Stand Like a Statute
July 3, 2012
While easements are often created by the common law principles of dedication and acceptance, land surveyors must also be aware of the significance of statutory law, particularly when a proposed dedication of streets or other areas is intended for public use. Laws of this type serve the public by formalizing (and hopefully clarifying) the process by which a street, park, alley or other space may be dedicated to the public.
In some instances, dedication statutes will operate to transfer fee simple title of the proposed public way to the state or to some local governing body. In other states, the fee remains with the original landowners. The interaction of statutory and common law principles in each state will be in some way unique, and the surveyor should avoid the assumption that a statute created by the state legislature describing a specific process for dedication and acceptance will apply to all public ways in that state.
It should be emphasized that each individual state must be considered based on its particular circumstance; however, we can gain some insight on the mechanisms involved by comparing and contrasting statutes in a representative group of states. Although recordation of a plat showing the roads, parks and other spaces is often a common denominator in statutes of this type, several variations may be considered to exist as differentiated by the additional requirements or restrictions spelled out in the statute, and by the point in the dedication process that the fee (or easement) passes to the public.
The Harvard Law Review notes, “Dedication has been defined as ‘the devotion of land to a public use by an unequivocal act of the owner of the fee manifesting an intention that it shall be accepted and used presently or in the future for such public use.’”1 It would appear that this general definition includes both the possibility of a fee simple transfer of title and the creation of an easement.
Early court decisions discuss the difficulty of justifying a dedication or grant to “the public” (i.e., an abstraction with no recognizable grantee), but the U.S. Supreme Court addressed this issue by declaring that a dedication of this type may be considered a variation of estoppel in pais, where an expectation (induced by dedication) on the part of the public may not be rescinded thereafter. 2
In some states where dedication of a public way also transfers fee to the state or to some unit of local government, both the statutes themselves and subsequent case law from the states where these statutes exist make clear that in order for the transfer of fee simple title to be considered legitimate by the courts, the statutory requirements must be substantially fulfilled. Virginia code 15.2-2265 spells out the rationale for this emphasis:
Because mere recordation of a properly approved subdivision plat vests fee simple title in the governing body as to all streets shown thereon, the requirement of prior approval by competent public authority is indispensable. It subsumes and replaces the common-law requirement of acceptance after dedication. It is the only protection the public has against liability thrust upon it, without its knowledge or consent, by a developer.3
Virginia, by statutory authority, has reversed the common law convention of dedication followed by acceptance, and in this circumstance allows the acceptance (as evidenced by the approval of the local governing body) to precede the dedication. It also makes clear that the Virginia statute does not eliminate the basic requirement for dedication and acceptance in that state. The imperative that the public should not be subjected to irrevocable dedications by irresponsible landowners is echoed in other state statutes of this type.
By way of contrast, Florida statutory requirements describing dedication by recorded plat are in some ways similar to those of a valid deed, and they include a requirement that any mortgagee who has any interest in the land in question must also be brought into the process of dedication. The dedication must be executed by all persons, corporations or entities whose signature would be required to convey record fee simple title to the lands being dedicated in the same manner in which deeds are required to be executed.4
In addition to the recordation of the plat, an Ohio statute (similar in some respects to the Florida statute quoted previously) requires that said plat be subscribed and acknowledged by the proprietor or proprietor’s agent before a public officer authorized to take acknowledgement of deeds.
Upon recording, as required by section 711.06 of the Revised Code, the plat shall thereupon be a sufficient conveyance to vest in the municipal corporation the fee of the parcel of land designated or intended for streets, alleys, ways, commons, or other public uses, to be held in the corporate name in trust to and for the uses and purposes set forth in the instrument.5
The requirements imposed by the Florida and Ohio statutes quoted above give the recorded plat some of the characteristics found in a deed or other grant, and the Ohio code specifically states that the plat operates as a conveyance of fee when properly executed.
Based on the examples above, we see these statutes may be categorized as either one in which the recordation of the plat is presumed to be in the nature of a grant, as opposed to those in which the dedication/acceptance sequence is codified. Neither type eliminates common law requirements for some form of both dedication and acceptance in those cases where the statute has not been substantially fulfilled.
A recent Ohio case highlights the difficulties facing court systems when dealing with the interaction of common law dedication/acceptance requirements where they come into conflict with processes mandated by state statute. In this example, the village of Buckeye Lake had approved for acceptance a plat showing proposed streets and park land that was recorded in 1988. The central problem addressed in this case appears to be that the only “acceptance” by the municipality was in fact a common law acceptance, as opposed to the preferred statutory acceptance as per Ohio Code (R.C. 711.07 et seq.) The appellate court in this case overturned the lower court decision and ruled that title to the area in question had been transferred to the village as per statute. It should be noted that at least two other Ohio cases have specifically emphasized that statutory dedication of a park can only be accomplished by strict compliance with the statute.6 Additionally, Ohio (along with several other states) makes a distinction between those public ways dedicated in municipalities as opposed to those in rural areas.7
A multitude of cases may be found where the courts have upheld the statutory authority of the states to obtain fee simple title to streets or other public ways as per the various dedication statutes. However, it is also wise to consider those cases where, for various reasons, the statutes have failed to operate. One rather high-stakes case played out in Illinois when oil was discovered under a road long considered public. According to the court, the central question to the case was whether the street under consideration was created as a result of a common law dedication or a statutory dedication. The statute in question dated back to 1845, and the original statute included a requirement that the surveyor set a “good and sufficient stone” at various points in order to facilitate subsequent surveys. Discussion in this opinion includes the fact that no fixed point was shown on the plat in question upon which later surveys could be based.
