Does an easement automatically extend to the edge of new ROW after vacation?

[sako]

This is a 20' wide public storm easement dedicated to the County. It's written in metes and bounds form commencing from the northwesterly corner, thence 30' along the northerly line to the POB. There is a PM which shows the easement. The description doesn't refer to the PM which is recorded 1 day after recordation of dedication in 1974. The westerly line of the easement is shown as future R/W. The westerly 30' of the property is also dedicated to the County for street and road purposes and recorded at the same day as storm easement dedication. In 1997, County vacates 10' of the road adjacent to the property, now the easement, as described, stops 10' east of the edge of ROW.
My question is considering intention of grantor to connect the storm easement to the road, shouldn't the easement extent to the edge of new ROW?
Attached is shown a portion of the property with the easement.

[geoshale]

No, the easement only covers what was dedicated in the description. The County should have reserved an easement for the storm drain over the vacated area.

[Anthony Maffia]

A road right-of-way vacation automatically reserves easements for existing public utilities. Therefore an implied SDE exists, if the pipe was in place and is still in use, but the rights and extents are not well defined. A companion quitclaim deed could have extinguished it.

If I had to map it, I'd show the entire vacated area and describe it as a PUE.

[JoeC]

If the easement was written the way you said it was. The easement would not extend to the right of way. I would look at the City Council Resolution and the recorded document vacationing the street. The City may have vacated the street for public use but reserved the rights for public utility purpose. If that was the case then the storm drain would be included in that reservation. If not then the City would still have rights over and under the existing pipe to convey storm water but the area would be greatly limited.

There is a process for vacating a street and that process includes notifying utility companies and holding public hearings. The hearings include a section to determine if utilities exist in that area of vacation. If it is determined that no utilities exist then there is no need to reserve that portion of land for utilities purposes.

[sako]

A road right-of-way vacation automatically reserves easements for existing public utilities. Therefore an implied SDE exists, if the pipe was in place and is still in use, but the rights and extents are not well defined. A companion quitclaim deed could have extinguished it.

If I had to map it, I'd show the entire vacated area and describe it as a PUE.

Anthony,
There is no storm pipe in place, but I was wondering if you have anything to support your comment which I highlighted above.
Thanks

[pls7809]

Here are the state codes that talk about this...whether it's automatic is up I don't know cause I didn't read it. The code says "shall" in 8340(c), but then there's a bunch of language regarding notice to utility owners and hearings, etc.



Streets and Highways Code - SHC


DIVISION 9. CHANGE OF GRADE AND VACATION [8000. - 8363.]
( Division 9 added by Stats. 1941, Ch. 79. )

PART 3. PUBLIC STREETS, HIGHWAYS, AND SERVICE EASEMENTS VACATION LAW [8300. - 8363.]
( Part 3 repealed and added by Stats. 1980, Ch. 1050, Sec. 29. )

CHAPTER 5. Reservation and Preservation of Easements [8340. - 8349.]
( Chapter 5 added by Stats. 1980, Ch. 1050, Sec. 29. )



ARTICLE 1. Reservation of Easements [8340. - 8341.]
( Article 1 added by Stats. 1980, Ch. 1050, Sec. 29. )



8340.

In a proceeding to vacate a street or highway:


(a) A public entity may reserve and except from the vacation the easement and right at any time, or from time to time, to construct, maintain, operate, replace, remove, and renew sanitary sewers and storm drains and appurtenant structures in, upon, over, and across a street or highway proposed to be vacated and, pursuant to any existing franchise or renewals thereof, or otherwise, to construct, maintain, operate, replace, remove, renew, and enlarge lines of pipe, conduits, cables, wires, poles, and other convenient structures, equipment, and fixtures for the operation of gas pipelines, telegraphic and telephone lines, railroad lines, and for the transportation or distribution of electric energy, petroleum and its products, ammonia, and water, and for incidental purposes, including access to protect these works from all hazards in, upon, and over the street or highway proposed to be vacated.


(b) A local agency may reserve and except from vacation an easement for a future street or highway, unless the local agency finds that the street or highway is unnecessary for prospective public use.


(c) If there are in-place public utility facilities that are in use, a public entity shall, unless the legislative body determines the public convenience and necessity otherwise require, reserve, and except from the vacation any easement and right necessary to maintain, operate, replace, remove, or renew the public utility facilities.


(d) A public entity may reserve and except from the vacation, or may grant to another state or local public agency, an easement and right, at any time or from time to time, to construct, maintain, operate, replace, remove, and renew vehicular or nonvehicular trails for use by the public in, upon, over, and across a street or highway proposed to be vacated.


(Amended by Stats. 1990, Ch. 248, Sec. 1.)




8341.

(a) In a proceeding to vacate a street or highway, if the legislative body determines that the public convenience and necessity require the reservation and exception of easements and rights-of-way for works enumerated in Section 8340, such reservations and exceptions shall be recited in the resolution of vacation, in addition to any other matter required to be recited therein. The recital may describe the reservations and exceptions by reference to a precise map which is recorded or to which reference is made in the resolution and which is permanently maintained by the public entity.


