California Code of Civil Procedure 873.080 is the California partition statute that gives partition referees the authority to designate a portion of a property as a road or close roads as he or she sees fit. The statute provides that:
(a) In selling or dividing the property, the referee may, if it will be for the advantage of those interested, designate a portion of the property as a public or private way, road, or street. In connection therewith, the referee may also recommend the closure of any or all other roads on the property and allocation of the portion of the property occupied by such roads to the parties.
(b) Upon making such a designation and recommendation that is adequate to accommodate public and private needs, the referee shall report that fact to the court.
(c) Upon confirmation of the referee’s report by the court, subject to any necessary action by the appropriate public entities:
(1) The portion of the property designated as a public way, road, or street shall not be allocated to any of the parties or sold but shall be an open and public way, road, or street.
(2) The property designated as a private way, road, or street shall be a private way for the use of the parties interested.
(3) The roads recommended to be closed shall be deemed abandoned upon the terms stated in the order of confirmation.
California Code of Civil Procedure § 873.080
“At common law a referee in partition had no authority to lay out a public street but could only create and attach to one parcel of land a right of way or easement and impose such servitude on another parcel where required for the beneficial partition of the property. This was the rule under section 764, supra, prior to its amendment in 1874. Myers v. Daubenbiss, 84 Cal. 1, 5, 23 P. 1027. Undoubtedly because of this lack of authority in the referee the code section was amended in the manner above indicated.” Machado v. Title Guarantee & Trust Co. (1940) 15 Cal.2d 180, 184.
For example, where map delineated a portion of land to be partitioned as named avenue, map was referred to and made part of report of court-appointed referees, and such report was confirmed by court and made a part of decree of partition in which city and county were parties, the land had been set aside for public purposes forever. Corey v. City of San Diego (1958) 163 Cal.App.2d 65.
These laws appear to be more historic in nature when partitioned land was vast in acreage and resulted in the formation of cities, and parts of cities, as well as the subdivisions therein. In modern times, most partitions involve a single family residence with no surplus land such that this statute would not be of any relevance.
Law Revision Commission Comments to California Code of Civil Procedure § 873.080
In 1976, the California Law Revision Commission explained California Code of Civil Procedure § 873.080 as follows:
Section 873.080 is new. It makes clear that the actions of the referee in disposing of the property and of the court in confirming the referee’s actions must conform to any applicable laws.
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