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MEMORANDUM 1987 TO: Jeanne Mabusth, Bulding & Zoning Administrator._ FP.OM: KABlatz, City Attorney RE: Question of Orono City Staff as to Proposed Combination of Public and Private Road. DATE: August 6, 1987 ---------------------------------------------------------------- In a letter dated July 29, 1987, you asked if 33 feet of undeveloped, dedicated public alley from an established plat could be combined with L7 feet of proposed private road in a proposed plat. You stated that vacating the 33 foot alley would not "provide any advantage to this developer," because once property is vacated the abutting property owners obtained the land up to the center point of the land which was vacated. I will answer your questions in the order you proposed in your July 29 letter. 1) Can the 33 feet of the Public right-of-way be used as Part of a Private road? A municipality holds the qualified or terminable tee title to property dedicated to highway purposes in trust for the people, and it can neither sell nor devote it to a private use. State v. Marcks 36 N.W.2d 549 (1949). After an alley has been dedicatecT and accepted a municipality becomes a trustee and may not divest such pudic rights without public consent or operation of law. Neill v. Hake, 93 N.W.2d 821 (1958). Your first question infers that there is a possibility that the 33 feet of public road can be combined with the 17 feet of private road. Based upon case law, it appears that the combination of the two would create an awkward situation at best, for both the City and the developer. 2) Can the developer exclude the use of road by land owners to the East? The operation of a plat and the donations to the public within the plat can not extend beyond the use as dedicated. Patterson v. City of Duluth, 21 Minn. 493 (1875). The City is holding the land in trust Tor the purposes for which it was donated. It does not appear that the developer would have any right to exclude the public from using the 33 feet of property which was dedicated for alley. Again, referring to the way you phrase your question, a combination of the two does not appear to be possible since the 33 feet was dedicated for alley purposes and the additional 17 feet would be used for road purposes.