Abandoned Right-of-ways

[goodgps]

Ok . . .

I have an old 10 acre lot circa 1905.

in 1912, a railroad company buys (fee title), the West 100 feet of the East 150 feet. The very east 50 feet was reserved for a future road to ultimately be 100 feet wide itself.

In 1974, The Railroad stops use of its land and deeds the 100-foot wide parcel to the owner (successor) of the 10 acre Lot as a separate Parcel. The Parcels are NOT merged.
The Owner Builds a house on the 100-foot parcel and sells it.

In 1979, The County abandons the west 50 feet of the 100 foot road, and files an "abandonment to all adjacent owners". (they retain the easterly adjacent 50 feet for public use)

Title reports on the 100-foot parcel and the remainder of the old 10 acre Lot, List the road abandonment as appurtenant to each Parcel.

The Owner of the Old 10 acre Lot wants to build a house, however, the Public agency questions whether or not they have access to the road which is now 150 feet EAST of their East Property Line.

The Question is . . Who has rights to the Abandon portion of the road ?

a) the land successors of the Original Lot from 1905 ? . . .or
b) the Railroad Parcel, having been duly purchased in 1912 ?

[Ian Wilson]

The answer lies in how the 100 foot wide strip was described in the conveyance to the original purchaser.

If the strip was described as the westerly 100' of the easterly 150', then, that's what they got. No more.

If the strip was described as the easterly 150', excepting the easterly 50' for road purposes, I would argue that the road reservtion was taken out of their parcel, not the original owners.

Remember that the description giveth and the exceptions taketh away.

May I have a "Good for wood!", my brethren (and sisteren)?

Others may disagree, of course...

.

[goodgps]

Ian,

"good" perspective. I wil contact Topeka to get the legal, however, I believe the Railroad description is one of a "metes and bounds" covering the entire subdivision. In that case, it may possibly be the same as (100 feet) only. . . with the underlying LOT as having given the 50 foot road.

Now the issue is getting across the 100 foot strip to the rest of the Lot . . .

This is exactly why Land owners should consult with a Land Surveyor Prior to selling off parcels. This issue could have been brought forth PRIOR to sale, and a proper access easement would have been created. UGH !!! and yet folks see us as only an unnecessary evil sometimes.

Thanks !!!

[Brad Luken]

I did a quick search on Google Scholar and found the case of Reese vs. Borghi, which appears to be relavant to this matter.

"[9] The California rule is settled that a right-of-way of necessity arises by operation of law when it is established that (1) there is a strict necessity for the right-of-way as when the claimants' property is landlocked (Corea v. Higuera (1908) 153 Cal. 451 [95 P. 882, 17 L.R.A. N.S. 1018]; Marin County Hospital Dist. v. Cicurel, supra, 154 Cal.App.2d 294) and (2) the dominant and servient tenements were under the same ownership at the time of the conveyance giving rise to the necessity. (Taylor v. Warnaky, supra, 55 Cal. 350; Barnard v. Lloyd (1890) 85 Cal. 131 [24 P. 658]; Bully Hill Copper Mining & Smelting Co. v. Bruson (1906) 4 Cal.App. 180 [87 P. 237]; see generally 17 Cal.Jur.2d, Easements, 16, p. 112.) [fn. 6]"