IN COURT OF APPEALS
City of Prior Lake,
Reversed and Remanded
Scott County District Court
File No. C0423997
Bradley J. Gunn, Patrick B. Steinhoff, Malkerson Gilliland Martin, L.L.P., Suite 1900, 220 South Sixth Street, Minneapolis, MN 55402; and
Welch, Leonard, Street and Deinard,
Suesan Leá Pace, Joseph G. Schmitt, Halleland Lewis Nilan & Johnson, 600 U.S. Bank Plaza South, 220 South Sixth Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Stoneburner, Judge.
The standard of proof to establish dedication of a road under Minn. Stat. § 160.05, subd. 1 (2004), is a preponderance of the evidence.
Appellant challenges summary judgment granted to respondent city dismissing her action seeking a declaration that a turnaround at the end of a public street had become public under Minn. Stat. § 160.05, subd. 1 (2004).
Mary E. Rixmann owns property in the Breezy Point subdivision of respondent
Did the district court err in concluding that Rixmann failed to establish a genuine issue of material fact on her claim that the city kept the turnaround in repair for at least six years as required for statutory dedication under Minn. Stat. § 160.05?
appeal from summary judgment, we ask: (1) whether there are any genuine issues
of material fact and (2) whether the district court erred in its application of
by Cooper v. French, 460 N.W.2d 2, 4 (
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.
Although the statute does not use the term “maintenance,” case law has consistently referred to the “kept in repair” language of the statute as “maintenance.” See Foster v. Bergstrom, 515 N.W.2d 581, 585-6 (Minn. App. 1994) (citing Shinneman v. Arago Twp., 288 N.W. 2d 239, 242 (Minn. 1980) for the proposition that “[d]esignation as a public street requires (1) use by the public and (2) maintenance by an appropriate government agency (3) over a continuous period of at least six years.”).
sufficiency of public use and maintenance under the statute is a fact
I. Standard of proof
The parties disagree on the standard of proof by which Rixmann must establish the maintenance requirement of the statute. The district court determined that Rixmann failed to present sufficient evidence of maintenance to create a genuine issue of material fact, but the district court did not address the parties’ dispute about the standard of proof. Because there is some confusion in the case law regarding the standard of proof required for statutory dedication, we first address that issue.
proper standard of proof is a question of law.
Petition of N. States Power Co.,
402 N.W. 2d 135, 138 (
The city argues that clear and convincing evidence is required to establish statutory dedication, citing Foster, in which this court stated that statutory dedication requires “clear and convincing evidence” of public use and maintenance for six years. 515 N.W. 2d at 586. But the standard of proof was not an issue in Foster, and Rixmann correctly notes that neither the statute, which is silent as to the standard of proof, nor the case law prior to Foster, supports the standard of proof articulated in Foster. Foster relied on Town of Wells v. Sullivan, 125 Minn. 353, 355, 147 N.W 244, 245, (1914), which stated that “[t]here must be definite and clear evidence that . . . work, appropriate to keep public roads in proper condition, was done at public expense or by the public authorities.” 515 N.W.2d at 586. But Foster failed to note a case issued subsequent to Town of Wells that clarified the quotation, stating:
While its language refers to the necessity for “definite and clear evidence” of maintenance work under public auspices and at public expense, it is not to be taken that the performance of such work must be proven by anything more than the usual preponderance of evidence.
v. Strickler, 159
II. Evidence of public maintenance
“To satisfy the
maintenance requirement, the ‘maintenance must be of a quality and character
appropriate to an already existing public road.’” Town of
Belle Prairie v. Kliber, 448 N.W. 2d 375, 379 (Minn. App. 1989) (quoting Shinneman, 288 N.W.2d at 242). “It is not necessary that every part of a
road be worked at government expense or that any particular part receive
attention every year of the 6-year period.”
