Driveway Fronting Another Parcel

[mpallamary]

Deward, I wil try to get to this when I can. I ended up in the hospital this week with influenza and today is the first day of movement for me. There are a myriad of intricacies associated with right of way law in California. I am not suggesting anything and the best I can say is the courts and appellate court agrees with me.

[dewardkb]

Mr. Pallamery,
I am sorry to hear about your physical condition but once again please post a court case to support your contention and please point out how this scenario has anything to do with abandonment or the necessity of abandonment of a public way in order to grant additional road easements to private individuals.

I don't follow you....at all.

[E_Page]

In the case shown by the OP, it doesn't appear that there is any abandonment. Nor is there any obstruction of the public's ability to use the roadway unless the city or county that holds the RW decides to widen the street or place other improvements consistent with the use of the RW on the side where the driveway is.

The Civil Code sections posted by Deward do not conflict with what I've said. The owner of the dominant tenement (the city or county holding the RW, i.e. the public) has the right to enforce it's ability to use the easement as intended. The owner of the underlying fee may still use the land covered by the easement (RW in this instance) as long as that use does not interfere with the enjoyment of the easement or as long as the underlying owner removes any improvements or use in that area when the easement holder makes improvements to facilitate additional use consistent with the terms of the easement.

That use by the underlying fee owner may be a permission to another to use that area, that other, use, and permission being the neighbor, his driveway, and the easement from the owner of Parcel 1 to the owner of Parcel 2 for the private driveway. That easement is subject to the superior rights of the dominant tenament, as consistent with the forementioned code sections.

There is nothing in the law that I know of that precludes another use in the same area covered by the dominant (or senior) easement as long as that subsequent use does not interfere with the use of the dominant (senior) easement. Deward, you've posted nothing except for your own opinion that is inconsistent with that.

[Warren Smith]

Consider the case of frontage roads within contiguous right of way.
Certainly there may be underlying fee ownership by the adjacent properties, but traffic management or topographic considerations are permissible by the local agency.
I see this as analagous to the sketch provided by the OP.

[mpallamary]

Deward: Evan and Warren are very wise men and they know what they are talking about. Not that it matters but I have been working on a rather definitive treatise on this topic. I have compiled and assessed 100 of the most important street dedication/reversionary cases in California. I have obtained copies of all the maps and deeds and my wife and I have driven all over California visiting these sites. (She appears in the pictures in the background as sort of a Where's Waldo thing.)

I am in the process of working with the dean of a prominent law university to get some students to work on this with me. I have been breaking the cases down so they are not as hard to read and decipher. These cases are fascinating and they have taken my wife and I everywhere. I have read them all and continue to do so. How about your state organization fly Evan, Warren and me out there and we'll put a seminar on. It will be fun and we can beat this to death.

In the end, there is only one question and it is the basic question any surveyor asks - who owns the land?

Enjoy the attached and have a safe holiday weekend.

One document is a rough draft document I prepared. It is an excerpt from my pending book. I hope the other material is informative.

[land butcher]

In my case there is no assessors parcel number for the PIQ. The city owns the street, all CalTrans did was condemn/buy property for the cul-de-sac and deeded it over to the city and I am sure it was all required by the city.
IMO this employee is just not going to leave his desk to find the docs and is putting a big burden on the landowner.
I personally would use the depression and AC a dwy and/or call the city and tell them the AC is in bad condition and someone could fall and sue the city. Deed the property to me and I'll make it nice and pretty.

[mpallamary]

This is my favorite one. Think 3-D. The BART system. This one is cool.

Have a good weekend.

[dewardkb]

Land Butcher that sounds about right.

Maybe you could go to a City Council meeting and get a chance to make a public comment. That should fix the problem.

Mr. Pallamary your court cases, definitions and writings having nothing to do with the problem as posted. This has been noted by Mr. Smith already. We will have to agree to disagree on this matter.

Once again my position regarding the scenario presented is that it is of no consequence. Granting a private drive easement in an existing active public road right of way is asking for legal trouble both for the grantor and the grantee further insisting your neighbor initiate a reverse condemnation suit on a small strip within in an active public right-of-way so they can grant you a driveway easement in the same area I find preposterous.

You have a great weekend too and remember don't "fix" something if it is not broken.

[mpallamary]

"Beware of the man who knows the answer before he understands the question."

- Unknown

[dewardkb]

I was strolling through my neighborhood and found an identical situation as the original problem. In fact as I walked through my neighborhood I saw case after case where the drive for somebody's property was over the neighbors boundary in a reversion.

