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<br />. <br /> <br />. <br /> <br />. <br /> <br />Item 5.6. <br /> <br />MEMORANDUM <br /> <br />To: <br /> <br />Mayor Klinzing and Members of the City Council <br /> <br />From: <br /> <br />Peter Beck, City Attorney <br /> <br />Re: <br /> <br />Eagle Lake Road <br /> <br />Date: <br /> <br />May 6, 1999 <br /> <br />. - -.-- -...-------------..- -- ~--- <br /> <br />Eagle Lake Road was established as a town road by the supervisors of the Town of Elk River on <br />February S, 1895. Prior to that ~ the road right of way had apparently been a cartway. The town <br />board subsequently vacated the road established in 1895. by Order to Vacate dated February 24, <br />1968. <br /> <br />The question is whether the original cartway remained upon the establishment of Eagle Lake Road <br />as a town road in 1895 and, if so. whether the cartway still remained upon vacation of the town road <br />in 1968. The answeris: <br /> <br />1. <br /> <br />The underlying cartway was extinguished when the town road was established in 1895, and <br />therefore did not remain when the town road was vacated in 1968; and <br /> <br />2. Even if the cartway was not extinguished by establishment of the town road in 1895, it was <br />vacated by the 1968 town board order vacating Eagle Lake Road. <br /> <br />In an opinion dated September 6, 1957 the MiMesota Attorney General determined that prior use <br />of an underlying cartway was immaterial to determining. whether a road had .been properly <br />established, because the action of the town superviso~ converting the cartway into a road established <br />a road in lieu of the cartWay. Therefore. the underlying cartway is extinguished and the resulting <br />interest is a newly created town road. Vacation of this road, therefore. vacates all public interest in <br />the right of way. <br /> <br />Furthermor~ pursuant to Minn. Stat. ~160.02, the term "town roads" includes roads and cartways. <br />Therefore. the procedure required for properly vacating a cartway is identical to the procedure <br />required to vacate a town road. Therefore, if the statutory procedure for vacating a town road is <br />properly followed, that process vacates the town road and any prior, underlying cartway. <br /> <br />The documents which the staff has reviewed indicate that the Eagle Lake Road was properly <br />established in 1895, thus extinguishing the prior cartway; and properly vacated in 1968, thus vacating <br />all public interest in the right of way. <br />