Strip between sidewalk and street? Public or not?

[Heath j]

The only silver I have ever found was on the strip of soil between the sidewalk and the street when I was helping my Uncle on a house renovation. I have heard both that is public and it is not. What's your take?

 

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[Tom_in_CA]

there's been a million threads on this topic , on a hundred md'ing forums.

yes, it's public . But that doesn't stop any/all lookie-lous from griping . Someone could still get their panties in a wad . So go at low traffic times and avoid busy-bodies . Presto : problem solved

 

[Sandman]

As Tom said that strip belongs to the city, but the home owner maintains it and they don't like any damage to it.

 

[TheRingFinder]

Both posts above are correct - You can legally hunt it, but it's a pain that is not worth a silver dime to me. My advice - avoid it unless you have the homeowners permission.

 

[RustyGold]

Check your local ordinances! They may differ from city to city!

 

[Tom_in_CA]

Check your local ordinances! They may differ from city to city!

And by "check your local ordinances", he does not mean to "ask someone 'can I?' ". "Local ordinances" can be looked up for oneself. So do not confuse that with "getting permission".

If you see that: a) it's public eavesement (which it most likely is), and b) that there's no city/municipal wide ordinance forbidding md'ing, within city borders (which is never the case), then presto: there's your answer.

 

[Clay Diggins]

An easement is a very limited right to some specific use of someone's private property. The property subject to the easement is still private property in all other respects. That easement use could typically be for walking, driving, watercourses or utilities. Most easements are between private parties and don't involve any public rights at all. An easement is rarely if ever the right for members of the public to dig or hunt on another's property. It would be very wise to investigate the actual nature of an easement before relying on it for your own private uses.

Non internet lawyer definition of an easement:

An easement is a nonpossessory interest in another's land that entitles the holder only to the right to use such land in the specified manner.

I would agree with Tom that asking public employees what your rights are in any particular situation is counter productive. You will not get an answer you can rely on and often the public employee will take it on themselves to make something up which may make their job seem to have some powers it doesn't. It's just human nature for public servant to try to act as if they are in charge of those they serve.

 

[Tom_in_CA]

An easement is a very limited right to some specific use of someone's private property. The property subject to the easement is still private property in all other respects. That easement use could typically be for walking, driving, watercourses or utilities. Most easements are between private parties and don't involve any public rights at all. An easement is rarely if ever the right for members of the public to dig or hunt on another's property. It would be very wise to investigate the actual nature of an easement before relying on it for your own private uses.

Non internet lawyer definition of an easement:


I would agree with Tom that asking public employees what your rights are in any particular situation is counter productive. You will not get an answer you can rely on and often the public employee will take it on themselves to make something up which may make their job seem to have some powers it doesn't. It's just human nature for public servant to try to act as if they are in charge of those they serve.

Clay, thanx for the concurrence to my stance

But as for the first part of your post, as for "limited" or "specific" usage, I notice you follow that up with characterizing md'ing as to "dig". Well if you want to characterize/define it THAT way, then you might as well stay out of any park or school yard too. Because I gaurantee you there's verbage disallowing "digging". Or at least words like "alter", "molest", "deface", etc...

However, this type characterizations of "dig", "alter", and so forth, ALL have a single inherent element in them: The end result. Ie.: "holes". Like if the word "dig", is floated past the average city employee, what image will that conjur up? HOLES, of course. So it seems to me, that if you and I leave no trace of our presence, then problem solved.

So your word-of-caution about "limited" and "specific" need-not be construed as meaning that an activity (walking, driving, utilities, etc...) need to be specifically listed as "allowed". On the contrary, an activity would need to be listed as "dis" allowed, in order to be prohibited. Same for parks: They TOO have "limited uses". However, one does not assume therefore, that md'ing is dis-allowed, unless there were a rule actually saying that . Just as he assumes he can fly a kite, so long as there's no rules forbidding it.

My house is across the street from a park. As such, persons park their cars in front of my house. I have seen persons put their baby bassinets, or picnic baskets, etc.... temporarily on my parking strip. That's not "walking", or "driving", etc... Yet I do not assume for a moment that they can't do that. As it's innocuous. In the same way I consider md'ing innocuous, since I know I'll be leaving no trace of my presence.

 

[Clay Diggins]

My original post used both "dig" and "hunt" as examples of uses that would not ordinarily be included in public easements - my example could also have included "swim", "play poker" or "sell sandwiches". Interesting that you didn't pick up on that. The use of those words was to illustrate the legal concept that an easement only permits those uses that are spelled out in the written easement. If a use is not spelled out in an easement then the property owner retains the exclusive right to those uses.

When you find a public easement that specifically allows the use of metal detecting you will then have a right to metal detect - whether you can dig or not will depend on the other uses allowed in the easement. In the meantime focusing on a single word "dig" in my post in no way changes the terms of any easement. Uses under easements are limited and specific to each easement.

Your example of how you treat visitors to your property in no way changes an easement. Since you have a property that you assume is a serviant estate to an easement it should be a simple matter of looking up your title disclosures to determine whether in the easement you permitted metal detecting or digging by members of the public.