I suppose I should start insisting people file reverse condemnation suits against the City and then urging them to grant private drive easements to their neighbors.

I was thinking that it would do me no good to just get a drive easement from my neighbor because once I reach the end of their property in a reversion I would have no where to go. Should I seek a drive easement from the next neighbor and then the next neighbor until I reach the subdivision entrance? Or should I keep going all the way to the highway? Or maybe to downtown?

"I'm trying to think but nutins happenin!"

Curly

[Dave Karoly, PLS]

I'm confused?

The pictured driveway in Houston is perpendicular to the street?

I don't see how that crosses in front of the neighbor unless I'm missing something.

[dewardkb]

Dave if you look at the photo, as in the original problem, if the boundary is extended to the existing paving of the street the drive crosses over that line (I admit only a very small amount but it still does just like the original problem).

While this example I have posted is only minor as in comparison to the original problem they are still identical in nature. The neighbor is crossing across my boundary (if there were a reversion) with his drive to reach his property.

The thing you have to ask yourself is in the original problem, as in the problem I have presented, if we do nothing then what happens?

I can't prevent my neighbor from using his drive to reach his house because it is in the public street right-of-way. The neighbor can't prevent me from using the portion of his drive which is in the street right-of-way for normal roadway use because it is in the street right-of-way. The City may come along at anytime and widen the physical paving of the street all the way to the edge of the existing street right-of-way destroying a large part of my neighbors drive and there is nothing either my neighbor or myself can do about that because the City is the dominant tenant. Their can never be a reversion that leaves either parcel land locked since the intent of the original right-of-way granted was for the express purpose of providing public access which is still necessary for both parcels.

Therefore......nothing happens.....ever. So why apply the remedy of a reverse condemnation suit and a grant of a private drive easement?

[Dave Karoly, PLS]

Does the driveway go with the property on the right?

If so I can see what you are talking about.

The garage roof looks like the property on the left.

[dewardkb]

Dave, the photo is oriented so I am standing in the center of the street looking along the boundary line (projected if there was a reversion) dividing the two properties. If you notice the curb for the neighbors drive on the left begins to turn towards the drive on his property off the main road about 6 inches too soon and crosses the projected boundary line onto my property (in a reversion).

Again I admit that it is small but my neighbor is crossing my boundary in front of my property (in a reversion) just like the original problem (only much, much smaller).

I have added a sketch to make it clearer so you can compare it to the original problem.

[dmi]

Why is one trying to make an issue where there is none? All the improvements are in the right of way. The owner of Parcel 2 is a member of the public and therefore granted the rights the same as any other member of the public. Generally a public dedication to a road right of way includes ingress and egress for the public.

Is the question, that the owner of Parcel 1 what to control how Parcel 2 exercises their right to use the public right of way. "Hey you can't drive on that 10' of right of way use that 10' of right of way over there!!!!"

The situation outlined by the OP is like so many other odd situations. Usually, there is a reason behind how the situation come into being. Probably, it is impractical to access Parcel 2 via a driveway that is directly in front of said parcel and perpendicular.

On the other hand if there is no good reason, why the driveway is in its current configuration, then the local may impose as a condition of issuing a building permit that the driveway be moved.

I would hazard an opinion, that if the current right of way were to be vacated that the owner of Parcel 2 could avail themselves of the vacation process and perfect their private easement rights that have been established by their use of the public easement and in its current location.

[mpallamary]

If I may, after reviewing the attached, please consider revisiting this topic. Nods to Don Wilson.

[mpallamary]

CIVIL CODE

829. The owner of land in fee has the right to the surface and to
everything permanently situated beneath or above it.

831. 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.

[dewardkb]

Mr. Pallamary, once again the question is not whether a street can be abandoned nor is it if you own land that adjoins a street if you own to the center of it or not. Nobody is debating these issues.

The question is, given the original problem, why a reverse condemnation suit and a grant of a private easement would be necessary as you insist? If we do nothing then nothing will happen so why apply such a remedy?

[mpallamary]

Deward, please indulge me. This isn't too hard. I make a living when others "do nothing." This is a problem - take my word for it. Please consider rereading the original question and examine the sketch. Doing nothing under the law lays the groundwork for conflict and introduces the adverse elements and invokes estoppel, the doctrine of laches and other issues that are better addressed sooner instead of later. There are alternates to conflict resolution. A lot of lawyers and title companies call me and others when a situation like this arises. They arise because they were allowed to fester. Sadly far too many surveyors drop pipe and leave. We are operating in a different world at different levels. I offered some thoughts in the interest of assisting and not to argue with anyone. Would your opinion change if development was proposed for the other lot and you had just surveyed it? What would you tell your client? The only way to survey property is from every direction and every side of the fence.

