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Williwaw
(@williwaw)
1,000+ posts Member

I’m working on a design that covers a couple of miles and the subdivision I’m working in at the moment is giving me fits. Done back in the mid 70s. The east side borders a 1/16 line and the plat says they dedicated a 50’ ROW up to the 1/16 line with a utility easement behind the ROW, which is a state maintained road. All of the original corners were set at 33’ off the 1/16 line. The original surveyor did four subdivisions out of the original parent parcel and each has proven to be a barrel of monkeys. I’m leaning towards this being a 33’ ROW but I’m fairly certain DOT would argue that they are due the full fifty, consistent with the ROW to the north and south of this subdivision and the intent of the plat. Neither scenario impacts the traveled way. Any thoughts?

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Topic starter Posted : November 30, 2021 1:25 pm
dmyhill
(@dmyhill)
1,000+ posts Supporter

If you were in WA, I would reference this paper:

 

https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1172&context=sulr

 

and from that paper is an older reference:

Limitations.-The only purpose of the foregoing rules of construction is to enable us to reach the probable intent of the parties in order that we may give it effect; and if these rules were not somewhat flexible and capable of modification by the circumstances of any particular case, they would in many instances defeat the actual intent....
R. SKELTON, THE LEGAL ELEMENTS OF BOUNDARIES AND ADJACENT PROPERTIES § 73 (3)
(1930).

 

This post was modified 2 months ago by dmyhill
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Posted : November 30, 2021 1:37 pm
Lurker
(@lurker)
200+ posts Member

Is there acreage listed on the plat? If so is it consistent with a 50' or 33' ROW? I would guess the matching acreage would show the true intent and it could be argued the other (50' label or 33' pins) was in error. If those pins have not yet been relied upon, I'm guessing a court would side with the matching acreage.

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Posted : November 30, 2021 2:25 pm

Williwaw
(@williwaw)
1,000+ posts Member

@lurker Areas agree with the 50’ on the plat, on paper any way.

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Topic starter Posted : November 30, 2021 2:51 pm
Lurker
(@lurker)
200+ posts Member

Even though we refer to monuments controlling, there are exceptions and I believe a court would find  the 50' ROW to be the intent. As long as no one has relied on the 33' monuments, the 50' ROW would be the equitable resolution in my opinion and I think in the court's opinion also. Now if there has been reliance on the monuments for any reason whatsoever, I have no guess what a court might rule. If utilities have been installed behind the 33' monuments, there would have been reliance on the pins and maybe they would hold. If utilities are installed consistent with a 50' ROW and acreage is 50' and the plat says 50', then I think the pins are meaningless.

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Posted : November 30, 2021 3:03 pm
Andy Bruner
(@andy-bruner)
1,000+ posts Member

Several years ago we did a widening design for a State Route.  The plans (both construction and right-of-way) called for 50 feet from centerline.  Right-of-way monuments were set 50 feet from centerline.  BUT the right-of-way deeds called for 30 feet from centerline.  I brought it to the attention of the client's attorney because the original right-of-way had been bought in the 1930s.  Just to be on the safe side, and to avoid litigation, the State accepted the 60 foot right right-of-way.

Andy

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Posted : November 30, 2021 3:04 pm

Richard Germiller
(@richard-germiller)
500+ posts Member

Was thinking maybe a Section line easement, but you're on a 16th, so in the words of Emily Littela, "never mind"

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Posted : November 30, 2021 3:23 pm
NorthernSurveyor
(@northernsurveyor)
500+ posts Supporter

A valid dedication requires an offer to dedicate by the owners of the property being subdivided and an acceptance of the dedication for the public by the governmental agency having platting authority.  This is usually in the wording of the certificate of ownership and dedication and the certificate accepting the plat and dedications.   If the only location information for the right away is the dimensioning or label of width of the intended dedication was 50 feet, most certainly IMHO the ADOT&PF will assert the full 50' as the width. I have seen this many times during my tenure at the Central Region of ADOT&PF.  Does this ROW have ADOT&PF ROW mapping for this road in the area of interest?  The ROW mapping will confirm the State's assertion of the ROW location.   The land owners only relief IMHO is a quiet title action to assert 33' ROW being the subdivider's intent.   If there is no ROW mapping by ADOT&PF I would put a inquiry in writing to the Regional ROW Engineering Supervisor requesting what the State asserts for ROW.   The current holder of that position is a good guy and Land Surveyor, and was one of my employees and mentorees when I was the Regional Locations Chief.   

 I won't rabbit trail to dedications in the Unorganized Borough prior to the ADNR being the platting authority for the UOB when plats only had the offer to dedicate, and no acceptance of the dedication because there were no approval and acceptance certificates as by your description that does not apply here.  However there was legislative action to retroactively accept all of those plats dedications to clear adjoiners title and clear the issue of ROW validity.  

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Posted : November 30, 2021 6:02 pm
dmyhill
(@dmyhill)
1,000+ posts Supporter

@northernsurveyor 

Posted by: @northernsurveyor

 If the only location information for the right away is the dimensioning or label of width of the intended dedication was 50 feet, most certainly IMHO the ADOT&PF will assert the full 50' as the width.

And, if that is what is needed for a road, then it would seem to be useful to everyone.

 

If they haven't been relied on...and the decision is to not hold them as the ROW, do you still honor them as monuments to the sidelines?

 

And, while you make a determination, you still have to show the found corners. I suppose the ambiguity remains regardless of your decisions.