When an easement includes the right to run a sewer line or utilities the right to dig the land for poles or pipe is obviously a portion of the easement use. That right to dig for a utility doesn't translate to a right for a passerby to dig a trench. To try to convolute the municipality's easement into a right for the public to search for buried treasure on otherwise private land is similar to claiming that since your neighbor bought a lawnmower you have a right to use that lawnmower for your own lawn. That's not how ownership or easements work.

An easement is a nonpossessory interest in another's land that entitles the holder only to the right to use such land in the specified manner. It is distinguishable from a profit a prendre that is the right to enter another's land and remove the soil itself or a product thereof, such as crops or timber.

Please note that the rights granted in an easement are nonpossessory. The easement does not extend to "things" - it only applies to "uses" of the land. The city can't remove the soil from the property for their own use just because they have the right to trench for utilities. The city in no way owns a property that it has an easement to. Easements do not include the right to own an object found on the serviant estate.

I'm not against anyone metal detecting anywhere they have a right to. I'm not suggesting that using a metal detector along a public easement is always illegal. I am trying to help you understand that just because an easement exists that easement can not be relied on to give you the right to remove found objects from the easement - whether you dig them or not. Unless of course the easement specifically grants the public the right to take ownership of found or dug objects.

This isn't really about your interpretation of what I have written or what you believe an easement is. This is long established law and there is no reason you can't investigate the actual easements found in your area. Public easements are - public. Look it up before you assume you have a right that most probably doesn't exist.

 

[Tom_in_CA]

My original post used both "dig" and "hunt" as examples of uses that would not ordinarily be included in public easements - ......

Thanx for getting back to me Clay Diggins. In reading what you've written, am I correct in assuming that an activity need-not be "expressly allowed", in order to be done on said eavesements Right? Instead, the standard would be "ordinarily" done. Ie.: walking, or .... as in the case of my own eavesment next to a park: the setting of a picnic basket on the curb, while getting in and out of one's vehicle on their way to the park across the street. Right ? Am I understanding you correctly ? So for example: it would be futile for me to call the cops on a lady who sets her picnic basket there, even though there is no express allowance, and even though that did not constitute "walking", and so forth. Right?

Ok, if I've understood you correctly, then I maintain that metal detecting IS "ordinary" use of the curb-strips. Just as the picnic basket set there is "innocuous", "harmless", etc.... SO TOO is detecting non-harmful, non-dangerous, etc......

I don't disagree that someone (a homeowner, etc...) might not see it that way. Well SO TOO is it entirely possible that the same thing can happen in a park. Forums are FILLED with stories of md'rs "catching grief" for md'ing in parks to which there was/is no rule forbidding. Heck, I had a lady tell me that my detector bothered her dog once (I think she thought it emitted sounds/frequencies that only dogs heard??). The list is never-ending. But the bottom line is, I do not accept the premise that detecting = inherently bad, dangerous, harmful, etc.... and thus in-need of princely say-so's of desk-bound bureaucrats. Yes I'll be polite. Yes I'll be discreet in my timing (so as not to invite or look for confrontations). But no I do not consider detecting to be anything less than the impact of whistling dixie, flying frisbee, setting picnic baskets on curbs, etc...

 

[Clay Diggins]

You are engaging in paradoxical thinking. I was clear that easements only allow the uses specifically stated in the easement. I wrote nothing about activities - that was your terminology. Easements are for uses, not activities. Easements are always written so if you have a question about the uses granted you need only read the easement.

You can safely assume that if the easement is private you have not been granted a use that you don't already know about. As I've stated if the easement is public it will be available for you to read.

Easements are never implied or assumed so you can leave the "what ifs" out of your speculation.

Easements have no relationship to public parks.

 

[Tom_in_CA]

You are engaging in paradoxical thinking. I was clear that easements only allow the uses specifically stated in the easement. I wrote nothing about activities - that was your terminology. Easements are for uses, not activities. Easements are always written so if you have a question about the uses granted you need only read the easement.

You can safely assume that if the easement is private you have not been granted a use that you don't already know about. As I've stated if the easement is public it will be available for you to read.

Easements are never implied or assumed so you can leave the "what ifs" out of your speculation.

Easements have no relationship to public parks.

Ok then: Can the lady exercise the "use" of the parking strip, in front of my house, to put her picnic basket on, while un-loading and loading her kids in her mini-van?

I'm assuming I'm NOT going to find this listed as an "allowable use", down at my city hall. Right? And it doesn't constitute "walking", and so forth. Therefore, can she legally do it, or not ?

 

[Treasure_Hunter]

You are engaging in paradoxical thinking. I was clear that easements only allow the uses specifically stated in the easement. I wrote nothing about activities - that was your terminology. Easements are for uses, not activities. Easements are always written so if you have a question about the uses granted you need only read the easement.

You can safely assume that if the easement is private you have not been granted a use that you don't already know about. As I've stated if the easement is public it will be available for you to read.

Easements are never implied or assumed so you can leave the "what ifs" out of your speculation.

Easements have no relationship to public parks.