Leeper v. Hampton Hills, Inc.,
argues that evidence of public use for more than six years creates a reasonable
inference that the turnaround was kept in sufficient repair by the city to
permit the public use. Rixmann argues
that this inference, coupled with direct evidence of maintenance, is sufficient
to defeat summary judgment. Rixmann also
argues that the presence and maintenance of utilities in the center of the
turnaround and evidence that the city plowed snow from the turnaround for more
than six years is further evidence that the turnaround was maintained as part
of the public road. The record shows
that the city included plans for the turnaround in the 2004 road improvement
The city argues that its activities in the turnaround cannot be characterized as the type of repair work contemplated by the statute because it was merely doing what was necessary to access public utilities it maintained in the turnaround for which the city has an easement. But the city only obtained an easement for the utilities after Rixmann asserted statutory dedication, and the record is silent about how the utilities came to be located and maintained by the city in the center of the turnaround prior to the easement.
city argues that Rixmann has failed to provide evidence that its maintenance of
the turnaround was of the “quality and character appropriate to an already
existing public road” as required by
Shinneman, 288 N.W.2d at 242. The
city produced evidence that it has not performed “typical” road work such as
oiling, gravelling, or sweeping, and therefore Rixmann has “essentially conceded”
that the city did not maintain the turnaround as required for a determination
of dedication. But as noted above, the cases
on statutory dedication hold that Rixmann only has a burden to show that necessary work was performed over a six
year period. Rixmann presented evidence
that the work performed by the city in the turnaround, including snow plowing,
not only equaled, but exceeded work performed on the rest of
oral argument before this court, the city argued for the first time that road
maintenance cannot be sufficient for dedication if the road authority did not intend
for dedication to occur, citing Wojahn v.
Johnson, 297 N.W.2d 298, 307 (Minn. 1980).
But Wojahn merely affirmed a
trial court’s conclusion that there was no statutory dedication where the town
board had not authorized maintenance and any work performed was done voluntarily
by individual workers as a favor to the landowner.
city cites a number of cases as examples of “similar circumstances” in which courts
have held that evidence of maintenance was insufficient to establish statutory
The district court characterized Rixmann’s evidence of maintenance by the city “weak,” and stated that “it is unlikely that [Rixmann] presented sufficient evidence that the [c]ity ‘maintained’ the [t]urnaround.” But a weak showing and unlikely success at trial does not justify a grant of summary judgment. The district court concluded that summary judgment was appropriate, because the record was “essentially devoid of evidence that the [c]ity performed maintenance on the [t]urnaround for six years.” The district court stated that “[o]ne lone project in 2004 would clearly be insufficient to satisfy the six year requirement.” But as noted above, the maintenance element of the statute does not require that work be performed every year for six years.
We conclude that the district court improperly weighed the evidence in light of what it perceived Rixmann must prove to succeed at trial, rather than applying the summary judgment standard. The district court stated, “it would seem impossible for [Rixmann] to sustain her burden and prove maintenance by the City for six years based upon testimony of individuals whose personal knowledge of such events would extend to three or four years at the most.” But Rixmann’s chance of success at trial is not relevant to the issue of whether she presented sufficient evidence to defeat summary judgment. DLH, Inc., 566 N.W.2d at 71.
The standard of proof for dedication of a road under Minn. Stat. § 160.05, subd. 1 (2004) is a preponderance of evidence. Viewing the evidence in this case in the light most favorable to Rixmann, we conclude that she has raised a sufficient issue of fact regarding the city’s maintenance of the turnaround to withstand summary judgment on her action to declare the turnaround public under Minn. Stat. § 160.05, subd. 1. Reversed and remanded.
 This case appears to be the first time that Minn. Stat. § 160.05 has been invoked to establish statutory dedication against the wishes of the road authority in question.
 At oral argument before this court, the city asserted that the utilities were maintained on a private driveway by verbal agreement with Spielman and Schweich, but conceded that there is no evidence of such an agreement in the record.