James G. Roban, Attorney at Law, 261 Ruth Street, St. Paul, MN 55119 (for Appellant)

Wayne D. Anderson, Anderson & Olson, P.O. Box 142, 106 South Main Street, Stillwater, MN 55082 (for Respondents Forrest and Helen Peters)

Carla J. Heyl, League of Minnesota Cities, 145 University Avenue W., St. Paul, MN 55103-2044 (Amicus Curiae)

Considered and decided by Harten, Presiding Judge, Davies, Judge, and Schultz, Judge.[*]

Appellant Harriet Bergmann appeals from a judgment, arguing that the district court erred in determining the width of a road and concluding that the road did not intersect her property. Because the district court's findings are not clearly erroneous, we affirm.

Trunk Highway No. 98 and the "Old Road" indicated on the plat were established prior to this platting.

Green Lake Avenue and the alley connecting the same with said "Old Road" are hereby dedicated to the public for public use forever.

(Emphasis added). Old Road as it existed in 1948 was much narrower than 66 feet; as traveled, the road did not intersect and provide access to the property now owned by appellant. The road would intersect the northwest corner of appellant's property, however, if established at a width of 66 feet as shown on the 1948 plat.

In 1978, Chisago City authorities sent a letter regarding the road's location to landowners of property along the road. The letter requested that abutting landowners sign a petition agreeing (1) that the road remain as is, and (2) that in the event the road encroaches on their property, in order to maintain the road's alignment, the landowners would dedicate the land without compensation or damages. All affected landowners, including appellant and respondents, signed the petition.

Subsequently, appellant applied to Chisago City authorities for permits that would allow her to build a driveway from her property to the road. Respondents opposed the permit applications and maintained that the city could not issue permits for a driveway over their land because the road as used did not intersect appellant's property. Appellant argued that the road, with a width of 66 feet as shown on the plat, did intersect her property, giving her a right of access. To resolve the dispute, the city brought this declaratory judgment action.

The district court found: (1) that the plat specifically did not dedicate Old Road to the public; (2) that the road was dedicated to the public through use and was limited to the width as traveled and used; and (3) that the road as traveled did not provide access to appellant's property. Accordingly, the district court concluded that the city was prohibited from issuing permits to build a driveway over respondents' property because appellant's property did not have access to a public road. This appeal followed.

A district court's determination of the method by which public dedication occurred is one of fact and will not be reversed unless it is clearly erroneous. Wojahn v. Johnson, 297 N.W.2d 298, 307 (Minn. 1980). Similarly, the width of a public road acquired by public use is a question of fact. Barfnecht v. Town Bd. of Hollywood Township, 304 Minn. 505, 509, 232 N.W.2d 420, 423 (1975). The construction and applicability of a statute is a question of law, however, and thus reviewable by this court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

1. Appellant argues that the district court findings concerning the road's width and her property's lack of access to the road are clearly erroneous. She maintains that the plat dedicated the road to a width of 66 feet by statutory and common law dedication. She claims that the district court erred when it found that the plat did not dedicate the road but that the road's dedication occurred by use. See Bengtson v. Village of Marine on St. Croix, 310 Minn. 508, 509, 246 N.W.2d 582, 584 (1976) (per curiam) (describing the methods by which a public road may be established).

Review of the plat certificate demonstrates that while the plat dedicated Green Lake Avenue and the alley to the public, the plat did not expressly dedicate Old Road. Ordinarily, the lack of specific language dedicating a road to public use would not be fatal as long as the plat clearly established the road. See In re Stein, 256 Minn. 485, 487, 99 N.W.2d 204, 205-06 (1959) (presuming dedication of streets, absent evidence to contrary, where the plat clearly delineated streets).

In this case, however, the plat certificate stated that "Trunk Highway No. 98 and the 'Old Road' indicated on the plat were established prior to this platting." The district court reasonably could conclude that this additional language reflected an intent to maintain Old Road as it existed prior to the 1948 platting because the road had already been established (i.e., dedicated to the public) by a means other than platting. In other words, by showing the location of Old Road without expressly dedicating it, and by acknowledging the road's prior establishment, the plat avoided the duplicative act of re-dedicating the road. Accordingly, we conclude that the district court's finding that the plat did not dedicate the road is supported by the evidence and is not clearly erroneous. The fact that the plat showed a 66 foot width is thus rendered irrelevant.

Appellant also contends that dedication by user is inapplicable to this case because the road is a platted street within a city. See Minn. Stat. § 160.05, subd. 1 (1996) ("This subdivision shall apply to roads and streets except platted streets within cities.") (emphasis added). Because the district court implicitly found that the road was dedicated by user prior to 1948, appellant's reliance on statutory language that became effective in 1957 is misplaced. See Minn. Stat. § 160.121 (1957) (current version at Minn. Stat. § 160.05 (1996)) (extending application of dedication by user statute to include all roads and streets other than platted streets within cities). Moreover, the road was not a "platted street" as contemplated by section 160.05 because the district court found that no plat of record dedicated the road to the public. Having determined that the road was dedicated by user alone, the district court correctly concluded that the road's width was limited to actual use and did not intersect appellant's property. See Barfnecht, 304 Minn. at 508-09, 232 N.W.2d at 423 (holding that road dedicated by user is limited to width of actual adverse use).

2. Appellant argues that the district court erred when it failed to recognize the applicability of Minn. Stat. § 160.09 (1996), which requires that old roads providing access to real estate remain open. We disagree. Section 160.09 applies to changes in location of a road. Id. The district court found that Old Road was dedicated by user and not by the plat. Consequently, the road's location and width was determined by actual use and not by the plat. The district court's ruling did not relocate the road and thereby trigger the application of section 160.09.

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.