Tax Sales - January 2015
Title Tips by Joe Vitullo
STREETS and ways are always involved in the conveyancing of land. A title examination must necessarily conclude that the subject land abuts an open public street or road. The lot owners must have a legal right to use the street and no gap can exist between the land and the street. Failing this, the land must be served by an easement. Otherwise, the land is unmarketable for lack of access. The parcel is said to be "landlocked." This can also happen if a parcel borders a "limited access" highway.
Aside from condemnation, there are basically two ways that streets are created: as part of a recorded plat or by the dedication of a single street by one or more landowners. The recording of a plat depicting the division of the land into lots, and the delineation thereon of streets, results in an "incipient dedication" of the streets to the public. Vallone v. City of Cranston, Dept. of Public Works, 197 A. 2d 310, 97 R.I. 248 (1964). At the same time, regardless of the dedication of the streets to the public, the sale of platted lots with reference to the plat will give each lot owner a private easement over all the streets depicted on the recorded plat. Robidoux v. Pelletier, 120 R.I. 425, 39 A. 2d 1150 (1978). For this reason, any relocation or abandonment of streets on a recorded plat requires that all the lot owners, their mortgagees and lienholders sign off. The plat owner's original incipient dedication of all the streets on a plat to the public can actually be revoked, but only by the unanimous consent of all the property owners on the recorded plat. Samuel Nardone & Co. v. Bianchi, 524 A. 2d 1114 (1987).
Originally, highways and streets were usually established when proprietors on each side contributed their land for the use of the public in equal portions. The public acquired only an easement in such highway, the fee title in the soil remaining in the owners of adjoining lands. This later gave rise to a string of court cases where deed descriptions granting parcels bordering on streets were interpreted to grant the fee title to the centerline of the street. Davis v. Girard, 74 R.I. 125, 131 (1948). Obviously, if the original road was created wholly over the land of one person, this presumption or interpretation may be untrue Bitting v. Gray No. 2004-275.
Common law dedication of a street, by a proprietor of his land, was not considered a grant in the law, there being no grantee. The land owner was said to be "estopped" from reclaiming the land or using it in any way inconsistent with the public use. State v. Frank W. Coy Real Estate Co., 117 A. 432, 44 R.I. 357 (1922). The land owner had to intend to dedicate the land and there had to be acceptance of the dedication by the public use of the land (public "user"). Union Co. v. Peckham , 16 R.I. 64, 12 A.130. Once there had been public user, or official public acceptance of the dedication by a municipality on the behalf of the public, there could be no adverse possession of the public way. Simmons v. Cornell 1 R.I. 519; Almy v. Church, 18 R.I. 182; Knowles v. Knowles, 25 R.I. 325. Also, once there had been dedication and acceptance, the public's right to a publically dedicated highway was never lost by non-use of the public way or be adverse possession, however long continued. Horgan v. Town Council of Jamestown , 80 A. 271 32, 32 R.I. 528 (1911). On the other hand, if there never had been any public user or acceptance of a street offered as a public way, or acceptance by a municipality on the public's behalf, title to the street could be obtained by adverse possession. Gammons v. Caswell , 447 A. 2d 361 (1982). Nevertheless, title to land obtained by adverse possession cannot be insured without a Court's adjudication concerning the title. A Special Exception must be taken in Schedule B of the title policy as to all paper streets stating: "Rights of others in and to Maple Street, so-called." It should also be noted that R.I.G.L. 45-23-10 specifies that approval of a plat by a planning commission is deemed acceptance by the public of any street. The public has an easement to use the street so dedicated. The abandonment of a street on a recorded plat by a municipality, pursuant to R.I.G.L. 24-6-1, terminates the acceptance of the public, but does not affect the rights of private lot owners. Their private easement in the streets and ways shown on the plat still exists, but can be subject to adverse possession, however.