Legal Question in Real Estate Law in California
Today I came home to find three guys in hardhats from the State of California Dept. of Transportation standing over my property from the rural two-lane Highway 9 which borders our property. When I approached to ask them what they were doing, I was handed a red-tag: a Notice of Encroachment which included an order to cease and desist our right-of-way encroachment and to remove said encroachment (which currently amounts to a few posts in the ground but no fencing material as yet). Last spring we began clearing the hillside for the purpose of erecting a small greenhouse, building some compost bins, and planting fruit trees and vegetables. At the top, approximately 5 or 6 feet from the edge of the roadway, we began setting posts for a fence to keep folks from entering our property from the road (which occasionally does happen). I knew there was a 40' right of way, but I had always assumed that this was to guarantee access to the CA Dept. of Transportation at any time it was needed. I was told today, however, that the land within the right of way is actually owned by the state of California, despite the fact that there is no language in the grant deed to that effect, and what the deed does in fact state is that our property runs from the center of the roadway to the middle of the San Lorenzo River (which runs parallel to Highway 9).
My questions are: do we own the land included in the state's right-of-way, and if we do, can we proceed with our plans to plant trees and erect a greenhouse?
Note: the hillside is terraced with both wood and concrete retaining walls that are probably more than 100 years old. They are decrepit and pose a threat to our home if they are not replaced because of the real danger of a landslide. Part of our hillside project is replacing the wooden retaining walls (the concrete ones were reinforced with steel mesh when built, so they lean, but they're probably not going anywhere). Given that much of this terraced hillside is within the state's right of way, and has been there a very long time, do we have the right to replace them since they pre-dated the state's acquisition of the right of way? And if not, since it is the responsibility of the state to maintain the land within the right of way, can we compel them to replace our rotting retaining walls so we don't get buried under twenty tons of mud?
Thank you,
Deb Longley
2 Answers from Attorneys
Deb, it sounds to me as though the state is operating within the law here, namely the Streets and Highways Code. I too live in a rural area and my property line extends to the middle of the county road. Nevertheless, the county exerts dominion over the roadside property, including taking responsibility for the roadside trees that blow down from my property and block the public road.
My understanding is that the roadside trees, although growing on my land, are under the control of the county, e.g., if I wanted to cut them down and send them to the sawmill, I could not; but, on the other hand, if one fell in a windstorm and crushed a motorist's car, the county would be responsible. My neighbors -- not lawyers, but have been here for generations -- tell me this is indeed the case. So, I would suggest you treat the CalTrans people as more likely than not operating within the law. I also suggest that you contact a local lawyer with some state right-of-way experience to verify your rights and obligations. In doing so, don't go into the discussion with many preconceptions about that the state's rights are. They may be greater than you suppose.
There is a principle that a landowner can "dedicate" property to public use -- such as a road to serve the area -- and still own the land, although surrendering many rights to the public.
You own the land but only bare legal title. The state owns all legal rights to use of the land within the right of way. Your fence was red tagged because fences are red flags, as they indicate an intent to exert dominion and sole possession of the enclosed land. CalTrans cannot permit that. Likewise they are not going to allow a structure. I doubt they will object to you planting in the right of way, since if you don't, nature will plant it for you. Understand, however, that the portion of the right of way that is not paved is not just for use in repairs and maintenance, etc. It is also to allow widening the road itself at any time in the future. So they will have the right to cut down anything you plant within the right of way. As for the retaining walls, first off CalTrans does NOT have an obligation to maintain the land within the right of way, only to maintain improvements that they construct in the right of way. So since you say the retaining walls predate the right of way, they are your responsibility. Unless and until CalTrans makes use of that portion of the property you are free to use it in any way that does not conflict with the existence of the right of way. So planting and securing the hillside from slides is within your rights, but erection of fences and structures within the right of way is not going to be allowed by CalTrans and they are within their legal rights to stop it.
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