California Surveyors Forums

Has anyone dealt with a situation where a private driveway utilizes the frontage of an adjoining parcel to get to a house on a separate parcel? In this case, the driveway is completely within the public right of way, therefore there is no easement for the driveway. This has been like this for a very long time, and the adjoining parcel is vacant. See the attached sketch. Besides having an encroachment permit in the public road, does the owner of the driveway need any sort of permission from the adjacent owner to utilize this frontage? Has anyone ever seen an agreement between owners giving permission for this type of situation?

Interesting. I've seen this before, in the hills in So Cal, never dealt with any issues regarding it.

Is there an existing driveway for the vacant parcel? Or has anything ever been built there? Are you working for the vacant parcel owners or the adjoiner with the driveway? Is the owner of the vacant parcel attempting to block the owner with the Driveway?

Same as Ryan. I have seen it but not had to deal with it.

The right of way is an easement to the public for a public use. The driveway is not a public use, therefore the owners of Parcel 2 would need an easement from the owners of Parcel 1.

A private drive can't exist within a public way, therefore this matter is a nonissue.

You will need the neighbor's consent. The adjacent property owner probably owns to the centerline of the street. (See below). That is his fee ownership. I was in a very heated case over this. I would post some material but the forum rules prohibit it.

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.

This is a common condition in hilly properties. You can place a private drive in a public right of way as long as you own or have the consent of the underlying fee owner. Plot the two properties in their entirety and start there. Good luck.

Put another way, what Evan Page said. Plot the fee and treat the street area just like you would any other segment of the property. You should also make sure that you design the driveway so the vacant parcel can take access through it or off of it.

So...that instrument granting an easement across the dominant tenant contrary to their express rights is going to stand up in court? I would like to see a case on that, do you mind posting a link to one?

We have a situation where there was a 40ft wide city street. CalTrans widened the fwy and installed a cul-de-sac, leaving a portion of the old street between the new cul-de-sac and fwy. There is a depressed curb and adjacent lot. The city says they don't know who owns it and are requiring the adjacent property owner to have a title search done. City says CalTrans might own it.
I am 99% sure that even if CalTrans initiated the taking of a portion of the property on the other side of the street for the cul-de-sac they did not keep a city street that ends about 30ft above the fwy. And never included that portion of the existing street in their name.
Shouldn't a city know what it owns or if owned who they transferred title to?

Could you post a sketch of it? Perhaps a link to a tax assesors map where it is located so we can visualize it? Thanks.

Nothing is contrary to anyone's rights. That is why we use an easement. An easement is a consensual agreement. It becomes adverse when you take the frontage without the consent. It is pretty straightforward if you think about it. To get there, you have to forget that the area is in a right of way. You then start there. You have a road/drive for ingress and egress over that area. I have seen them done adversely and then deemed to be acquired by adverse possession. It is all the same.

So...that instrument granting an easement across the dominant tenant contrary to their express rights is going to stand up in court? Sure would like to see a court case like that, could you post a link to one?http://www.sbcounty.gov/dpw/operations/ ... ochure.pdf

From the sketch, the driveway appears to be in the public right of way. If the right of way were to be abandoned, then parcel 2 could claim a private easement right over the public right of way.....there IS NO PROHIBITION for parcel 2 using the public right of way to get to their parcel. Some arguments are simply irrelevant

PE_PLS wrote:.... In this case, the driveway is completely within the public right of way, therefore there is no easement for the driveway....

I recall a situation where a private easement preceded the creation of a public easement. My recollection was that the prior rights were determined as superior.
An interesting spin is considering the recent case of Rye v. Tahoe Truckee Sierra Disposal which ruled to the effect that easements are not necessarily full granted width, but rather may be limited to the area of established use. I'm very curious if this case precedent will extend against public easement holders in the same manner it was held against a private entity.

PE_PLS wrote:..... Besides having an encroachment permit in the public road, does the owner of the driveway need any sort of permission from the adjacent owner to utilize this frontage? .....

Not enough information here to venture this guess. Its not stated if the public R/W is in fee or easement, and if it is an easement, whether the private ownership underlying fee extends to the C/L or not. I wouldn't assume so, especially if lots were deed splits as opposed to map splits. If public R/W is an easement then I would explore if the private D/W has gained the appearance by prescription against the non-public underlying fee.

PE_PLS wrote: Has anyone ever seen an agreement between owners giving permission for this type of situation?

