Offers of Dedication

[kwilson]

We have surveyed Lot 86 in a 1930 subdivision adjacent to an alley. The alley was mentioned in the Owners Statement in this way: "those portions of said map designated as 'ALBERTS STEET', "CLEMENT AVENUE', "ENES AVENUE' and 'ALLEY' are hereby dedicated to the public."

Recently the County Assessor sent the following email to the owner: "Two days after this map recorded (the 1930 subdivision) the County Clerk and the Board of Supervisors signed and passed a resolution not accepting the Alley for public use. Hence the map (Assessor Map) was updated to show that the "alley" is part of the individual parcel lots.

So the heavy ownership line on the current assessor map includes 1/2 of the alley for all the adjacent lots.
The deed by which the property owner acquired title only mentions Lot 86 and does not mention the alley. The heavy line on the original subdivision map ends at the edge of the alley.

Did the ownership of the alley revert to the adjacent lots?

[Warren Smith]

Sure - the underlying fee ownership was to the centerline of the reputed alley, as all lots were created simultaneously. Once the right of the public to access the alley as shown on the map was removed, that encumbrance was lifted from the original lots.

[hellsangle]

I would be curious to see what their title policy says . . .

Warren's reasoning is spot on. Would the underwriters agree? In any case they've been paying taxes on the parcel.

[kwilson]

The title policy makes no mention of the alley. It uses the same original legal description (Lot 86). That's why I hesitated to include it as fee ownership. The issue is that it is still being used as an alley by the locals and our client wants to fence it off and use our survey to prove they own the 1/2 strip. So i need strong proof that they do own it.

[David Kendall]

Send the resolution and the assessors map to the County Counsel and ask them to provide a written opinion regarding the current ownership of the alley. If it is what you want to hear then send that opinion to the title company and ask them to reform the legal description.

This is not a survey matter, I would encourage the client to figure this out herself

[Edward M Reading]

It sounds like the public's rights may not have been accepted, but what about private access rights and prescriptive rights?

[steffan]

Please consider the following excerpts from the SMA:

66477.2.
(a) If at the time the final map is approved, any streets, paths, alleys, public utility easements, rights-of-way for local transit facilities such as bus turnouts, benches, shelters, landing pads, and similar items, which directly benefit the residents of a subdivision, or storm drainage easements are rejected, subject to Section 771.010 of the Code of Civil Procedure, the offer of dedication shall remain open and the legislative body may by resolution at any later date, and without further action by the subdivider, rescind its action and accept and open the streets, paths, alleys, rights-of-way for local transit facilities such as bus turnouts, benches, shelters, landing pads, and similar items, which directly benefit the residents of a subdivision, or storm drainage easements for public use, which acceptance shall be recorded in the office of the county recorder.

(c) Offers of dedication which are covered by subdivision (a) may be terminated and abandoned in the same manner as prescribed for the summary vacation of streets by Part 3 (commencing with Section 8300) of Division 9 of the Streets and Highways Code.

Considering the above statutory provisions, it would seem the encumbrance remains until such a time as the adjoiner pursues vacation. Regardless of the initial rejection by the local agency.

[Derek_9672]

I agree with Mr. Kendall, but I would be interested to know the outcome if you get an answer. It is an interesting topic.

Seems the assessor's office got proactive interpreting that BOS resolution in their favor.

[steffan]

I’d be more inclined to say the assessor confused rejection with vacation. They are not one and the same. It still remains as dedicated right of way until vacated. The statute is clear and unambiguous and does not need an attorney’s opinion for guidance IMHO.

[Peter Ehlert]

I’d be more inclined to say the assessor confused rejection with vacation. They are not one and the same. It still remains as dedicated right of way until vacated. The statute is clear and unambiguous and does not need an attorney’s opinion for guidance.

+1

[Ian Wilson]

What does the County Clerks Statement bring to the party?

It is imperative to read both the Owner's Statement for the wording of the offer and the Clerk's Statement for the treatment of the offer.

