Right of way and property lines

[tom31]

Jurisdiction

California

I am seeking information on where I can locate a fence in my front yard. I am especially interested in how this might be related to the roadside parking in front of my house.

One of my next-door neighbors has (at least 30 years ago) constructed a fence 3 feet from the edge of the roadway pavement and planted shrubs in that 3-foot space, blocking all roadside parking in front of his house. This fence and plantings have been allowed to stand.

The current County regulations refer to a "property line." I have read that in California, it is most often the case that the County does not own the land on which county roads are constructed, but instead has a right of way easement. Then it is not clear what they mean by the "property line." This is essential information to following the "no permit required" fence regulations.

I believe that the edge of the County right of way easement on my side of the street is 13 feet from the edge of the pavement into my front yard. This location is based on the map showing a 50-foot right of way and the road is only 40 feet wide. This would put the location of the above-mentioned neighbor's fence well into the County right-of-way. (There is more about locating the right of way below). The neighborhood is well-established, and no one I have spoken with believes that the County will ever develop a wider roadway.

What if I do own to the center of the right of way, and the County is not using a significant part of the right of way, can I build my fence within the unused right of way? The fence would, of course, be torn down if the County ever decided to use this right of way.

Another issue is that this part of the street is regularly lined with parked cars (on both sides), as people's garages are used for storage or other purposes. People parking of the road park with wheels off the pavement (there is no other way to park and leave room for traffic). This burdens us with maintenance issues such as mulching to prevent mud and soil displacement and/or compaction. We have to pick up trash. We have seen people working on their cars while parked in front of our property, where oil could drain onto the dirt (it hasn't yet, as far as I know). The plants we have would be sensitive to this.

I would like to find more information on what rights we have while attempting to solve this.

If the County is going to allow cars to park off the road, will they pave the parking area? Can we build a fence a reasonable distance back from the edge of the pavement if it is in the unused county right of way?

I an considering discussing this with the County transportation department. But I would like to go to that discussion well-informed on the legal aspects. Please respond with links or citations that will help me, and any advice you can give.

Addendum about my attempts at locating the boundaries of the County's easement:
My side of the street has no sidewalks, curbs, or gutters. (When a new home was built on my side, the developers were excused from constructing a sidewalk because there are no connecting sidewalks.) My estimate is based on the fact that the right of way is 50 feet wide and that the opposite boundary is at the edge of the sidewalk on the other side. I have used a metal detector to find buried metal that does coincide with monument locations indicated on the county map, and these findings agree with my assumptions.

Tom

 

[adjusterjack]

Seems like you have two questions.

1 - Can you put up a fence within the boundaries of the easement. The answer is yes, and you obviously know that you run the risk of having to take it down if the grantee wants to use it.

2 - Can you compel the county people to do something about your issue with cars parking and whatever else you are concerned with. The answer to that is also obvious. There's nothing you can do about that.

You will just have to do what you can with what you've got.

 

[tom31]

Seems like you have two questions.

1 - Can you put up a fence within the boundaries of the easement. The answer is yes, and you obviously know that you run the risk of having to take it down if the grantee wants to use it.

2 - Can you compel the county people to do something about your issue with cars parking and whatever else you are concerned with. The answer to that is also obvious. There's nothing you can do about that.

You will just have to do what you can with what you've got.

Thank you, Adjusterjack.
1) Can someone help me find the underlying legal principle for putting up a fence inside the right of way? Is it just an application of easement law? Do I truly own to the center of the right of way?

The County documents seem to make no distinction between used and unused right of way. I am currently searching for specifications on clearances from the roadway that must be maintained; that is, what part of the right of way is truly unused.

Tom

 

[OldSurveyor]

The underlying legal principal is that you have virtually no residual rights in a road right-of-way or easement even though, in theory, you "own" to the centerline.

Your sole remaining right is likely the return of the ROW area to your ownership upon it's official abandonment by an act of vacation. Any use of the ROW by you for anything other than that granted to the public as a road would require permission of the ROW owner. I'm assuming that would be the county in your case.

 

[tom31]

The underlying legal principal is that you have virtually no residual rights in a road right-of-way or easement even though, in theory, you "own" to the centerline.

Your sole remaining right is likely the return of the ROW area to your ownership upon it's official abandonment by an act of vacation. Any use of the ROW by you for anything other than that granted to the public as a road would require permission of the ROW owner. I'm assuming that would be the county in your case.

 

[tom31]

Thanks, OldSurveyor. That information seems to conflict with the earlier response. I have had people suggest to me that I should just go ahead and put up a fence in a reasonable location, even if it is in the ROW. If there is still room for parking, it is likely that no one will complain and nothing will happen. I feel uncomfortable about that, but what is the worst that could happen?

Tom

 

[zddoodah]

The current County regulations refer to a "property line."

Which one of the 58 counties? What's the "regulation" (ordinance most likely) number?

I have read that in California, it is most often the case that the County does not own the land on which county roads are constructed, but instead has a right of way easement.

