Road Establishment

Road Establishment
Presented by David Meyers
Minnesota Society of Professional Surveyors
Summer Meeting
July 31, 2014
How did it get to be a road?
A.
Formal establishment by
Government Action
B.
Or established by use.
C.
Answer is fundamental to keeping
road open (or closing it)
1.
If there was formal establishment by a
Government act and the road is still
used (even infrequently) it is very
difficult to lose the road
a.
2.
Once establishment is proven, the
burden shifts to the other party to
prove abandonment or some other
means of loss of the public rights.
If established by Use, then the
Government must first prove its
right to the road
Road Established by
Government Action
A.
How do you know if the road was
established by Government Action?
1.
Does it follow a section line, quarter
section line, or other straight survey
line?
a.
2.
Is it a straight road?
Does it parallel a drainage ditch,
i.e. Government tile line or drainage
system?
3.
Does it meander along a creek,
river or lake?
4.
Is the land adjacent to the road
platted?
5.
Does it meander off in a zig-zag
pattern?
a.
Even then, a right-of-way might
exist, but the road could have been
built as the terrain allowed.
B. Assuming it is straight, where do you
look to find a Road Order?
1.
The Town Road Book
a.
2.
Check the Clerk’s meeting minutes,
town financial disbursement Journal,
minutes of annual meetings, etc.
County Recorder
a.
Check tax assessment records for
both assessments and later records
for satisfaction of an assessment,
check references in old deeds to any
road or easement.
3.
County Auditor Records
a.
b.
4.
5.
Check District Court Files for Judicial
Ditches or Judicial Roads
State and County Historical Society
Records
a.
6.
Prior to the mid 1970s, Town Road
Orders were required to be filed
with the County Auditor
County Highway Records
State Ditch Records
Minnesota Legislative Session Laws,
for pre-1920 appropriations (“PorkBarrel” or “Earmarks” indexed by
County)
Establishing a Road by Use
A.
B.
The burden of proof is on the
Government, and it must be
shown by a “preponderance
of the evidence”
Minnesota Statutes § 160.05
Six (6) years
1.
Maintenance - even minimal
work could be sufficient
2.
Public Use - minimal use is accepted, but
it must be such that would put someone
on notice that the public has a road
a.
3.
Dedication is “to the width of the actual use…”
Minnesota Statutes § 160.05
Double Edge - because the town may
acquire a roadway, but (according to the
Minnesota Township Association website),
a private owner may be able to force a town
to maintain the road.
a.
See: Minn. Stat. § 163.16, where five owners
of property may petition a County Board to
force a town to pay for road maintenance.
b.
Town of Red Rock v. County of Mower,
311 Minn. 446, 250 N.W.2d 827 (Minn.
1977), holding that acceptance of a plat
did not obligate the town to open and
maintain the dedicated streets. However,
the town may be obligated under Section
163.16 to maintain the road.
c.
Carlson v. Town of Sunrise, 2002 W.L.
555239 (Minn. App. April 16, 2002),
holding that the town may determine
the time it will open a street and assume
maintenance of a dedicated street. Also,
holding that an ordinance providing for
the issuance of permits for driveways and
culverts, must have a public hearing under
Minn. Stat. § 462.352, and this was not
part of the town’s general authority to
regulate roads under Minn. Stat. § 164.36.
C.
Theusch v. Berg, 2008 W.L. 1972487
(Minn. App. May 6, 2008)
1.
2.
Whether a road has become dedicated
by use under Section 160.05 is a
question of fact, and each instance is
based on the special facts of the case.
There is no private cause of action for
failure to give notice of cutting trees
and brush under Minnesota Statutes
Section 160.22. However, the failure
to give a notice required by Section
160.22 could constitute cutting trees
“without lawful authority.” In that case,
Minnesota Statutes Section 561.04
(providing triple damages) may apply.
C.
Common Law Dedication
(See: Sackett v. Storm,
480 N.W. 2d 377 (Minn. App. 1992).
1.
Owner’s intent to dedicate land
to public use
a.
2.
May be implied by unequivocal acts
Public acceptance by use
a.
b.
c.
Minimal public use is sufficient
No public money need to be spent
Recreational use, alone, may not be
sufficient (See: MN Statute § 604A.27)
Loss of the Public Right-of-Way
How to Prevent It
A.
Marketable Title Act
(Minn. Stat. § 541.023)
1.
Primary defense
a.
Possession and Use - has the public
used the road - use must be such as
to put someone on notice - minimal
public use is sufficient.
b.
Road Inventory
C.
Formal Action
1.
2.
3.
Minn. Stat. § 164.07 – vacation
Minn. Stat. § 164.02 – abandonment
Minn. Stat. § 164.06 - extinguishment
a.
Notice must now be given by certified
mail to the abutting property owner
A.
Bolen v. Glass, 755 N.W.2d 1
(Minn. 2008)
1.
City had Authority to issue a permit
for the construction of private
improvements on a dedicated,
but not undeveloped street.
2.
Adjacent property owner had a right,
with the City’s permission, to use
the developed street for a driveway.
B.
Hebert v. City of 50 Lakes, 744
N.W.2d 226 (Minn. 2008)
1.
2.
3.
Torrens or registered property is
treated differently than abstract
property.
A City could not acquire title to a
road by De Facto taking where the
underlying property is Torrens.
A “mere gravel road” without
“any valuable improvements” is a
permanent road, even though it is
not paved, nor does it have curbing.
4.
Torrens property may only be
acquired for road purposes
through a formal condemnation
or other statutory proceedings.
5.
A statutory dedication under
Minn. Stat. § 160.05 (the user
statute) may not apply to Torrens
property.
6.
The act of a City in constructing a
gravel road land does not own or
control, may be a trespass. The
trespass could be temporary, meaning
that the trespass happened the day
the road was constructed, or a
continuing injury, which means that
any time someone uses the road, it is
a new trespass.
David J. Meyers is certified as a Real
Property Law Specialist by the Minnesota
State Bar Association. He is the Examiner
of Titles for both Sherburne and Mille Lacs
County.
David J. Meyers
Rinke Noonan
1015 W. St. Germain St., Suite 300
P.O. Box 1497
St. Cloud, MN 56302-1497
Phone: 320.251.6700
Toll Free: 888.899.6700
Direct Dial: 320.656.3512
Fax:320.656.3500
Email: [email protected]
Website: www.rinkenoonan.com

Download Report