By Sarah J. Sonsalla
Establishing and maintaining streets are among the primary responsibilities of a city. But when it comes to balancing the city’s rights with the rights of residents who own property along a street, things can sometimes get complicated.
Establishing a street
It is usually simple to determine if a city’s right to place a street is established. Most city streets are established by plats, which are drawings of a parcel of land, showing where a street is located. The plats are recorded with the property records at the county.
The level of sophistication and detail that is common in plats formed today was not typically present in many early plats established in cities. Courts do not require a lot of technical language or detail in a plat in order to find that an area is dedicated as a street. Generally, simply labeling the streets on a plat is sufficient to show that the original owner of the land meant to dedicate a street to the public.
A city can also establish rights to streets by becoming what is known as a statutory “user.” If a city continuously uses, repairs, and maintains an area of land as a public street for at least six years, a court may find that the area used is a street.
In most cases, cities do not own the land in a street, but have what is legally known as an easement. A street, road, alley, trail, and other public way dedicated or donated to a city on a plat conveys only an easement.
Owners of land along a street typically own the land that the street is on, but their ownership is secondary to the right of a city’s control of a street for public use. In addition, it is the city’s—not the landowner’s—responsibility to maintain the street.
Street right of ways
Street right of ways are much more than the blacktopped area traveled by cars and bikes. A right of way typically includes the area around and above the physical street. Cities may use street right of ways, or easements, for many other things, including sidewalks, skyways, and underground utilities.
Once established, it is difficult for a city to lose its rights in a street right of way. Even if the city never developed an actual street, the city’s rights to a street that were established in plat over 100 years ago are still valid in most cases.
Abandonment of a street
Although in some cases a private party can adversely possess property to establish title over private property, state law prohibits the occupant of a public way from acquiring title by adverse possession.
A private party may prevail, however, if a court finds that the city has abandoned its interest, especially if the area has been built upon by the private party. Legally, a court considers abandonment as an argument about fairness and may prevent a city from enforcing its rights in a street because of some action the city took that was inconsistent with having rights in the street. For example, if the city issued a building permit for a building that the city knew was going to be built in the street, that might be considered abandonment.
There are many interesting cases on the balance between the public’s rights in streets and right of ways versus the private owner’s property rights. In some situations, a city can perform activities within the right of way without having to obtain permission from or compensate the property owner, while in others, the city must get authorization.
For example, although the landowner does have property rights in the trees in the right of way, a city can remove the trees if necessary for a street improvement project without paying the property owner. A city could not, however, remove a tree and shed built upon an undeveloped alley way without establishing how those items were adversely affecting public travel.
Sarah J. Sonsalla is an attorney with Kennedy & Graven, Chartered (www.kennedy-graven.com). Kennedy & Graven is a member of the League’s Business Leadership Council (www.lmc.org/sponsors).
Read the September-October 2013 issue of Minnesota Cities magazine
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