Where did you read this? I'm skeptical that anyone has compiled the necessary data to make such a statement intelligently.

Then it is not clear what they mean by the "property line." This is essential information to following the "no permit required" fence regulations.

Please understand that you musing about a regulation/ordinance (and other documents) that only you have read doesn't provide us with any useful information, so I'm just going to skip to the questions. I'm also going to ignore the stuff about your neighbor since that doesn't appear to be relevant to your situation.

What if I do own to the center of the right of way, and the County is not using a significant part of the right of way, can I build my fence within the unused right of way?

You've given us no reason to believe that you lack this ability, but I doubt that's what you intended to ask. If your question is whether you can build a fence and expect that you'll be able to keep it over the objection of the owner of the presumed right of way or have the legal right to keep it under such a circumstance, the answer is no.

Another issue is that this part of the street is regularly lined with parked cars. . . .

I would like to find more information on what rights we have while attempting to solve this.

Depends on the specifics of your local laws (municipal code or, if you're in an unincorporated community, county ordinances) and the specifics of your property boundaries.

If the County is going to allow cars to park off the road, will they pave the parking area?

Unlikely, but you'd have to contact someone at the county to get a reliable answer.

Can we build a fence a reasonable distance back from the edge of the pavement if it is in the unused county right of way?

This appears to be a repeat of your first question.

I an considering discussing this with the County transportation department. But I would like to go to that discussion well-informed on the legal aspects. Please respond with links or citations that will help me

Citations to what? We have no information about your property, and you didn't identify your locality such that we might cite relevant local ordinances. The best way to understand your rights relating to your property is to consult with a local attorney.

Can someone help me find the underlying legal principle for putting up a fence inside the right of way? Is it just an application of easement law? Do I truly own to the center of the right of way?

Not really sure what you mean. Obviously, no one here knows anything about the boundaries of your property, and you have no legal right to build anything on property subject to a valid easement (unless expressly allowed by the terms of the easement).

 

[adjusterjack]

but what is the worst that could happen?

The worst that can happen is that you'll have to take the fence down if the grantee wants to make use of the easement/right of way.

There's no "law" that can stop that, if it happens.

It's up to you to determine your tolerance for risk.

I have an 8' utility easement around 3 sides of my back yard. My driveway encroaches 3' into the easement leaving 5'.

The worst that can happen to me is that I have to remove 3' of concrete if the utility company wants to use the entire 8'.

What'll that cost me? Maybe $1000. And a little disappointment having a narrower driveway.

What are the chances that the utility company will want to use the easement? Very little since they haven't in 36 years.

The risk is there but it's minimal enough so that it was worth putting in the driveway that I wanted.

 

[OldSurveyor]

The possible worst that can happen can be explained by a local attorney. I am not.

But I would be concerned about the liability issue if a member of the public unexpectedly, unwittingly, unknowingly, encountered an impediment in the public right of way placed by you without permit or permission, and that they suffered a damage or loss. That could possibly be a liability issue.

As you have come here for a no-cost discussion I would recommend as your next no-cost step to contact your homeowner's insurance company and ask if you are protected for claims arising from a claimant professing a damage or loss due to your placing an unpermitted obstruction in a public right of way.

The answer will likely be : "No" but you might be able to gain access to your insurer's legal department for some more definitive advice.

 

[adjusterjack]

But I would be concerned about the liability issue if a member of the public unexpectedly, unwittingly, unknowingly, encountered an impediment in the public right of way placed by you without permit or permission, and that they suffered a damage or loss. That could possibly be a liability issue.

It certainly could be. It's called negligence.

contact your homeowner's insurance company and ask if you are protected for claims arising from a claimant professing a damage or loss due to your placing an unpermitted obstruction in a public right of way.

The answer will likely be : "No"

Au contrare. The answer would be "yes." That's exactly what homeowners liability insurance covers.

 

[OldSurveyor]

Au contrare. The answer would be "yes." That's exactly what homeowners liability insurance covers.

Glad to know that.

So homeowners insurance covers negligent acts off of your insured property? Are there any exclusions? Are all negligent acts covered?

Sorry but I am having a problem seeing that a homeowner's insurance policy would cover the liability issue of knowingly obstructing a public road. Would this also extend to defending the insured against a police citation or trespass charge? News to me but always here to learn!

 

[zddoodah]

So homeowners insurance covers negligent acts off of your insured property? Are there any exclusions? Are all negligent acts covered?

Sorry but I am having a problem seeing that a homeowner's insurance policy would cover the liability issue of knowingly obstructing a public road.

Valid point. However, isn't the hypothetical that the county road is located on the insured's property pursuant to an easement? It's still the insured's property regardless of the easement. Right? Or did I misinterpret the hypothetical?

 

[adjusterjack]

Glad to know that.

So homeowners insurance covers negligent acts off of your insured property? Are there any exclusions? Are all negligent acts covered?

Sorry but I am having a problem seeing that a homeowner's insurance policy would cover the liability issue of knowingly obstructing a public road. Would this also extend to defending the insured against a police citation or trespass charge? News to me but always here to learn!