Keep in mind that most agencies "back in the day" flat out got it wrong. However, the actions can be cleaned up fairly easily but will require a title company to insure the solution, parties who agree, and, in some cases, a judge to sign the order.

[Mike Mueller]

I just want to mention that is an amazingly awesome owners statement for 1930. They promise to build good roads, ensures water and drainage!
Would be interesting to see if that alley had 5 inches of gravel at the base?

Also kind of weird that the person with a garage off the alley would want to stop the alley from being used for access... No guessing what people will do I guess.

Mikey Mueller, PLS 9076
Sonoma County

[LA Stevens]

All of the lot owners have a right to use the alley or street to access their properties. Typically those easements are private easements for the lot owners in the subdivision.

When a County abandons a street, it does not extinguish private property rights. Typically, the attorney will do a quiet title action to extinguish the private parties rights in the right of way against all of the owners in the subdivision and others who are unknown.

[CBarrett]

Merely offering something for dedication, without it's acceptance does not turn it into the public right of way, and there would be no need for a subsequent vacation. Acceptance of such dedication creates the ROW.
Having an open offer of dedication floating out there without acceptance only puts people on notice that the land may become public ROW at some point in the future. This is how it is handled today.

Underwriters will usually decline to insure against property value loss in case that offer is ever exercised, just to cover themselves, and will not make a stand on whether not accepting the offer (in 1930's) also meant that it was rescinded.

So, the public ROW across the alley never came to exist, if it was never accepted. To clear the title completely, the owners need to figure ou how to rescind the offer. I have not dealt in the past with how to do this. Only up to this point...
If I remember right, the situation I had about a year ago was a part of the new subdivision, and the agency and owners determined that any prior agreements, offers, easements, almost easements etc..., not shown on a current subdivision map are now considered null and void, upon the recordation of the new map.

If this is about reversionary rights in the tract, they appear to have been applied correctly on the assessor's map.

[kwilson]

Steffan

One question about the Current SMA statement. Since the subdivision was created in the 1930's can we assume that the current SMA applies to a situation that was created in 1930? My understanding would be that the current SMA would apply as it is the current law in place and would apply to all previous offers.

CBarrett - what proof do you have of the statement that an offer of dedication does not become public until accepted? When rejected, the authority is stating that they want no part of the offer especially the responsibilty to maintain. I have never seen something in writing such as a case that definitely states that a rejected offer is extinguished. Do you know of such? From SMA (provided by Steffan), the offer stays in place until formally vacated by the authority. Therefore, whatever rights the public has in the offer (a potential future interest) remains.

LA Stevens - I can understand how the other lot owners may very well have developed prescriptive rights to the ally by use but how can it be said that there is a private easement across the alley that benefits only private owners of the subdivison. That is not expressly stated on the map.

[CBarrett]

CBarrett - what proof do you have of the statement that an offer of dedication does not become public until accepted? When rejected, the authority is stating that they want no part of the offer especially the responsibilty to maintain. I have never seen something in writing such as a case that definitely states that a rejected offer is extinguished.
Do you know of such? From SMA (provided by Steffan), the offer stays in place until formally vacated by the authority. Therefore, whatever rights the public has in the offer (a potential future interest) remains.

It's the basics of title transfer, a conveyance has to be accepted in order to be valid. I need to dig out the legal specifics if you need the exact code references. Lot of it can be googled.
It's the same mechanism as grant deeds, they have to be accepted for title to pass.
Same speaks of offers of dedication. Offers are by nature irrevocable, but that means it's just an offer, the easement has not been created because the title, the rights from that bundle of rights have not transferred.

This might be a good starting document for research, it has references to all the codes telling you where it all came from:
https://www.boe.ca.gov/proptaxes/pdf/Ow ... ording.pdf

I was recently dealing with snippets from this as well: https://engpermitmanual.lacity.org/site ... fornia.pdf

Unfortunately I don't have sufficient time to track down all the proper referencing, beyond just remembering conclusions from a recent project. Hopefully that will get you started.

