In general terms, the vacation of a public or dedicated street, alley, or highway does not change or alter the ownership of the underlying fee; it affects only the easement of the public therein. After the vacation, the rights of the public are terminated, but the ownership of the fee remains unchanged.
Typically, the owners of real property abutting a street, alley or highway are presumed to own to its center, subject to the public easements therein. Upon vacation of the street, alley or highway the abutting owners continue to hold title to the center (if they already hold the fee), but free of the easement of the public.
It is extremely important to note that the above is not always true. There are cases of exception in which:
- The abutting owners do not own any portion of the underlying fee of the street, alley or highway.
- The owners abutting on a certain side of the street, alley or highway own all of the underlying fee.
Examination Of Titles To Vacated Streets, Alleys And Highways
When examining the title to vacated streets, alleys or highways, it is necessary to determine, based on the laws of the state in which the property is located:
- The validity or legality of the vacation proceedings.
- Whether any rights to reopen are granted by statue.
- To whom the title passes upon vacation.
- The possible existence of utilities unrecorded utility easements, in any portion of the vacated areas, prior to the vacation thereof.
- The possible extinguishment by virtue of the vacation proceedings, of any prior unrecorded easement.
- Whether any rights or easements are reserved by the vacating ordinance or court order.
- Whether the vacating ordinance or court order established any restriction or condition to be satisfied or complied with.
- Whether the vacating ordinance or court order is complete and final.
- Whether prior conveyances of the land abutting on the street, alley or highway in question were sufficient to carry title to that portion of the vacated street, alley or highway which is to be insured.
- Whether subsequent conveyances of the land abutting of the vacated street, alley or highway in question were adequate to pass title to the vacated area appurtenant thereto. While it is the rule in nearly all states that a conveyance of a lot will carry title to half the abutting public street, alley or highway (or to all), if the grantor has title thereto, it is also the rule in many states that a conveyance of a lot abutting on a vacated area does not carry title to the vacated area unless the vacated area is specifically described and conveyed.
- Whether taxes pertaining to the portion of the vacated area have been assessed and fully paid.
Rights That Might Not Have Been Terminated By The Vacation Order
Careful consideration must be given to the following possibilities:
- That though a valid order or ordinance of vacation terminates the right
of the public to use the affected area for street or alley purposes, it may
not terminate the rights of particular persons to continue to use the affected
land for ingress and egress or to exercise a prescriptive easement acquired
for some limited use within the street or alley area.
For instance, in a subdivision some other lot owners may have acquired the right to use the affected area for street or alley purposes as a result of the fact that the area is shown as a street or alley on the recorded plat of the subdivision.
- That the right to continue to use utility installations, public or private,
in the affected area may not have been terminated by the vacation.
In some cases, public utility installations may have been authorized by a general franchise issued by the city to the public utility company; private installations may have been authorized by permit or may have been unauthorized; either type, if underground, may not be discovered by a surface inspection.
Note: An acceptable exception must be shown in connection with the existence of any possible unrecorded right or easement not terminated by the vacation order or ordinance.
Such exception may be deleted if satisfactory evidence furnished that no such utility easement exists.
Possible Unrecorded Rights Or Easements
Types of unrecorded utility rights or easements that may be affected by a vacation:
- Cable T.V.
Description Of Vacated Property Adjoining Non-Rectangular Lots
Care should be taken in drafting a description of a vacated strip adjoining a lot or a portion of a lot that is not rectangular in shape. There appears to be no legal presumption that the side lines of such a lot are to be continued directly to the center of the vacated street or alley or that the boundary lines of the vacated portion are to be drawn at right angles to the street or alley lines.
Any possibility of dispute with the adjoining owners as to the location of the boundary lines of the vacated area will require that either proper quitclaim deeds or boundary line agreements executed by the owner of the subject property and the adjoining owners be made part of the public land records.