This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat 480A.08, subd. 3 (1996)

STATE OF MINNESOTA
IN COURT OF APPEALS
C6-98-99

City of Stillwater,
Respondent,

vs.

Patricia Ann Hansen,
Appellant,

Cindy Koosman, in her capacity as
Washington County Registrar of Titles,
Defendant.

Filed August 18, 1998
Affirmed
Crippen, Judge

Washington County District Court
File No. C1971405

James G. Golembeck, Cara J. Debes, Jardine, Logan & O'Brien, P.L.L.P., 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101-2160 (for respondent)

Gary A. Van Cleve, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431-1194 (for appellant)

Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Schultz, Judge.*

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

By summary judgment, the trial court determined that respondent's claim of statutory dedication of a pathway in a residential neighborhood in Stillwater was valid. Appellant contends that she is entitled to a trial to determine, inter alia, whether respondent was in possession of the pathway after 1983. Absent such possession, appellant asserts any right-of-way claim respondent may have had expired under the Marketable Title Act. Concluding that respondent proved essential facts by undisputed evidence, we affirm the trial court's determination that respondent established its claim and defeated appellant's affirmative defenses.

FACTS

In 1992, appellant Patrician Hansen purchased property located in the City of Stillwater. Appellant's property sits at the top of a bluff and runs northerly, down the bluff, to the southwest edge of State Highways 36 and 95, which is an extension of Stillwater's Main Street. The parcel lies north and west of the end of a north-south road that serves as a northerly extension of Fourth Avenue South, a north-south Stillwater street. The east boundary of appellant's property runs 10 feet west of a line extending directly north from the centerline of Fourth Avenue South, over the bluff and down to the highway.

Appellant's property was formerly a part of a limestone quarry, and a pathway traversed the property in a northwesterly direction, permitting movement up and down the bluff, between the highway and what is now the northerly extension of Fourth Avenue South. Historically, the pathway was used by the quarry to haul limestone and by the public for pedestrian and vehicular access to downtown Stillwater. The pathway in recent years has been solely used for pedestrian traffic. The location of the pathway brings traffic inside the boundary of appellant's property, next to the yard of her home.

Appellant succeeds to title conveyed in a 1946 warranty deed. The pertinent legal description included an easement interest in a 20-foot strip that lies immediately next to the easterly edge of appellant's parcel. Unlike the pathway, the easement runs directly north from Fourth Avenue South, down the bluff to the highway. The title was registered in 1985 and included the easement as originally depicted in the 1946 deed.

In the 1930's, the highway was widened and concrete steps were installed at the bottom segment of the pathway. The path was well lit prior to 1965 and until the 1980's it continued to be used regularly for pedestrian traffic. The respondent city maintained the pathway during this period of time, including snow removal, mowing and brush removal. After the closure of several local factories in the early 1980's, the pathway fell into disuse, and between 1983 and 1994 it became increasingly eroded and overgrown.

In 1994, during a sewer and water line project, respondent became aware that the easement described in the deeds did not conform to the actual pathway location. Respondent subsequently entered into two utility right-of-way agreements with appellant. The agreements provided for the installation of a sewer line "that generally follows what is known" as Quarry Lanes (along the south boundary of appellant's property) and Quarry Path (the pathway down the bluff).

After the sewer project was completed in October 1994, the pathway was sodded and thereafter pedestrian traffic increased. Two years later appellant constructed a boulder wall, planted roses, installed a wire fence, and posted no trespassing signs. In January 1997, respondent city brought this action, seeking a determination that the pathway was a public way; an order that the legal description of the pathway be memorialized on appellant's certificate of title; and an injunction enjoining appellant from interfering with public use of the pathway. In its judgment, the trial court (a) rejected appellant's denial of an alleged way, (b) rejected her several defenses, including claims under the Marketable Title Act and the Recreational Dedication Statute, and (c) dismissed her damages claims, and granted summary judgment in favor of respondent.

D E C I S I O N

On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The evidence is viewed in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

1. Statutory Dedication.

The trial court held and we agree that the pathway is deemed dedicated as a public street by virtue of its undisputed public use and maintenance for over six years. Minn. Stat. 160.05, subd. 1 (1996). The undisputed affidavit testimony of several local residents establishes that Stillwater's Public Works Department mowed and removed snow from the pathway from the 1930's to 1984. Thus, respondent performed the maintenance necessary to satisfy the statutory dedication requirements. Id. (statutory dedication requires evidence of maintenance by a road authority for at least six years); see, e.g., Ravenna Township v. Grunseth, 314 N.W.2d 214, 218 (Minn. 1981) (four instances of grading and graveling in 24 years "substantially less" than that required by Minn. Stat.  160.05).

