City asserts that all boundaries are at the street centerline

[joeromey]

Hello,
I recently purchased a corner lot in a 1950 subdivision in a City to remain nameless for now. The legal description is, Lot number 18 as shown on the subdivision map. There is a ten foot wide utility reserve on the east side and the public street parcel bordering the lot on the north and west. There is a subdivision monument at a five foot offset from the north side boundary at the end of the radius of the street curve.
The issue is a street tree that has damaged my driveway slab. The tree is NOT on my property. Is is on the public street parcel. When I contacted the City I was informed by the Public Works Department employees that I owned to the centerline of the public street parcel and that the City had no responsibility. The City Engineer and City Attorney assert that all boundaries in the City are at the center of the public streets. I have filed a claim and a suit against the City for damages. The City cites precedent cases where the property was abandoned as their basis that the City has, "just an easement" for the public street parcel. The City has had uncontested, continuous, absolute and total control of the public street parcel since it was accepted from the developer in 1950. The resolution is generally worded and does not specifically say, accepted in fee. Anyone attempting to access the public street parcel to perform any type of work is required by the City to beg permission from the City to do so in the form of encroachment permits, tree permits or other permits issued by the City to control access to the public street parcel.
As a land surveyor I have a few issues with this situation.
1. None of the City employees making the assertion that the boundaries for the entire City are in the center of the public street parcel are authorized to determine a boundary location by the State of California.
2. If I were to stake the boundary I would follow the legal description and the lot as shown on the subdivision map. I would NOT simply assume the boundary to the center of the public street without documentation that the public street had been legally abandoned by the City, triggering reversion.
3. My attorney, a well recommended real estate attorney, is in over his head. I have had to explain some basic principles of land surveying to him and at this point we both are in agreement that an attorney with specialized knowledge in the area of easements, reserves, right of ways and public street parcels needs to be consulted.
If anyone can provide assistance or a recommendation for such an attorney I would be most grateful.
Thank you.
Joe Romey

[LA Stevens]

If they did not offer the Right of Way in fee, it is my understanding that it is an easement and you do own the underlying fee.

Who planted the tree?

[mpallamary]

Demand they produce the surveyor in "responsible charge."

By and large, you are dealing with incompetent people.

[Steve Martin]

Vince Sincek out of San Diego comes to mind. I have not personally worked with him on a case, however he was a Surveyor and Engineer before becoming an attorney and I know him to be a knowledgeable Surveyor. His practice appears to focus on easements and common interest developments.

[joeromey]

The City asserts that a pre 82 engineer "supports their position".
I need help.

[mpallamary]

PM me for an attorney referral. Vince is good but he mostly does HOA work.

[David Kendall]

If they did not offer the Right of Way in fee, it is my understanding that it is an easement and you do own the underlying fee.

Who planted the tree?

What was their response when you politely offered to remove the all of the trees from the street frontage?

[joeromey]

The tree is not on my property. If I own to the centerline of the street, on a corner lot, I have just doubled my square footage. Setbacks are referenced from the boundary. I can now build out to the edge of "just an easement". The City requires that I obtain a permit to remove the tree. Or do anything else on my newly acquired property. I am also concerned with the tax ramifications of the new boundary location doubling the size of my property. I am currently taxed on my record boundary location.

[David Kendall]

I am also concerned with the tax ramifications of the new boundary location doubling the size of my property. I am currently taxed on my record boundary location.

I believe you are most likely taxed on the market value of your lot unless you inherited it or got a screaming deal. It is a common misconception that parcel area is directly correlated to tax value. That is a rare occurrence though it happens. Second time this month I have heard this from a surveyor on this forum....

Let's stick to the topic, I understand that you are upset but the ownership of the tree is the real issue. I'd say if they are willing to let you cut it down (with a permit of course) along with any other tree in the ROW then you have a long way to go to prove they are liable for your driveway damage.

Have you ever seen the city trim the tree?

Good point on the building setback but it is from the edge of ROW in most cases, not the parcel boundary. Same with creeks

[Scott]

I don’t think your city is asking for anything that unusual.

Fee or easement, I believe the streets and highways code makes the adjacent owner responsible for all improvements, but am not sure of the citation.

I know of two of the cities in my area that make the adjacent owner responsible for any city tree damage to any city street improvements. One case was a corner curb ramp and the owner had to pay for a whole new ramp!

If somebody complains about a crack, the city issues a notice to fix it to the adjacent owner. A permit has to be pulled to do the work, but the cities will waive the permit fees.