(b) Subsequent proceedings of the public entity in relation to the vacation, including a deed or conveyance of title to or an interest in the property, are subject to, and governed by, the reservations and exceptions recited in the resolution of vacation and the deed or conveyance shall contain a recital to that effect.


(Added by Stats. 1980, Ch. 1050, Sec. 29.)





ARTICLE 2. Preservation of Public Easements [8345. - 8349.]
( Article 2 added by Stats. 1980, Ch. 1050, Sec. 29. )



8345.

As used in this article, “public body” means a city or special district as defined in Section 54775 of the Government Code.


(Added by Stats. 1980, Ch. 1050, Sec. 29.)




8346.

(a) A public body or public utility may request a local agency for notice of proceedings to vacate a street or highway.


(b) Every local agency shall maintain an index of requests for notice of vacation proceedings received pursuant to this section. The index shall be made available to the public upon request.


(Added by Stats. 1980, Ch. 1050, Sec. 29.)




8347.

If a public body or public utility has requested notice of the vacation proceeding under Section 8346, the local agency shall give written notice of the vacation proceeding to the public body or public utility within 10 days after:


(a) The adoption of a resolution of intention or the filing of a petition to vacate.


(b) The adoption of the resolution of vacation in cases not covered by subdivision (a).


(Added by Stats. 1980, Ch. 1050, Sec. 29.)




8348.

(a) Within 30 days after receipt of the notice of the vacation proceeding, the public body may:


(1) Determine that public convenience and necessity require a public easement to maintain, operate, replace, remove, or renew its existing works installed in the street or highway that is the subject of the vacation proceeding.


(2) File for record in the office of the recorder in the county in which the vacated street or highway is located, a verified notice of its public easement so determined over the street or highway, or part thereof, that is particularly described in the notice.


(b) Failure to record the notice of public easement within 30 days after receipt of the notice of the vacation proceeding extinguishes the right of the public body to a public easement.


(c) If the local agency fails to give the required notice of the vacation proceeding, the public body may determine and record notice of its public easement at any time within 180 days after recordation of the resolution of vacation. The failure of the public body to record its notice within the 180-day period extinguishes the right of the public body to a public easement over the vacated street or highway.


(Added by Stats. 1980, Ch. 1050, Sec. 29.)




8349.

Nothing in this article shall be construed to:


(a) Affect any reservation or the right to reserve easements pursuant to this chapter or any other provision of this code.


(b) Make the rights of the public in or to a street or highway subordinate to a public easement determined pursuant to this article.


(Added by Stats. 1980, Ch. 1050, Sec. 29.)

[LS_8750]

I venture to say that nothing is automatic, nothing is implied. The question delves into the realm of legal theory, beyond the purview of the LS. Stick to the facts.

Generally, those who appear to be using the public right of way are given notice prior to the County, or City, moving forward with proceedings to vacate. Anybody with interest in the right of way better speak up.

[sako]

The fact is that owner is helpless, since the private storm easement which used to go to the edge of RW and could connect to existing storm line has a 10' gap now. who is responsible for the problem created? and how to solve it?

[LS_8750]

The clerk of the Board will be able to research the minutes of the Board meeting that brought forth the resolution to vacate. With the meeting minutes and resolution in hand, you might be able to discover any discrepancies between intent to vacate and what was actually done.

[7702]

Sako,

Who now owns the 20' r/w strip that was vacated? Did Parcel "A" acquire it? I assume your client does not own Parcel "A" ? You first described the easement as "public" but your last post said "private". Which is it? If public, it seems like the city would want to get the matter resolved asap unless the utility easement, if public, across Parcel "A" was also vacated.

[sako]

Sako,

Who now owns the 20' r/w strip that was vacated? Did Parcel "A" acquire it? I assume your client does not own Parcel "A" ? You first described the easement as "public" but your last post said "private". Which is it? If public, it seems like the city would want to get the matter resolved asap unless the utility easement, if public, across Parcel "A" was also vacated.

Mark,
I'm sorry for the confusion, it's a private storm easement. The strip vacated is 10'. Parcel A was developed later into tract homes, so the properties adjacent to the street gain the extra 10'.

[sako]

Sako - as JoeC recommends, contact the city and get a copy of the resolution for vacation to verify whether a reservation for utility was addressed. If it was... all is good, if not.. bring this issue up to the City to see whether the resolution could be ammended to include a reservation. Being an optimist (at the moment), could have been an oversight that may easily be fixed. Good luck!

I have a copy of the resolution, it mentions that " All concerned utility companies have been contacted and have no objection to the proposed vacation". There is no reference to private easement like the one in question.

[LS_8750]

All concerned utility companies is not the same as all concerned parties (your client or his/her predecessor). Were all concerned parties contacted, notified, or given time to weigh in?

[7702]

Sako,

Thanks for your reply. Any chance you could post the tract/subdivision map showing the current configuration?

Thanks!