[Warren Smith]

GOV Code 7050.pdf

Try Government Code section 7050

[Elias French]

I see this as a legal question, not a survey matter. Also, keep in mind the Title Company is ultimately selling insurance so their opinion may differ from a legal opinion and in any case is not authoritative and only as good as its supporting argument...

One question about the Current SMA statement. Since the subdivision was created in the 1930's can we assume that the current SMA applies to a situation that was created in 1930? My understanding would be that the current SMA would apply as it is the current law in place and would apply to all previous offers.

Good question, I suspect the offer remains open but can't confirm or find a citation. If the offer is still "open", I agree with others that it may be accepted at any time by the municipality and must be formally vacated to be cleared from title altogether as others have said. And this would only affect written rights of the public, not rights of subdivision lot owners or prescriptive rights that may have developed.

LA Stevens - I can understand how the other lot owners may very well have developed prescriptive rights to the ally by use but how can it be said that there is a private easement across the alley that benefits only private owners of the subdivison. That is not expressly stated on the map.

My understanding is the same as Larry Stevens, I believe it is based in Common Law. My understanding is in California lots in a subdivision carry with them an implied easement to all streets in the subdivision as shown on the map, regardless of dedication/acceptance. It is not stated on the map but it is shown on the map...

"It is a thoroughly established proposition in this state that when one lays out a tract of land into lots and streets and sells the lots by reference to a map which exhibits the lots and streets as they lie with relation to each other, the purchasers of such lots have a private easement in the streets opposite their respective lots, for ingress and egress and for any use proper to a private way, and that this private easement is entirely independent of the fact of dedication to public use, and is a private appurtenance to the lots, of which the owners cannot be divested except by due process of law. (Kittle v. Pfeiffer, 22 Cal. 490; Petitpierre v. Maguire, 155 Cal. 250, [ 100 P. 690]; Prescott v. Edwards, 117 Cal. 304, [59 Am. St. Rep. 186, 49 P. 178]; Schaufele v. Doyle, 86 Cal. 109, [24 P. 834]; Eachus v. Los Angeles etc. Co., 103 Cal. 617, [42 Am. St. Rep. 149, 37 P. 750]; Cushing-Wetmore Co. v. Gray, 152 Cal. 122, [125 Am. St. Rep. 47, 92 P. 70]; Williams v. Los Angeles etc. Co., 150 Cal. 594, [ 89 P. 330]; King v. Dugan, 150 Cal. 263, [ 88 P. 925]; Archer v. Salines, 93 Cal. 49, [28 P. 839]; Grogan v. Haywards, 4 Fed. 163, [6 Sawy. 498]; Gormley v. Clark, 134 U.S. 350, [10 Sup. Ct. 554].) It is claimed on behalf of the defendants that this private right of way is limited to the use necessary for ingress and egress and that it embraces only the street which abuts upon the particular lot in question and such other streets as may lead therefrom to some public highway or public place. There are decisions in other states which place these limits upon the private easements, and in section 247 of Jones on Easements, the rule is so stated. The decisions in this state do not recognize such distinction, and we do not think it is founded in good reason.

When a lot conveyed by a deed is described by reference to a map, such map becomes a part of the deed. If the map exhibits streets and alleys it necessarily implies or expresses a design that such passageway shall be used in connection with the lots and for the convenience of the owners in going from each lot to any and all the other lots in the tract so laid off. The making and filing of such a plat duly signed and acknowledged by the owner, as was the case here, is equivalent to a declaration that such right is attached to each lot as an appurtenance."
157 Cal. 686 (Cal. 1910)

I would also ask whether, if the alley is used by members of the public, could an prescriptive easement have developed in favor of the public even if the alley was never accepted?

[LS_8750]

I recall a couple of cases where portions of the dedication offers were initially flat out rejected on the map, but then later some streets were accepted and others remained rejected per the BOS statement on the map. The maps dated back to 1911 and 1921. Assessor maps showed the rejected streets and alleys, etc. separate from the adjoining lands.

Ownership of those rejected lands to my recollection remained in the hands of the subdivider.

Is there an opinion that adjoiners of those lands rejected would acquire ownership without quiet title?