Transcript REAL ESTATE CLOSINGS A-Z: Navigate Your Closings with

LEGAL ISSUES INVOLVING APPARENT
ROAD RIGHT OF WAY
March 8, 2011
JASON P. LUEKING
BAMBERGER, FOREMAN,
OSWALD & HAHN, LLP
Capital Center, 201 N. Illinois St., Suite 1225
Indianapolis, Indiana 46204
(317) 464-1591
BASIC CONCEPTS
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Real Estate Rights = Bundle of Sticks
Fee Simple Absolute
Owner’s Rights
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Mortgage
Lease
Sell
Subdivide
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Smaller Parcels
Surface/Mineral Rights
Create Covenants
Grant Easements
PUBLIC USES OF LAND
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Railroad
Public Works
Electric Power Transmission Lines
Gas Pipelines
Air Rights
Water Rights
Mineral Rights
GOVERNMENT RESTRICTIONS ON LAND
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Property Taxes
Lien Enforcement
Protect Endangered Species
Protect Wetlands
Zoning
Eminent Domain
Poled Powers
EASEMENTS, PROFITS AND LICENSES
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Easement = an interest in land in the possession of
another than entitles the easement holder to a
limited use of the land.
Profit = the right to use another’s land by removing
a portion of the soil or its products (i.e. sand, gravel,
ice, trees).
License = a revocable privilege to do an act upon
the land of another (the licenser) without possessing
any estate or interest in the land. A license is
terminable at will while an easement is not.
CREATION OF EASEMENTS
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Express Act (Grant or Reservation)
Implication
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Quasi-Easement
Necessity
Prescription/Adverse Use
IMPLIED EASEMENTS
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Quasi-Easement
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At time of easement, one part of land is being
used for the other part
Use is apparent
Use is continuous
Use is reasonably necessary to the enjoyment
of dominant parcel
Relies upon intent of parties
IMPLIED EASEMENTS (continued)
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Necessity
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Landlocked parcel resulting from subdivision
Public Policy
Termination when necessity no longer exists
PRESCRIPTIVE EASEMENTS
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I.C. 32-23-1-1
Adverse vs. Permissive
Open
Notorious
Continuous/Tacking
Uninterrupted vs. Nonexclusive
20 Years
Only 10 years for adverse possession (fee simple)
ESTABLISHING ROAD RIGHT OF WAY
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Is the land a public road?
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Dedication
Acceptance
EVIDENCE OF PUBLIC DEDICATION
1. Public Plat
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Applies to Incorporated or Unincorporated Cities and Towns
2. Parcel Dedication and Public Use
3. Acts of the Owner
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Subdivision of parcels on opposite sides of street
Knowledge and permissive use
4. Taking/Eminent Domain
5. Intent to Dedicate/Public Use
RELEVANT STATUTES
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I.C. § 8-20-1-15 – Width of highway.
A county highway right-of-way may not be laid out that is less than
twenty (20) feet on each side of the centerline, exclusive of
additional width required for cuts, fills, drainage, utilities, and public
safety.
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I.C. § 8-20-1-15.5(b) – Establishment of apparent right-ofway.
A county executive may establish the apparent right-of-way of a
county highway. However, the width of the apparent right-of-way
may not exceed twenty (20) feet on each side of the center line
exclusive of additional width required for cuts, fills, drainage,
utilities, and public safety.
ESTABLISHING APPARENT RIGHT OF WAY
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I.C. §8-20-1-15.5(c)
To establish apparent right-of-way, a county executive shall:
1. Make preliminary finding
2. Prepare map and legal description
3. Give notice by publishing the map and legal description
4. Send notice to landowners
5. conduct public hearing
6. Adopt an ordinance
7. Record map and legal description
MAINTENANCE OBLIGATIONS
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Once accepted, the County has the burden of maintaining the
road.
As to unimproved roads, a county has no duty to maintain a
highway that it has accepted until it has improved that
highway and that highway has therefore become a part of the
highway system.
Estate of Reasor v. Putnam County, 635 N.E.2d 153 (Ind.
1991)
Government unit does not need to accept an offer to dedicate
a public road.
MAINTENANCE OBLIGATIONS (Continued)
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Local governments are not obligated to open a public road
upon acquisition
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Discretionary authority
Contracts between governments and private persons are void as
against public policy.
DEFEATING PUBLIC ROADWAYS
(ESTOPPEL)
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Citizen misled by government and good faith belief in
private road
Citizen makes improvements to “private” road
ABANDONMENT
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Intent to abandon
Detrimental reliance by landowner
Landowner does not need good faith belief
that road/land is private
OWNERSHIP OF ROADWAYS
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Fee Simple or Easement
Dedication = Easement, Clark v. City of Huntington,
128 N.E. 453 (1920)
Condemnation = Easement, Quick v. Taylor, 16 N.E.
588 (Ind. 1888)
Public utility authorized to transmit gas through a
pipeline for public use may locate that pipeline in a
county road right-of-way as an appropriate use of the
public right-of-way, Fox v. Ohio Valley Gas Corp.,
235 N.E.2d 168 (Ind. 1968)
WIDTH OF ROADWAY
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Width of Right-of-Way vs. Pavement Width
INDOT Standards – 9 to 12 feet or metric equivalent
County Roads – 40 feet minimum, I.C. §8-20-1-5
Zoning Regulations/Development Plans, I.C. §36-74-1403
50 feet R/W (local streets)
– 100 feet R/W (arterial streets)
– 28 feet pavement width (local streets)
– 60 feet pavement width (arterial streets)
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WIDTH OF ROADWAY (Continued)
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Roads Established by User
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The width of a road established by user will be limited
to that actually used by the public in establishing the
road. Elder v. Board of County Commissioners of
Clark County, 490 N.E.2d 362, 365 (Ind.App. 1986)