Parties: Jeffrey Clark / Morgan County

Issued: March 8, 2024

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Requirements Imposed Upon Development

The county may not lawfully require the vacation of an extinguished, private right-of-way as a condition of approval of an amended subdivision plat.

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DISCLAIMER 

The Office of the Property Rights Ombudsman makes every effort to ensure that the legal analysis of each Advisory Opinion is based on a correct application of statutes and cases in existence when the Opinion was prepared.  Over time, however, the analysis of an Advisory Opinion may be altered because of statutory changes or new interpretations issued by appellate courts.  Readers should be advised that Advisory Opinions provide general guidance and information on legal protections afforded to private property, but an Opinion should not be considered legal advice. Specific questions should be directed to an attorney to be analyzed according to current laws.

 Issue

May the county lawfully require the vacation of a 10’ right-of-way as a condition of approval for an amended subdivision plat?

Summary of Advisory Opinion

The label 10’ right-of-way on a recorded subdivision plat does not convey ownership of the area to the public. Dedication of land to public use requires a landowner’s objectively manifested desire to devote property to public use. The subdivision plat lacks any indication that the 10’ right-of-way is surrendered to public ownership. The dedicatory language on the plat mentions only the dedication of streets and public utility easements. Because the County does not have rights to the 10’ right-of-way, there are no rights to vacate.

Furthermore, the 10’ right-of-way depicts the location of a private right-of-way deeded several years before the plat was recorded. Because the same party now owns the servient and dominant estates for this private right-of-way, the interests automatically merge, and the right-of-way is extinguished under common ownership.

Therefore, the county may not lawfully require the vacation of an extinguished, private right-of-way as a condition of approval of an amended subdivision plat.

Evidence

The following documents and information with relevance to the issue involved in this Advisory Opinion were reviewed prior to its completion:

1. Request for Advisory Opinion submitted by Jeffrey G. Clark on September 15, 2023.
2. Response submitted by Garrett T. Smith; Morgan County Attorney dated November 21, 2023.
3. Response submitted by Jeffrey G. Clark on November 21, 2023.
4. Response by Garrett Smith on behalf of Morgan County received January 3, 2024.

Background

Jeffrey Clark (Property Owner) owns three adjacent parcels of land located at 6137 W. Valley View Drive in Mountain Green, Utah. Morgan County (County) has oversight over land use and development applications in this area. The property includes Lot 24 of the Monte Verde Subdivision No. 1 (Subdivision Plat or Plat), as well as two adjacent parcels that sit immediately behind Lot 24. Lot 24 is improved with the Property Owner’s residence. The Property Owner desires to build a garage outbuilding on the rear lots. Garages are permitted only as an ancillary use. Therefore, the Property Owner is seeking approval of an amended plat which merges the three parcels into one lot so that the proposed garage will be on the same lot, and ancillary to, the main residence.

At issue is ownership of a 10’ right-of-way depicted on the Subdivision Plat which runs along the side of Lot 24 which gives the one lot immediately to the rear access. The County maintains that the right-of-way has been dedicated to the public and must be either “sold or vacated and divided between [the owners of Lots 24 and the neighboring Lot]” for the requested subdivision amendment to be approved.

                                                                                  

Approved plat Lot 24, as depicted on the approved Amended Monte Verde Subdivision No. 1 The 10’ right-of-way is highlighted.	Proposed plat amendment Lot 24 and two adjacent rear parcels depicted as merged into one lot on the proposed Amended Monte Verde Subdivision No. 2.

This issue initially came to light when the Property Owner received a stop work order from the County for a fence they were constructing running the length of the disputed right-of-way. The County has stated that “if the right-of-way is not sold to [Property Owner] and it is not vacated and divided between the two property owners, the fence posts installed by [Property Owner] will be required to be removed from the County right-of-way.” Submittal from County dated November 21, 2023.

The Property Owner maintains that the 10’ right-of-way is not County property; it is a private access easement benefiting the rear parcel now under his ownership. The disputed area has historically been gated off and landscaped. The Property Owner further maintains that the public has no interest in the private right-of-way, and accordingly, the process to vacate a public road does not apply. The Property Owner maintains that the Subdivision Plat notation merely locates the previously floating private right-of-way created in 1964 to give the rear parcel access.

