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09.f2 City Ownership and Scope of Authority over City Roads and Right of Way [24947-36045/3614436/1] 1 MEMORANDUM To: Mayor and City Council From: Amanda Johnson, City Attorney Date: August 19, 2025 Re: City Ownership and Scope of Authority over City Roads and Right of Way Introduction The City Administrator had asked for a legal memo discussing the City’s ownership of and authority over City roads and right-of-way. In the past, there have been many questions about the scope and limitations of the City’s ownership and authority over City roadways from the Council, staff, and residents. The goal of this memo is to provide a general summary regarding the different ways the City may own or have rights to City roads and rights-of-way, as well as recommended ordinance additions that will better clarify the City’s authority. The City holds ownership over City roads through multiple ways, including: (1) platted roads ; (2) deeded roads; (3) road easements; (4) prescriptive easements; and (5) statutory dedication of roads. Types of City Ownership and Authority 1. Platted Roads Whenever a plat is required for new development or use, new roads are included in the final plat and dedicated to the City as “platted ways,” “public roadways,” or “public right-of-way.” The terms are generally interchangeable and typically mean the same thing. The plat includes the width of the road, which should cover both the paved portion of the road and the boulevard area. The City has the authority to undertake all maintenance, repair and replacement activities necessary for the road within the width provided by the plat. 2. Deeded Roads The City may have obtained roads or portions of roads through language included on a deed transfer. Although this is not a common method anymore, at one point in time when portions of property were sold off, there would sometimes be included in the deed legal description a dedication to the public for related roads. If a deed includes a road dedication, the scope of that authority would be specific to the words of the deed. [24947-36045/3614436/1] 2 3. Road Easements The City may have ownership to a road or a portion of a road through a roadway or right-of-way easement. This is a specific document, recorded with the county, that grants a road interest in land owned by another person. The language of the document describes the scope of the City’s authority as it relates to use, maintenance, repair, and replacement activities as well as the legal description of the land covered by the easement. Each easement document needs to be reviewed separately to determine the scope of the City’s authority. 4. Prescriptive Easements Prescriptive easements have been created through common law and do not come from statutory authority. The common law doctrine of “prescription,” established through caselaw, permits someone to claim easement rights through the combination of (1) the passage of time, and (2) the operation of law. To gain an easement by prescription, the City needs to prove actual, open, continuous, and exclusive use that is hostile or adverse to the actual landowner for at least fifteen years.1 A prescriptive easement does not exist until a court recognizes it as such. Importantly, the only way to actually have a prescriptive easement is to go through a court process. Establishing a prescriptive easement requires filing a lawsuit and presenting evidence to the court to demonstrate the validity of the easement. The process of seeking a court order to obtain the easement is often time-consuming and expensive. Note that prescriptive easements cannot apply to Torrens property.2 In addition, the scope of the City’s authority as it relates to the prescriptive easement is determined by the court. 5. Statutory Dedication of Roads Statutory dedication of roads is addressed in Minn. Stat. §160.05. If a road authority (in our case, the City of Scandia) maintains a road or portion of a road for at least six years continuously, that road becomes dedicated to the public to the width of the actual use and remains a public highway until lawfully vacated. Unlike a prescriptive easement, this occurs through the operation of law and does not require court proceedings. The scope of the City’s authority for a statutorily dedicated road is limited to the actual use and “maintenance of a quality and character appropriate to an already existing public road.”3 When 1 Rogers v. Moore, 603 N.W.2d 650 (Minn. 1999) 2 Minn. Stat. §508.02 3 Town of Belle Prairie v. Kliber, 448 N.W.2d 375, 279 (Minn. App. 1989) (quoting Shinneman v. Arago Twp., 288 N.W.2d 239, 242 (Minn 1980) [24947-36045/3614436/1] 3 considering use, if the City has been using the ditches and areas along the road as part of the public road, those areas should be included within the areas under City control. There are three notable exceptions to statutory dedication. First, statutory dedication does not apply to Torrens property.4 Second, if the roadway in question is a private road,5 there are additional procedures the City must follow.6 Third, statutory dedication does not apply to platted city roads.7 In other words, we cannot use statutory dedication to increase the size or scope of our ownership or authority for a platted road. Street Maintenance Policy The League of Minnesota Cities recommends that cities establish Street Maintenance Policies to address activities like snowplowing, street sweeping, and pothole repair.8 A Street Maintenance Policy is a written document that provides guidance and assistance to employees, provides stronger evidence in the instance of a court case, and demonstrates that the City has a consistent and documented way of performing street maintenance. The policy should include criteria the City uses to determine when a street needs maintenance, the scope of the maintenance, details about how the maintenance will be completed, and any schedules for maintenance and/or inspection. Additionally, the League recommends that cities establish Right-of-Way Ordinances to address the areas on either side of the street as well as below and above the roadway. These ordinances help to regulate utility companies who may wish to install equipment in the right-of-way, as well as guidelines for tree and vegetation placement and the removal or trimming of trees that obstruct clear view or otherwise block the roadway. The City of Scandia has an existing Right of Way Maintenance Policy (“Street Policy”), last amended November 21, 2023.9 This policy is currently codified at City Code § 32.08. The City’s policy specifically addresses reshaping ditches, mowing, culvert repairs, snow removal, and tree removal/trimming. The City also has City Code Chapter 151 regarding right-of-way management. Recommendation – Authorizing Ordinance While the Street Policy and Chapter 151 provides information to residents and guidelines for City staff surrounding street maintenance, it does not fully explain to residents the City’s legal authority to conduct such maintenance. I am recommending that the City consider adopting an ordinance to 4 Hebert v. City of Fifty Lakes, 748 N.W.2d 848, 855 (Minn. Ct. App. 2010) 5 as defined in Minn. Stat. §169.011, subd. 57 6 Minn. Stat. §160.05 subd. 1(b) 7 Minn. Stat. §160.05 subd. 1(a) 8 https://www.lmc.org/wp-content/uploads/documents/Acquisition-and-Maintenance-of-City-Streets.pdf 9https://cms5.revize.com/revize/scandiamn/Document%20Center/City%20Services/PW%20right%20of%20way%2 0maintenance%20policy%20Amended%202023.pdf [24947-36045/3614436/1] 4 officially recognize the City’s legal authority. This ordinance could be particularly helpful for Public Works employees to provide to residents when asked about the City’s authority. Proposed ordinance language: § 151.XX City Authority for Right-of-Way Management A. City Road Ditches. Cities have the power to repair, clean out, deepen, widen, and otherwise improve public road ditches within their jurisdiction and under their supervision pursuant to Minn. Stat. § 160.201. B. Mowing and Related Activities. Minn. Stat. Chapter 18 requires that the City remove the noxious weeds along City roads. The City Council hereby delegates the Public Works Director as the “Local Weed Inspector” and authorizes the Public Works Director or their designees to undertake mowing and other activities as deemed necessary to remove the noxious weeds located along the first 5-7 feet of the shoulder/foreslope area of City roads as depicted in the image below. C. Dedication of Roads. The City recognizes that due to the rural nature and history of the City many of the City maintained roads have been dedicated to the City pursuant to the statutory dedication authorized by Minn. Stat. § 160.05. For City roads dedicated to the City under Minn. Stat. § 160.05, the City Council has determined that the use of the road includes the adjacent ditch and shoulder areas, as the City has engaged in maintenance activities for those areas as well as the paved areas of the roadway. [24947-36045/3614436/1] 5 Council Action and Direction 1. Discuss memo and proposed ordinance with Council. 2. Receive direction from Council regarding ordinance.