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c <br />MEMORANDUM <br />Pi\G I 01987 <br />TO; <br />FROM; <br />RE; <br />DATE; <br />Jeanne Mabusth, Bulding & Zoning Administrator <br />KABlatz, City Attorney <br />Question of Orono City Staff as to Proposed Combination <br />of Public and Private Road. <br />August 6, 1987 <br />In a letter dated July 29, 1997, you asked if 33 feet <br />of undeveloped, dedicated public alley from an established plat <br />could be combined with 17 feet of proposed private road in a <br />proposed plat. You stated that vacating the 33 foot alley would <br />not "provide any advantage to this developer," because once <br />property is vacated the abutting property owners obtained the <br />land up to the center point of the land which was vacated. <br />I will answer your questions in the ordv you proposed <br />in your July 29 letter. <br />1) Can the 33 feet of the public right-of-way be used <br />as part of a~orivate road7 A municipality holds the qualified <br />or terminable iee title to property dedicated to highway <br />purposes in trust for the people, and it can neither sell nor <br />devote it to a p'.ivate use. State v. Marcks 36 N.W.2d 549 <br />(1.949). After an alley has been dedicated and accepted a <br />municipality becomes a trustee and may not divest such public <br />r;i.ghts without public consent or operation of law. Neill v. <br />Hake, 93 N.W.2d 821 (1958). <br />Your first question infers that there is a possibility <br />that the 33 feet of public road can be combined with the 17 feet <br />of private road. Based upon case law, it appears that the <br />combination of the two would create an awkward situation at <br />best, for both the City and the developer. <br />2) Can the developer exclude the use of road by land <br />owners to the East? The operation of a plat and the donations <br />to the public within the plat can not extend beyond the use as <br />dedicated. Patterson v. City of Duluth, 21 Minn. 493 (1675). <br />The City is holding the land in trust for the purposes for which <br />it was donated. It does not appear that the developer would <br />have any right to exclude the public from using the 33 feet of <br />property which was dedicated for alley. Again, referring to the <br />way you phrase your question, a combination of the two does not <br />appear to be possible since the 33 feet was dedicated for alley <br />purposes and the additional 17 feet would be used for road <br />purposes.