Additionally, as the Property Owner now owns Lot 24 and the rear parcel (the servient and dominant estates), arguably, the servitude is extinguished under common ownership. Therefore, the Property Owner maintains, the 10’ right-of-way does not need to be depicted on the proposed plat amendment and the Property Owner may use that portion of his property without restraint of even the private access easement.[1]

History:

• • 1964 – “Floating” right-of-way granted. In August of 1964, one of the rear lots was conveyed by Warranty Deed “together with right-of-way leading to said premises from Public Road” in Book 5 Page 304, No. 33053 of Morgan County Records. This created a private “floating” or “roving” access easement benefiting the one rear lot across what is now known as Lot 24.
  • 1969 – land subdivided; right-of-way depicted. The Monte Verde Subdivision No. 1, was recorded as entry number 63655, and designates the disputed property as a “10’ R.O.W.”[2] The dedicatory paragraph on that plat reads:

“The undersigned owners of the foregoing described tract of land do hereby set apart and subdivide the same into lots and streets and utility easements as shown on the above and foregoing plat thereof, and assign to the lands included in the plat the name of Monte Verde Subdivision No. 1.

The undersigned owners further hereby dedicate, grant and convey to Morgan County all those parts or portions of said tract of land designated on said plat as streets, the same to be used as public thoroughfares forever and grant and dedicate a perpetual right of easement over and under the land designated on the plat as public utility easements, the same to be used for the installations, maintenance and operation of public utility service lines as may be authorized by Morgan County.”

• • 2018 – Property Owner acquires ownership of Lot 24 and the two additional parcels. Property Owner acquires Lot 24 as well as the two parcels to the rear, including the deeded right-of-way across Lot 24, by Warranty Deed on March 15, 2018. Recorded on March 19, 2018 as E 144276 B 342 P 928.

The County argues that the Subdivision Plat conveys ownership of the 10’ right-of-way to the County. They state that “a right-of-way is a street, not an easement. The right-of-way was conveyed to Morgan County ‘to be used as [a] public thoroughfare forever.’” Submittal from County dated November 21, 2023. Accordingly, the County is requiring the Property Owner to go through a formal, public procedure mandated in state code to vacate the right-of-way. The record is not entirely clear, but apparently, once vacated, the County may ask the Property Owner to buy the disputed land, or, it may be divided along the centerline between the Property Owner and the other adjacent lot owner.

The Property Owner disputes this interpretation. The Property Owner maintains that the Subdivision Plat depicts and locates the private access easement created five years before the Subdivision Plat was recorded. Alternatively, the 10’ right-of-way label creates a new private right of access to the rear lots. Regardless, because the Property Owner now owns both the dominant and servient estates for this private easement, the interests merge and the right-of-way is extinguished. Therefore, the 10’ right-of-way does not need to be vacated or depicted on the proposed amended plat.

The Property Owner has requested this Advisory Opinion to answer whether the County may require the Property Owner to go through the process to vacate a public street, where he understands the property to be an extinguished private easement, as a condition of approval of an amended subdivision plat.

Analysis

The heart of this dispute is the nature of the 10’ right-of-way. If it is County-owned, it will either need to be depicted on the proposed amended plat and left unoccupied (including removal of the recently installed fence posts), or, formally vacated in accordance with the process outlined in Utah Code Section 17-27a-609.5. The County asserts that if it is vacated, that the Property Owner would need to purchase the property and/or it may be split equally between the Property Owner and the adjacent property.

On the other hand, if the 10’ right-of-way is a private easement serving the rear lot, the Owner now owns both the dominant and servient estates, the interests have merged, the right-of-way has been extinguished, no longer exists, and may be left off the proposed amended plat and freely used by the Property Owner. See Skypark Airport Ass'n, LLC v. Jensen, 2013 UT App 229, ¶ 15, 311 P.3d 575, 579 (citing Restatement (Third) of Prop.: Servitudes § 7.5 (2000)) (“A servitude is terminated when all the benefits and burdens come into a single ownership.”)

The County has interpreted the language on the plat as dedicating the right-of-way to the public. However, Utah courts have long held that the “vital principle of dedication is the intention to dedicate.” Schettler v. Lynch, 23 Utah 305, 315, 64 P. 955, 956 (Sup.Ct. 1901); see also, 14 Powell on Real Property § 84.01 (2024) (Dedication of land to public use “requires . . . a landowner’s objectively manifested desire to devote property for such use”). Furthermore, “the burden of the servitude must be communicated to the owner of the servient estate with sufficient clarity to understand it. The principle is an application to easements of the basic concepts of the law of contracts that the duties of a party to a contract must be described in detail sufficient to make it possible to ascertain whether the agreement has been kept or broken.” Evans v. Bd. of Cty. Comm’rs, 2005 UT 74, 123 P.3d 432 (Sup.Ct.).