Happy Memorial Day weekend to all!

[dewardkb]

Once again Mr. Pallamay we will have to agree to disagree. Utilizing a public roadway easement if you are a member of the public does not create estoppel or any other legal problems since that is the purpose of the easement. Fixing a problem that does not exist is not what Land surveyors do, you will have to trust me on this I have been a Professional Land Surveyor for almost 25 years.

You have a great weekend too.

[dmi]

How would you advise your client, the owner of Parcel 2?

How would you advise your client, the owner of Parcel 1?

[mpallamary]

Dylan, have we given you enough to ponder? I am hopeful the dialogue was constructive.

[E_Page]

What's this talk of reverse condemnation? Why would one easement, unless granted as an exclusive easement, need to be vacated in order to grant another easement, subject to the rights of the first, over a portion of the same area?


Dane,

While the owner of parcel 2 is a member of the public, that does not permit that owner superior rights to use of the easement. Generally, access to lands which are adjacent to the roadway within the RW is achieved by a driveway over that same parcel. The right of access to the road does not address any use of other private lands to achieve that access. Unless there is some legitimate public use of that private drive, you or I have no right to use it except perhaps to turn around. For all practical purposes, it exists for the sole use of the owners/occupants of Parcel 2 and their guests.

If parcel 2 had been behind Parcel 1 relative to the RW rather than a parcel with roadway frontage, there would be no question that an easement granted by the owner of Parcel 1would be required to place the driveway across Parcel 1 to get to the RW (except that I'm sure Deward would find a way to disagree with me). In a case like that, the barrier for Parcel 2 to direct access to the roadway would be that Parcel 1 would be between the RW and Parcel 2.

In the OP's case, the barrier is the topography, but otherwise the effect is the same. The access for Parcel 2 is only achieved by crossing Parcel 1, and doing so to an extent that the driveway precludes the owner of Parcel 1 from using a significant portion of his land and possibly hindering the ability of gaining access to the road with a driveway entirely within his own parcel. It may be just as likely or perhaps more likely that the driveway of Parcel 2 could also be used by the owner of Parcel 1 for access, but that would not negate the need for an easement for Parcel 2. If we consider the scenario where Parcel 2 is behind Parcel 1 with an easement up the side of Parcel 1 to access the road, Parcel 1 may only need to build a fairly short driveway from their garage to the access drive of Parcel 2 rather than building a much longer drive to the public roadway. The fact that Parcel 1 may benefit significantly by using most of the same driveway as exists for Parcel 2 would not negate the requirement of an easement for Parcel 2's use of the drive across Parcel 1.

In most instances where there are minor encroachments of a drive on a neighboring parcel yet within the RW, no easement is sought because the encroachment does not hinder either the public's enjoyment of the RW easement, nor does it impact the underlying fee owner's ability to also gain access to the roadway or preclude that owner from the reasonable and available use of the portion of the parcel covered by RW.

Our TX contingent may ask "What legetimate use? there is no legitimate private use of a public RW." Well, drive down many country roads and you will see properties where the yard is maintianed to the edge of the roadway shoulder. The shoulder is seldom at RW. It is often a few feet, and sometimes up to several dozen feet inside the edge of RW. Yet the private landowner may maintain that area as yard and use it as such. Likewise, in towns where the back of walk may not be at the RW line, adjacent lots have yards maintained and used to it anyway. Or perhaps, as is more common, the back of walk is at the RW but there is a grass strip several feet wide between the front of walk and the back of curb, the adjacent lot owners maintain that strip as if part of their yard.

In each of these cases, the landowners maintain part of the RW as if part of their yard because since the RW is an easement and not a fee parcel owned by the municipality, that area not used for public roadway use is part of their yard.

But then again, maybe someone will come up with the argument that these landowners need to pursue reverse condemnation in order to maintain those yards within the RW too.

The minor encroachments of the corners of driveways of neighboring parcels that are often seen don't significantly hinder that use, so no one is concerned enough about it to either eject the use or seek an easement to protect the use.

[PE_PLS]

To all the opined on this one. I have been given enough food for thought, though continue discussing if you'd like.

