Historic use and maintenance of established unpaved trail as public road

by Victoria Heldt

Clearwater County Board v. Terrance Bowman
(Minnesota Court of Appeals, May 21, 2012)

Mallard Grade is a 10-mile long, unpaved trail in Clearwater County.  It runs north from state highway 200 and was originally a railroad used to transport logs.  The rails were removed in 1913 and since then the trail has been “regularly used for logging, hunting and recreation by the public and for forestry management by the County.”  Terrance Bowman owns land that he purchased in 1996 that intersects Mallard Grade.  In 2009, Bowman erected a gate across Mallard Grade where it enters his property from the south.  Clearwater County requested, both formally and informally, that he remove the gate, but he refused.  The County brought this action to have Mallard Grade declared a public road and to prohibit Bowman from blocking it with a fence.

Minn. Stat. § 160.05 states “when any road or portion of a road has been used and kept in repair and worked for at least six years continuously as a public highway by a road authority, it shall be deemed dedicated to the public to the width of the actual use and be and remain, until lawfully vacated, a public highway whether it has ever been established as a public highway or not.”  The issues taken to district court were (1) whether Mallard Grade was used or worked for six continuous years and, if so, (2) the width of the road.

The County brought forth a team of several witnesses to describe the character and usage of Mallard Grade.  Bruce Cox, the County’s Land Commissioner, testified that the vegetation growth on either side of the trail show that the county had historically maintained the trail to a width of 18 feet and that it had provided “very little maintenance” to the trail.  Milo Fultz, a retired forester and road worker, testified that he installed culverts, trimmed vegetation, filled holes, bladed, and spread gravel over the trail annually for eight to ten years during the 1980s and 1990s.  He estimated the trail to be between 16 and 18 feet wide.  Nicholas Severson, another former forester, testified that he bladed Mallard Grade annually between 1990 and 2004 and that the trail was about 18 feet wide.

Gary Anderson, a township supervisor, stated he used Mallard Grade for logging operations since the 1970s until Bowman put up the gate in 2009.  Virgil Norquist, a property-owner near highway 200 since the mid-1930s, testified that the trail was about 18 feet wide in the 1970s and 1980s.  John Miller, another property-owner, testified that he began using the trail before 1945 to access hunting grounds and that it was best maintained during the 1980s when the logging operations were active.  Bowman testified, however, that the County had not maintained Mallard Grade since he purchased the property in 1996.  He further testified that the trail was only seven and one-half feet wide.

The district court found that Mallard Grade has been used by the public since at least the 1940s and that the County has maintained the trail for eight to ten consecutive years.  It determined the road to be 18 feet wide and to be a public road pursuant to section 160.05 of Minnesota statute.  Bowman appealed.

Bowman first challenged the court’s determination that the road had been kept in repair for at least six years as required by statute.  The Court looked to the extent of the maintenance how it compared to the requirements.  In a previous case brought under the same statute, it was determined that “the maintenance must be of a quality and character appropriate to an already existing public road.”  In Ravenna Twp. v. Grunseth, the Supreme Court ruled a road had not been properly maintained because the county had not installed ditches or culverts and had only graded and graveled the trail twice in 40 years.  In Leeper v. Hampton Hills, Inc., the Supreme Court concluded that a road had been properly maintained by installing culverts, grading and graveling the trail, and plowing the snow during the winter.  The Court noted that the maintenance performed on Mallard Grade was more like that done in the Leeper case than in the Ravenna Twp. case since several people testified to filling potholes, clearing brush, blading, and spreading gravel on the trail.  It determined the trail had indeed been properly maintained for at least six years.

Bowman next argued that the trial court erred in light of his testimony that he never saw any maintenance on Mallard Grade take place since 1996.  The Court concluded that his argument was flawed.  The trail was made into a public road before Bowman purchased his property in 1996 by the fact that the trail had been maintained since the 1980s according to the witnesses.  The road only needed to be maintained for six years from that time on to be considered a public road.

Bowman then challenged the district court’s finding that the road measures 18 feet wide.  The Court noted that a statutorily-dedicated road is established “to the width of the actual use” (Minn. Stat. §160.05, subd. 1).  and that the width of a road “is not limited to that portion of the road actually traveled; it may include the shoulders and ditches that are needed and have actually been used to support and maintain the traveled portion.”  The district court provided an exhibit describing the trail as 18 feet wide.  That conclusion was supported by the testimonies of Cox, Fultz, Severson, Norquist, and Anderson, who all testified about the historical use of the road.  The Court determined the district court’s findings were supported by the record.  It affirmed the decision.





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