An additional factor cited in the decision was that the survey was not performed by the county surveyor as was specifically required by statute. As a result of these circumstances, the courts determined that, while an easement for the road existed by common law dedication and acceptance, the fee of the street was not vested in the state. The conclusion was concise: the plat of Hardin’s addition was not a statutory plat. Its acknowledgement and recordation did not operate to vest in the municipality the fee in the streets.8 In this situation, it is tempting to wonder whether the value of the newly discovered oil had any effect on the decision.
More recently, Virginia faced a similar situation when private landowners disputed with representatives of Lancaster County over the ownership of the fee to lands crossed by an existing road. While all parties agreed that a public way existed, the county claimed ownership of the fee to the road both on the basis of statutory dedication to the state (which would have transferred fee to the local governing body) and also by prescription. Rejecting both arguments, the court ruled the fee of the street in question remained with the private property owners on both sides of the road.9
Pennsylvania and North Carolina provide two examples where statutory dedication to the public creates an easement while the underlying fee remains with the dedicator. It is noteworthy that, in both states, a separate statute sets limits on the length of time the dedication may be considered valid. North Carolina dedications may be withdrawn (in certain circumstances) after 15 years.10 By contrast, the Pennsylvania statute appears to operate without any additional action on part of adjoining owners, declaring the dedication void after 21 years.11 It would appear intentional that 21 years is also the statutory time requirement for adverse possession in that state.
In one Pennsylvania case, parties disputed over whether an easement for a road was public or private. The portion of West Watson Avenue in question first appears on a 1919 plat as part of a common subdivision plan. Easements shown on the plat were offered for dedication to the public at that time, but West Watson Avenue was not accepted by the Borough of Langhorne. The court mentions early in the opinion that after the statutory period for acceptance expired, West Watson Avenue “forever lost its potential as a public street.” They went on to say:
Where an owner of land subdivides it into lots and streets on a plan and sells his lots accordingly, there is an implied grant or covenant to the purchaser that the street shall be forever open to the use of the public and operates as a dedication of them to public use. After the statutory period, if no action has been taken to subject the street to public use, the servitude imposed by the owner upon his land for such use is removed, and the street is of no force or effect as a public highway. The land is discharged from such servitude, and the dedicated portion of it has entirely lost its character as a public street.12
It is significant that this ruling in no way deprived private owners of any legitimate private easements that might arise by various operations of common law. That point was made clear in an earlier Pennsylvania case where the court upheld the existence of private easements created when a landowner purchased a subdivision lot where various streets were laid out.
The grantee of a lot, which is sold according to a plan of lots on which streets or alleys not previously opened or projected as a public street are plotted out by the grantor, acquires an easement over those streets and alleys as a private right of property arising out of the grant, of which he cannot be deprived without compensation.13
This principle varies somewhat between states with regards to the extent such easements may be claimed; some states allow only those easements that are necessary for the use and enjoyment of the tract in question, while other courts contend the individual lot owner has rights to all easements shown on the plat regardless of any real need.
All of these issues should be of real concern to the surveyor, particularly because years of poorly documented easements (or perhaps more commonly, of purported easements where no documentation exists at all) have created what one court described as “a fruitful source of litigation.” As we continue to survey in the vicinity of roads, parks and other areas apparently in continuous use by the public, we cannot afford the luxury of ignoring the question of who really owns the road. Just remember:
An attempt made on record to dedicate
Begins with intent thus to predicate
Public space to the people
Be it street, park, or steeple
But the right may be lost if you hesitate…
References1 Harvard Law Review, Vol. 75, No. 7 (May, 1962)
2 City of Cincinnati v. The Lessee of White, 31 US 431 – U.S. Supreme Court 1832
3 Va. Code § 15.2-2265. Recordation of approved plat as transfer of streets, termination of easements and rights-of-way
4 Fla. Stat. § 177.081
5 Ohio Code § 711.07
6 Hoskinson v. Lambert: 182 Ohio App. 3d 527; 2009 Ohio 2564; 913 N.E.2d 1001
7 Ohio code § 5553.31
8 Lambach v. Town of Mason: 386 Ill. 41; 53 N.E.2d 601; 1944
9 Humphreys v. Arnold; 33 Va. Cir. 126; 1993
10 N.C.G.S. § 136-96
11 36 P.S. § 1961
12 Hummel v. Haldeman: 556 Pa. 279; 728 A.2d 345; 1999
13 Potis v. Coon: 344 Pa. Super. 443; 496 A.2d 1188; 1985
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.