Once statutory dedication has been established as a matter of law, the party challenging the municipality's interest bears the burden of proving an affirmative act of abandonment or estoppel. See Village of Newport v. Taylor, 225 Minn. 299, 305, 30 N.W.2d 588, 592 (1948). Mere nonuse is not sufficient to show abandonment. Rein v. Town of Spring Lake, 275 Minn. 79, 83, 145 N.W.2d 537, 540-41 (1966); City of Rochester v. North Side Corp., 211 Minn. 276, 279, 1 N.W.2d 361, 363 (1941) (an estoppel arises where there is long-term nonuse coupled with the good faith possession by private parties who believe that use as a street has been abandoned and without objection erect improvements, so that to reclaim the land would result in great damage). Here, we have evidence of neither estoppel nor an affirmative act of abandonment.

2. Marketable Title Act.

Appellant contends that the Marketable Title Act provides her with a defense against respondent's claim because (a) she has a "claim of title based upon a source of title, which source has then been of record at least 40 years" and (b) respondent is conclusively presumed to have abandoned any interest it may have had because it failed to record its interest in the property within 40 years from the date that interest was established. Minn. Stat. 541.023, subds. 1, 5 (1996). Although mere non-use does not defeat an established public right-of-way interest, a public right-of-way claim is subject to the Marketable Title Act. Sterling Township v. Griffin, 309 Minn. 230, 234-35, 244 N.W.2d 129, 132 (1976).

The trial court concluded that it could equitably reform the 1946 easement to cover the pathway that actually existed, thus giving the city a recorded interest that defeats the Marketable Title Act. There is no authority permitting the court to find a recorded interest in a document that does not address that interest but rather addresses another. Because the 1946 deed did not grant respondent an easement for the pathway, the trial court erred in concluding that appellant's Marketable Title Act's defense was defeated on the ground that respondent had a recorded easement satisfying the 40-year rule. Thus, the act creates a presumption of abandonment.

But the Marketable Title Act does not bar respondent's claim if respondent was "in possession" of the pathway when the action was commenced. Minn. Stat. 541.023, subd. 6 (1996) ("[t]his section shall not * * * bar the rights of any * * * corporation in possession of real estate"); Ravenna Township, 314 N.W.2d at 219 (a conclusive presumption of abandonment of the road exists under subdivision 5 unless the possession exception under subdivision 6 applies). The possession contemplated needs to be sufficient to provide substitute notice. Id.

Appellant erroneously concentrates on considerable evidence as to the decline of use between 1983 and 1994, which the trial court acknowledged. In fact, there is ample evidence that the use, albeit diminished, continued during those years. And more currently, undisputed evidence shows that after 1994 the use became more evident; this evidence includes appellant's references to use by a runner. The direct evidence of use is materially confirmed by the serious concerns of appellant and her concerted effort to block access to the pathway.

The statute declares that the inquiry occurs upon commencement of the proceedings and speaks of possession at that time. See Sterling Township, 309 Minn. at 237-38, 244 N.W.2d at 134 (affirming the trial court's findings, which included that the township "was not in possession * * * at the time of the initiation of this action"). The use after 1994 was "present, actual, open, and exclusive," so much so that appellant was moved to substantial efforts to stop it. B.W. & Leo Harris Co. v. City of Hastings, 240 Minn. 44, 49, 59 N.W.2d 813, 816-17 (1953) (distinguishing possession that is equivocal or ambiguous, that is, possession that fails to "put a prudent person on inquiry").

3. Recreational Dedication Statute.

Appellant asserts, alternatively, that respondent's claim fails because Minn. Stat. 604A.27 (1996) provides that no dedication is permitted for recreational use "except as expressly permitted or provided in writing by the owner." There is no evidence that the public came to the pathway to use it for recreational purposes, but rather it was only used as part of an established route between two public streets. The fact that pedestrians and a runner used the pathway is evidence of its utility for transportation purposes, and there is no evidence that people came to the path as a recreational site or used it to reach such a site.

4. Damages.

Appellant sought damages for respondent's failure to stay within the confines of the 1994 sewer easement. Although there is evidence that respondent did not stay within the boundaries of the 1994 easement, there is no evidence that they encroached on appellant's property on the basis of the right-of-way interest that has now been established.

Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, 10.