Court of Appeals 07.13.10

with assistance from Caitlin Cragg

The Court released an opinion in Hebert v. City of Fifty Lakes on Tuesday, marking the second time the case has come up for appellate review.  It also for now marks the second round of the City winning the case on motions in District Court and then losing in appellate court.  The key facts: the properties at issue here were registered as Torrens properties in 1953; the City platted a 66-foot roadway abutting the properties in 1954; the road was rebuilt in 1971, but the rebuilders went about 30 to 50 feet outside of the platted right-of-way onto these Torrens properties.  The current owners of the properties sued in 2005 for a declaration that the road encroached on their properties and seeking money damages for the trespass.

Last round, the Supreme Court ultimately held that the public use and maintenance of a road was not a “de facto” taking that limiting affected landowners to a 15-year statute of limitations (which would have run in 1969 or 1986, depending on the stretch of road complained about).  This week, the Court of Appeals pushes further, holding that the “user statute” – which allows cities and towns to own roadways after 6 years of continuous use and maintenance as a public highway – is a form of adverse possession, and therefore is not effective against registered (Torrens) property.  For all of my complaints about judicial opinion-writing lately, the analysis in this one is superb.  It would have been easy enough, and maybe sufficient, to parse some language and conclude, “that looks like adverse possession.”  Instead, Judge Worke reaches back over 100 years to tie together the major decisions interpreting the user statute, demonstrating that the Court’s conclusion is in line with the consistent interpretation of this statute over many years.  The immediate result of this holding is that Fifty Lakes has no title to the “off-course” portion of this road; the City must start eminent-domain proceedings to acquire the right-of-way.  The case is remanded back to District Court, but given the stakes, it seems a given that this will go to the Supreme Court before the City backs down on its claim to title.

Also released this week is the opinion in Zweber v. Scott County, in which the Court sends a subdivision plat back to Scott County with an order to approve the plat.  The County denied the subdivision for perceived failure to meet “interconnectivity” standards for the proposed street network.  On first read, this had potential to be a very disturbing case – requiring streets that connect and doing away with cul-de-sacs is a major part of current land-use planning.  While I think this opinion is a little ridiculous in phrasing its objection (“the ordinance doesn’t specify how many connections are needed to be “interconnected”), the basic problem is that the ordinance fails to define what “interconnected” means in this context.  If a halfway-reasonable definition had been provided, the outcome may have been different.    While ordinance definitions occasionally seem like overkill (and sometimes are), there are still many places where the local ordinance definition completely determines the outcome of a case – accessory uses are a good example.  End result: this subdivision gets approved, and Scott County gets to work on an amendment to fix this hole in its ordinance.


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