That taught me to not ever complain about cracks in the walk adjacent to my lot.

My sister wanted sidewalk installed in front of her house and the city wanted her to pay for it all.

One of the Cities also makes the parcel owner responsible for city tree root problems with the sewer lateral, all the way out to the mainline in the street.

As part of the permit process, I know one of the Cities also requires the adjacent owner to be responsible for monument preservation during the construction.
That City recently asked me if I could do the monument preservation for these projects.

[John Williams, PLS]

City Street Trees are a difficult subject and many Cities have their own local codes- If my detective work on your property is correct, it does seem that the 'nameless" city in question has addressed the issue and has an ordinance in effect 10.01.013.
There are a bunch of papers on the subject, I believe I have one from Pallamary as well, or at least "What is a Street" year 2009.

Check out Streets and Highways code section 5610-5618.
and civil code 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".

5610. The owners of lots or portions of lots fronting on any portion of a public street or place when that street or place is
improved or if and when the area between the property line of the adjacent property and the street line is maintained as a park or
parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a
condition which will not interfere with the public convenience in the use of those works or areas save and except as to those conditions
created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of
any permit or right granted to him by law or by the city authorities in charge thereof, and such persons shall be under a like duty in
relation thereto.

5611. When any portion of the sidewalk is out of repair or pending reconstruction and in condition to endanger persons or property or in
condition to interfere with the public convenience in the use of such sidewalk, the superintendent of streets shall notify the owner
or person in possession of the property fronting on that portion of such sidewalk so out of repair, to repair the sidewalk.

I've been on both sides of the argument, and have seen various cities handle it differently. My neighbor across the street wanted the city to cut down a dead 120' pine tree, they balked. After I performed a neighborly survey, the City cut down the tree. This was my benefit as the prevailing wind would send it right at my house. Another circumstance I'm aware of was a different City thought to vacate all excess right-of-way past the edge of pavement in a neighborhood with known tree issues to limit their liability. As David Kendall said, has the city maintained the tree in the past, that may set precedent.

JW

[joeromey]

I'd say if they are willing to let you cut it down (with a permit of course) along with any other tree in the ROW then you have a long way to go to prove they are liable for your driveway damage.

Have you ever seen the city trim the tree?

The fact that the City requires that I beg permission from them to do anything on the public street parcel via permits, including removing the tree, proves that I do not own it.
California Civil Code 3526; "No man is responsible for that which no man can control."
I have no control over the public street parcel. The Public Agency, the City, has and has had absolute, uncontested, continuous control of the public street parcel since it accepted the subdivision.

No, I have not seen a City crew trim the tree. Keep in mind that I do not live there. I am attempting to repair the place and get it livable. In my spare time.

My concern is the two different locations of the boundary. As a surveyor I would set the property corners at the locations I can prove with documentation. In this case, the lot as shown on the subdivision map. I have seen no recorded corner records or record of surveys where a boundary was assumed to be in the center of the street. How would I explain to a client that, "Your boundary is staked per your title report, deed, legal description, and subdivision map documentation but, oh yeah, your boundary may also be over there in the center of the street"? Would you, if you were a client, be inclined to pay the bill for that?
Again, the City simply decrees that all boundaries are in the center of the street. This assertion is made by city employees who are not authorized by the State of California to determine a boundary location. The fact that this is happening to me simply points out that this issue needs to be resolved to one boundary location that can be documented and not just assumed. The laws are supposed to be enacted to protect the public. How does two simultaneously possible boundary locations serve to protect the public?

[joeromey]

I don’t think your city is asking for anything that unusual.

Fee or easement, I believe the streets and highways code makes the adjacent owner responsible for all improvements, but am not sure of the citation.

California Civil Code Section 833.
"Trees whose trunks stand wholly upon the land of one owner belong exclusively to him, although their roots grow into the land of another."
http://leginfo.legislature.ca.gov/faces ... ionNum=833.

Again, the issue for me is the two simultaneously existing boundary locations. The public improvements (curbs, gutter, sidewalks, pavement etc.) are not at issue.

[joeromey]

City Street Trees are a difficult subject and many Cities have their own local codes- If my detective work on your property is correct, it does seem that the 'nameless" city in question has addressed the issue and has an ordinance in effect 10.01.013.

It would appear that your detective work is off a little. Although I am impressed that you gave it a shot. The "nameless" City's Title 10 sidewalk ordinances start at 10.02.
What City did you deduce?