I've seen use agreements or licenses for private use over other lands. I don't believe they need to be recorded as they aren't necessarily intended to run with the land. This is something that would be better to discuss with a real estate attorney.

Here is my take on this. The Government Agency had to agree to this driveway one way or another. The driveway is within a public R/W therefor it is the responsibility of that Agency. The Agency must make sure the driveway meets the Agencies standards for a driveway within its R/W. So technically, the Agency is the responsible party on all this. So what happens when Parcel 1 wants to use the same driveway to access their property? Are they going to be allowed to use the same driveway and who is going to maintain it?

As for the property line going to the center of the roadway, it depends. How did the Agency acquired the R/W? If the R/W was dedicated from the parent parcel of Parcel 1 & 2 then maybe, if not then no. The land goes back to the adjoining land where it came from.

dewardkb wrote:So...that instrument granting an easement across the dominant tenant contrary to their express rights is going to stand up in court?

The easement would be subservient to the previously existing RW, which is an easement itself. If the city or county that owns the RW easement later has a use for the area in which the private driveway is, the driveway would yield to the public RW use.

It's not really all that complicated.

Sure would like to see a court case where such a notion was upheld. There should be plenty if what you suggest is needed. Would you mind posting a link to one of those cases? All I find is nuisance lawsuits where the dominant tenant prevails, in fact I don't have time right now to look it up but I think it is codified in California law it is so common.

Not codified that I know of. I doubt that there would be any lawsuits in which a private easement granted after a RW was in place would win as it would automatically be subservient to the RW.

But it still goes across the fee-owned portion of another parcel. Without specific rights (a granted easement) to do so, the owner of parcel 2 would have no right to do so even if it were a topographical necessity. As you pointed out, a private drive is not a valid use of a public RW - at least where that public RW crosses someone else's underlying fee parcel.

To say that a private drive is not a valid use of a public RW, period, is simply wrong. Countless private drives go from garages, side yards, back yards, and parking lots onto public roads & streets within public RWs all over the country. You probably have a driveway from your garage onto the street in front of or beside your house. A portion of that drive is within the RW and is there properly. But it most likely does not cross the frontage of an adjacent lot before getting to the street.

Perhaps it's different in TX. And if we were discussing an example from TX, I'd choose to read and learn rather than jump in and tell the TX surveyors they don't know what they're talking about.

If the RW were abandoned, how is that drive then accounted for if there is no private easement or easements to cover it's course? It would need such easements for its continued use and existence.

The use of land held in fee by another requires a valid easement right, regardless of what other easements are there and regardless of whether one of those easements is a public RW. The only thing which would preclude one landowner from granting an adjacent landowner an easement like this is if the previous easement were an exclusive easement prohibiting any other use. If that were the case, the fronting road would be a limited access way to which access rights of the fronting parcels would have been severed.

That doesn't appear to be the case here.

You find us a case where a municipality owning the RW to a non-limited access road or street prevailed in closing the driveway to a fronting parcel because the owners of the drive held an easement to cross a portion of an adjacent parcel to afford the street access.

here is a sketch as described in post #10
http://home.earthlink.net/~landbutcher/streetrud.jpeg

That is a neat one Land Butcher. It looks like to me that the public is still either the owner of the property or the dominant tenant.

Lot 1 would have no access to a dedicated roadway otherwise. I presume that the Tax Accessors map just shows a roadway where you have the shaded PIQ area, that would be a big hint to me that the City is still responsible for it.

It looks like that State condemned land adjacent the existing street right-of-way in the form of the new Cul-de-sac in order to prevent direct access from the existing street to the new highway. This way the traffic could turn around.

I presume you could track down the instrument acquiring land for the State for the Cul-de-sac area outside the existing public street. I doubt the State would have done anything else except perhaps convey that Cul-de-sac area back to the City. Further evidence that they still own the existing street right-of-way or are dominant tenants.

If the City lawyers are claiming the City does not hold title to the PIQ then I would ask them for a quit claim deed to it. If they refuse file a quiet title action against them. I can't imagine that they would be that dense to not come to their senses before that is necessary (OK perhaps that is optimistic on my part given this thread).

I have done many abandonments with the City here and it is common and occurs all of the time. I would do the reversion of the land like the proportioned frontage shrinking lake scenario in order to make it more of an equitable divide between Lot 1 and Lot 2 because of the shape of the Cul-de-sac.