The land is not an easement through property owners land it is a city, county or state easement. An easement through a property owners land is different than easements adjacent to homes, If homeowners check their property survey the vast majority will find their property lines end before the sidewalk, sometimes far closer to their home than they ever knew.

 

[Clay Diggins]

If the property doesn't extend to the strip there is no need of an easement from the property owner. They can't grant an easement for property they don't own.

I've owned quite a few properties in different states and I've always owned to the curb or beyond. I'm surprised to hear it's different on your property. I guess anything is possible, it's just a new concept in my experience.

Who does own the strip where you live Treasure_Hunter? Is it common in your state for properties to be landlocked?

 

[Treasure_Hunter]

If the property doesn't extend to the strip there is no need of an easement from the property owner. They can't grant an easement for property they don't own.

I've owned quite a few properties in different states and I've always owned to the curb or beyond. I'm surprised to hear it's different on your property. I guess anything is possible, it's just a new concept in my experience.

Who does own the strip where you live Treasure_Hunter? Is it common in your state for properties to be landlocked?

Clay I worked for telephone company located fiber and coper cables on easements for over 15 years, also including locating water and electrical. We were given classes on easement rights.

Most easements are drawn up before any land is ever sold, the property lines stops at easement which many times are many feet on home side of sidewalk.

 

[Sandman]

Use common sense. If you get shot while on someone's property whether it's legally theirs or not, they could say they thought you were a Zombie so they shot ya in the head.

 

[cudamark]

Around here, the city owns the land from the center of the street and 20-25 feet (depends on the actual neighborhood) toward the owners' private property. That typically includes the curb, sidewalk, and grass parking strip. The land owner in front of that section of "public" property is required to maintain that area but doesn't own or control it's use. Yes, he even responsible to repair the concrete if it's damaged! The city usually waives that requirement however. That's why it's important to look up the law yourself so you know where you stand when a "land baron" confronts you. Even if you're in the right, it's best to just move on without argument. No point in getting the police involved. Just return at a more discreet time. I just had a demented knucklehead scream at me from his house up on a cliff overlooking the beach below that I was hunting. He somehow had the idea that he owned that section of beach! You'll find all kinds out there.....

 

[DadOfTwo]

FWIW we just bought a 20-year-old house in a development. The survey shows my property line at the yard-side of the sidewalk. It does not show the sidewalk, grass strip, curb, or any part of the road. It also shows a clearly marked 10-foot Public Utilities Easement (PUC) on my side of the property line. YMMV.

I know that there have been some heated discussions among members of a local Homeowner's Associations regarding 'enforcing' street-side parking bans. The Association eventually had to back down because they don't own the streets, and therefore can't make enforceable rules regarding parking there. I mention that because I have heard (not confirmed) that some newer developers build their own streets, and pass ownership of the streets to the HOA after construction is complete. If that is true, it is possible that the grass strips in questions could belong to an HOA.

 

[Charlie P. (NY)]

If the property owner does not keep up the strip and lets it go to tall weeds the City will go after the property owner for a code violation. It is pulbic easement but private property hereabouts. If you add a driveway the City will not drop the curb and lay ashpault - the property owner has to pay for that. The property owner pays the taxes on it. If someone slips and falls there because of a ice patch or oil spill the property owner is sued, not the municipality.

But the municipality maintains the fire & sewer, the water lines, etc. You do not have a right to detect there, pitch a tent, start a campfire, place a political sign, stand and panhandle, let your dog poop, etc. Those are all at the will and permission of the property owner.

BUT some towns and commissions can have different common areas, greenspace, curbs, etc. It depends on local ordinances as noted above.

And even if it is "public" property that does not mean an individual can take what they want off it. Police cars and sidearms are public property. Grab one for yourself and see where it gets you.

 

[Tom_in_CA]

reply

.... And even if it is "public" property that does not mean an individual can take what they want off it. ....

Charlie, let me play the devils advocate and run that through the "logical conclusion" of steps, once we md'rs "start down that path".

SURE! You can't just "take" or "remove" or "collect" things from public land. Or land in which there's an eavesment through private property. Granted. But the same can be said of parks, beaches, forests, school yards, etc.... ! Though they're "public", yet there is certainly rules forbidding "collecting", "harvesting" , "removing", and so forth. Yup, even for parks and beaches you routinely hunt, I bet there rules about that. Obviously spelled out 100+ yrs. ago, so that no numbskull thinks he can help himself to the park benches. Or cut down trees for firewood. Or start commercially harvesting beach sand, or park sod, etc... RIGHT?

But seriously now: were such rules ever made to snare an md'r "collecting" or "removing" or "taking" or "harvesting" a coin? a pulltab? a ring? Of course not. However, there's nothing *technically* that prevents those texts from applying to us too. Afterall, you "removed" it, did you not?

So if such clauses are going to bother an md'r, then ..... I have to ask a silly question: Why are you into md'ing then? Didn't ever occur to someone, if they get into a hobby like this, that their sole purpose and intent is to .... doh "find and take things" ?

Thus as you can see, there comes a point, where if such things that MIGHT be morphed to apply worry someone, then they'd best either a) stick to private property, or b) find another hobby.