FYI - the lots/parcels/road in question were created by map in the early 1900's and appear to hold fee title to the center of the road.

[E_Page]

How would you advise your client, the owner of Parcel 2?

"Your driveway crosses the entire width of your neighbor's parcel before getting to the road. It may never become an issue depending upon how your neighbor decides to place their access when and if they ever build on their parcel. But if it does become an issue because either because the access they intend to build is incompatible with your driveway, or just because they aren't too keen on your driveway completely crossing their road frontage, it could get very expensive for you to keep your driveway in place. I recommend that you look into obtaining an easement for your driveway from the owner of Parcel 1 now, before it becomes an issue for any reason so that you are covered should the current or future owners make an issue of it."

"Also understand that since your driveway is almost entirely within the public right of way, that if the County ever decides to widen or realign the road in a way that the improvements would interfere with your driveway, it will be your responsibility to alter your driveway and work with the County in doing so, to be compatible with those improvements. Because of the pre-existing RW and the rights associated with it, the easement you obtain from your neighbor would also be subject to the RW and its existing and potential future uses. What the easement does for you is protect you from the possibility that a future owner of Parcel 1 could force you to remove part or all of your driveway as it now exists."

"We can provide you with the description to be used for the driveway easement for $XXX and have it to you 48 hours after you request it. If I can be of service in explaining my findings in your discussions with your neighbor, I will be happy to do so. I suggest that you consult with an attorney who is well versed in land rights and who commonly works with developers in negotiating their various agreements to draft the easement agreement and to conduct negotiations should they be necessary. I'd be happy to consult with your attorney or any other consultants you may find it helpful to engage for this at my standard hourly rate."

How would you advise your client, the owner of Parcel 1?

"Your neighbor's driveway crosses the entire width of your parcel along the road frontage. As long as you don't foresee making any use of that portion of your property and expect that you would make use of that drive to access your property, it may never bee an issue. But if you do decide to build on your parcel, that existing driveway may limit how you could design your access and in turn, possibly where you could place other improvements."

"It may also affect the marketability of your parcel should you ever decide to sell it, or possibly effect the price you could get for it. How it would affect it may depend upon how a title officer would view that drive. Since it's entirely within the road right of way, they may decide that it's not something that otherwise would hinder the use of the developable portion of your parcel and insure it as is. More likely they will view it as an improvement appurtenant to another parcel which is not covered by a recorded easement, which would affect either the cost of title insurance or possibly your ability to get title insurance until that matter is rectified. You should ask your title insurer, or perhaps several different insurers how this might affect a policy for this parcel."

"Assuming that you can get title insurance with the existing driveway as it is, it may affect the price you can get for it. Without an easement, a saavy buyer may look ahead to the potential costs that would be associated with legal action that might be necessary to either have the neighbor remove the drive or get them to obtain an easement to keep it in place. Someone looking at the parcel from a development perspective may think in terms of the utility of the existing driveway or any limitations it may present with respect to any plans they may come up with for developing the parcel. To get a good idea of how the driveway may affect the price you could expect to get, consult with a real estate professional who specializes in selling raw land and working with developers."

"Since the driveway is entirely within the right of way, even though the area is part of your parcel, you are pretty limited as to what you can do with that land anyway. If the driveway improves your ability to access your property, or at least does not hinder reasonable access, seeking to have your neighbor remove the driveway from your parcel will likely be very costly, may not be successful if it is the only reasonable access for Parcel 2 or if it has existed for many years, and may be counterproductive to the goal of enhancing your parcel's value."

"I advise talking to your neighbor about the situation and offering an easement to the owner of Parcel 2 to cover the driveway. With the easement agreement, you could limit what use or improvements can be made, and you could reserve the right to use the driveay for access to your own parcel and specify the improvement and other use rights you reserve for yourself and successors. I suggest that you get the advice of an attorney who regularly works with developers and is well versed in land rights to ensure that you reserve all the rights you can or should while still allowing for the continued and reasonable use of the driveway for Parcel 2."

"As you check with these other professionals as to the effect on insurance, development potential and value, if you find that it would be helpful for getting those answers, we can provide a topographic survey of your parcel for $XXXX and have it to you 2 weeks after you give us a notice to proceed. we can also prepare the description for the driveway easement when you need it for $XXX and have that to you 48 hours after you request it. I'd be happy to take the time to explain my findings to your neighbor when you have the discussion with them. I'd also be happy to work with any other consultants you find it helpful to engage in this matter at my standard hourly rate."