21.00.2 Examination Of Titles To Vacated Streets Alleys And Highways

Who does title pass to upon vacation?

The vacation proceeding does not affect the underlying title to a roadway. Since a street or alley is essentially an easement for roadway purposes, a conveyance of a lot generally includes the fee to the center of the street. Possession of the fee depends on whether the dedication of the street and creation of the lot resulted from the same plat and common ownership. Ownership of an adjacent roadway depends on how title existed at the time the roadway easement was created.

The following diagram assists in illustrating ownership of a street and the effect of a vacation.

Vine Street

If the dedication of Vine Street and the formation of the lots to the north and south of the street occurred with the same plat, each lot owner owns to the center of Vine Street. This plat is also evidence of the common ownership of the lots and the street area. If Vine Street is vacated, the fee to the street is no longer encumbered by the street easement.

If the lots to the north and Vine Street's dedication were contained in the same plat, the northerly lot owners will carry the fee to the entire street. The southerly lot owners cannot acquire a fee in the street where the party dedicating the street did not own land on both sides of the street. Brackney v. Boyd (1919), 71 Ind. App. 529, 12 N.E. 696; Erwin v. Central Union Telephone Co. (1897), 148 Ind. 365, 46 N.E. 667.

Are prior conveyances of land abutting a street or alley sufficient to convey title to the underlying fee of a subsequently vacated street or alley?

Yes. A conveyance of a lot will include title to the underlying fee of an abutting Public Street or alley.

Does a subsequent conveyance of land abutting a vacated street or alley include title to the appurtenant vacated area?

Unless agreed to otherwise, a description of a platted lot also provides title to the portion of the vacated street or alley. I.C. § 36-7-3-14. A common practices has developed to reference the vacated portion by mentioning that the lot includes a part of the vacated street with information as to the vacation proceeding. If the vacated area results in a tract of land greater than five (5) acres with one owner or joint ownership, the vacated area can be described with a metes and bounds description. Id.

How do you determine the validity or legality of the vacation proceedings?

Prior to September 1, 1981, I.C. § 18-5-10-41 et seq. (now repealed) addressed the vacation of plats, streets, and alleys in the following manner: 1.) vacation of plat irrespective of city or town limits ? petition to the county circuit court I.C. § 18-5-10-43; 2.) vacation within limits of a city with an existing board of public works or board of public works and safety ? proceeding before the common council I.C. § 18-5-10-41; and 3.) vacation of any street within a county containing a city of the first class ?approval by the metropolitan plan commission and the board of public works. I.C. § 18-5-10-41.

After August 31, 1981, sections of Title 36 governed the vacation procedures of platted lots, streets, and alleys by an accepted and recorded declaration for all property owners in the plat or the filing of a petition in the following areas: 1.) areas with a plan commission I.C. § 36-7-3-11; and 2.) unincorporated area without a plan commission ? county commissioners I. C. §§ 36-7-1-17 and 36-7-3-10 & 12; 3.) municipality (incorporated area) without a planning commission ? city board of works I. C. §§ 36-7-1-17 and 36-7-3-10 & 12; and 4.) petition in Marion County I.C. §§ 36-7-3-10 & 11 and 36-7-4-712.

How is a state highway abandoned or transferred?

The Commissioner of the Indiana Department of Transportation (IDOT) can execute an order abandoning a highway right-of-way when the street or road is no longer useful for highway purposes. The abandoned portion will revert to the individual lawfully entitled to own the land. I.C. § 8-23-4-9. If the highway area no longer serves the same function due to new construction or relocation, IDOT can transfer the portion of the highway system to a county or municipal street system. Generally, the transfer is memorialized in an agreement to outline the conditions and effective date of the transfer. I.C. §§ 8-23-4-10 through 12. The order and/or agreement as to abandonment and transfers should be recorded but IDOT also keeps internal records.

How does a vacation affect utility easements within the vacated area?

If utilities exist prior to the vacation proceeding, the vacation proceeding does not extinguish the public utility's right to use of the land to be vacated. The utility may waive its right by filing a consent to the vacation proceedings. I.C. § 36-7-3-16.