[John Williams, PLS]

I didn't get too deep into it-- just a bit of lunch break internet browsing. The ordinance I found was a "draft" update of existing codes, again I didn't go too much into it. Sometimes I also figure the fight may cost more financially and emotionally than just to get 'er done and fix your driveway. If the address is correct, internet street view maps indicates the driveway has been cracked and lifting since before you purchased in Jan 2018.
RM BK 11 PG 32 LT 18 SPRINGS MANOR?

[joeromey]

I didn't get too deep into it-- just a bit of lunch break internet browsing. The ordinance I found was a "draft" update of existing codes, again I didn't go too much into it. Sometimes I also figure the fight may cost more financially and emotionally than just to get 'er done and fix your driveway. If the address is correct, internet street view maps indicates the driveway has been cracked and lifting since before you purchased in Jan 2018.
RM BK 11 PG 32 LT 18 SPRINGS MANOR?

You are on target. The ordinance attempting to delegate responsibility of maintaining the sidewalk to the adjacent property owners may never have been adopted due to relatively recent court rulings that ADA compliance is non-delegable.

It IS going to cost more for me to defend myself and my property than if I just repaired the damage. That is exactly why the City has adopted the tactic of taking the laws that were enacted to protect the public and weaponizing them to bully, intimidate, traumatize and terrorize the very public those laws were intended to protect. And again, the City is simply decreeing that all boundaries are to the center of the street. All of the record information is that the boundary of Lot 18 is as shown on the Springs Manor subdivision map (correct map by the way, cudos). As a California licensed land surveyor I have a duty and an obligation to protect the public. There cannot be two simultaneous locations of a boundary no matter how advantageous it is to the public agency to attempt to maintain that fiction.

Are you attempting to imply that the age of the damage may somehow absolve the owner of the tree from responsibility for the ongoing damage being caused by the tree?

[E_Page]

Unfortunately, I think your in a fight that you can't win.

Code of Civil Procedure §2077 (4)
When a road, or stream of water not navigable, is the boundary, the rights of the grantor to the middle of the road or the thread of the stream are included in the conveyance, except where the road or thread of the stream is held under another title.

I'm sure there's a parallel code in the Civil code and/or Streets & Highways code, but can't recall it off the top of my head. I'll look when I have time and post later when or if I find it.

Parcels with road frontage, whether a lot in a subdivision or a stand-alone parcel are considered to have title to the middle, or centerline of the road. Subdivision maps rarely show that plainly, largely for purposes of drawing readability. Instead, there is a reliance on established and well-settled law for the implicit fee title to the centerline of adjacent streets, roads & alleys. However, there are exceptions that are relatively rare.

If there is some statement in or with the Owner's Certificate(s) that explicitly state that the street rights of way were dedicated in fee, then the underlying fee would not be attached to the lot as depicted on the body of the map. Likewise, if there is a statement that all streets and alleys are to be owned in common among all lot owners or an HOA, then it's a private street and whether your responsibility or the HOA's, depends on what's included in the CC&Rs. But as I said, those exceptions are rare and the street right-of-way is most likely a public easement.

There's an inherent unfairness about public right-of-way easements in that even though you technically own the fee title underlying the area covered by the right-of-way, you can do virtually nothing with it other than mow the grass without permission of the easement holder (the agency directed to manage RWs for the public). That is to ensure that private landowners don't make use of the land in a manner which will impede the public's ability to use the RW easement as intended.

It seems reasonable that any and all fixed public works (street, curb, sidewalk, utilities, etc.) and natural features which were placed or preserved by the city within the RW (like trees), should be the responsibility of the city to maintain and mitigate damage caused by those features. But here comes the kick in the groin...

There was a case in Sacramento (I'll find and post it later when I have a little more time) where the city's sidewalks on a private lot but within the RW were badly broken, constituting a safety hazard for pedestrians. The city required the lot owner to repair the sidewalk even though the damage was not caused in any way by the lot owner. The lot owner, like you, took the reasonable stand that it's the city's sidewalk in the city's RW and so was the city's responsibility to do the repairs. It went to court and the lot owner lost in a published appellate decision.

And of course, this being California, to add insult to injury, the city will undoubtedly make you pay for the privilege of removing the tree and repairing the damage to your property. They may even require you to plant a new tree that will cause additional damage in a few decades so that one of your successors in interest will have the joy of experiencing the same frustrations you're experiencing now.