The County maintains that the disputed 10’ right-of-way was dedicated to the public via the Subdivision Plat. The County points out that the 10’ right-of-way is clearly labeled on the edge of Lot 24. Furthermore, the County claims that the dedication language includes the right-of-way. The dedicatory language reads as follows:

“The undersigned owners of the foregoing described tract of land do hereby set apart and subdivide the same into lots and streets and utility easements as shown on the above and foregoing plat thereof, and assign to the lands included in the plat the name of Monte Verde Subdivision No. 1”

The undersigned owners further hereby dedicate, grant and convey to Morgan County all those parts or portions of said tract of land designated on said plat as streets, the same to be used as public thoroughfares forever and grant and dedicate a perpetual right of easement over and under the land designated on the plat as public utility easements, the same to be used for the installations, maintenance and operation of public utility service lines as may be authorized by Morgan County.”

(emphasis added). We note, however, that the subdivision purports to “set apart and subdivide the same into lots and streets and utility easements” and only streets and public utility easements are dedicated to the public. The dedication does not mention the creation or dedication of rights-of-way, generally.

The County concludes that because “a right-of-way is a street, not an easement,” the right-of-way is conveyed within the language dedicating streets to the County. Submittal from County dated November 21, 2023. However, just because something is not one thing (a utility easement), does not necessarily make it another (a public street). There is nothing in the dedicatory language to suggest that the 10’ right-of-way is synonymous with street. The areas reserved for public streets are clearly depicted. The streets are clearly labeled (Valley View Drive and Monte Verde Drive), meet common engineering standards for local streets (60’ wide), and plainly give all the lots created by the Plat access. The right-of-way, on the other hand, is much narrower than the streets (10’ wide), not given a street name, and only serves the rear lot.

The mere labeling of an area 10’ right-of-way does not plainly convey interest in the right-of-way to the County. See, View Condo. Owners Ass’n v. MSICO, L.L.C., 90 P.3d 1042, 1047 (Utah Ct. App. 2004) (Recording a declaration or plat setting out servitudes does not, by itself, create servitudes). While no “particular words are necessary for the grant of an easement . . . the instrument must identify with reasonable certainty the easement created and the dominant and servient tenements.” Cape Homeowners Ass’n v. S. Destiny, Ltd. Liab. Co., 284 N.C. App. 237, 876 S.E.2d 568 (2022) quoting Oliver v. Ernul, 277 N.C. 591, 597, 178 S.E.2d 393, 396 (1971).

“An easement may be created by express words of either a formal grant or a reservation or exception in a conveyance of land. . . The same formalities apply to creation of easements as in any other conveyance. As an easement is a property interest, the creating instrument must satisfy the statute of frauds.” Utah Real Property Law § 12.02. Furthermore, language conveying property interests may not be vague, inconsistent, ambiguous, or incomplete. See South Corp. v. Potter, 760 P.2d at 322 (Utah Ct. App. 1988) (concluding a written agreement did not amount to express easement where its language was “vague, inconsistent, ambiguous, and incomplete.”)

One of the factors to consider in ascertaining the intent of the parties to an agreement purportedly transferring real property is whether the document sufficiently describes the interest granted “in a manner sufficient to construe the instruments as a conveyance of an interest in land.” Wasatch Mines Co. v. Hopkinson, 24 Utah 2d 70, 465 P.2d 1007, 1010 (1970). Words that “clearly show intention to grant an easement are sufficient, provided the language is certain and definite in its term.” Warburton v. Va. Beach Fed. Sav. & Loan Ass’n, 899 P.2d 779 (Utah Ct. App. 1995) quoting Martinez v. Martinez, 93 N.M. 673, 604 P.2d 366, 368 (N.M. 1979).

Utah courts would look to the plain definition for right-of-way to determine if a public right is inherently implied. Black’s Law Dictionary defines right-of-way as “The right to pass through property owned by another” with further differentiation between a “private right-of-way. See Easement” and “public right-of-way. The right of passage held by the public in general to travel on roads, freeways, and other thoroughfares.” Blacks Law Dictionary, 10^th Edition (2015).

Note that the legal definition does not imply a public right of passage. This continues to common-usage dictionaries as well. For instance, according to Merriam-Webster, the term right-of-way means “a legal right of passage over another person’s ground.” Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/right-of-way. Accessed 13 Feb. 2024. We conclude that usage of the term right-of-way does not inherently imply public rights.