Well, it's not like he's parking his car sideways in the middle of the road at night hoping that somebody hits it so he can buy a new car.

He's putting up a fence along the front of his property. The fence may be within an easement or right of way. I don't see that as obstructing the road. It's location alone doesn't give rise to liability. A driver hitting the fence is likely to be at fault unless there is some negligence on the part of the homeowner, and I don't see that.

Homeowners insurance doesn't cover civil or criminal citations. I don't see that happening unless it's a code violation.

If you would like to continue to learn about homeowners insurance study the standard homeonwers policy that I have uploaded.

 

[OldSurveyor]

It's unfortunately a still-common misconception that one would have any residual rights in a dedicated county road.

The entire road, from one edge of the easement or ROW (terminology makes no difference) to the other edge, is a public roadway.

From the San Diego County Department of Public Works:

"Private structures or work (including construction, excavation, and landscaping) within the County right-of-way are not permitted without the review, approval, and issuance of the appropriate DPW Right-of-Way permits." That's pretty clear, and confirms my earlier comment about the requirement for permission.

https://www.sandiegocounty.gov/content/sdc/dpw/land/rowenforcement.html

Yes, we still do not know the county, but county roads will be administered, maintained, and manage by some county agency- DPW, Transportation, etc.

All will require an application, a review, and if approved, a permit. Some counties even have the application on-line. Approval is not going to automatic. And the idea of fencing off part of a public road for private purposes is unlikely to get a permit.

 

[adjusterjack]

Thanks, OldSurveyor. That information seems to conflict with the earlier response. I have had people suggest to me that I should just go ahead and put up a fence in a reasonable location, even if it is in the ROW. If there is still room for parking, it is likely that no one will complain and nothing will happen. I feel uncomfortable about that, but what is the worst that could happen?

Tom

Tom, if you are still here, how about an aerial view from Google Maps showing the full width of the road, your front yard, and the neighbor on one side with the fence and the neighbor on the other for comparison?

Also post a plat from the county records showing the boundaries of the road.

I don't think any of us (me anyway) are able to visualize what you are describing, especially the part about the parking issue.

 

[tom31]

Tom, if you are still here, how about an aerial view from Google Maps showing the full width of the road, your front yard, and the neighbor on one side with the fence and the neighbor on the other for comparison?

Also post a plat from the county records showing the boundaries of the road.

I don't think any of us (me anyway) are able to visualize what you are describing, especially the part about the parking issue.

 

[tom31]

Thanks, All!
I really appreciate your responses.

I will post more information shortly.

Tom

 

[OldSurveyor]

Jack, you might know from my earlier posts on this board that I am a big fan of Google maps!

Going back to the original topic:

"I am seeking information on where I can locate a fence in my front yard."

The "parking issue" was a secondary question. Let's go back to the original and address it finally before moving on the parking issue, along with this:

"One of my next-door neighbors has (at least 30 years ago) constructed a fence 3 feet from the edge of the roadway pavement and planted shrubs in that 3-foot space, blocking all roadside parking in front of his house. This fence and plantings have been allowed to stand."

This all irrelevant to the first question. Google Maps, plus the original plat, are not necessary for us to visualize the situation. The fact that we are dealing with a dedicated and accepted county road in California is not in question. The county regulations, when found, will control all of that.

When found, they will in no case be much different than those of San Diego County, as posted.

Or El Dorado County, or Humboldt County, or the several others I have researched for this thread.

 

[adjusterjack]

I won't revisit this thread until I can see an aerial view of the property.

 

[tom31]

Again, thanks for the replies and the information.

My county is Sacramento county.

Everyone who has responded to this thread has made a valuable contribution. I have answers to many of the questions posed to me, but my wife and I are nervous about the loss of anonymity. I would not be concerned about any of the respondents knowing where I live, but the thread will continue to be available to anyone.

Of course, we can't expect specific help without providing specific information. I think where this is headed is that I will go to the county and ask for an encroachment permit. The discussion here has helped me to prepare for this meeting. Given that the right of way is likely to never be used, this could be be a permanent solution to the fence situation.

I can post the outcome.

About ownership:

https://mrsc.org/Home/Stay-Informed...t-is-the-Nature-of-a-Public-Right-of-Way.aspx

The reference above comes from the State of Washington. The author's use of the term "general rule" and not stating specifically "in Washington State" made me think this was not peculiar to Washington and was likely true in California. I was wrong when I wrote earlier "I read that in California . . ."

Quote from link: As a general rule, a city or county right-of-way is an easement for public travel. (An easement is a privilege or a right, distinct from ownership, to use in some way the land of another.) So, typically, a city or county does not own the fee title to the property underlying the public right-of-way; the abutting property owners have that fee title, and that title usually extends to the centerline of the right-of-way. (Because this is a "general rule," there are always exceptions.) The right-of-way easement generally extends beyond the improved roadway and includes sidewalks, if any, and parking strips (the area between the sidewalk and the paved street or road)


Thanks for the help!

Tom