The question you have to ask yourself is who cares, right? I mean if the owners of Lot 1 and Lot 2 never do anything about this then who is going to prevent them from accessing the street? The City who does not claim the land? A squatter who claims the land adversely by????? The State who can't deny access to Lot 1 and Lot 2? There are probably still utilities under the PIQ so it is doubtful the owners of Lot 1 and Lot 2 could ever become dominant tenants of the PIQ even if they were to acquire an underlying fee estate in it. Plus they would have to pay taxes on it if they were to acquire written title to it.

I don't understand why the City would hold the position that they do not own it. What does the dedication say for the Street? Is it a Subdivision Map Record? The language should be easy to track down.

Fun problem.
http://www.leginfo.ca.gov/cgi-bin/displ ... le=801-813

806. The extent of a servitude is determined by the terms of the
grant, or the nature of the enjoyment by which it was acquired.

809. The owner of any estate in a dominant tenement, or the
occupant of such tenement, may maintain an action for the enforcement
of an easement attached thereto.

USE BY UNDERLYING PROPERTY OWNERS: It is strongly recommended that no encroachments are constructed within any public easement. Any permitted work activity (e.g. grading) or encroachment that is constructed at the property owners own risk. Any work inside these easements may be subject to one or more permits including grading permits, building and safety permits, environmental permits and permission
from other property owners. Failure to comply may subject the offender to civil actions.
1.3 Obstruction of Public Road Easement
Obstruction of any road easement may constitute a nuisance as defined in the California Civil Code:
Anything which...unlawfully obstructs the free passage of use... of any Public Park, square, street, or highway, is a nuisance.
Property owners may be responsible for damages under provisions of the Civil Code. The California Penal Code also defines public nuisances in almost identical language (Section 370). The Penal Code goes on to say Every person who maintains or commits any public nuisance, the punishment for which is not otherwise prescribed, or who willfully omits to perform any legal duty relating to the removal of a public nuisance, is guilty of a misdemeanor. (Section 372) The punishment for a misdemeanor is given in section 19: Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six-months, or by fine, not exceeding one thousand dollars ($1000), or by both.

Murphy Chair Co. v. Radiator Co supra has been cited many times by the California Court.

Codified California law supports what I am saying and I can post some cases if you would like. I can find only one California case that even remotely fits your contention. This is Pasadena V. California-Michigan etc..However this ruling is about a commercial enterprise rather than a public roadway easement. I suppose you could argue that you could build a road within a public roadway easement and charge a toll to cross it if the State were doing the same but somehow I just don't see that happening.....

http://law.justia.com/cases/california/ ... 7/576.html

Evan is the answer here. It is to be remembered that the underlying freehold estate is owned real property and the roadway, 99% of the time is nothing more than an easement. The primary time it is not is with the State of California when they own or acquire by condemnation and there are some exceptions there. The street exists for the benefit of the people. If the attachments violate the forum rules I will remove them. In simplest terms, we had the city and three property owners fighting over whether an area was a dedicated street. It was unimproved. I argued that it was not a street and it had been abandoned under the applicable codes, 25 years of non-use, etc. The court agreed with us. We then argued about the retention of my clients rights through a vacated street under the highway code. The court agreed with us. I argued that a section of the unimproved right of way had been transferred to my client by the agreed boundary doctrine. The court agreed with us. The matter went up on appeal and the court agreed with us. This is one of the few if only cases I am aware of in California wherein an agreed boundary award was granted in what the city and others believed to be a dedicated street. This is one of the many, many reasons I vigorously oppose municipal requirements to map out government perceived reversionary rights. It is a landmine (no pun intended). I included a picture of the gate, the decision and the appellate ruling. The biggest problem with this area of law and land surveying is most people do not understand the rules and the application of the related laws. I hope this helps.

Mr. Pallamary forgive me for asking but could you please point out in the scenario provided where the street is in disuse or meets the criteria for abandonment? Certainly we all agree that a street can be abandoned but in this case there is no evidence given to suggest it is in any danger of needing to be abandoned.

Surely your not suggesting that small slivers along sides of a public Right of way not occupied by a physical path would be subject to a reverse condemnation suit for disuse?

No information is given regarding some impending abandonment nor is some need presented for a reverse condemnation suit allowing some new grant of right of way easements by the fee owner (or possible owner in the case of a reversion).

Would you mind explaining to me how the cases you posted have anything to do with the given scenario?