Right of Way/Easeme...
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Right of Way/Easement question

FNG Member

I was reading an old post named:

"Who owns the title and fee public right of ways in a housing tract in California?"

One of the strings under it stated the following:

Ownership to the center is so well settled in California law that any Superior Court Judge that reverses the presumption of ownership to the center of the road is risking a severe rebuke in the Appellate Court. It is universal that dimensions are a lower class of evidence than the physical monument itself, in this case the street.

My question is where in the California law or what case would cite where the ownership is to the center of the street. I live in the neighborhood of Ocean Beach/Point Loma Heights in San Diego, CA. The particular street/area in question (corner of Newport Ave. and Santa Barbara St.) was recorded either in 1900 or in 1907 as a Subdivision of Pueblo Lots (lots 195, 202, 203, and 1 other up the hill).

Of course I read through a lot of that post stated above and found that even though my plat map shows certain property boundaries, I should own to the center of the street. I'm looking to find out the information on the land between the sidewalk and the street, which is 10 feet wide. We water the lawn and the palm trees that were planted there not by the city, but planted back in 1909/1910 by Col. D.C. Collier, who was the 'father' of Ocean Beach. These palms are over 110 years old and are still healthy, but they want to cut them down. This is the reason for my question. Thank you.

Topic starter Posted : November 18, 2021 10:29 am
Norman Oklahoma
5,000+ posts Member

The principle of fee ownership going to the centerline is quite universal. It was settled law long before California was a US possession.   Probably before the US was a country. 

When a right of way is created by a plat the strip is "dedicated " to the public use forever, not sold or transferred. The public gets to do anything with that land that a right of way might reasonably be used for - except sell it. Because it doesn't own it, they just have the use of it. They might build a street and sidewalks and plant trees along the margins, then later cut down the trees to widen those things. Which sounds like what is happening. That is their right. If they vacate the use as a right of way it reverts back to the fee owner.       

Sorry, if you are thinking that you can challenge the cutting of those trees on the basis that you own them you have no case. 

Posted : November 18, 2021 12:41 pm
Warren Smith
500+ posts Member

California Civil Code section 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 was enacted in 1872, upon adoption of California's second constitution, and reflects the precepts of common law.  In the case of subdivision maps, it is construed (since 1892, when the first Map Act was compiled) that all lots are simultaneously created.  The underlying fee title is extended to the centerline of intervening rights of way between lots on each side - subject to the right of the general public to travel thereon.

Upon vacation of that right of way - pursuant to provisions contained in the Streets and Highways Code - that public easement is removed.  Property taxes are only then collected over that portion which could not previously be built upon by adjacent landowners.

Posted : November 18, 2021 2:01 pm

Mike Berry
1,000+ posts Member

Like Norman said above, the governing authority can do pretty much anything they want in the public right-of-way. If trees are cut down, least ways here in Oregon, the owner can have them left on the property if they want to saw them up for firewood. I've seen a few big road widening projects where some of the trees being removed from the existing right-of-way were merchantable timber, so the owners along the road agreed to have the road construction contractor sell them to a mill and then each owner was then paid for the timber taken off their property. This merchantable timber tree removal item was written into the road construction contract. Generally, the payment to the land owners was not very much... it is not a very profitable endeavor to log 50 or so pines along a half mile strip of road. For the scraggly smaller pines landowners could opt to have the trees piled on their property or have the contractor haul them away at no charge to the owners. In other cases the landowner was welcome to find a buyer for the merchantable timber and figure out how to coordinate getting the logs to the mill. Anymore, with hardly any mills in the area and no gypo self-loader log trucks available, I think this is a thing of the past.

The following quote regarding the status of public right-of-way across the landowner's (abutter's) land puts the concept of dedicated public roads in perspective to me:

“While a highway* exists there is nothing more than a mere suspension of the abutter’s right.”

- A Treatise on the Law of Roads and Streets; Third Edition (1911) Byron L. and William F. Elliott 

* in 1911 “Highway” was a general term for public roads before state and federal DOTS came into existence.

The "suspension" of the landowner's rights ends if and when the road right-of-way, or a portion of it, is "vacated"... meaning the public right-of-way is extinguished forever and the land that was in the right-of-way automatically vests back to the tract it was taken out of. This can happen if an entire road is realigned to another location and their is no need for the original road to be a road anymore. Of course, portions of the old road might not get vacated if existing public utilities are to remain after the road surface is razed.

Posted : November 18, 2021 4:48 pm
Mike Berry
1,000+ posts Member

As an aside, when I worked as county surveyor I got a call from a guy who wanted to know if he could pick wild asparagus that was growing along the road shoulder within a public road right-of-way. Odd question, so I asked him to expound. He said the abutting land owner acknowledged that the asparagus was in the right-of-way, however it was on his side of the road so it was his because he owned the underlying land. Well educated land owner. I told the caller that the owner was correct. The county did not see the asparagus as a road hazard (one of the main reasons we would remove trees or hammer out rock outcrops within the right-of-way - they kill people in cars that slide off the road). I haven't yet seen that happen with asparagus.

We also had a landowner who wanted to have an old-growth ponderosa pine in a right-of-way felled because it blocked his view of the mountains. It was across the road from his house, so the tree was owned by his neighbor. It was not deemed a road hazard by the county so it was up to him to approach the guy across the road.  This was 15 years ago and the tree still stands.

Posted : November 18, 2021 6:47 pm