This opinion will be unpublished and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

C9-97-359

City of Sartell, petitioner,

Respondent,

vs.

George H. Lahr, et al.,

Appellants,

Sartell Golf Club, Inc., et al.,

Defendants.

Filed September 9, 1997

Affirmed

Amundson, Judge

Stearns County District Court

File No. C3-96-1257

Robert J. Walter, Hall & Byers, P.A., 1010 West St. Germain, Suite 600, St. Cloud, MN 56301 (for respondent)

Roger D. Neils, Neils, Franz & Chirhart, P.A., 1011 North Second Street, P.O. Box 307 St. Cloud, MN 56302 (for appellants)

Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

Appellants, owners of property adjacent to Pine Cone Road, challenge the district court's determination that the City of Sartell had a 66-foot-wide easement along the road. We affirm.

FACTS

Appellants are owners of property adjacent to Pine Cone Road (road) in respondent City of Sartell (city), formerly Le Sauk township, prior to its annexation. The traveled portion of the road is 11 feet on either side of the road's centerline (22 feet total); the city claimed that it had a public easement for 33 feet on either side of the centerline (66 feet total). The city sought to widen the road, and therefore planned to use eminent domain proceedings for an additional 11 feet on each side of the road (to a total of 88 feet). Appellants argued that the public use did not extend to the 33 feet from the centerline as the city claimed, but that it extended at most to a few feet beyond the traveled portion of the road to include the paved shoulder. In 1996, the city began condemnation proceedings to determine the extent of the city's claim to the road. On November 26, 1996, the district court determined that the city established the road pursuant to Minn. Stat. § 160.05, and that the public's use of the road extended 33 feet from the centerline. Appellants moved for amended findings or alternatively, a new trial; the district court denied the motion. This appeal followed.

D E C I S I O N

The boundary of a public highway acquired by public use is an issue of fact. Barfnecht v. Town Bd. of Hollywood Township, Carver County, 304 Minn. 505, 509, 232 N.W.2d 420, 423 (1975). This court will not overturn a finding of fact unless it is clearly erroneous. Minn. R. Civ. P. 52.01; First Trust Co., Inc. v. Union Depot Place Ltd. Partnership, 476 N.W.2d 178, 181 (Minn. App. 1991), review denied (Minn. Dec. 13, 1991). Further, a denial of a motion for a new trial will not be reversed unless it is "manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict." ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

The district court found that: (1) the public has used the road as a means of travel for a minimum of six years; (2) the city and, formerly, Le Sauk Township have performed maintenance, improvements, and support of the road at the public's expense; and (3) the road extends to 33 feet from the centerline because of yardage needed to maintain the traveled portion of the road. Appellants argue that the district court's finding that the road extended 33 feet from the centerline was clearly erroneous.

Minnesota law dictates:

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.

Minn. Stat. § 160.05, subd. 1 (1996). The supreme court has clarified Minn. Stat. § 160.05, stating:

The width of the prescriptive easement * * * 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.

Barfnecht, 304 Minn. at 509, 232 N.W.2d at 423. The district court specifically found that the road's ditch in-slopes, fill slopes, ditch bottoms, ditch back-slopes, and water-runoff area were part of the road because they supported the safe use of the road's traveled portion. This finding is supported by the extensive testimony of city engineer Sidney Williamson. Williamson testified at length regarding the various dimensions of the road, including the ditch and slope areas to the sides of the road. At one point he spoke in layperson's terms, saying:

[A] rural section of roadway is designed to accommodate the traffic at the surface, but the surface is only part of * * * the roadway itself. * * * [T]here's much more to that mountain than the peak. Well, there's much more to * * * a street or road section than the surface.

The district court's finding that the road extended to 33 feet from the centerline was not clearly erroneous.

Affirmed.