This post was modified 2 months ago by dmyhill
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Posted : November 30, 2021 6:21 pm

Williwaw
(@williwaw)
1,000+ posts Member

@northernsurveyor I’ll get ahold of BK at AKDOT and see what he has to say about it. Trying not to open a can of worms or at least give be my client a heads up of conditions on the ground, which is part of the mission after all. Thanks

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Topic starter Posted : November 30, 2021 6:26 pm
NorthernSurveyor
(@northernsurveyor)
500+ posts Supporter

@dmyhill Yes, hold them for the sidelines.  By all means show them as recovered where they where they were set. 

In Alaska this is not an uncommon situation.  Prior to Statehood in 1959 the highways and ROW were under the management of the US Bureau of Public Roads (BPR).  The majority of the roads that got constructed were based on unsurveyed Public Land Orders or Congressional Acts (such as the 47 Act where only a notice of utilization was posted).   Very few were surveyed and  mapped, like almost none. The pre-statehood land ownership status was like 98% Federal.   The ROW of these PLOs followed the constructed highways, feeder roads and local roads.   Just after the Statehood finalized bringing Alaska into the Union the BPR issued the State a Quit Claim Deed to all of the Federal ROW, listing only road name category of Primary Highway, Feeder Road or Local Road and a width with a charge to the State to survey and map the ROW.   1959-2021 and that job is still not done.  The complexity of applying the PLOs, looking at entry dates into the federal lands and trying to determine where the road centerline was at the date of Statehood was not really understood by many Licensed Surveyors and BLM doing federal surveys.    The DOT&PF is required by their primary Highway Improvement funding agency FHWA to assert the full and correct existing ROW so that at some future date the ADOT&PF wasn't coming back to FHWA with project funding request to re-acquire what they really owned at one time had the proper research and ROW determination been done correctly.   The ADOT&PF developed the knowledge and procedures to do this very well over the years.   Consequently there are many surveys that were done by either the PLS surveyors or the BLM that either did not know the complexities  of what PLO or Congressional Act applied, so the surveys adjoining State highways and road were not correct in either alignment or width.   With no ROW mapping for most of the early years of Statehood, particularly if the ADOT&PF or the predecessor agency the Division of Highways was not contacted to get a determination of what ROW applied to a particular adjoining property, it was a setup of surveys that were relied on for Federal Patent conveyance or private fee title transfer be found later to not have correctly identified the Sate's ROW interests.  The Title Companies learned quickly of their liability relying on the federal or private surveys by multiple lawsuits and payouts and started some 50 years ago listing exceptions in title policies and insurance to any federal or state ROW that my exist and not be shown on the latest survey of record.  

When I became BLM Cadastral Chief in 2009 I brought with me the knowledge of 20 years of private licensure with a considerable amount of experience as a DOT&PF contractor, an IRWA  SR training, and then 4 years as the ADOT&PF Regional Survey (Locations) Chief.   I trained BLM staff and insisted the ROW be fully researched and included in the federal Survey Instructions prior to approving them .   Just think what happened in prior years of Statehood and and Territorial status with the GLO and BLM.  Trying not to brag, but it is a very specialized and complex process to fully research the ROW as its not all the same even for the same road or highway as ROW is based on different controlling law.  Can't really belittle the early PLSs as there was no real knowledge of how this whole packet of worms worked other than involve the highway agency and get them to issue opinion if there was no official mapping.  But your answer may be "its 50' wide except where it is not"   Not really a joke, it might take a huge amount of time and research by DOT to render a specific answer.  

Then comes our OP @williwaw who has an almost insane task of trying to stake an easement that adjoins the State ROW and conflicting old surveys and I'm guessing doesn't have months (or years) of time and money to do the research if there is no ROW mapping  and not have a utility build infrastructure in either the valid ROW or on private property.    Title reports useless, can't rely on prior federal or private surveys and no ROW mapping showing the refined ROW location by the State agency asserts based on extensive ROW research and perhaps a contractor mobilizing equipment and cable on the site.  I enjoy the challenge of complex ROW research and mapping but not under limited time and budget  and aggressive construction schedule.   Classic case of pay me now or pay me later.   Later is here.

For me, 48 years of surveying in the private, state and federal arena.   Glad I'm retired, but glad I can help those surveyors  in the trenches trying to get it done and get it right.   This "novel" of a post is just a snapshot of the Alaska ROW issues, there are now many good papers and presentations available for reference  but it is a tough job the present day surveyors are faced with.

This post was modified 2 months ago 4 times by NorthernSurveyor
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Posted : November 30, 2021 10:11 pm
NorthernSurveyor
(@northernsurveyor)
500+ posts Supporter

@williwaw my nickname for him was RTK because of middle initial T.   He likes it.  Tell him hello and I chimed in.  

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Posted : November 30, 2021 10:55 pm
Williwaw liked

Nate The Surveyor
(@nate-the-surveyor)
5,000+ posts Member

Note on plat:

Legal r/w is 50'. Built r/w is 33'. 

Probably, it was a design change, near the end of work, to accommodate the brave new world. I believe the change was reflected on paper, but application on the ground was simply being reserved for later. The developer did not wish to expend the resources to make the r/w conform on the ground, to the plat. But, it's 50'.

Yours truly, surveyor, emeritus,

Nate

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Posted : December 1, 2021 4:11 am
BStrand
(@bstrand)
1,000+ posts Member

Out of curiosity, what is going on with the other side of the 16th line?  Is there a subdivision over there too?

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Posted : December 1, 2021 5:32 am
Dave Karoly
(@dave-karoly)
10,000+ posts Member

Based on the O.P. only, the Plat dedicated 50’ and monuments were set on a different line (33’). Normally monuments control but I believe this falls within an exception where the monuments   were set to mark a different line.

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Posted : December 1, 2021 5:55 am

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