05-11-1999 Public Hearing - Woodhill CC

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I I I I I f I f I I I I I I I I 1 1 LINDQUIST & X'ENNUM p l l p Letter to Clifford M. Greene. Esq November 20. 1998 Page 2 The defense asserted by the City arises from the fact that the easterly portion of Woodhill Avenue as traveled deviates from the straight line shown in the 1887 Plat of Minnetonka Bluffs and the 1924 Plat of Orono Orchards. The City’s position appears to be that because this portion of the traveled road deviated slightly from the plats (in order to curve around the hill) that it is not a public road like the rest of Woodhill Avenue. However, a street can become a public street not only by being platted, but also through common law dedication and the statutory dedication under Minn. Stat. § 160.05. In the present case, Woodhill Avenue did become a public street to the Woodhill property line both through common law dedication and statutory dedication. The elements of a common-law dedication of a roadway are (1) the land owner’s intent - express or implied - to have his land appropriated and devoted to public use; and (2) an acceptance of that use by the public. Benoston v. Villiaoe of Marine on St. Croix, 246 N.W.2d 582, 584 (1976) (citing Daugherty v. Somers. 68 N.W.2d 866 (Minn. 1955); Keiter v, Berae. 18 N.W.2d 35, 38 (Minn. 1945)). “A dedication rests upon assent and not prescription." Bengtson. 246 N.W.2d at 584. A land owner’s intent is expressed when he "asserts that the road is public, and thus his intent is unquestionably to dedicate it." Bengtson. supra at 585. In Sackett v. Storm. 480 N.W.2d 377, 380 (Minn. App. 1992), a lakeshore property owner sought a court determination that the disputed roadway v/as dedicated to public use against an adjoining property owner (Storm) who had erected gates preventing plaintiff's use of the roadway. ]d. at 379. Evidence of intent was found based on an affidavit of a prior ov/ner of the Storm property. "Henry Loxtercamp, the immediate predecessor in interest to the Storms, stated by affidavit that when he bought the property in 1968 he knew there was a long established roadway that he assumed all had the right to use. Loxtercamp also stated that he ’intended that the roadway be dedicated, used and maintained year-around for the general use of the area cabin owners and the public.’" id. at 380. See also Keiter v. Beroe. 18 N.W.2d 35 (Minn. 1935); Anderson v. Birkland. 38 N.W.2d 215 (Minn. 1949); Metalak v. Vasmussen. 238 N.W.2d 478 (Minn. 1931); Carpenter v. Gantzer. 204 N.W.2d 550 (Minn. 1925). Acceptance of a common law dedication may be shown either by public use or by maintenance. "Acceptance of a dedication by the public may be shown by public user, as by travel, or by acts of public officers in improving and maintaining the road." Daugherty v. Sowers. 68 N.W.2d 866. 868 (Minn. 1955). “Common user by f)4»C« I0744S0 I t