Utah Code Section 17-27a-607 governs the dedication by plat of public streets and other public places. Section 17-27-a-607(1) reads “A plat that is signed, dedicated, and acknowledged by each owner of record, and approved according to the procedures specified in this part, operates, when recorded, as a dedication of all public streets and other public places, and vests the fee of those parcels of land in the county for the public for the uses named or intended in the plat.” (emphasis added). In this case, there is no public use named or even implied for the 10’ right-of-way within the face of the Plat. The Subdivision Plat does not include any language indicating any public use of the right-of-way. The location (only serving the rear lot) and limited width (10’ wide) also suggest it is suitable only as a private driveway for the rear lot.

In this case, the Subdivision Plat does not include sufficient detail to conclude labeling an area 10’ right-of-way conveys ownership of the area to the County. Because the Subdivision Plat is unambiguous, looking at the extrinsic evidence is not necessary. However, the history of a deeded private access right-of-way serving the rear lot being depicted and the location determined on the Plat fits squarely with this result. Furthermore, the County has not put forth any public purpose the right-of-way may serve, or why it would have been required when the Plat was adopted.

In conclusion, the 10’ right-of-way labeled on the Subdivision Plat has not been clearly dedicated to the County. Therefore, the disputed area is a private easement serving the rear lot. Because the Property Owner now owns both Lot 24 (the dominant estate) and the rear lot (the servient estate), the interests have merged, the right-of-way has been extinguished, no longer exists, and may be left off the proposed amended plat without need of going through any formal vacation procedure.

Conclusion

The label 10’ right-of-way on a recorded subdivision plat does not convey ownership of the area to the public. Dedication of land to public use requires a landowner’s objectively manifested desire to devote property to public use. The subdivision plat lacks any indication that the 10’ right-of-way is surrendered to public ownership. The dedicatory language on the plat mentions only the dedication of streets and public utility easements. Because the County does not have rights to the 10’ right-of-way, there are no rights to vacate.

Furthermore, the 10’ right-of-way depicts the location of a private right-of-way deeded several years before the plat was recorded. Because the same party now owns the servient and dominant estates for this private right-of-way, the interests automatically merge and the right-of-way is extinguished under common ownership.

Therefore, the county may not lawfully require the vacation of an extinguished, private right-of-way as a condition of approval of an amended subdivision plat.

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Jordan S. Cullimore, Lead Attorney

Office of the Property Rights Ombudsman

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NOTE:

This is an advisory opinion as defined in § 13-43-205 of the Utah Code. It does not constitute legal advice, and is not to be construed as reflecting the opinions or policy of the State of Utah or the Department of Commerce. The opinions expressed are arrived at based on a summary review of the factual situation involved in this specific matter, and may or may not reflect the opinion that might be expressed in another matter where the facts and circumstances are different or where the relevant law may have changed.

While the author is an attorney and has prepared this opinion in light of his understanding of the relevant law, he does not represent anyone involved in this matter. Anyone with an interest in these issues who must protect that interest should seek the advice of his or her own legal counsel and not rely on this document as a definitive statement of how to protect or advance his interest.

An advisory opinion issued by the Office of the Property Rights Ombudsman is not binding on any party to a dispute involving land use law. If the same issue that is the subject of an advisory opinion is listed as a cause of action in litigation, and that cause of action is litigated on the same facts and circumstances and is resolved consistent with the advisory opinion, the substantially prevailing party on that cause of action may collect reasonable attorney fees and court costs pertaining to the development of that cause of action from the date of the delivery of the advisory opinion to the date of the court’s resolution. Additionally, a civil penalty may also be available if the court finds that the opposing party—if either a land use applicant or a government entity—knowingly and intentionally violated the law governing that cause of action.

Evidence of a review by the Office of the Property Rights Ombudsman and the opinions, writings, findings, and determinations of the Office of the Property Rights Ombudsman are not admissible as evidence in a judicial action, except in small claims court, a judicial review of arbitration, or in determining costs and legal fees as explained above.

The Advisory Opinion process is an alternative dispute resolution process. Advisory Opinions are intended to assist parties to resolve disputes and avoid litigation. All of the statutory procedures in place for Advisory Opinions, as well as the internal policies of the Office of the Property Rights Ombudsman, are designed to maximize the opportunity to resolve disputes in a friendly and mutually beneficial manner. The Advisory Opinion attorney fees and civil penalty provisions, found in § 13-43-206 of the Utah Code, are also designed to encourage dispute resolution. By statute they are awarded in very narrow circumstances, and even if those circumstances are met, the judge maintains discretion regarding whether to award them.

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Endnotes

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[1] For clarity, we note that there is also a public utility easement which runs through a portion of the disputed 10’ right-of-way. This public utility easement apparently is not affected by the proposed amendment and remains.

[2] An amended plat was recorded on 11-25-73 as entry number 39482 which only affects Lots 1 – 4 (and not Lot 24 or the right-of-way in question).