Council must adopt a resolution declaring the property as excess lands and vacating the right of way first. The lot merger is usually done towards the end of the process not the beginning.

The City must have their Attorney involved because it is a very complex process. I would ask the see the City Council Resolutions. There are also legal descriptions attached to them for your reference.

Hope this helps.

There is no sale here. A City owned facility is on the site already. My concern is the public use aspect of the property. If it is fenced, can the public use it as a roadway? It is for public benefit. They just want to merge the two lots so their facility is no longer crossing a lot line, but one of the lots was condemned in in fee with that clause or sentence within the recorded condemnation final order. The other lot was acquired by quitclaim deed. The city will be holding onto the final merged parcel.

You're unaware if a road was built? Visit the site or at a minimum view it on Google Earth. Closure of a constructed road without city council action sounds illegal.

Unless a private party can show harm by not constructing a road, then the city probably isn't bound by that clause in the condemnation. After the merger, the parcel will probably be drawn as a whole on the assessor's map, and no longer be shown as a street.

If it has no assessor parcel number, then it appears that it is being considered a public right-of-way. The language in the condemnation document states that, as well. Do you have a copy of the assessor's map? There also appears that a water pipeline exists for public use. I PUE reservation may be needed. This may be subject to section 8300-8309 of the Street and Highways code.

The distribution of the land might be tricky. Looks like the City owns the land adjacent to one side of the land in question. Are there any other adjacent owners?

just thinking out loud, nothing definitive.

If I get the jest of the situation, you're concerned that the public has an easement over a parcel it acquired in fee. If that were purely the case, then one might wonder if Section 811 of the Civil Code might provide guidance. Section 811 extinguishes any servitude when the right to the servitude and the right to the servient tenement are held by the same person.

If per chance, and I'll put fairly high odds against it, the eminent domain proceedings provided for the former owner to have the right of reversion by the placement of a restrictive covenant on the acquisition, then the holder of the rights of reversion would have to quit claim those rights of reversion.

If however, one thinks along the lines that the public holds a restrictive covenant over public lands, then you're thinking outside the box. I wouldn't spend a whole lot of time out there though. The public has been using the parcel for a tank, which sounds like it is contradictory to the statement of purpose for the original condemnation. Considering such, I would discuss with the city attorney the assessment of risks regarding the historic use of the lands being for purposes other than those intended during the original condemnation. I don't believe it would be proper to expend public resources seeking a vacation of rights held by both the dominant and servient tenement. I wouldn't get too hung up on how the assessor shows things. The assessor's maps provide very limited guidance in these situations and shouldn't be relied upon for more than their intended purpose.

Anthony, There is now no constructed road. However I don't know if there was ever a constructed road on the sight. The condemnation was in 1962. There could have been a road in the past, but there is a tank on the sight now.

I think William Magee got it with Civil Code 811 and his explanation cleared it up for me.

Thanks,
Ryan.

One key question to ask: Was the condemned parcel ever accepted into the City maintained street system by action of the governing body?

If so, then I think you need action by the City Council to remove* said roadway from the City maintained system. This would be in line with JoeC's experience.

See Streets and Highways Code section 1806 and 1920



*corrected

placement and removal of r/w into and out of the city maintained system is not to be confused with vacation. Vacation gives up a public easement. placement and removal into and out of city maintained mileage is strictly regarding maintenance liabilities and responsibility.

pls7809 wrote:However I don't know if there was ever a constructed road on the sight

Google earth has historic imagery, but not everywhere. Good discussion - please update this thread as events unfold.

Good point. Forgot about that.

I can't understand what difference it makes if there was ever a concrete road, a grass road, or a goat trail on either parcel or if the city decides they want to keep a water tank or a mountain of gravel in the middle of their grass right-of-way. It's their business isn't it?

JasonCamit wrote:If it has no assessor parcel number, then it appears that it is being considered a public right-of-way. The language in the condemnation document states that, as well. Do you have a copy of the assessor's map? There also appears that a water pipeline exists for public use. I PUE reservation may be needed. This may be subject to section 8300-8309 of the Street and Highways code.

The distribution of the land might be tricky. Looks like the City owns the land adjacent to one side of the land in question. Are there any other adjacent owners?

We've had one or two instances where property our agency owns in fee is shown as ROW when it really isn't. All I do is call the assessor's office and provide them some supporting documentation and they will change their APN maps. I wouldn't even bother to do that in this case since you'll get a new APN when the lots are merged.

I don't think the adjacent landowners would have any claim to the property if it is not used as a street. I'm not familiar with 1962 eminent domain law, but if it was condemned, it was probably paid for by the city, meaning adjacent land owners have no right to that property.

I wouldn't waste time on this either. Just get an opinion from the City Attorney and move on. I would think the risk would be minimal.

The decision was made to notify the city (client) of the language in the condemnation and submit the merger paperwork and let them (City Attorney and City Engineer) decide if anything else needs to be done.

Thanks for the input from everyone.

My take: I doubt the wording in the 1962 condemnation was meant to be restrictive (thou shalt do nothing with this land but use it as a street, forever). It was probably informational (this is why it's needed now, in 1962....until such time as it's not needed, if ever). The wording (not the presence of subsequent paving, if that occurred) made it a public way, meaning if the City were to sell it they'd have to vacate the public's rights. I don't see any reason you can't merge the properties without the vacation (the public's rights would just maintain the same footprint they've had since 1962). But why merge them? The City is not obliged to follow all the rules they make us follow, are they?
I don't think Civil Code 811 applies here. The City acquired fee title to a piece of land for right of way purposes. As soon as they took title it became a public way. The fee title and the public's rights are not a servient/dominant relationship subject to 811. Rather they are subject to the Streets and Highways Code.

Another consideration is a summary vacation pursuant to S&H 8331:

8331.
The legislative body of a local agency may summarily vacate a street or highway if both of the following conditions exist:

(a) For a period of five consecutive years, the street or highway has been impassable for vehicular travel.

(b) No public money was expended for maintenance on the street or highway during such period.

Johnston wrote: I don't think Civil Code 811 applies here. The City acquired fee title to a piece of land for right of way purposes. As soon as they took title it became a public way. The fee title and the public's rights are not a servient/dominant relationship subject to 811. Rather they are subject to the Streets and Highways Code.

I'm wondering if this is really the case. Let's say the City owned some property for a fire station, and the PW Dept. wanted to widen the adjacent road and asked for an easement. I don't think you can have an easement that says the "City of so-and-so hereby offers to the City of so-and-so an easement for public street purposes..." This makes me think the dominant/servient relationship is an issue.