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Hof#« Borrv % Kudvt*»r 6129417968 . 0S• < 1 I Jun« 27, 1994 Mr. ThOMP J. Barrvtt P«9« Two MEt JoroM • Lindoll v. City of Orono BR8 rilo HOI 11005931 our rile No: 3200-019 The ioeoo roiood by the Plaintiffo la» that the City cfiinot claia any intoroat in the diaputod roadway boeauao the City, failed to record ita interoat in the real eatate within forty (4f) years of its creation, thus barrinB any claia it aay have pursuant to the Harketablo Title Act, Minn. Stat. SS41.023 (hereinafter MTA). That statute provides that an Interest in real estate is eonelusivoly ahandenad# if recordation of the interest in real estate is not aade within 40 years of the creation of that interest, in this case it aaans that the City (or town at that tiaa) would have to have recorded its interest by the 1930's. That was not done. It is the Pleintiffs' position that the failure to record is fatal to any claia the City say have to the roadway. Asoueing the factual scenario eat forth above to be correct, it is ay opinion that the City will not be successful in having the disputed roadway declared a public way. I I Minnesota Courta have applied the MTA to public roadways. Ravenna Townohip V. Crundsath. 314 N.H.2d. 214 (Minn. 19S1). Therefore, if the City ca^ d^strete that it neats the MTA standard, its claia to the roadway will fail. It is undisputed that the City did net record its interest in the roadway e^.thin the 40 years remired by the MTA. Thus, under the MTA, City has conclusively abandoned its interest in the roadway. This conclusion of abandenaent can, however, evercoae by a showing of "possession** of the property at issue. Minn. stat. 9941.023, subd.a. There are sevoral cases which have dealt with claias by public bodies that they have sufficient poMession of roadways to evercoae the presuaption of abandenaent. !(;hose cases have held that even liaited aaintenance is not sufficient to evercoae the presuaption of abandenaent. (Bee areriino vs. fijcictin, 309 Minn. 230 244 ll.M.2d. 129 (1979) Wherein the town 4Ud soae ainiaal grading and slight ditching; in sawMip sons police patrols of the area were dene, along with gravel placeaent; in Fester vs. Bargstroa and Pine City. 919 H.V.2d 991 (Minn. App. 1994) there was ainiaal and sporadic aaintenance: with the depositing of sons fill.) in our case, there hes edaittedly been no aaintenance by the City, or Its predecessor, clearly, if the Clty*s ease «iere to rest on the aaintenance done, it wodld fail to overcoae the presuaption of abandonaent. one case in Minnesota did consider the affect of ecknowledgeaent of a roadway by adjacent property owners. In _ _ _ _ _ _ Chisaop. 370 M.w.id. 920 (Minn. App. 1995), the C^rt found that the presuaption of abandonaent had been overcoae by a osabiaatiea of Jcnowledge of the public read and aaintenance activity. Inaintiff's awareness of publiHenley the Court found that the Fl<public use