5.6. SR 05-10-1999
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Item 5.6.
MEMORANDUM
To:
Mayor Klinzing and Members of the City Council
From:
Peter Beck, City Attorney
Re:
Eagle Lake Road
Date:
May 6, 1999
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Eagle Lake Road was established as a town road by the supervisors of the Town of Elk River on
February S, 1895. Prior to that ~ the road right of way had apparently been a cartway. The town
board subsequently vacated the road established in 1895. by Order to Vacate dated February 24,
1968.
The question is whether the original cartway remained upon the establishment of Eagle Lake Road
as a town road in 1895 and, if so. whether the cartway still remained upon vacation of the town road
in 1968. The answeris:
1.
The underlying cartway was extinguished when the town road was established in 1895, and
therefore did not remain when the town road was vacated in 1968; and
2. Even if the cartway was not extinguished by establishment of the town road in 1895, it was
vacated by the 1968 town board order vacating Eagle Lake Road.
In an opinion dated September 6, 1957 the MiMesota Attorney General determined that prior use
of an underlying cartway was immaterial to determining. whether a road had .been properly
established, because the action of the town superviso~ converting the cartway into a road established
a road in lieu of the cartWay. Therefore. the underlying cartway is extinguished and the resulting
interest is a newly created town road. Vacation of this road, therefore. vacates all public interest in
the right of way.
Furthermor~ pursuant to Minn. Stat. ~160.02, the term "town roads" includes roads and cartways.
Therefore. the procedure required for properly vacating a cartway is identical to the procedure
required to vacate a town road. Therefore, if the statutory procedure for vacating a town road is
properly followed, that process vacates the town road and any prior, underlying cartway.
The documents which the staff has reviewed indicate that the Eagle Lake Road was properly
established in 1895, thus extinguishing the prior cartway; and properly vacated in 1968, thus vacating
all public interest in the right of way.