Section 83 Streets and Highways

[Brad L]

I am hoping for some feedback of other professional's interpretation of Streets and Highways Code Section 83.

Any public street or highway or portion thereof which is within the boundaries of a state highway, including a traversable highway adopted or designated as a state highway, shall constitute a part of the right of way of such state highway without compensation being paid therefor, and the department shall have jurisdiction thereover and responsibility for the maintenance thereof (the emphasis is mine).

The two words I am interested in getting opinions on are "within" and "right-of-way".

I interpret "within" as being completely surrounding by or inside. And "right-of-way" is only an easement.

The issue stems from Caltrans condemning to pieces of land on each side of a County road easement. This creates two prongs of Caltrans land bisected by the County road easement, for approximately 360', that runs to a point where the County road easement and other land was granted to the State for a highway by the property owner.

The County road easement had numerous exceptions and covenants that benefited the property owner (sucessor to original grantor).

The State now claims they acquired the road right-of-way by Section 83 of Streets and Highways code. I dispute this as the road was not within the boundaries of a state highway.

I do not understand why they would have condemned the property around the road, but excluded the road. This seems like a very underhanded way of "constituting" a right-of-way, if that was their intent.

The State claims Section 83 statements do not have to be recorded, and can be on record maps, maintenance agreements and as-builts. This seems like a dangerous way for the State to make a claim about the title rights and furthermore potentially divest an land owner of their rights.

[E_Page]

I'd have to take a look to put it in context, but the wording of §83 that you provided looks to me like a jurisdictional statement for prescriptive rights of way. If that's the case, the area within the travelled way is, by this code section, deemed to be public right of way whether it was ever officially dedicated or not.

The purpose would be primarily to validate RWs for roads originally built before there was an official road system in the area or before the local government was formed, or at least before there was a governmental mechanism for acquiring land for road RWs.

Being a RW, it is in the nature of an easement and the underlying fee would be with the title of whatever land the road crosses. If the land crossed has since been divided into smaller parcels fronting on the road, fee title is presumed to go to the centerline for each of those parcels unless a different intent was expressly stated in the original conveyance of the portions of the original parcel.

What you described with the Caltrans condemnations would leave a strip of fee title vested with the parcel formerly fronting the road at that location but physically cut off from any other remainder on the non-road side of those condemned portions. If Caltrans condemned parcels in whole except for the portions under the road, then technically, the assumed former owners of the parcels would still hold the fee title, albeit useless, under the physical limits of the roadway.

However, if the condemnations included all parts of the road front parcels other than the portions under the road, it might be successfully argued that the intent was to condemn the full parcel. If so, the land area under the road should have been included in the valuation calculations.

The State would be correct that there would not be the requirement that an easement or RW conveyance be recorded for the RW to be valid. That is the nature of prescriptive rights, be it a private prescriptive easement, a claim of AP, or a prescriptive public RW. However, I'm quite certain that the legislature wouldn't have intended a code section like that to be used to circumvent proper conveyance methods once the process for acquiring RWs for new roads was in place.

I suspect it is more a matter of ignorance of the law and its purpose than an underhanded way of cheating a landowner out of the value of some of the land taken. But, there are bureaucrats around who seem to feel that part of their job is to screw over an individual landowner under the guise of serving "the public." But that's a rant for another time.

[Warren Smith]

Section 83 of S&H is part of the Article dealing with the State Transportation Commission. It envisions the Resolution adopted by CTC being recorded in the County within the District which brought the condemnation proceedings.
Evan is right, valuation should have incorporated the previously acquired rights. The State acquires right of way in fee and, in this case, should have compensated the 'upgrade' in interest to the adjacent landowners who are now alienated from any practical use of the strip.
This should have have been addressed during the condemnation procedure - that is a due process issue.

[Brad L]

For some more background, Caltrans' condemnation descriptions call to the right-of-way line. So the description is clear that the right-of-way was not included in the condemnation.

Caltrans frontage along the existing right of way is about 25 feet wide and is appears to be used to limit access for on-ramp/off-ramp locations. The original fee owner still owns the land surrounding Caltrans "tuning fork". I cannot get an image to attach, but it is like a tuning fork except the top prong would be 2/3 shorter (on-ramp) and the bottom would be 1/4 shorter (off-ramp).

The issue stems from a construction project and its cost. The rights for the original road easement were very specific in allowing ways to traverse the road and the owner want to traverse the road.

The more Caltrans right-of-way the project is in, the more the fees are. If Caltrans is successful in claiming a prescriptive right-of-way, the project goes from potentially under a million in fees to tens of millions.

I do agree that Caltrans should have acquired this land during condemnation. It does seem off how they can claim Section 83, not provide any documentation of notification of their intent, but say it is their right-of-way and under their jurisdiction now. It seems like a taking without compensation.

Oh and the County wants to vacate all of their rights to the fee owner for this road easement because they cannot support maintenance issues.

I'm sure this will get solved with money, but it will be interesting to see how it shakes out

[Warren Smith]

It sounds as if this may be a restricted access freeway. If so, compensation for those rights of access would be part of valuation.

The County's stance is tied to the removal of this stretch of County Road from its maintained mileage, which is part of the road tax revenue stream. That would be inconsistent with its declaration as a State Highway as part of Section 83 and its associated requirements.